October 23, 2020

Election Audits in NJ 2020

It has been well understood for more than 15 years that computerized voting machines can be hacked to make them cheat (or might be misconfigured by accident), and therefore it is essential to have random audits of the ballots. That is: Human inspection of paper ballots that the voters marked, of a random sample of the ballots or ballot-boxes (batches); so that if the computers had been hacked (or misconfigured) to produce the wrong outcome, there is a good chance (statistically speaking) of catching and correcting the error.

New Jersey’s Legislature passed such an audit law in 2007, shortly after they passed a law requiring paper ballots. The paper ballot law was “suspended” in 2008–most counties still use paperless touchscreen voting machines–but the audit law remains in force. So, New Jersey’s law requires the audits of paper ballots that don’t exist.

In 2019, things started to change: three or four counties purchased voting machines with a paper trail, and the Division of Elections (correctly) determined that those counties must perform audits.

The gold standard for election audits is the Risk-Limiting Audit, a class of methods that combines high assurance with high efficiency. New Jersey’s law does not prescribe RLAs, because back in 2007 those were not well understood. New Jersey’s audit law was pretty good for its time, but RLAs are more effective and it would be a good idea to update the law.

In 2019, the Division of Elections did some “pilot audits,” using the RLA method on three or four county-level elections in those counties that had paper-ballot equipment. These were for the purpose of training local election administrators in how RLAs work, learning about the process, adapting RLAs to New Jersey’s equipment and regulations, and so on.

In 2020, things changed a lot more: the November 2020 general election will be conducted almost entirely with hand-marked paper ballots, as a public-health measure during the COVID-19 pandemic. The vast majority of ballots will be mail-in ballots (that can returned, in their signed envelopes, either by U.S. mail, in county drop-boxes, or at polling places). Voters who wish to may vote in-person on November 3rd at a polling place, using a provisional ballot (also a hand-marked paper ballot). (Provisional, to give election administrators the ability to ensure that nobody votes by mail and in person.) A tiny proportion of votes will be on paperless DREs that have disability accommodations, for voters who cannot mark a paper ballot and do not wish to vote with assistance on a paper ballot.

So, for the first time in more than a century, New Jersey will have a (practically) all-paper-ballot election, and you might think that the 2007 audit law will finally come into force. And apparently the Governor thinks so as well!

Governor Phil Murphy’s Executive Order 177, dated August 14th (in the 245th year of the Independence of the United States) outlines the many emergency procedures that will accommodate this year’s election to the pandemic. Some of the more major components of this EO were (2 weeks later) passed as laws by the Legislature.

Among the provisions of the Order are that “to allow enough time for results to be certified prior to the meeting of electors, N.J.S.A. 19:61-9(c)(8) is suspended, and counties may certify their election results prior to the commencement of the election audit required in N.J.S.A. 19:61-9.”

That is, normally the audit must be complete before election results are certified. (This is essential, to make audits meaningful.) This year, that deadline is suspended. But the rest of the Audit statute is not suspended, including, “Within a reasonable period of time after the final vote count after an election, the Attorney General, with the audit team, shall determine and then announce publicly the election districts in the State in which audits shall be conducted, and within 24 hours of that announcement, the audit shall be commenced.” That is, the audit must be commenced “within a reasonable period of time.”

Certification of election results must be done by November 20th, in part so that New Jersey can meet its Federal “safe harbor” deadline of December 8th to choose Electors. Because of the unprecedented (for New Jersey) all-by-mail-and-provisional-ballot election, county election officials may need all of those days between November 3rd and November 19th to finish counting the votes, and may not have time to do audits before November 20th.

The Secretary of State has informed county election officials that the audits shall take place between November 23 and December 4. Normally I would like to see the audits completed before results are certified, as the law requires. But this seems like a reasonable compromise in light of the pandemic. Completing the audits by December 4th means:

  • If the audit uncovered anything drastically wrong in the Presidential election, there’s still time to do something before December 8th.
  • If the audit uncovered anything drastically wrong in any other election, there are several weeks before Inauguration day (for Congressional offices), and recounts can be done.

New Jersey’s audit law could still use some updating, but audits using the current law are far better than no audits. I hope that in future years, New Jersey continues to use all-hand-marked paper ballots; that in future years, the timetable for counting votes allows audits before certification as the law requires; and that (based on experience with statutory audits and pilot RLAs) the Division of Elections recommends to the Legislature that the law be updated to more modern methods.

And one more thing: The statute requires that the chief election official shall appoint an independent audit team to design the audit, and the “procedures and assumptions shall be published prior to any given election, and the public shall have the opportunity to comment thereon.” If the audit team has been appointed, I urge them to comply with the law and publish their procedures soon.