Elections Memorandum November 8, 2001 Page 1 /election/electionm doc

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1 To: The Commission From: Staff Date: 29 October 2001 Re: Off-Site Voting Memorandum Introduction There are many ways to cast a ballot other than by appearing in-person at the polling place on Election Day. The traditional alternative is the absentee ballot. In New Jersey, the absentee ballot is restricted to civilian and military service personnel that meet specific and narrow statutory requirements. Every aspect of the New Jersey absentee ballot procedure is codified and not subject to change except by legislative amendment. The Absentee Voting Law is rigid and ignores changes in technology and voter convenience. Other states have opened absentee voting to any qualified and registered voter. E.g. Alaska Statute et seq. Some states permit absentee voting by electronic transmission or personal representative. Id. One state Arizona -- has experimented with Internet voting. Stephen B. Pershing, The Voting Rights Act in an Internet Age: An Equal Access Theory for Interesting Times, 34 Loy. L.A. L. Rev (2001)(describing the three voting methods Internet voting, vote-by-mail and in-person balloting Arizona used in the March 2000 Democratic presidential primary). Against these developments, the New Jersey Absentee Voting Law is ripe for reform. The New Jersey Absentee Voting Law allows some voters who are unable to go in person to the polling site on Election Day to cast their vote. N.J.S.A. 19:57-1 et seq. The sole form of absentee voting recognized in New Jersey is mail absentee voting. This process involves the voter sending a written request, which needs to include the address where the ballot paper is to be mailed and the voter s signature. The voter also must cite a reason for requesting to vote by absentee ballot. If approved, the Board of Election sends a ballot to the voter with instructions on how to complete the paperwork. Instructive to revising the political voting process is the corporate voting process by proxy statements. Most persons directly or indirectly through investment funds, pension plans, Individual Retirement Accounts or 401(k) plans own corporate shares. They cast their votes by written proxy statements, telephone, facsimile or the Internet. To vote over the Internet, the corporation assigns each shareholder a control number, provides a ballot showing the proposals to be voted on and sets forth instructions on how to cast shareholder votes by the means permitted in the proxy statement. Elections Memorandum November 8, 2001 Page 1

2 There does not appear to be any compelling reason why casting a vote for political office, where the outcome on any individual person is marginal, must be treated substantially different from casting a vote for corporate office where the outcome on any one individual may, in fact often does, affect that person s net worth. The central problem is the inability of government to adapt to changes in technology and voter preferences. The New Jersey statutes governing absentee ballot maintain the status quo. The time to revise the practice of voting by absentee ballot has arrived. The procedures codified in the New Jersey statutes are a product of a paper-based economy. The statute does not permit election officials to adapt absentee voting methods to new ideas or to changes in voting procedures generated by the development of new products. To anticipate future voting methods requires going beyond the concept of absentee voting and of introducing the practice of off-site voting. Alternative voting methods containing safeguards against fraud and protecting the integrity of the election process will be the future norm. New Jersey Law Article 2, paragraph 4 of the 1948 New Jersey Constitution explicitly authorizes the Legislature to provide for absentee voting for military service voters. The Constitution does not contain a similar provision for civilian absentee voters. Nevertheless, in 1953, the Legislature enacted the Absentee Voting Law permitting both military and civilian voters to vote by absentee ballot. N.J.S.A. 19:57-1 et seq. The Supreme Court in 1957 upheld the validity of the Absentee Voting Law even though that law exceeded the parameters of the constitution by extending the right to vote by absentee ballot to civilian voters. Gangemi v. Berry, 25 N.J.1 (1957). The Absentee Voting Law seeks to preserve the enfranchisement of qualified voters, safeguard the secrecy of the ballot and prevent fraud in the election process. Barrett v. Monmouth County Bd. of Elections, 307 N.J. Super. 403 (L. Div.), aff d 307 N.J.Super. 191 (App. Div. 1997). The option to vote by absentee ballot is a privilege, not a right. The Legislature therefore may set conditions to this privlege outside the control of the voter. DeFlesco v. Mercer County Bd. of Elections, 43 N.J. Super. 492 (App. Div. 1957). The Absentee Voting Law contains more than 37 provisions specifying in detail the procedures that voters and election officials must follow to comply with the law. In general, qualified and registered military service and civilian voters who expect to be out of the State on the date of the election may apply for an absentee ballot. N.J.S.A. 19:57-2. The term civilian absentee voter includes persons present in the State on the date of the election but unable to vote at the poll due to illness, physical disability, nature of employment or religious tenets. Id. The term military service voter includes spouses and dependents of the service member, hospitalized veterans and civilians, including their spouses and dependents, attached to the military service. Id. The term "election" covers statewide general and primary elections, municipal elections, school elections and special elections. Id. Elections Memorandum November 8, 2001 Page 2

3 Not less than seven days prior to the election, a qualified and registered voter expecting to be absent on the date of the election may submit a written request for an absentee ballot to the county board of elections. N.J.S.A. 19:57-4. The request must contain the signature of the qualified and registered voter. The signature requirement is the foundation of the Absentee Voting Law since the process of verifying the identity of the voter, and therefore the legitmacy of the vote, turns on comparing the signature of the written request with the voter s signature on the permanent registration books. The Absentee Voting Law presumes a paper based system built around a handwritten signature. If the election official is satisfied, after conducting the signature comparison, that the voter is entitled to receive a ballot, the election official marks on the application Approved. If the election official determines that the voter is not entitled to receive a ballot, the election official marks on the application Disapproved, states the reason why and returns the rejected application to the voter. N.J.S.A. 19: Ballots marked "Approved" are hand-delivered to the voter or sent first-class mail to the voter s address. N.J.S.A. 19: The Commissioner of Registration, after receiving information from the county board of elections, marks the voter s duplicate voting record with an A in the case of a civilian voter and an M in the case of a military service voter. These designations prevent the voter from appearing at the poll in person on the day of election to cast his vote. N.J.S.A. 19: A person who opts to vote by absentee ballot cannot vote at the poll in person. The law contains several provisions controlling requests for absentee ballots and the appearance of the ballot itself. The Secretary of State is required to prepare both the military service and civilian ballot application form and has the authority to promulgate rules and regulations to implement that obligation. N.J.S.A. 19: The law also contains several provisions governing the form of the ballot itself and related applications. E.g., N.J.S.A. 19:57-5 (application by relative or friend of military service voter - form); N.J.S.A. 19:57-7 (notices to be published by election officials regarding absentee ballot requests and forms); N.J.S.A. 19:57-8 (printing and furnishing of ballots, directions and forms); N.J.S.A. 19:57-13, 14 and 15 (form of absentee ballot - markings); N.J.S.A. 19:57-16 (directions to be sent with envelopes); and N.J.S.A. 19:57-17, 18, 19 (certificate to be printed on margin of flap of envelopes). The Absentee Voting Law, in ornate detail, controls each step of casting an vote by absentee ballot. Absentee ballots consist of an inner and outer envelope. The inner envelope contains the actual voted ballot and is sealed. The flap of the inner envelope has a certificate containing language specified by the Absentee Voting Law and containing the voter s signature. The outer envelope is addressed to the appropriate county election board, contains mandatory language and requires the signature and address of the bearer. N.J.S.A. 19: Upon receipt of the ballot, the county board of elections removes the inner envelope from the outer envelope and compares the voter s signature on the certification of the inner envelope with the signature on the written request form. The county board of elections then determines whether the voter s identity is valid, that is, that the signature on the certifcate and the written request match, thereby deciding whether that voter has the privlege of casting an absentee ballot. Elections Memorandum November 8, 2001 Page 3

4 N.J.S.A. 19: All valid military and civilian absentee ballots received prior to the time designated for the closing of the polls for each election are counted. N.J.S.A. 19: The Absentee Voting Law does not specify a deadline for counting the absentee ballots. N.J.S.A. 19:57-31 (canvass of absentee ballots). The Absentee Voting Law contains provisions invalidating any vote cast by a person who has died prior to the date of the election, N.J.S.A. 19:57-30; preserving the integrity of any election despite irregularities in absentee voting ballots, N.J.S.A. 19:57-36; and requiring impounding of absentee voting records for a period of one year. N.J.S.A. 19: The 1975 Election Law Revision Commission In 1975, the Election Law Revision Commission issued its Final Report and Commentary to Proposed Title 19A of the New Jersey Statutes. The Final Report proposed a statute revising New Jersey election law. Subtitle 14 of that report sets forth provisions for voting by absentee ballots. The existing Absentee Voting Law essentially mirrors Subtitle 14 of the Final Report of the Election Law Revision Commission. The differences are in detail, such as the definitions of qualified and registered voters entitled to cast an absentee ballot. However, the differences do not require amendment of existing law. The Legislature has virtually enacted the provisions contained in Subtitle 14 of the Election Reform Report. The Need for Reform New Jersey absentee voting law suffers from the disadvantages of any paper based system turning upon the legitimacy of handwritten signatures. The law ignores the development of new technology, electronic transactions and new systems of handling data. The absentee voting law is stuck in the pre-electronic transaction age. Although the State, under the Uniform Electronic Transactions Act, may promulgate regulations regarding the definitions of what constitutes a document or signature, the absentee voting law itself is an anachronism. Election officials have advised the Commission to abolish the reasons required to request an absentee ballot. They also recognize the benefits of early voting and foresee the development of electronic voting. It follows that the statutory law governing absentee voting must anticipate future developments in the voting process and must build in the flexibility required to adapt law to changes in the election process. The following draft statute abolishes the term absentee voting in favor of the more accurate and expansive term off-site voting. It sets forth general principles, leaving details of how to vote off-site to be worked out at the state commission level. This approach embraces new technologies as they emerge and permits different methods of voting based on demand and success in the field. The proposal is technology neutral and gives state election officials the authority to make changes to any practice and procedure that facilitates the voter s ability to participate in an election while at the same time preventing fraud in the ballot process. Elections Memorandum November 8, 2001 Page 4

5 Draft Statute for Off-Site Voting 1. Right to Vote Off-Site a. A qualified and registered voter may vote off-site provided that the vote is cast in a form established by the Commission of Regulations and is received by the County Board of Elections before the time that polls are closed on Election Day. b. Off-site voting means the completion and submission of a ballot to a designated election office that does not take place at a polling place on the date of the election. Offsitevoting includes Internet voting, vote-by-mail and in-person early voting. c. Within a reasonable time prior to the election, the Board of Elections shall send every registered and qualified voter information and instructions on how to vote off-site. COMMENT This section is new and revolutionizes the way voters may cast ballots in any election. Voters have a right to cast a ballot off-site provided the voter complies with the procedure established to make that possible. At present, New Jersey provides off-site voting only for absentee ballots. That law is limited to qualified civilian and military service voters and specifies in detail the procedures a voter must follow to comply with the absentee ballot law. This section abolishes the concept of absentee ballot in favor of offsite voting alternatives. 2. Methods of Voting Off-Site a. The Commission of Elections shall adopt regulations establishing the kinds of off-site voting and the procedures for their use. The Commission must establish at least one method to allow qualified and registered voters to vote off-site on or before the date of any election. b. The Commission shall continually revise the regulations as necessitated by changes in technology, administrative practices and any other relevant developments that impact off-site voting. c. The off-site voting regulations adopted by the Commission of Elections shall provide a method to verify the identity of the voter, facilitate the right to vote, prevent fraud in the election process, maintain the integrity of the election and, to the extent possible depending on the off-site voting alternative, protect the secrecy of the vote. d. The Commission shall not require any qualified and registered voter to state a reason to elect to vote off-site. COMMENT This section is new. The Commission of Elections is required to adopt regulations governing offsite voting procedures. The Statute, unlike its Absentee Voting Law predecessor, does not specify the Elections Memorandum November 8, 2001 Page 5

6 mechanical steps required to exercise the right to vote other than by in-person voting on the day of the Election. Rather, leaving the details of implementation to the Commission permits flexibility and allows the Commission to change procedures, as needed based on expert information and empirical data. The Commission of Elections must establish at least one method of voting off-site, though the law intends the Commission to establish a variety of methods over time. The section identifies several existing off-site voting alternatives but does not limit the authority of the Commission of Elections to consider and implement other voting strategies. The policy is to make it easier for voters to cast their ballots and to increase voter participation in local, state and federal elections. The policy objectives are consistent with the objectives of the National Voter Registration Act to increase the number of registered voters and thereby increase the number of citizens exercising their right to vote. 42 U.S.C.A. 1973gg et seq. 3. Right to Petition the Commission of Elections a. The Commission of Elections shall specify the means by which any person may petition the Commission to consider adopting a regulation for off-site voting. b. Any person may petition the Commission of Elections to consider a method of offsite voting. c. The Commission shall within a reasonable time period schedule a hearing to consider the petition, adopt regulations to implement the proposal contained in the petition or reject the petition stating the reasons why. COMMENT This section is new. It enables any person to petition the Commission of Elections to consider an alternative to voting at the polls in-person. The objective is to increase the Commission s knowledge of available off-site voting mechanisms and to encourage the development of new voting strategies based on available technology in the market. This section ensures that New Jersey evolves its voting procedures and experiments with new ideas consistent with maintaining integrity in the election process and increasing the percentage of voter participation in elections. Elections Memorandum November 8, 2001 Page 6