Thursday, January 15, 2009
New Jersey Supreme Court Upholds and Strictly Construes State Pay To Play Restrictions
The New Jersey Supreme Court today upheld the Appellate Division's decision in the Appeal by Earle Asphalt Co., holding that P.L. 2005, c. 51, restricting contributions by state contractors to county political organizations, gubernatorial candidates and state political party committees is constitutional. The Court also strictly construed the 30 day safe harbor for the return of contributions. This decision carries 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.
Saturday, January 10, 2009
ELEC To Take Up Rulemaking On Use of Campaign Funds for Legal Fees
On January 20, 2009, the New Jersey Election Law Enforcement Commission (ELEC) is going to formally propose rule making clarifying the rules regarding the expenditure of campaign funds on legal fees.
Clearly, in light of more sophisticated campaigning and the rules governing the same, the expenditure of campaign funds on legal fees is permissible in many circumstances, but not all. The involvement of lawyers to provide guidance on ballot access issues, campaign finance, on election day and in recounts or election contests is commonplace in the post Bush v. Gore environment.
This proposal would explicitly exclude the use of campaign funds for legal fees and expenses relating to the "criminal defense of a candidate or officeholder, including defense in a criminal inquiry or criminal investigation, and defense of a criminal indictment or other criminal proceeding."
This rule making arises from now-convicted former New Jersey State Senator Wayne Bryant's advisory opinion request filed in January 2008, in which ELEC held that the use of campaign funds for legal fees and other expenses in connection with Bryant's defense of a criminal indictment, is not an “ordinary and necessary expense” of an officeholder and therefore is not a permissible use of campaign funds. On December 4, 2008, ELEC's advisory opinion was affirmed by the Appellate Division. See In Re Election Law Enforcement Commission Advisory Opinion No. 01-2008 (A-2816-07T1).
What About Others Who Spent Campaign Funds On Legal Fees for Their Criminal Defense? According to the Star-Ledger: Former state Sen. and Newark Mayor Sharpe James (D-Essex) and former Sen. Joseph Coniglio (D-Bergen) did not ask for ELEC approval when they dipped into their own campaign accounts to fight corruption charges. ELEC has not filed complaints against James or Coniglio. Frederick Hermann, ELEC's executive director, said today he could not comment on either case. But he said ELEC will "review the decision in terms of possible future commission action."
Clearly, in light of more sophisticated campaigning and the rules governing the same, the expenditure of campaign funds on legal fees is permissible in many circumstances, but not all. The involvement of lawyers to provide guidance on ballot access issues, campaign finance, on election day and in recounts or election contests is commonplace in the post Bush v. Gore environment.
This proposal would explicitly exclude the use of campaign funds for legal fees and expenses relating to the "criminal defense of a candidate or officeholder, including defense in a criminal inquiry or criminal investigation, and defense of a criminal indictment or other criminal proceeding."
This rule making arises from now-convicted former New Jersey State Senator Wayne Bryant's advisory opinion request filed in January 2008, in which ELEC held that the use of campaign funds for legal fees and other expenses in connection with Bryant's defense of a criminal indictment, is not an “ordinary and necessary expense” of an officeholder and therefore is not a permissible use of campaign funds. On December 4, 2008, ELEC's advisory opinion was affirmed by the Appellate Division. See In Re Election Law Enforcement Commission Advisory Opinion No. 01-2008 (A-2816-07T1).
What About Others Who Spent Campaign Funds On Legal Fees for Their Criminal Defense? According to the Star-Ledger: Former state Sen. and Newark Mayor Sharpe James (D-Essex) and former Sen. Joseph Coniglio (D-Bergen) did not ask for ELEC approval when they dipped into their own campaign accounts to fight corruption charges. ELEC has not filed complaints against James or Coniglio. Frederick Hermann, ELEC's executive director, said today he could not comment on either case. But he said ELEC will "review the decision in terms of possible future commission action."
Will Paper Trails Be Ready For New Jersey's Most Important Election?
Having blown a statutorily-imposed January 1, 2009 deadline, New Jersey Secretary of State Nina Mitchell Wells has ordered the implementation of paper trail printers to most of New Jersey's direct electronic voting (DRE) machines for which the technology is available. At the close of 2008, efforts to delay implementation of paper trail technology failed and a debate has erupted regarding whether New Jersey should scrap the DRE machines all together and replace them with optical scan voting technology used by many other states. According to the Star-Ledger:
A spokeswoman for Sequoia said the company hopes to get approval to start work on the new component in February, and have enhanced machines ready for the November gubernatorial election. Three trial runs of the enhanced voting machines will be held this month in special school elections in Rumson, Pompton Lakes and Bound Brook, state officials said.
The modified machines will have a small window that will allow voters to peak at the paper printout to verify their vote before hitting the "cast vote" button. That paper then will be collected in an attached bag, with contents available for recounts, officials said.
Wells, in certifying what is formally known as the "Voter-Verified Paper Record for the Direct Electronic Voting Machines," said New Jersey would be a "pioneer" in this effort.
Wells, in acknowledging that the new system will require plenty of education and scrutiny, quoted the report of the special committee: "The devices add an additional level of complexity to the voting process, as well as expense, and problems should be anticipated, at least for the first several rounds of voting, given the fact that poll workers are unfamiliar with these devices and that the technology has a limited operating history."
Wednesday, December 17, 2008
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 t
he 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 DR
E 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.
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 t
he 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 DR
E 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.
Thursday, November 6, 2008
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.
Thursday, October 23, 2008
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.
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
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
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