By Christine Giordano Hanlon
New Jersey’s new Vote by Mail law, signed by Governor Murphy in August, has the potential to leave voters hanging on election night, not just in New Jersey, but across the country. Candidates and voters should be aware that the results on election night may be far from final. With recent polls suggesting that the New Jersey Senate race is tighter than many anticipated, and with several New Jersey congressional races polling within the margin of error, the new law could cause the entire nation to be left wondering which party will control the U.S. House or Senate come January.
Two provisions in the new law will impact the tallying of election results on election night. First, the new law requires that any voter who received a mail-in ballot in 2016 be sent a ballot this year, even though the voter did not request one. The only way a voter would not receive a mail-in ballot is if that voter opted out of the mail-in system in writing prior to the statutory deadline for County Clerks to begin issuing mail-in ballots for the November general election (September 22). As a result, thousands of voters who voted by mail in 2016 were sent mail-in ballots for the November general election although they did not make requests.
According to New Jersey law, no voter who is issued a mail-in ballot may vote on a voting machine on Election Day. Such a voter can only vote on a paper provisional ballot if he or she goes to the polls on Election Day to cast a vote. County clerks statewide are anticipating that a large number of these voters who received ballots they did not request will show up at the polls to vote. In anticipation of this scenario, many County clerks will be providing extra provisional ballots for these voters at polling locations, but this may delay the voting process and result in long lines at the polls. Also, provisional ballots are not counted until after Election Day after a lengthy review process.
The new law also changed the deadline for receipt of mail-in ballots by the county Boards of Elections. Prior to this law, all mail-in ballots had to be received by the Boards of Elections by close of the polls in order to be counted and included in the election results. The results of the mail-in ballots were tallied by close of the polls or shortly thereafter, then added into the election night voting machine tallies.
The new law has changed all that. Now mail-in ballots that are received by the county Boards of Elections 48 hours AFTER the close of the polls will be counted, provided that the ballots are postmarked by Election Day. Putting aside the fact that the United States Postal Service does not always postmark mail, nor do other delivery services, this will inevitably lead to litigation by candidates or political parties as to whether to count a ballot that is received by the Board of Elections with no postmark 48 hours after close of the polls. This new 48-hour time frame for ballot delivery could potentially leave the Senate race, House races, and many local races undecided on Election Day and for many days after.
If the Boards of Elections must accept mail-in ballots 48 hours after close of the polls, i.e., 8 p.m. on Thursday, November 8, there may not be a completed mail-in ballot count until the Friday after Election Day. For those who think that these mail-in ballots will not affect the results of an election, consider that in 2016 and 2017 tens of thousands of issued mail-in ballots did not make it to the Boards of Elections by close of the polls. This year, since Governor Murphy’s new law required that all 2016 voters who voted by mail receive a mail-in ballot, the number of mail-in ballots issued will likely top 400,000. It is highly unlikely that all of these ballots will be received by the Boards of Elections on election night, leaving the question open as to how many of these ballots will be received 48 hours after close of the polls. There is no way to know.
Due to the new law, an anticipated large number of paper provisional ballots being voted on Election Day, coupled with the possibility of thousands of mail-in ballots being delivered to Boards of Elections after Election Day and counted, could result in an election night with no winners and no losers in several races.
Christine Giordano Hanlon is a Republican attorney and the current elected Clerk of Monmouth County, New Jersey.