NJ Election Officials, Displaced Voters, Email Ballots, and more

There’s plenty of activity in the NY/NJ area reacting to voters’ difficulties because of Super-Storm Sandy, including being displaced from their homes or otherwise unable to get to polling places. As always, the role of technology captured my attention.

But first, the more important points. Some displaced people are having trouble even finding a place to shelter temporarily, so extra special kudos to those that manage to vote, whatever the method of voting they use. Likewise, extra praise for NJ and NY election officials putting in the extra extra-hours to be available to voters in advance of the election, inform them about changed polling places, and equip them to get the word out to their neighbors. The amount of effort on both sides is a great indicator of how seriously people take this most important form of civic activity.

Next, the technology, and then the policy. On the technology front, Gov. Christie of NJ announced an emergency (and I hope temporary) form of voting for displaced voters: sending an absentee ballot via email. That’s a bad idea in the best of circumstances — for several reasons including the vulnerability of the email data in transit and at rest, and the control of the e-ballot by people who are not election officials — and these are not the best of circumstances. For example, I doubt that in every county elections office in NJ, somebody has a complete list of the people with access to the email server and the ability to view and modify data on it.  But while you can see that Christie’s heart in the right place, there are several issues beyond these, as described in a NJ news report here.

And this is only one of the emergency measures. In both NJ and NY people can cast a provisional ballot at any polling location — see NJ’s announcement here, and if you have the similar one for NY, please provide it as a comment!

Finally, on the policy side, it’s not even clear what these ballots represent, and that’s the policy problem. My legal and policy colleagues here at TTV, and in the legal side of the election integrity community, certainly know more, but I don’t! Are the provisional ballots cast under these emergency rules required to be processed exactly the same as non-emergency provisional ballots? Are the e-mailed ballots provisional ballots or absentee ballots? If so, what serves as the affadavit? Do the email ballots have to be followed up with the paper hardcopy that the voter scanned and faxed? (The NJ Lt. Gov. office has issued some seemingly inconsistent statements on that.) If not, what happens in a recount? If so, why email the ballot at all, rather than just emailing a “my ballot is coming soon” message?

I could go on and on, but I think you get the idea. The general issue is that in the case of a close election (most likely a local election, but state house or congress, you never know!) there will be some of these not-exactly-your-regular ballots involved, and the potential for real disputes — starting with concerns over dis-enfranchisement of people mis-informed about how to do a “displaced vote”, and going all the way to dispute about whether counted ballots should have been counted, and whether uncounted ballots should be counted. But let’s hope that it does not in fact get that messy in NY and NJ, and that every voter is able to make the extra efforts for their ballot to be cast and counted.

— EJS