April 21, 2014

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NJ Lt. Governor invites voters to submit invalid ballots

On November 3rd, the Lieutenant Governor of New Jersey issued a directive, well covered in the media, permitting storm-displaced New Jersey voters to vote by e-mail.  The voter is to call or e-mail the county clerk to request an absentee ballot by e-mail or fax, then the voter returns the ballot by e-mail or fax:

“The voter must transmit the signed waiver of secrecy along with the voted ballot by fax or e-mail for receipt by the applicable county board of election no later than November 6, 2012 at 8 p.m.”

We see already one problem:  The loss of the secret ballot.  At many times in the 20th century, NJ political machines put such intense pressure on voters that the secret ballot was an important protection.  In 2012 it’s in the news that some corporations are pressuring their employees to vote in certain ways.  The secret ballot is still critical to the functioning of democracy.

But there’s a much bigger problem with the Lt. Gov. Kim Guadagno’s directive:  If voters and county clerks follow her instructions, their votes will be invalid.

Her directive reads,  “Any voter who has been displaced…is hereby designated an `overseas voter’ for the purposes of the Overseas Residents Absentee Voting Law, N.J.S.A. 19:59-1 et seq.”   But the New Jersey Statute (at 19:59-15.4) requires an additional step that Lt. Gov. Guadagno omitted from her directive:

“N.J.S.A. 19:59-15.4(a):  Immediately after a copy of the voted overseas ballot or federal write-in absentee ballot has been transmitted by electronic means to the appropriate county board of elections, as permitted pursuant to section 3 of P.L.1995, c.195 (C.19:59-14), the overseas voter shall place the original voted ballot in a secure envelope, together with a certificate substantially the same as provided for in section 9 of P.L.1976, c.23 (C.19:59-9), and send the documents by air mail to the appropriate county board of elections.

“19:59-15.4(d): Prior to certification of the results of the election, the county board shall:
(1) compare the information on the copy transmitted by electronic means of each voted ballot with the same on the original voted ballot sent by air mail by the voter who transmitted to the county board a copy of the voted ballot by electronic means, and the signature on the statement received by electronic means with the signature on the certificate received by air mail; and
(2) ascertain whether an original voted ballot has been received for each copy of a voted ballot received by electronic means and counted.”

Then things really get murky:  The statute doesn’t say what happens if the hardcopy is not received, except that the county superintendent of elections must investigate.  It’s not difficult to imagine that these ballots will end up in court.

I urge the Lieutenant Governor to issue a revised order, clarifying that displaced voters must immediately follow up by mailing hardcopy identical to their e-mailed ballot–or risk having their votes thrown out.

That hardcopy-backup requirement is there for a reason:  E-mail voting (without a paper backup) is the most insecure form of voting there is.  We should not use it, except in extreme emergencies, and even then, only with the statutorily required paper backup.

UPDATE [12:07 p.m. November 4] : Alexander Shalom of the New Jersey ACLU reports that Robert Giles, Director of the New Jersey Division of Elections, is aware of the paper-ballot requirement and plans to issue clarifications.  Mr. Giles also notes that they will have the e-mail addresses of any voters who vote by e-mail, so that election officials can tell those voters directly to send in their hardcopy immediately.

UPDATE [1:52 p.m. November 5] : Apparently, “plans to issue clarifications” was overoptimistic.  To date there have been no clarifications on this issue.

UPDATE [7:34 p.m. November 5]:  A spokesman for the Liuetenant Governor e-mailed this at 7 p.m. to some press reporters:  “The instructions that every voter – including military and overseas voters – casting an electronic ballot receives states that the voter must immediately mail all ballot materials received (ballot, coversheet with waiver) to the Board of Election. Requiring the return of the physical and original version of an electronically cast ballot is an extra level of security that has been, and continues to be, part of the electronic ballot instructions.”

That same spokesman told those same reporters an hour or so earlier that no paper would be required.  Hunterdon County and Morris County election officials were also telling people Monday afternoon that no paper was needed.

Comments

  1. Barbara Simons says:

    I agree that these ballots might end up in court, especially if the election is close. Since not everyone has equal access to the Internet, and people without power won’t have any, Bush v. Gore might be used to challenge the results. In addition, it’s not clear that the Lieutenant Governor has the authority to create a new class of voters by designating displaced voters to be in effect overseas voters. Finally, it will be impossible to recount votes cast over the Internet unless the Lieutenant Gov. acts on the recommendations in this article. And even then, as Andrew has noted, the situation will be murky.

    FEMA needs to create contingency plans so that when emergencies occur before or during an election, there are securely stored backup paper ballots and provisions for producing new ones as needed.

    Barbara Simons, co-author “Broken Ballots: Will Your Vote Count?”

  2. Luther Weeks says:

    The Secret Ballot was implemented to avoid selling votes and coercion of votes. It should be a right for all voters that no vote can be sold or coerced. A single voter cannot in reality waive all the other voters’ rights that every ballot be secret or the purpose is lost.

  3. Penny Venetis, Clinical Prof. of Law, Rutgers Law School says:

    Excellent points. I would like to add the following questions and comments to Prof. Appel’s posting to demonstrate that the Lt. Governor needs to think matters through more clearly before her directive goes into effect. Like Prof. Appel, I urge her to follow up with more information AND to eliminate transmitting ballots via the Internet completely. Here are the questions that need answering:

    1-Who is a displaced voter? And what will be required to prove that someone is a displaced voter?
    Is a voter who is at home without power a displaced voter? Or must someone be unable to live in their homes to be a displaced voter? Is a voter who has no gas in her car and chooses to vote on line a displaced voter?
    These questions are important. Given that this is an emergency measure, only those who are in emergency situations, away from their homes and unable to go to the polls should be permitted to vote according to the Lt. Gov’s directive. Otherwise, we will be altering the way the legislature intended voting to be conducted in NJ and will be eliminating statutorily mandated safeguards that ensure ballot.

    2-There is a danger that ballots that are sent exclusively electronically and not accompanied by a paper ballot will either not be counted, or treated as provisional ballots. Provisional ballots are ballots that have been deemed suspect in some fashion. They are different from emergency paper ballots, which are treated, by statute, as facially valid ballots. Study after study has shown, including in NJ, that too many provisional ballots are discarded. That is why Prof. Appel’s request that the the Lt. Governor make public announcements that the emailed ballot be accompanied by a mail in ballot is critical.

    3-For this reason alone, we do not need the extra administrative step of e-mailing ballots. I believe that the overseas ballot statute makes clear that the emailed ballot will not count unless it is accompanied by a paper back up. Why have voters in the US use this two step process? It is safer, and preserves ballot secrecy if only a mail in ballot is required. Using mail in ballots exclusively may delay vote counting. But, the integrity of the vote is paramount, and elections do not have to be certified until at least a week after Election Day. There is no constitutional right to having election results announced on Election Day itself.

    In sum, I would recommend the following:

    A. Only truly displaced voters should be permitted to vote under the directive. Those are voters who cannot live in their homes and have no ability to vote in person in their county polling places.

    B. That no executed ballot be submitted electronically. Ballots can be emailed to voters. But, the completed ballot should be sent in via mail. This preserves ballot secrecy and, makes the tabulation process easier for already over-extended election officials.

  4. Matt Blaze says:

    21 counties have been asked to design an implement a large-scale complex system on three day’s notice. What could go wrong?

    I wrote up some preliminary thoughts last night. http://www.crypto.com/blog/njvoting

  5. Candice hoke says:

    Thanks to Professors Appel & Venetis for their close analysis of the protections needed for voters’ ballots to count, and for protecting the integrity of their ballots.

    Emergency situations should never be used as a justification for voting procedures that can render the voters’ cast ballots illusory, as mere cover for substituted ballots cast by others. Unless the NJ state officials act to implement the protections found in NJ statutory law, the integrity of not only NJ “emergency” ballots could be forsaken, but also the integrity of the entirety of NJ’s election decisions. The NJ State officials have no legitimate authority for introducing huge holes into the election process, even with “good intentions.”

    Time is of the essence. Integrity first and throughout the process, of the election will be illegitimate and a source for litigation.

  6. JFS says:

    And of course, all displaced voters have equal access to FAX or email, regardless of location, education, employment, or socioeconomic status, so this should not bias the vote in any way /sarcasm

  7. steward says:

    Under NJS App A:9-48, the Governor of the State of New Jersey effectively becomes King of New Jersey during a declared emergency. Said statute was cited in Executive Order 104, issued October 27, 2012.

    While you wonderful theorists spin your gossamer webs, don’t forget the Terminello dissent by Justice Jackson (SCOTUS): “There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

    Don’t forget as well that the State of NJ is *still* in violation of Judge Linda Feinberg’s order to replace the voting machines. She’s *retired* and they still haven’t been replaced. An argument can be made that all voting in NJ is invalid if conducted by those voting machines anyway.

    • Anonymous says:

      And your point with respect to the order authorizing email and fax voting is what? That the Governor can direct that displaced voters can avail themselves of New Jersey’s Overseas Residents Absentee Voting Law but then ignore any part of that law he chooses without stating he intends to do so?

  8. Anonymous says:

    As someone who was displaced several years ago, largely by a climate-related situation, I have to say that there are many powerful forces involved in these situations and the danger to people who live (lived?) in the effected areas up until the storm displaced them that they will remain displaced permanently is very real. Especially renters. Disenfranchisement is just one of many dangers, but its an important one because who is to hold legislators accountable for their actiions if the people who were most directly impacted are no longer voters in those districts.

    I think the 500 lb gorillas in the room are the huge profits to be made in real estate development. Money can corrupt this situation very substantially. Unless efforts are made to ensure that the displaced voters get to vote, in an honest way, where they used to live, who will stop the disenfranchising of them? If rights in the US are a bundle of rights from the Federal government and rights from your place of residence, what is the status of people who have lost their place of residence and cannot find another one? Or, whose home is temporary. Are they “stateless”?

    Property is always worth move vacant than when it is occupied. Legislators may go along with displacements because they feel as if the new voters who would move into their district would have favorable demographics, compared to those who are displaced. Another big variable is gas prices and jumps in gas prices put upward pressure on urban rents. Without a great deal more thought being paid to the issue of climate displacements, it will be – what a cliche the “perfect storm” for some serious wrongdoing with no accountability whatsoever possible.