Election Website Tampering: Relevant Criminal Laws and Enhancing Deterrence
INTRODUCTION
Imagine: It is November 5, 2024—election night. All states but Wisconsin have declared their results. With the presidency hanging in the balance, Wisconsin’s vote counting stretches into a second day. Suddenly, thousands of Donald Trump votes disappear from the election results websites of three Wisconsin counties. Wisconsin shockingly turns from red to blue on CNN, Fox, and MSNBC. On The New York Times’s website, the election predictor needle swings wildly in the opposite direction from where it sat moments before. The Times announces that there has been a tabulation error, revealing that Trump has thousands of fewer votes than initially shown. Kamala Harris has won Wisconsin and, consequently, the election. Protests erupt throughout the country as Republicans insist the presidency has been stolen. Where did the missing Trump votes go?
One week later, a preliminary investigation reveals the cause of this dramatic change: foreign actors hacked those three counties’ election results websites, artificially inflating Trump’s vote count in an attempt to muddy Harris’ legitimate victory in the state. Fortunately, authorities discover the intrusion and correct it. No actual votes were impacted—the hack merely altered the results shown on the counties’ tabulation websites. But for the American people, who are now more divided and less trusting of governmental institutions than ever, the damage is done. Trump calls for a new election in Wisconsin, and the Republican Party stands behind him in those efforts. Lawsuits and unrest follow. In order to prevent the violent disruption of the counting of electoral votes, Washington, D.C., becomes a military encampment on January 6, 2025.
Though we may want to believe otherwise, this is not a wildly unrealistic scenario. It is, in fact, shockingly realistic. Unofficial election tabulations are critical to the media’s ability to project election results Footnote #1 content: See Lenny Bronner, Emily Liu & Jeremy Bowers, What the Washington Post Elections Engineering Team Had to Learn About Election Data, WASH. POST: MEDIUM (Apr. 28, 2022), https://washpost.engineering/what-the-washington-post-elections-engineering-team-had-to-learn-about-election-data-a41603daf9ca; Joe Pompeo, “Certain Readers May Have a Nervous Reaction”: The New York Times Election Needle Is Back, With a Few New Safety Features, VANITY FAIR (Nov. 5, 2018), https://www.vanityfair.com/news/2018/11/the-new-york-times-election-needle-is-back-with-a-few-new-safety-features; How Does The Times Get Live Election Results?, N.Y. TIMES (Nov. 7, 2022), https://www.nytimes.com/2022/11/07/us/politics/times-results-pages-how-data.html (“We report vote totals provided by The Associated Press, which collects results from states, counties and townships through a network of websites and more than 4,000 on-the-ground correspondents. . . . [O]ur team of data journalists and software engineers gathers vote tallies directly from the websites of election officials and compares these with our turnout expectations.”); How AP Counts the Vote, ASSOCIATED PRESS, https://www.ap.org/about/our-role-in-elections/counting-the-vote#:~:text=Vote%20count%20reporters%20and%20vote,up%20and%20down%20the%20ballot [https://perma.cc/KY8T-LHKP] (last visited Oct. 21, 2024). and can currently be easily breached and tampered with. Footnote #2 content: See Brett Molina & Elizabeth Weise, 11-year-old Hacks Replica of Florida State Website, Changes Election Results, USA TODAY (Aug. 14, 2018, 12:20 PM), https://www.usatoday.com/story/tech/nation-now/2018/08/13/11-year-old-hacks-replica-florida-election-site-changes-results/975121002/ [https://perma.cc/8U9S-SWRQ]; Michael D. Regan, An 11-year-old Changed Election Results on a Replica Florida State Website in Under 10 Minutes, PBS (Aug. 12, 2018, 5:00 PM), https://www.pbs.org/newshour/nation/an-11-year-old-changed-election-results-on-a-replica-florida-state-website-in-under-10-minutes [https://perma.cc/J95X-EXEB]. Unofficial election tabulations are vulnerable to attack, and, as demonstrated by this scenario, the consequences of meddling with them can be enormous. This Note will discuss the current state of, and overlap between, unofficial election tabulations and election-related misinformation. Additionally, this Note will analyze the application of relevant federal criminal laws to the unauthorized modification of unofficial election results, most prominently, The Computer Fraud and Abuse Act (CFAA) Footnote #3 content: See Computer Fraud and Abuse Act, Pub. L. No. 99-474, 100 Stat. 1213 (1986) (codified as amended at 18 U.S.C. § 1030). and a 2020 law that amended the CFAA, The Defending the Integrity of Voting Systems Act (DIVSA). Footnote #4 content: See Defending the Integrity of Voting Systems Act, Pub. L. No. 116-179, 134 Stat. 855 (2020) (codified as amended at 18 U.S.C. § 1030(e)). This Note will further provide an overview of the relevant Sentencing Guidelines for a possible breach of this type. Finally, this Note will describe the state of criminal law in this area and argue that the enhanced protections the DIVSA inadvertently provided against the manipulation of unofficial election results should be utilized to adapt the Sentencing Guidelines to further deter actors in this particularly vulnerable area that is critical to the functioning of our democracy. Footnote #5 content: This Note will mainly discuss the problem of unofficial election website tampering in the context of presidential elections, but the impact of tampering in local, state, and other federal elections remains pertinent as well.
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