By Bill Wichert

Law360 (October 15, 2020, 6:00 PM EDT) -- Voting rights advocates have demanded a Garden State court ruling ordering election officials to send ballots by email to voters who requested but have not received them in the mail ahead of the Nov. 3 general election, saying the move would avoid potentially disenfranchising hundreds of New Jerseyans displaced from their homes amid the coronavirus outbreak.

The League of Women Voters of New Jersey and the American Civil Liberties Union of New Jersey argued in a Wednesday lawsuit that vote-by-mail ballots should be sent via email or other electronic means to voters who had to leave the address where they are registered to vote as a result of the pandemic but don't receive ballots at their current address by Oct. 30.

"The status quo requires displaced New Jerseyans to wait at their mailbox in the hopes a ballot will arrive in time. If it does not, they will be denied the right to vote," the complaint said. "This is not how the democratic process should operate: New Jerseyans should not have to wait on the mail carrier to discover if they have a right to vote."

The lawsuit was filed against New Jersey Secretary of State Tahesha Way and Robert Giles, director of the state Division of Elections. On Thursday, Superior Court Judge Mary C. Jacobson set a briefing schedule in the matter and ordered a hearing for Oct. 23.

In an effort to curb the spread of COVID-19, New Jersey's general election will be conducted primarily with vote-by-mail ballots. Voters will be able to return their ballots by mail, place them in secure drop boxes, bring them to county board of elections offices or turn them in at polling places on Election Day.

While ballots are to be sent to the addresses where voters are registered, the advocacy groups noted that potentially tens of thousands of New Jerseyans had to leave their homes due to income, health, employment or other reasons stemming from the coronavirus outbreak.

Those displaced voters can ask their boards of elections to send their ballots to an alternate address, but they must make those requests by Oct. 23.

Under the advocates' proposed system, for voters who meet that Oct. 23 deadline but don't receive the ballots by Oct. 30 — and for whom boards have a record of the request — boards would, upon the voter's request, electronically send ballots to them, the complaint said. Voters would then print the ballots, fill them out and mail them to the boards.

If boards don't have a record of the request, voters could seek a judicial order and, "if the court finds the voter made a good faith effort to obtain a ballot at an alternate address," boards would provide the electronically delivered ballots, the complaint said.

The state already has signed off on a similar process for voters with disabilities by way of a memorandum of understanding in a separate state action, the advocates noted.

"All plaintiffs ask is that displaced voters be provided a remedy that defendants have agreed is feasible and appropriate for voters with disabilities," the complaint said.

The litigation comes after a number of New Jerseyans failed to receive vote-by-mail ballots for the July 7 primary election, according to the complaint.

The advocacy groups pointed to reports made to a call center on the day of that election and the day before. Of 138 complaints from New Jersey voters, 41 callers, or 30%, "reported not having received vote-by-mail ballots at all, even though volunteers at the call center confirmed each of their registrations," the advocates said.

"Because of the pandemic, a significant number of those callers had temporarily relocated either within New Jersey or out-of-state to live with family members or friends," the complaint said. "Of these, the great majority had completed vote-by-mail applications to notify election officials of the temporary address at which they sought to receive their ballots."

For the general election, however, such problems may be even worse unless state officials provide electronically delivered ballots, the advocates warned.

"Absent additional action by defendants, displaced New Jerseyans have no reason to believe defendants will ensure they receive their ballot by mail in time for the general election," the complaint said. "If anything, the difference between the primary and general elections suggest the scale of disenfranchisement will be significantly greater."

Jesse Burns, executive director of the League of Women Voters of New Jersey, said Wednesday in a statement, "Every voter, including those who have been displaced, deserves to participate in free and fair elections, and New Jersey has an obligation to do everything in its power to protect that right."

ACLU-NJ Executive Director Amol Sinha added in the statement, "The right to vote is so fundamental that generations have fought and died for it. The state should honor that legacy, and that most fundamental right for New Jerseyans, by taking a simple step that could prevent hundreds of New Jerseyans from being disenfranchised."

The state attorney general's office declined to comment Thursday.

The advocacy groups are represented by Alexander Shalom, Tess Borden and Jeanne LoCicero of the ACLU-NJ Foundation.

Counsel information for the defendants was not immediately available.

The case is League of Women Voters of New Jersey et al. v. Tahesha Way et al., case number L-1831-20, in the Superior Court of New Jersey, County of Mercer.

--Editing by Jack Karp.

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