New Jersey’s audit legislation took effect in 2008; however, these statutes depend on the implementation of new voting systems that produce voter-verified paper records. N.J. Rev. Stat. § 19:48-1.b(1). Such systems were initially scheduled to be fielded by January of 2009, but later legislation halted the purchase of new voting systems until funding could be guaranteed. N.J. Rev. Stat. § 19:48-1.b(2). In 2021, New Jersey Governor Phil Murphy signed an early voting law, which required most of the state’s counties to purchase new equipment. Although several counties use paperless Direct Recording Electronic (DRE) voting machines on Election Day, during Early Voting all counties use ballot marking devices (BMDs) or Hybrid BMD/Tabulators that produce paper ballots. Counties are moving toward BMDs, Hybrid BMD/Tabulators, or paper ballots for Election Day.
Despite the limitations of its current Election Day voting equipment, New Jersey mandates a manual audit. State statute specifies that the audit is to be conducted in at least 2% of the election districts in which each audited election appears on the ballot. N.J. Rev. Stat. § 19:61-9.1.a. Additional auditing may be required to meet the statistical requirements of N.J. Rev. Stat. § 19:61-9.1.c(1).
Unless otherwise specified, statutory references are to N.J. Rev. Stat. § 19:61-9.
Voting Systems Used
Some New Jersey counties use DREs without voter-verified paper audit trails (VVPAT) for all Election Day voters, while others use Hybrid BMD/Tabulators for all Election Day voters; a few counties use hand-marked paper ballots for most Election Day voters. In 2020, New Jersey conducted its election primarily using hand-marked paper ballots and thus conducted its audit almost entirely using hand-marked paper ballots. For the most current information please visit Verified Voting’s Verifier.
Visit the Voting Equipment Database for an explanation of the types of voting equipment used.
Votes not cast at a polling place (“election district”) on Election Day (such as early votes and votes cast by UOCAVA voters) must be separated and bundled in groups called “audit units.” Each audit unit must contain approximately the average number of ballots cast in the precincts within the county, or fewer, but cannot be associated with any particular election district. Although the statute explicitly excludes emergency and provisional ballots from the Election Day ballots to be audited, N.J. Rev. Stat. § 19:61-9.1.c.(4), New Jersey’s 2021 audit procedures called for individual batches of vote by mail ballots and provisional ballots to each constitute a single audit unit and to be no larger than 300 ballots. New Jersey Election Audit Procedure – General Election 2021. Each audit unit is assigned a unique identifying number, and is included in the random selection process.
Audits are open to the public, including but not limited to individuals who are permitted to observe recounts. N.J. Rev. Stat. § 126.96.36.199c(6); see also N.J. Rev. Stat. § 19:6-28.
The selection of the election districts, audit units, and elections to be audited are randomly chosen by lot by the attorney general at a public meeting. The procedures for the random selection and audit adopted by the audit team must be published prior to the election and the public must have the opportunity to comment. N.J. Rev. Stat. § 188.8.131.52.c(6). However, the law does not specify whether observers are allowed to view ballots or verify ballot marks. The attorney general is required to announce publicly and publish the results of the audit, including a list of any discrepancies between the initial vote count and any subsequent manual counts of the voter-verified paper record. N.J. Rev. Stat. § 184.108.40.206.c(7).
Audit Counting Method
The audit is required to be a hand-to-eye count. However, most counties do not provide voter-verified paper ballots in Election Day voting locations.
Type of Audit Units
Each election district for in-person Election Day voting is treated as an audit unit. Votes not cast on Election Day are separated and batched into their own audit units (for further details, see “Audit Comprehensiveness”). N.J. Rev. Stat. § 220.127.116.11c(5).
Contests and Issues Audited
All federal and state offices are audited; additionally, the attorney general picks county and municipal offices to be audited. At least 2% of election districts are audited, although county and municipal elections held in fewer than 100 election districts are exempt from this requirement. N.J. Rev. Stat. § 18.104.22.168.a.
If the initial audit reveals discrepancies of one tenth of one percent or more, the audit is expanded, and an additional sample of election districts is audited. The law specifies that the expansion should equal the same number of election districts that were initially audited and, when possible, the same number of audit units. If the initial number of districts audited is already greater than half the election districts for the election contest in question, then a full manual count for all remaining districts is to be conducted. Members of the audit team may initiate additional auditing if the audit “indicates a substantial possibility that a complete hand-to-eye recount would alter the outcome of the audited election.” N.J. Rev. Stat. § 22.214.171.124.c(9).
For recount laws, see Citizens for Election Integrity Minnesota website.
The audit commences 24 hours after the announcement of the random selection of election districts and must be completed before election results are certified. N.J. Rev. Stat. § 126.96.36.199.c(3).
Binding on Official Outcomes
If the audit results in a change in the number of votes counted for any candidate, the revised vote totals from the audit — up to a full manual count (see “Addressing Discrepancies”) — are incorporated in the official result from the relevant election districts or audit units. N.J. Rev. Stat. § 188.8.131.52.c(7).
Oversight and Conduct
The state attorney general appoints an independent professional audit team of at least four individuals, including at least one individual with verifiable expertise in statistics and at least one member with verifiable expertise in auditing. This team oversees the audit process. No member of the audit team may be a candidate for office in the election to be audited, nor may they be an employee of or report to the attorney general, nor an officer or employee of any entity that designs, manufactures, or services a voting system used in the state. N.J. Rev. Stat. § 184.108.40.206.a-b.
After the votes are canvassed and the statements made and certified, all ballots are deposited into ballot boxes, which are locked, bound, sealed, and delivered to the clerk of the municipality in which the election is held. The clerk must keep the boxes sealed for three months and preserve the contents of the ballot box for two years, unless a recount of the ballots is ordered or the clerk is ordered by a court to remove the ballots, such as for use of the ballot boxes in another election. N.J. Stat. § 19:18-1-4.
Additional Targeted Samples
The audit team retains the authority to order audits to be conducted of any election district or audit units not randomly selected for auditing in which a majority of the audit team determines “from the un-audited election results, past election results, or other data that the votes are likely to have been miscounted.” N.J. Stat § 19:61-9.1.c(6). If the attorney general, based on a recommendation of a majority of the professional audit team, determines that the manual counts show cause for concern about the accuracy of the election results, the audit team is required to audit any additional election districts or audit units considered appropriate by the attorney general to resolve any such concerns. N.J. Stat §19:61-9.1.c(9).