The Constitutional Litigation Clinic at Rutgers Law School-Newark is looking into whether emergency voting procedures adopted after Hurricane Sandy violated state law or prevented some displaced persons from casting ballots.

“This is an attempt to find out exactly what happened on Election Day. By all accounts in the media, it was a disaster,” says Penny Venetis, the clinic’s co-director.

The clinic has sent a 19-page questionnaire to Lieut. Gov. and Secretary of State Kim Guadagno under the Open Public Records Act, seeking answers and documents relating to her Nov. 1 “Directive Regarding Email Voting and Mail in Ballots for Displaced Voters.”

See full text of OPRA request here.

Among the data requested are emails, personal notes, memoranda and other communications exchanged  among the governor’s office, the lieutenant governor’s office and the director of the Department of State’s Division of Elections regarding the “formation, drafting and enactment” of the directive.

The law clinic’s chief concern is that the integrity of the voting process was harmed by Internet voting and flaws in the system.

Venetis says there were numerous anecdotal reports of problems with post-hurricane procedures, such as county clerks’ offices overwhelmed by thousands of applications for electronic voting and failure by those offices to comply with the directive. 

Similar documents are sought regarding the decision to expand the Overseas Residents Absentee Voting Law to accommodate displaced voters.

The state law that allows New Jersey residents in the military and stationed overseas to vote by the Internet requires them also to mail a paper copy of their ballots. But Guadagno’s directive allowed displaced residents to cast votes by email or by fax with no paper backup. They needed only to fill out a “mail-in ballot application” to establish their eligibility for using the procedure.

“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,” Venetis says.

The state announced on Election Day that a backup paper ballot was required, but many of those in charge of counting votes were unaware. The OPRA request seeks detailed information on how notice was given to county clerks and to voters.

The clinic is asking the state to quantify how many voters in each county downloaded mail-in ballot applications from the Internet; how many requested and received applications by email, fax or other means;  and how many applications were approved or denied.

The OPRA request also probes how many ballots (with accompanying secrecy forms) were sent to voters and how many were received and processed. Explanations are requested for any system crashes or other technical problems encountered in these procedures — such as clerks’ email boxes being full.

Venetis says the number of people seeking to use emergency voting procedures was inflated because many users were not storm victims, but merely people interested in voting electronically.

Relying on the Internet to transmit votes is widely considered to be insecure and vulnerable to hacking. Mercer County Assignment Judge Linda Feinberg declared in Gusciora v. Christie, MER-L-2691-04 (2010), that “connecting an election-related computer to the internet at any point is inappropriate.” She ordered the state to disconnect voting machines from the Internet in a challenge to the state’s use of paperless voting machines.

In announcing the examination of the voting process on Nov. 27, Venetis said the clinic would issue a report at the end of its work.

Venetis says that since about 75 local elections around the state were won by single digits, the disposition of emergency ballots is important even if they are small in number.

Guadagno’s office did not respond to requests for comment.