[EL] NJ's Approach to Displaced Hurricane Sandy Voters?

[Flavio Komuves]

Some thoughts and comments on the New Jersey Secretary of State 
directives:

1. The NJSOS' directives state that "[a]ny voter who has been displaced 
from their primary residence because of" Sandy can apply for and return 
a ballot by fax and email just as overseas voters can.

2. Perhaps more importantly, a second directive, not as well covered in 
the media, reads that "[a] displaced voter may vote by provisional 
ballot at any polling place in the State."  "Displaced voter" is not 
defined in this directive but surely it must mean a broader class of 
people than those named in the other directive, i.e., greater than those 
displaced "from their primary residence" and greater than those 
displaced "because of" Sandy.

3. In addition, the press release cited below says that the ability to 
vote by provisional ballot at a polling place other than one's own also 
extends to "first responders."  The press release does not qualify that 
by saying it only includes first responders absent due to Sandy.

4. To me, allowing these categories of voters to vote at any polling 
place in the state by provisional ballot is perhaps just as important, 
if not more important, than the extension of fax and email balloting. 
With the electricity outages (which limit fax and email access), the 
ongoing displacement of people, and the lack of any central registry of 
email addresses for county officials that I have been able to yet find, 
this second directive which extends to more people and gives more 
options may end up being more protective of people's rights that than 
the fax and email extensions.  And, while provisional ballots have their 
own set of risks and benefits, none of the secrecy, privacy, and 
integrity concerns that are endemic to fax and email voting apply.

Flavio Komuves




On Sun, Nov 4, 2012 at 10:08 AM, Lillie Coney wrote:

 
http://www.state.nj.us/governor/news/news/552012/approved/20121103d.html 
<http://www.state.nj.us/governor/news/news/552012/approved/20121103d.html>


Any process that may allow voters to be identified or their
votes known prior to being counted is a problem.  Unfortunately,
FEMA does not have a specific focus on election continuity as
part of their recovery program. They should have plans for
election continuity during major events, and this may be an
important contribution USACM can make.

New Jersey's approach creates a new category of voters--
Hurricane Sandy displaced voters and makes them equivalent
to "overseas voters".  Are the quote marks around "overseas
voters" because they are defined by law. Hurricane Sandy
displaced voters are not defined by law which is where I think
a problem rests. Another question is does the Secretary of
State have the power from the State legislature to create a new
category of voters if so this is not going to create new issues.
Finally, does this approach create a disparate treatment issue for
New Jersey voters who may have other emergencies that take them
away from their voting location but are not Hurricane Sandy related?
My concerns are the disparate treatment issue and one that if
challenged could raise questions about the state's federal election.

All Hurricane Sandy impacted states need a solution to allow voters
to vote--I think that solution has to apply to all state residents
regardless of their situation.  The state does not have the
resources to fight a post election constitutional challenge
around whether the Senate can accept its electors. Elections
are driven by law and not good intentions, and based on my
understanding of Bush v. Gore--states have to treat voters equally
which means they have to make whatever arrangements available
to one group of voters available to every voter in the state.

Is it possible to create a new class of voters--in this case Hurricane
Sandy displaced voters and they would be safe from having their
participation in the election challenged?

Every state impacted by the storm must deal with the problem
of displaced voters on Tuesday. They should make decisions
based on making voting available to as many voters as possible
in an equal way, which may make their decision easier to defend
if there is a legal challenge.

I hope that the election is not close in popular or electoral votes
because there would be no value in filing a legal challenge against
any state, but the storm impacted 63 million people.  It may be
easy to make the case that a state or several states' decisions on
the election was unfair to other voters in the state.

Lillie

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