NJ Officials Beat Voter Advocates' Call For Email Ballots

By Bill Wichert
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Law360 (October 23, 2020, 4:16 PM EDT) -- A New Jersey state judge on Friday shot down a bid from advocacy groups to order 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 it was too late for such a new process.

Superior Court Judge Mary C. Jacobson denied a request from the League of Women Voters of New Jersey and the American Civil Liberties Union of New Jersey that vote-by-mail ballots be sent by electronic means to voters who left the address where they are registered to vote due to the COVID-19 pandemic but don't receive ballots at their current address by Oct. 30.

The advocates have claimed the electronic delivery of ballots — which they said could be printed and returned by mail — would avoid potentially disenfranchising hundreds of New Jerseyans displaced from their homes, but Judge Jacobson stressed during a Zoom hearing that the affected voters were "undefined and unknowable."

Their proposed measure also could be disruptive and take election officials' attention away from other critical duties, according to the judge.

The judge said she agreed with state officials that "at eleven days prior to the actual Election Day, it is too late to establish a new procedure that would address a category of voters that ... we have no idea how many are involved, we don't know how the mechanism, any mechanism ... would be implemented."

"I know that the plaintiffs have highlighted individuals, through no fault of their own, don't get a ballot, but again, if I'm weighing their interests against the interests of the state in the orderly administration of this general election … the weight is in favor of the state in terms of ... analyzing the public interest," Judge Jacobson said.

Less than three weeks before the election, the advocacy organizations on Oct. 14 sought the electronic delivery of ballots in a lawsuit they filed against New Jersey Secretary of State Tahesha Way and Robert Giles, director of the state Division of Elections.

To curb the spread of the novel coronavirus, the Garden State'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 were to be sent to the addresses where voters are registered, the advocacy groups have 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 pandemic.

Those displaced voters can ask that their board of elections 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, send ballots to them via email or other electronic means, 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 advocates asserted in the complaint that the electronic delivery of ballots would be "free from concerns about misuse."

Judge Jacobson said Friday that that assertion was undercut by information provided by Rutgers law professor Penny Venetis on behalf of amicus curiae Rutgers International Human Rights Clinic regarding voting problems during the 2012 presidential election in the wake of Superstorm Sandy.

Venetis, who is director of the clinic, argued Tuesday in a certification to the court, "When a system is implemented on short notice without adequate testing and safeguards, the integrity of the entire voting process is compromised."

"Based on my research, and my experience, I believe that adopting a new system of processing votes two weeks before the upcoming presidential election would be a huge mistake and would likely cause mass confusion," Venetis said.

The advocacy organizations later backed off their electronic delivery proposal and claimed in a reply brief Thursday that they are "not wedded" to that method. As one possible alternative, the groups suggested using a courier service.

"If defendants can provide another remedy to displaced voters to ensure they can cast their ballots on or before Election Day, regardless of their physical or geographic limitations, plaintiffs will be satisfied," the advocates said.

But Judge Jacobson concluded Friday that "the uncertainty of the remedy does underscore the impracticality of changing anything this close ... to the election."

The judge also pointed out that the state's election procedures already provide remedies in the event that a voter does not receive a ballot by Oct. 30. For example, a voter can visit a county clerk's office and apply for a new ballot or head to a polling place on Election Day and cast a provisional ballot, the judge noted.

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

The state officials are represented by Susan M. Scott, Nicole E. Adams, Dominic L. Giova and Steven M. Gleeson of the New Jersey Attorney General's Office.

Amicus curiae Rutgers International Human Rights Clinic is represented in house by Penny M. Venetis.

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 Haylee Pearl.

For a reprint of this article, please contact reprints@law360.com.

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