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Electronic Ballots a Quick Fix, But Do They Count?

NJ needs to adopt rules to ensure everyone can vote more easily if another disaster hits.

All the ballots have finally been counted in New Jersey.

Once they are certified by the state canvassers on Friday, New Jersey can finally close the book on this difficult election.

Or can it?

The constitutional litigation clinic of Rutgers Newark Law School is poking into the votes, asking for information about the processing of special balloting New Jersey Secretary of State Kim Guadagno ordered to help those displaced by Superstorm Sandy.

Remember, thousands were homeless, either literally because their houses were destroyed or left uninhabitable, or by choice because they had left cold, dark buildings to stay with family or friends or at a hotel. Even some polling places were without power and so had to be moved.

Guadagno ordered the county clerks to allow anyone who found themselves in these straits right before the election—too late to get and return an absentee ballot under the normal rules—to vote via fax or email. She even wound up giving those unable to get their ballots back in time due to busy fax lines three days after the election to submit them.

Being allowed to vote after the polls have closed and most of the votes counted is unheard of and leads to many questions about the integrity of the result.

Allowing people to return ballots via fax or email drew concerns about the lack of privacy—those who voted that way had to sign a statement agreeing to give up the right to the secrecy of their ballots. It also drew questions from those who say sending a ballot via email is not secure.

Clerks received an extension for filing their final vote tallies and were to have done so by the middle of last week. At least 16 appear to have posted their counts online. Assuming the email/fax ballots are being counted as mail-ins, there were 20,000 more ballots cast by mail this year than in 2008, the last presidential election year, not including the five counties that have not updated turnouts in the last week or two. Additionally, Monmouth County reported 10,356 votes it called “emergency turnout.”

There also seem to have been more provisional ballots cast, about 68,000 in the 16 counties compared with 55,000 accepted four years ago, out of 74,000 cast. The data posted by the clerks does not, however, indicate how many ballots were rejected.

The Rutgers project is seeking to determine if voters were disenfranchised because their votes wound up not counting due to the confusion over balloting.

For instance, it turns out that after faxing or emailing a ballot, a voter had to mail the original to the clerk by November 19. This requirement was not well-publicized and it may turn out that hundreds of voters failed to do so and, as a result, their votes were not counted.

That would be a shame, because voting laws should be as liberal as possible as to give everyone interested an opportunity to have a say in the democratic process.

What Guadagno did in light of the chaos that Sandy engendered was refreshing, given the movement in other states to implement voter ID laws, which have the potential of restricting a person’s ability to vote if he doesn’t possess the requisite identification—one study found more than 1 in 10 Americans does not have a government-issued photo ID. That people tried in earnest to vote is something county clerks hopefully took into account and allowed.

Clearly, though, New Jersey needs better rules in place to guide a more workable mechanism for early voting, which is now the norm in two thirds of the states. While New Jersey has a liberal absentee ballot law, that was not enough to avert the confusion resulting from the effects of a massive storm hitting a week before the election. Several Assembly members have since introduced bills to allow voting for a month in advance of an election.

Or, New Jersey could go a step further and, like Oregon and Washington, conduct its elections by mail. In Oregon, the first state to adopt mail balloting, each registered voter receives a ballot and mails it back or can deposit it in a drop box as late as 8 p.m. on election day. This method reportedly has boosted the voting percentage—election officials will even call if a voter forgets to sign his envelope—and saved money.

The only saving grace in all the chaos in New Jersey is that none of the high profile races—for federal office—were close enough for discrepancies over email or faxed ballots to matter. However, officials with the Rutgers clinic said 75 more local elections last week were hinging on them. But even in cases where no races were at stake, it would be another slap in the face to tell someone who lost his home yet went out of his way to cast a ballot that his vote didn’t count. 

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