Changes in Vote-by-Mail Ruled Null and Void, Unfunded Mandates

Colleen O'Dea | November 19, 2019 | Politics
The expectation is for lawmakers to pass new legislation that would provide explicit funding
Credit: Essex County Clerk's Office
It costs an average of $2.14 more to prepare one mail-in-ballot than one sample ballot.

Almost half of the nearly 600,000 New Jersey voters who received mail-in ballots this year returned them rather than voting at the polls, but a ruling last Friday by a state body could restore the previous vote-by-mail process, which many fewer voters used.

The little-known Council on Local Mandates agreed with a complaint by the NJ Association of Counties that two changes in the vote-by-mail, or VBM laws, over the last 16 months “constitute unfunded mandates” and as such are no longer mandatory. Those changes were contained in two laws, one that required the county clerks to, in September 2018, automatically send a VBM ballot to all those who had voted by mail in the 2016 presidential election; the second earlier this year, required VBM ballots to go to all those who had also voted by mail in 2017 and 2018.

As a result of those laws, according to the complaint filed by the NJAC with the Council on Local Mandates, county clerks had to issue more than 437,000 new VBM ballots in 2018 and 2019 and will have to continue doing so unless individuals receiving the ballots opt out of getting them.

Passed essentially along party lines, the laws implementing these changes were sold by Democratic sponsors as a way to boost voter participation by making it easier to cast ballots and they significantly increased the number of VBMs sent out by county clerks and returned by voters. Both laws were enacted within the month before the clerks had to mail out the ballots, causing chaos in their offices, and — at least so far — giving them no additional money to cover their extra costs for printing, mailing and personnel to process all the VBMs. No appropriation was attached to the 2018 law. While the 2019 law came with a $2 million appropriation, in July Gov. Phil Murphy asked the state treasurer to withhold the money from counties until it is clear the state will have enough money to cover the spending; he did so as part of an impoundment of funding from the fiscal year 2020 budget.

But the counties appealed to the council, which has the power to determine that a state law, rule, or regulation imposes an unconstitutional “unfunded mandate” on boards of education, counties, or municipalities. Under the “State Mandate, State Pay” constitutional amendment passed by voters in 1995, if the Council on Local Mandates finds a law, rule or regulation to be an unfunded mandate, that law, rule or regulation is considered to be no longer in effect and “expires,” according to the council’s website. The goal of the amendment was to discourage lawmakers and state officials from passing costly rules for local officials to implement without paying for them, thus making local property taxpayers pick up the bill.

John Donnadio, NJAC executive director, said that means the changes in the VBM laws put in place over the last two years are “null and void.”

How quickly will lawmakers pass new legislation?

As a result, voters would no longer automatically receive a mail-in-ballot solely by virtue of having voted by mail in prior years but would have to affirmatively request a VBM in the future, unless they had previously informed the clerk that they wanted to receive a mail-in-ballot for every election.

Alicia D’Alessandro, a spokeswoman for the state Division of Elections, said she could not comment because officials in the office were still reviewing the council’s decision and its implications.

“We would be happy to see it funded,” said Paula Sollami Covello, the Mercer County clerk and vice president of the Constitutional Officers Association of New Jersey. “We expect we are going to have a huge turnout for the presidential election next year.

Covello said that the number of VBMs she issued more than tripled over the last two years, from about 8,000 to about 27,000 this year and she expects to send out as many as 50,000 next year.

Donnadio said he expects lawmakers to pass new legislation providing explicit funding for the expanded VBM process, but he was unsure when that might happen.

According to the counties’ summation, both laws caused the county clerks to spend an additional $2.8 million in printing, postage, labor and other costs on the 2018 general and 2019 primary and general elections. It costs an average of $2.14 more to prepare one mail-in-ballot than one sample ballot; based on five counties, the cost of the average VMB was $2.42 while the cost of the average sample ballot was 53 cents, the complaint states. The NJAC also estimates that the clerks will spend close to $1.9 million each year to continue to implement those laws, not including the VBM costs for school, municipal, fire district or special elections held at other times.

“The new vote-by-laws forced the clerks to use valuable staff time and other resources normally dedicated to regular pre-election duties as it required the clerks to manually convert 437,481 new vote-by-mail voters as the Statewide Voter Registration System did not have the capability to manage the transfers otherwise,” asserted the NJAC complaint.

Covello said her office managed the extra work by diverting some non-election staff to help with the VBMs, gave extra hours to seasonal staff who typically work around election time and paid out more overtime than in the past to cover additional hours worked.

Need for a funding mechanism

“Neither of the new vote-by-mail laws included a funding mechanism to address the costs incurred by the county boards of elections,” the NJAC continued, giving as one example the close to $63,000 in additional labor, supplies and contracted costs spent by the Monmouth County Board of Elections to manage the 2018 general election and 2019 primary and count the votes.

Even if Murphy releases the $2 million to defray the costs of conducting the election earlier this month, the NJAC complaint states that that appropriation “appears to be a one-time appropriation as the measure did not establish a dedicated, non-lapsing, funding mechanism to address the recurring expenses in mandating the county clerk of each county issue 437,481 new vote-by-mail ballots in all future primary, general, school, municipal, and fire district elections.”

In a memorandum released last Friday, to be followed by a full decision at a future date, the council rejected the state’s argument that the VBM funding is exempt from the State Mandate, State Pay law. The council found that, “in the absence of any funding of the mandate, we find and determine that the challenged laws constitute unfunded mandates … the challenged provisions of the law shall cease to be mandatory in their effect and shall forthwith expire.”

According to one Murphy administration source, it’s possible the state could release the money to reimburse the counties in January. It’s unclear whether that would affect the council’s decision.

The governor’s office did not return a request for comment on the decision. And a spokesman for Senate President Steve Sweeney (D-Gloucester) declined to comment on the decision or whether lawmakers might pass a new bill to fund voting by mail at a future date.

“Obviously the legislature thinks this is important,” Covello said. “They want to see an increase in (voter) participation. I think the governor may fund it.”

Hundreds of thousands of New Jersey voters have embraced voting by mail. An analysis of a state database of VBMs through November 13 found that more than 278,000 people mailed in ballots for the Nov. 5 general election, about 47% of the nearly 598,000 VBMs that were sent out. While official turnout figures have not yet been released, an NJ Spotlight estimate based on election-night data — which did not include all VBMs or provisional ballots — found that about a quarter of the state’s 6 million registrants voted. That figure will rise when all the VBMs are included.