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:
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.