The information below pertains to audit legislation that came into effect in 2008. However, these statutes were dependent on the implementation of new voting systems that would produce or require the use of voter-verifiable paper records. Such machines were initially scheduled to be in place by January of 2009, but later legislation halted the purchase of new voting systems until funding for such systems could be guaranteed. See N.J. Rev. Stat. §19:48-1b(1) and b(2).
Despite the limitations of its polling place voting equipment, New Jersey mandates a manual audit. The law 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. See N.J. Rev. Stat. §19:61-9(1)(a). Additional auditing may be required to meet the statistical requirements of N.J. Stat. Ann. §19:61-9(1)(c)(1).
New Jersey applied its audit requirement to the 2020 general election. The audit was conducted almost entirely using hand marked paper ballots, due to exigencies of the COVID-19 pandemic, which caused the state to conduct its 2020 elections primarily via vote-by-mail ballots.
Unless otherwise specified, statutory references are to N.J. Rev. Stat. §19:61-9.
Voting Systems Used
Most New Jersey counties use DRE voting machines without VVPAT for all polling place voters, while several counties field hybrid BMD/tabulators for all polling place voters, and other counties primarily use hand marked paper ballots with DREs with VVPAT for accessibility, or DREs with VVPAT for all polling place voters. For the most up to date 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 the election district on election day (such as votes cast by military service voters and overseas federal election voters) must be separated and bundled in groups called “audit units.” Each audit unit shall contain approximately the average number of ballots cast in the precincts within the county, or fewer, but shall not be associated with any particular election district. Each audit unit will be assigned a unique identifying number, and will be included in the random selection process. Emergency and provisional ballots are not included in the group of ballots described above, and they are explicitly excluded from the other election day ballots to be audited.
“All the proceedings of the district boards, county boards, boards of county canvassers and board of state canvassers shall be open and public.” See N.J. Rev. Stat. §19:6-28.
The procedures for the random selection and audit adopted by the audit team must be published prior to the election and an opportunity for public comment provided, and the random selection and the audit must be conducted publicly. See N.J. Rev. Stat. §19:61-9(1)(c)(6). However, the law does not specify whether observers are allowed to view ballots or verify ballot marks. The attorney general shall announce publicly and publish the results of the audit.
Audit Counting Method
The audit is required to be a hand-to-eye count. However, most counties do not provide voter-verifiable paper ballots in polling places. For votes cast by methods other than “at the election district [precinct] on the date of the election,” audits can be conducted by dividing the paper ballots into “ballot batches.”
Type of Audit Units
Each election district for in-person voting is treated as an audit unit. Votes not cast at the precinct are separated and batched into their own audit units (for further details, see “Audit Comprehensiveness”).
Contests and Issues Audited
All federal and state offices are audited, and the attorney general additionally picks county and municipal offices to be audited. At least 2% of election districts are audited.
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 districts that were initially audited. 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.”
For recount laws, see Citizens for Election Integrity Minnesota website.
The audit itself commences twenty-four (24) hours after the announcement of the random selection of election districts and must be completed before election results are certified. The random selection is then conducted “within a reasonable period of time after the final vote count after an election,” however, no definition of “reasonable” is provided. In 2020, NJ passed legislation permitting counties to certify results of the November 2020 General Election prior to the start of the election audit as long as the audit is completed by December 4, 2020. See P.L.2020, c.72.
Binding on Official Outcomes
The revised vote totals from the audit — up to a full manual count (see “Addressing Discrepancies”) — are to be “incorporated in the official result from the relevant election districts or audit units.”
Oversight and Conduct
The state attorney general will appoint an “independent professional audit team” that includes at least one member 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.
After the votes are canvassed and the statements made and certified, all ballots are deposited in ballot boxes, which are locked, bound, sealed, and delivered to the clerk of the municipality in which the election is held. The clerk keeps the boxes sealed for three months and preserves the contents of the ballot box for two years, unless otherwise ordered by a court or other tribunal. For more information see N.J. Stat. Ann. § 19:18-1 through 4.
Additional Targeted Samples
The audit team “shall have the authority to cause audits to be conducted of any election district or audit unit which has not been 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. Ann § § 19:61-9. If the attorney general, based on a recommendation of a majority of the professional audit team, determines that the hand-to-eye counts show cause for concern about the accuracy of the election results, then the audit team will audit any additional election districts or audit units considered appropriate by the attorney general to resolve any such concerns.