Counting Electronic Votes

Click here for the Attorney General's letter:
YOU HAVE THE RIGHT TO WATCH (November 2008)

Question: On Election Night, when electronic voting machines are opened and the votes tallied, do ordinary citizens have a right to watch the poll workers announce the election results?

In New Jersey, poll-watchers are called "challengers." In November 2008, it was not particularly clear whether special authorization was required to watch the poll workers handle electronic voting machines. So, in an abundance of caution, I submitted a formal application for "challenger badges" to the Mercer County Board of Elections.

First, the Election Board Says No

The Election Board said – I kid you not – that the presidential election was “too important” to allow members of the public to watch the poll workers.

The Election Board even went so far as to suggest that my written application was fraudulent. Here is its first response.

Admittedly, my request was unusual. Ordinarily, "challengers" are appointed by political parties, whereas my request was non-partisan. I applied on behalf of five people: two Princeton University students, two professors, and myself. By phone, I explained our interest in merely watching the poll workers - but the Election Board wouldn't budge.

OF COURSE we understood that the poll workers might not want extra people getting in the way on Election Night.  That’s why we took measures to get special authorization!  To ensure that we could be lawfully present, we asked for challengers’ badges as proponents and opponents of two public questions (as opposed to political candidates). Our request was entirely in compliance with state law, as all the prospective challengers were registered to vote in Mercer County.

By phone, the Election Board expressed "concern" about the status of Professor Andrew Appel, who is an expert on Sequoia voting machines (the kind we use). The Board conveyed its assurances that Sequoia had fixed all the problems Professor Appel identified in past elections, but still declined to let us watch.

We decided to retain counsel. Jeff Wild of Lowenstein Sandler very graciously stepped forward to represent us pro bono.  You can read his letter here.

Then, the Attorney General Says Yes

Backpedaling fast, thanks to Jeff, the BOE now says there was never any problem – the announcement of the results is always done in public, and no credentials are required to observe. After much ado, Jeff managed to extract a one-sentence letter from the Attorney General’s office. It says that, under NJSA 19:6-2, the announcement of the election results is “open and public.” You can see the letter here.

Silly Denouement

As difficult as it was to generate a letter, the AG’s office summoned enough resources to dispatch three teams of Deputy Attorneys General to watch my students and colleagues on Election Night.

When my husband and I walked in to our polling place at 7:45pm, there were two guys in dark suits, seated at a special table. They were waiting for us, and had been there since mid-afternoon. They turned out to be perfectly friendly, and mildly amused at their assignment. They said two teams were  dispatched to Princeton schools and one team to Princeton University.  Andrew Appel’s polling place, at the second Princeton school, had a special Welcoming Committee too!

The undergrads didn’t report seeing  DAGs, but I have a couple of hypotheses about this. One, the undergrads were voting for the first time and may not have recognized the difference between a poll worker and a DAG. Two, the team of DAGs dispatched to Princeton University might have gone to the wrong polling place. There were three possible places for undergrads to vote, and we had watchers in 2 of the 3. Maybe the DAGs went to the third.

Our DAGs watched us watch the poll workers. We created no problems (obviously!), and the entire vote-count was finished within a half hour.

We must have made the Attorney General’s office very nervous with our proposal to exercise our statutory rights!  Six attorneys general assigned to watch us - what a silly waste of government resources!

That said, we did observe some irregularities in the procedures that the poll workers followed at all three sites. Generally, the poll workers appeared unsure how to proceed. The followed written directions, but did not know how to interpret some of them.

The most significant irregularity I personally observed was the failure to keep and record the cable-tie seals in the guts of the electronic voting machines. These cable ties secured the “results cartridges” and were supposed to be forwarded to the County Board of Elections.

Also, at one of the polling places, in addition to the team from the AG's office, either the County or the State board of elections sent an extra professional to walk the poll workers through all the procedures.  Thus, by alerting them in advance to three specific polling places, we were not watching  "typical" precincts. Ed Felten points out that this shows the importance of the public being able to watch at any polling place, without asking specific permission first.

Grayson