Late Changes to Election Law Throw Voters, County Clerks for a Loop — Again

Colleen O'Dea | September 17, 2019 | Politics, Elections 2019
With opt-out forms for voting by mail just reaching some voters, and county clerks buried in paperwork, meeting Saturday’s deadline is looking increasingly doubtful

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For the second year in a row, a last-minute change in New Jersey election law has tens of thousands of registered voters confused and county clerks scrambling to meet a Saturday deadline for sending out vote-by-mail ballots to those who want them.

On August 28, Gov. Phil Murphy signed a law requiring county clerks to send a mail-in ballot to all those who had used a vote-by-mail ballot in 2017 and 2018. The bill (S-4069) had been introduced just five days earlier, on a Friday, then sped through both houses of the Legislature without any hearings on the following Monday and Tuesday in rare summer-voting sessions. The measure was the only bill before the Assembly on August 27.

Legislative leaders and Murphy were rushing because of fast-approaching election-related deadlines, but some clerks and Republican lawmakers questioned the need for the change. Clerks said the new law is costing them extra time and money. And they wondered why the state did not learn a lesson from last year’s similar late August change, which prompted larger numbers of voters than usual to be forced to cast provisional ballots at the polls when they arrived to vote and were told they had already been sent a mail-in ballot.

“When you are not anticipating something, there are budget problems,” said Scott Colabella, the Ocean County clerk and president of the Constitutional Officers Association of New Jersey. “We were told we are going to get reimbursed, but that’s not 100 percent certain. It puts pressure on our offices. We did 12,000 vote-by-mail ballots in Ocean County in 2017 and 2018.”

Will county clerks get paid?

The law includes $2 million to reimburse the clerks for the opt-out letters and additional vote-by-mail ballots, but in a bill-signing statement, Murphy said he was asking the state director of budget and accounting to determine whether the spending should be considered “discretionary” and would not be given out unless the state ends the year with a healthy surplus.

“It’s causing us additional time and money to send the opt-out letters,” said Paula Sollami Covello, the Mercer County clerk.

Because of the change in the law, county clerks sent letters to the thousands of people who voted using a paper ballot last year and the year before. This includes people who mailed in a ballot and those who voted early in person at a county clerk’s office using a paper ballot — a voting machine is not typically available for those who vote prior to Election Day so they vote using the same paper ballots that are sent to those voting by mail. The letters inform voters that the law requires clerks to automatically send them a vote-by-mail ballot this year and for all future elections unless they inform the clerks in writing that they don’t want to continue to vote by mail.

It’s unclear how many letters had to be sent, but last November more than 400,000 New Jerseyans — a new record — used a mail-in ballot.

“If you do not notify my office by September 13th of your preference not to receive a VBM ballot, you must cast your vote using the Mail-in ballot mailed to you or by paper ballot (known as a ‘provision ballot’) at your polling place for the November 5th, 2019 General Election. You cannot cast your vote on the voting machine,” read a letter from Middlesex County Clerk Elaine Flynn.

Letters came too late

But a number of people in Middlesex County did not even receive the letter from Flynn until Saturday, the day after the deadline, according to several posts on the Facebook page of the Central Jersey Progressive Democrats.

“We took a trip last November and voted by mail, didn’t think it was going to stay that way and then we get this letter a day late!” wrote one member.

Even some who got letters by the deadline did not have time to mail back a letter or form stating they want to vote in person and do not want to automatically receive mail-in ballots.

“We’re having a nightmare of a time here,” said John Wojtaszek, the deputy clerk in Morris County. He said that Morris had also set a deadline of last Friday for returning opt-out notices, yet he received 1,000 in the mail yesterday and was still getting angry phone calls from registered voters.

Wojtaszek said the problem is all a matter of timing. The state Division of Election provided a suggested letter for clerks to mail out, but that didn’t arrive at the Morris clerk’s office until after offices had closed on the Friday before Labor Day. It then took time to get the letters printed and the envelopes properly addressed, stuffed and mailed. Some letters apparently arrived late, or late enough that the voters were unable to return the opt-out notices to the clerk by the deadline.

Flynn announced last night that she was extending the deadline for opting out of receiving a vote-by-mail ballot until noon on Friday and people can either send written notice or the form to the clerk’s office by mail or fax or email it to middlesexvotes@co.middlesex.nj.us

Extending the deadline

The Morris clerk is extending the deadline for another day or two, “but we have to cut it off because we have to send out the ballots on Saturday,” Wojtaszek said. That ballot-mailing date is required by law, he added, and before then the office has to print the proper number of ballots for people in each municipality, as well as mailing labels, and then prepare the mailings, which include multiple envelopes for returning the ballots. Wojtaszek said that this is a big lift in a medium-sized county like Morris, which had about 26,000 mail-in ballots for the 2016 presidential election and 37,000 for last year’s midterms.

“They made this change at the last minute,” Wojtaszek said. “I don’t think they fully thought it out.”

Others questioned the urgency of the change, with some Republicans charging the Democrats were just trying to give themselves an advantage in the election this year and in the future. Experts say that a greater use of vote-by-mail ballots favors Democrats.

Democratic sponsors said only that the measure is meant to increase turnout, which had been declining steadily until last year. About 55 percent of registered voters cast ballots in the 2018 midterms, the highest turnout in at least 20 years. Last August, Murphy signed a law requiring all those who had voted by mail in the 2016 presidential election to automatically get a mail-in-ballot unless they opted out.

Sweeney invokes ‘healthier’ democracy

“We are Democrats and we want people to vote,” Sen. President Steve Sweeney (D-Gloucester) said in a statement on the passage of the bill. “The statistics show, making voting more accessible increases voter participation. It’s striking to me that we even have to be here, the last week of August, to prevent us from losing the improvements we have made to voter convenience and participation over the past couple of years. The greater the civic engagement, the healthier the democracy. This isn’t political, it’s fundamental, and we need New Jersey to have the strongest democracy possible.”

In his signing statement, Murphy commended lawmakers for quickly passing the measure and said, “I continue to believe that our democracy is stronger when we make it easier for New Jersey citizens to participate, and that is why I will continue to advocate for reforms that would expand access to the ballot box.”

Monmouth County Clerk Christine Giordano Hanlon put out a statement on Monday alerting voters to the change and reminding them that her office needs to receive opt-out forms by Thursday.

“It is important that voters be on the lookout for this letter,” Hanlon said, adding that more than 13,000 Monmouth voters are impacted.

Other counties, such as Hunterdon, until this Friday to opt out.

Colabella predicted the last-minute change will lead to more confusion at the polls this November.

Once a person has been issued a vote-by-mail ballot, they cannot be allowed to vote at the polls using a voting machine because each person is allowed to vote only once. An individual can, however, vote by a provisional paper ballot. These are checked after all other votes are counted and as long as a person is registered and has not returned a mail-in ballot, their provisional ballot is counted.

Because there were so many provisional ballots to check and count last November — more than 3,000 in Ocean County alone — it took several days for officials to determine that Democrat Andy Kim had unseated Tom McArthur in the 3rd Congressional District race.