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Constitutional Litigation Clinic Examines E-Voting in Wake of Superstorm Sandy

November 27, 2012 – 

The Rutgers School of Law–Newark Constitutional Litigation Clinic has served Open Public Records Act (OPRA) requests to New Jersey Lieutenant Governor Kim Guadagno’s office and to all 21 New Jersey counties for information about the processing of ballots of voters displaced by Superstorm Sandy. The clinic seeks to determine whether any voters were disenfranchised on Election Day because of Internet voting and the confusion caused by emergency voting directives. Candidates are concerned as well. At least 75 elections still hinge on votes cast by displaced voters.

In the wake of the storm, Lt. Gov. Guadagno issued a directive allowing displaced voters to vote by fax, email, and through the Internet. “Although emergency action was warranted, Internet and email voting was not the solution,” said Clinical Professor Penny Venetis, co-director of the Constitutional Litigation Clinic. “New Jersey law does not permit Internet voting.” 

Additionally, in Gusciora v. Christie (2010), Judge Linda Feinberg ruled that “connecting an election-related computer to the Internet at any point is inappropriate,” and ordered the State to disconnect all voting machines from the Internet. New York, which like New Jersey suffered serious devastation in Sandy’s wake, declined to incorporate Internet voting in its emergency voting measures, citing security concerns.

Lt. Gov. Guadagno’s directive on Internet voting alarmed computer scientists, lawyers and citizens groups concerned about the security and protection of the vote. Professor Andrew Appel, the chair of Princeton University’s Computer Science Department who is an expert in computer security, has stated that “experts agree that Internet voting is insecure, and that email voting is the most insecure form of Internet voting.”

While New Jersey law allows military personnel stationed overseas to vote via the Internet, it expressly requires a hard paper copy of the ballot to be mailed along with the electronic ballot. The lieutenant governor’s Superstorm Sandy directive did not incorporate that important aspect of New Jersey’s overseas voting law. Said Professor Venetis: “Without the paper ballot to protect the integrity of the vote, the voting process does not follow the rules for overseas voting and leaves displaced voters with the most insecure method of Internet voting.”

Princeton Professor Appel stated: “Email is completely untrustworthy and insecure unless it’s backed up by a paper ballot that the voter signs and mails in and that is the ballot of record.” Although a spokesperson for the lieutenant governor stated that the paper ballot was a requirement in the directive, his announcement occurred was very late on Election Day. Furthermore, media reports indicate that many county clerks and county election officials charged with counting votes are still not aware of this requirement.

In addition to posing security risks, the Election Day Internet voting directive resulted in chaos at county clerk’s offices in New Jersey. Election officials were unable to keep up with the demand for ballots, as voters’ unanswered requests for ballots inundated voicemails and inboxes.