Paper Trail or Paper Ballots?

During the last session day of the Legislature for 2008, the Senate surprisingly rejected a bill (S2380) that would, once again, extend the deadline for retrofitting the State's Direct Recording Electronic (DRE) voting machines with printers that would produce a verified paper trail by January 1, 2009.

This legislation would have only launched a pilot program to examine whether the retrofitted DRE machines operated properly during the June 2, 2009 primary election. If successful, the Secretary of State would then establish a statewide implementation schedule to retrofit all machines with verified paper trails by the general election to be held on November 2, 2010.

The paper trail legislation, originally predicated by a lawsuit filed by Assemblyman Reed Guisciora in 2004, required the mechanisms to be in place by January 1, 2008. This, of course, did not happen as two extensions were granted moving the deadline to January 1, 2009.

Testimony by the Plaintiff's expert Princeton Professor Andrew W. Appel, who garnered significant attention after purchasing some of the DRE machines on the Internet to demonstrate how they could be reasonably easily compromised, believes that even with the paper trail the DRE machines are problematic. Specifically, Mr. Appel recently testified before the Senate State Government Committee that the technology in the machines is already dated and that the printers are subject to jams and other issues that could cause significant problems on election day. Appel also doubted that a new version of software to be uploaded on the DRE machines would be helpful to resolving any of the problems, particularly since the printers being considered are designed to operate with the older version of the software on most of the State's DRE machines.

The County Clerks support the continued use of the DRE machines as there have not yet been any widespread problems after a number of elections cycles, including this year's high turnout presidential election. Most of the problems with the DRE machines relate to either user or poll worker errors, such as, failing to push the "cast vote" button.

Now, there is a movement underway to completely scrap the DRE machines by reverting to optically scanned paper ballots that are currently used for absentee and provisional voting in New Jersey. Such ballots are currently at issue in the recount for the U.S. Senate seat in the State of Minnesota. Advocates of reverting to optically scanned ballots claim that even while the machines scanning them may not produce a perfect count every time, they may always revert to a hand recount in a close election to ascertain the intent of the voter.

Despite Professor Appel's testimony and experiments with the DRE machines, I believe it is highly unlikely that someone, outside of the controlled environment in which he compromised the programming on the DRE machines, would be able to accomplish the same task as easily as he did without being detected. The DRE machines in New Jersey do have seals that are easily checked to see whether the machines have been compromised. I would suggest it is much more likely that problems are more likely to result after a close election headed to a recount, rather than before the conduct of the election.

For example, in Monmouth County this year, the candidates for freeholder were separated by 18 votes on election night. After being uploaded on election night, the vote counting cartridges were placed in an unsecured publicly accessible hallway for more than two weeks. While there may be some paper printouts retained from election night of the tallies, these cartridges could have easily been compromised by walking past them with a magnet or simply taking a few out of the building. Further, the recheck and recount statutes under Title 19 fail to address processes and procedures for the preservation, rechecking or recounting of such electronic machines and/or cartridges.

No vote casting or counting system is perfect under all circumstances. While votes may be lost when someone fails to press a "cast vote" button or a machine malfunctions without a paper trail, paper ballots are highly susceptible to marking, over voting and under voting. Also, the optical scan machines that count paper ballots are far from perfect. In Minnesota, for example, some 130 optical scan ballots were either scanned twice or lost in an election recount where the candidates are separated by about 200 votes. With so many people participating in the process, there will always be a certain degree of human and/or technical error. In the end of the day, the most important question is not related to the process by which votes are cast or counted--that will never be perfect--but which will instill the most confidence in the results so that the voters and candidates abide by them.

Supreme Court Hears Argument On Pay-To-Play

On November 5, 2008, the New Jersey Supreme Court heard arguments regarding the application of state pay-to-play restrictions (P.L. 2005, c. 51) on a state contractor who contributed to a county political party. According to the New Jersey Law Journal's report, the focus was not on the constitutional aspects of pay-to-play restrictions, but simply related to the strict application of the 30 day safe harbor provision for seeking refunds of contributions believed to be made in violation of the law that resulted in the company's debarment.

New Jersey Supreme Court To Consider Constitutionality of Pay-To-Play Restrictions

As first reported by politickernj.com columnist Wally Edge, on November 5, 2008, the New Jersey Supreme Court will hear oral arguments in the appeal of IMO the Appeal by Earle Asphalt Co. in which the Appellate Division upheld the constitutionality of the state-level contracting provision under P.L. 2005, c. 51 that prohibits contributions by state contractors to county political organizations, gubernatorial candidates and state political party committees.

In this case, Earle was stripped of a state paving contract as the result of a contribution that the company's president had made to the Monmouth County Republican Organization. When realizing that the contribution could result in the company's debarment, a refund was sought, but received outside of the 30 day safe harbor provision.

As of November 15, 2008, this decision will have even more significance as this restriction has recently been expanded to apply to Legislative Leadership and Municipal Party Committees pursuant to Governor Corzine's Executive Order No. 117.

The Appellate Division did not specifically render a holding on the constitutionality of local pay-to-play ordinances authorized by state law under P.L. 2005, c. 271. Arguably, however, the same rationale could be applied. And a Middlesex County trial court has thrown out a local ordinance, holding that it was unconstitutional on a number of grounds, including that it was not narrowly-tailored under a strict scrutiny analysis. This particular ordinance, however, was very far reaching.

The Rules Are Set For 2009

On Tuesday, October 21, 2008, ELEC voted to adopt the proposed amendments to implement inflationary campaign cost adjustments for all candidates and committees. The proposal was adopted as it appeared in the New Jersey Register on August 18‚ 2008:

For Gubernatorial Candidates: http://www.elec.state.nj.us/pdffiles/regulations/oal_prop_gub_071708.pdf

For All Others:
http://www.elec.state.nj.us/pdffiles/regulations/oal_prop_nongub_071708.pdf

At its September 30, 2008 meeting, ELEC voted to adopt some minor amendments to the Gubernatorial public financing program:
http://www.elec.state.nj.us/pdffiles/regulations/oal_adopt_10032008.pdf

ELEC Hearing On Contribution Limits and Adoption of Public Financing Rules for 2009 Gubentorial Campaign

On September 30, 2008, the New Jersey Election Law Enforcement Commission has provided notice that it will be holding a public hearing concerning proposed amendments to the spending limits and thresholds applicable to gubernatorial candidates, and thresholds applicable to non-gubernatorial candidates and committees. ELEC will also consider the adoption of new rules and amendments governing the gubernatorial public financing program and on the wrapping up of publicly-financed gubernatorial campaigns with outstanding liabilities.

Preliminary Analysis of Corzine's Executive Orders and Legislative Proposals To Restrict Wheeling and Pay To Play

After approximately 140 public corruption convictions by United States Attorney Chris Christie, Governor Jon Corzine took surprisingly swift action to close a number of well known loopholes in New Jersey’s campaign finance and public contracting laws. My preliminary analysis can be downloaded here.

Seemingly Sweeping Campaign Finance & Ethics Reform Proposal To Be Presented By Governor

According to the Associated Press, Governor Jon Corzine is set to enact a significant new campaign finance and ethics reform package by both executive order and through the introduction of new legislation addressing, among other items, the long-criticized practice of wheeling contributions between political and campaign committees. The Associated Press story outlines the pre-released proposal.

DOCUMENTS RELEASED AT 2:30 Press Conference Today:

The Overall Plan and Statement outling the Governor's executive orders that are intended to be codified into law and proposed legislation.

State Vendor Contribution Prohibition Expanded To Legislative Leadership and Municipal Party Committees

Executive Order 117 expands P.L. 2005, c. 51 (originally McGreevey E.O. 134) to further restrict contributions made by state vendors, and equity holding partners or members of such business entities, regardless of their equity interests, to provide a complete ban on reportable contributions ($300+) to legislative leadership committees and municipal political party committees. Such entities, or partners with 10% or more equity interests, are already banned from making such contributions to state political party committees, county political party committees and gubernatorial candidates pursuant to Chapter 51. This executive order also extends the gubernatorial candidate contribution ban to candidates for Lieutenant Governor who will be running for the first time next year. This order becomes effective November 15, 2008.

State Vendor Contribution Prohibition Expanded To Redevelopers

Executive Order 118 extends the Chapter 51 reportable contribution ban to redevelopers and their lobbyists or agents. No redevelopment agreements may be entered by state entities if the redeveloper has violated the contribution ban. This order appears to include redevelopment agreements required to secure state financing from the New Jersey Economic Development Authority, New Jersey Redevelopment Authority and New Jersey Environmental Infrastructure Trust, similar to the financing procured for the EnCap project that this order specifically intends to address. This order becomes effective November 15, 2008.

Local Government Ethics Task Force

Executive Order 119 creates a Local Government Ethics Task Force to determine whether changes need to be made to the 1991 Local Government Ethics Law and whether responsibility for enforcement of it should be removed from Local Finance Boards to some other entity focused on ethics. The Task Force will consist of eleven members appointed by the Governor, four of which will be at the recommendation of the legislative leadership from both parties. Upon formation, it must issue a report within ten months with its recommendations. This order is effective immediately.

Expansion of Personal Financial Disclosures

Executive Order 120 expands upon Governor Corzine's Executive Order No. 1 (2006), which required all personal financial disclosures from all executive branch officials and others serving on various state boards and commissions.

Fair Use and Licensing of Media Used By Campaigns

Politico.com provides an informative report regarding the licensing and use of music and other media for campaigns under federal copyright and trademark laws where property rights clash with free and unfettered political speech. This often overlooked area of law, as it relates to elections, arises every year as musicians, photographers, authors and other intellectual property owners claim that their works or products are being illegally used in the course of a political campaign. This clash of property versus political speech rights has grown with the proliferation of campaigning on the Internet.

One of the best resources for more information on fair use is Standford University's Copyright & Fair Use Library sponsored by the Stanford Law School's Center for the Internet & Society.

New Jersey 'Clean Elections' Program Dead -- For Now

Politickernj.com is reporting that Assembly Speaker Joseph Roberts (D-Camden) has declared New Jersey's Clean Elections program effectively dead due to Arizona's rescue/matching funds provision being held unconstitutional by a federal court. The suit was brought by the Goldwater Institute on August 21, 2008 in response to the U.S. Supreme Court's Davis decision earlier this year. See: Goldwater Institute's Complaint.

Attorney General's Polling Location Directive Upheld -- Only Exit Polling Allowed

An Appellate Division opinion today upheld the Attorney General's 2007 exit polling directive maintaining 100 foot zones around the entrances of polling locations that are free from non-partisan groups distributing voters' rights cards and which requires advance notice for the conducting of exit polling, whether by the media or a non-partisan group.

The crux of the Court's reasoning is that permitting alleged non-partisan groups to provide voters' guides within 100 feet of polling locations is likely to be abused. This would require poll workers to make unruly on-the-spot determinations regarding whether the materials being handed out are truly non-partisan, rather than thinly-veiled campaign or issue-oriented materials.

Citing the U.S. Supreme Court's decision in Perry Educ. Ass'n v. Perry Local Educators' Ass'n, the court held that there is a compelling state interest in protecting voters from confusion and undue influence, while preserving the integrity of the electoral process within such 100 foot zones.

Forfeiture Statute Put To Work On Newark Councilwoman

Newark Central Ward Councilwoman Dana Rone has been ordered to forfeit her public office after having been convicted for obstructing justice, a disorderly persons offense, during a routine traffic stop involving a relative. In a written opinion, Essex County Assignment Judge Patricia Costello held that the offense "touches and involves" Rone's public position, and therefore, compels forfeiture of her public office. N.J.S.A. 2C:51-2a(2) provides that such forfeiture is an automatic civil penalty which is a collateral consequence of a conviction for a crime or offense as the convicted official "shall forfeit such office [if] convicted of an offense involving or touching such office. . . ."

Legislators To Meet To Address Rescue Funds Provision for Clean Elections Program Reauthorization

Matt Friedman at politickernj.com is reporting that members of the New Jersey Legislature will be informally meeting this summer to determine how to address the impact of the U.S. Supreme Court's Davis decision as interpreted in a letter opinion by the New Jersey's non-partisan Office of Legislative Services, determining that the rescue funds provision of the proposed law (A100) is unconstitutional. Advocates of the program believe that the rescue funds provision is essential to ensuring that legislators are not deterred from participating in the clean elections program.

More On Clean Elections 'Rescue Funds'

The New Jersey Lawyer also covered the story on the non-partisan Office of Legislative Services opinion that the rescue funds provision of New Jersey's proposed clean elections law is unconstitutional as per the holding of the United States Supreme Court in Davis.

The Constitutionality of Pay-To-Play Restrictions

Dennis Galvin, a member of the Legal Task Force of the 'Citizen's Campaign,' penned a column in this week's New Jersey Lawyer in response to critics of New Jersey's ever growing patchwork of local pay-to-play ordinances.

The column is seemingly in response to the assertion by plaintiffs in the recent Earle Asphalt appeal that New Jersey's pay-to-play laws are unconstitutional. Earle Asphalt, however, unsuccessfully challenged the constitutionality of the state-level contracting provision under P.L. 2005, c. 51 that prohibits contributions by state contractors to county political organizations, gubernatorial candidates and state political party committees, but not the constitutionality of local pay-to-play ordinances authorized by state law under P.L. 2005, c. 271.

While all the focus has been on the interesting constitutional questions surrounding such restrictions, there is seemingly a lack of focus on other arguments that don't seem to have been addressed in the Earle Asphalt appeal: (1) an equal protection argument relating to how the law been applied by the State Treasurer; and (2) whether federal transportation funds were included within the paving contract in question that would prohibit the application of the state pay-to-play law under the 2005 decision State of New Jersey v Mineta, Civil No. 05-228 (D.N.J. 2005), holding that Executive Order 134 (now codified at P.L. 2005, c.51) unduly restricts the potential bidding pool for federally funded state highway projects in violation of 23 U.S.C. §112.

Additionally, some local pay-to-play ordinances have recently been held unconstitutional. In Monroe Township in Middlesex County, for example, a trial court held that the Township's pay-to-play ordinance was unconstitutional on a number of grounds in that it was not narrowly-tailored under a strict scrutiny analysis.

Ocean County Clerk Takes Issue With Voter Registration Service

The Asbury Park Press reports that Ocean County Clerk Carl Block is upset about a website (http://www.iwanttovote.com/), which is charging people to complete voter registration forms electronically for a fee of $9.95 while voters can, of course, register for free. According to the article, the website acknowledges that voter registration is free, but that it is providing a service similar to tax preparation services to ensure voters are properly registered. I wonder how many more businesses such as this will surface during this presidential election year, which is likely to garner high voter turnout and include many new voters.

OLS: Clean Elections 'Rescue Funds' Unconstitutional

In a letter opinion, New Jersey's non-partisan Office of Legislative Services determined that the rescue funds provision of the State's proposed Clean Elections legislation (A100) is unconstitutional based on the U.S. Supreme Court's Davis decision holding, in part, that the federal Millionaire's Amendment is unconstitutional.

The rescue funds provision was previously part of the New Jersey clean elections legislation and regulations, and was utilized, without legal challenge, in the 14th Legislative District in 2007.

The Asbury Park Press reported that Assembly Speaker Joseph J. Roberts Jr., D-Camden, plans to reconvene a bipartisan group of lawmakers in August to try to salvage the proposal that was passed by the Assembly State Government Affairs Committee earlier this year.