A formal settlement agreement has been submitted to the NJ Superior Court regarding online ballot access in the 2020 elections.
On May 4, 2020, New Jersey’s Division of Elections was caught trying to adopt vote-by-Internet on the stealth, even though the law forbids it. That is, not only is Internet voting inherently insecurable, there’s a 2010 Court Order still in effect that says, “computers utilized for election-related duties shall at no time be connected to the Internet.” That’s based on the New Jersey Superior Court’s finding that “As long as computers, dedicated to handling election matters, are connected to the Internet, the safety and security of our voting systems are in jeopardy,” in the case of Gusciora v. Corzine.
Penny Venetis, attorney for the Gusciora plaintiffs, filed a motion (in early May) with the Court, to make the State abandon its plans for online voting, on the basis that receiving ballots e-mailed or uploaded on the Internet clearly violates this order. The Court ordered the parties to reach a settlement by June 8, or report their separate positions.
The State’s initial position was that they would use Democracy Live’s “OmniBallot” online voting system, that permits the voter to choose (1) ballot download (for printing and marking at home), (2) ballot download and mark-on-home-computer (for the voter to print and physically mail), or (3) ballot upload through Democracy Live’s portal. Democracy Live’s voting system is insecure in all sorts of unsurprising and surprising ways. Even so, the State proposed to use this for disabled voters, overseas and military voters, and, basically, any voter who wanted to use it. Doing so would leave New Jersey’s 2020 election extremely insecure.
Plaintiffs’ position was that (1) ballot download has several security problems and should therefore be limited to voters who absolutely need it, specifically, voters with disabilities and military/overseas voters; (2) computerized ballot marking has even more security problems and should be limited to voters with disabilities that prevent them from hand-marking a paper ballot; (3) no votes should be transmitted over the internet; and (4) if the State is outsourcing ballot-delivery services to private companies, then those companies should not snarf and resell all sorts of personal information about voters and their browser-fingerprints.
The parties did reach a compromise settlement; in mid-June they agreed:
- An “electronic ballot access or delivery system” may be used only for public health purposes during the July 2020 primary and November 2020 general election, only for voters with disabilities and military/overseas voters.
- Unvoted ballots may be electronically delivered to those voters.
- Voters with disabilities may print the unvoted ballot for hand marking and return by U.S. mail or other nonelectronic means; the military or overseas voters may print the ballot for hand marking and then return it by the means specified for them in New Jersey law (N.J.S.A. 19:59).
- A voter with a disability who is unable to mark a ballot by hand may be given the choice to use accessible technology to indicate vote selections on the computer, then print and mail (or otherwise physically return) the paper ballot.
- Voters’ ballot selections (votes) are never to be transmitted over the internet. No personal voter information (or information about the voter’s computer or browser) may be gathered, analyzed, or sold.
- The State will follow these rules (and write them into vendor contracts) for the July primary. If the State contemplates using any system in November that does not satisfy these criteria, the State must notify the Plaintiffs no later than August 21st — and if they do so, the schedule is laid out for Plaintiffs and the State to file briefs in whatever lawsuit might ensue.
Although the State didn’t tell us until much later, on May 28th they put out a Request for Bids for a system satisfying our criteria; by June 7th they had already selected a vendor (Voting Works) whose product looks a lot more respectful, compared to Democracy Live, of basic election security principles and voters’ privacy (based on the bid document that Voting Works sent to the State, and on an interview with an executive at Voting Works).
Even so, during the settlement negotiations in early June the State vigorously resisted admitting that Internet voting is not permitted by New Jersey law. That’s even though: New Jersey statutes clearly enumerate what kinds of voting systems are permissible, and Internet voting is not among them; the statutes clearly lay out the certification requirements for voting systems, and Internet voting is not certified; and the Court Order pretty clearly says that voting systems are not to be connected to the Internet.
Based on the compromise agreement, at least this time the State can’t covertly adopt Internet voting. If the State notifies Prof. Venetis on August 21 that they’re planning to use some sort of on-line voting system that does not satisfy the criteria enumerated above, then she will seek a court order to prevent any internet-based system from being used. Based on the language of the court’s 2010 order “computers utilized for election-related duties shall at no time be connected to the Internet” and the court’s 2010 opinion (quoted in the first paragraph above), the State will have an uphill battle defending an internet-based voting system.
