If a mail-in ballot is rejected due a problem with a signature, New Jersey voters now have the chance to fix that problem. This new capability is the result of a federal court settlement between the state and advocates whose lawsuit contended the signature verification processes unconstitutionally disenfranchised voters.
The agreement, approved Wednesday by U.S. District Court Judge Michael A. Shipp, does not allow voters to correct all the problems that lead to ballot rejections, just those due to signature issues. About one in every 10 people who mailed in ballots in last month’s special elections had their votes rejected; but only about a quarter of all uncounted ballots were rejected for mismatched signatures.
Still, the settlement should prevent election officials from discounting thousands of votes cast in the rescheduled primary, in which a majority of those who vote are likely to use a mail-in ballot. Gov. Phil Murphy last month ordered that due to the COVID-19 pandemic, the primary be postponed from June 2 and be conducted chiefly by mail, with at least one in-person polling place also open in every municipality. Every registered Democrat and Republican should have received a return postage-paid mail-in ballot by now, with unaffiliated voters getting a postage-paid form to request a ballot.
“I am satisfied with the agreement and thrilled that we were able to come up with a solution ahead of the primary election,” said Jesse Burns, executive director of the League of Women Voters of New Jersey, one of the plaintiffs in the suit. “This settlement ensures voters can vote with confidence in July.”
Gauging mail-in ballots
It’s unknown how many people will choose to vote by mail this year. Two years ago, 700,000 voted in person or by mail in the primary with federal seats at the top of the ticket. Presidential years usually bring out the most voters, but the nominations are essentially decided and some people may not be focused on the election itself. That’s due in part to the outbreak of the novel coronavirus, which has killed 12,769 New Jerseyans as of Wednesday, and the recent nationwide protests following the killings of a number of black Americans by police.
This is an important election, though, with nominations for one U.S. Senate seat and all 12 congressional districts on the ballot, with 10 of those having contested primaries. In a majority of districts, the winner of the primary typically wins the seat.
Because of the high stakes and short time frame, the League of Women Voters of New Jersey, NAACP New Jersey State Conference and several individuals sued the state, contending the process by which election officials compare signatures on ballots with those on file and reject ballots when signatures do not match violates voters’ constitutional rights. Unlike 16 other states, New Jersey does not currently require that voters be told about ballot rejections before Election Day and be given a right to fix any problems.
A signature fix just for the primary
The settlement, reached Tuesday night, changes that process, though just for the July 7 primary. It requires Secretary of State Tahesha Way to tell all county election officials to accept all ballots unless there is a major and inexplicable difference between the signature on the certificate accompanying the ballot and the one on file.
“When verifying signatures, evaluators should keep in mind that everyone writes differently, and no one signs their name exactly the same way twice,” the settlement states. “Evaluators should presume that the documents were signed by the same person and must accept a signature as valid unless there is a clear discrepancy that cannot be reasonably explained.”
This solves a problem cited in the lawsuit of officials in some counties being stricter in matching signatures and rejecting ballots at higher rates than in other counties.
“There was no statewide guidance,” said Henal Patel, an attorney with the New Jersey Institute of Social Justice that was among those who filed the suit. “It was left to whatever the counties decided.”
Ryan P. Haygood, president and CEO of the institute, said the settlement is “particularly important for black and brown voters whose ballots are disproportionately rejected.”
The settlement requires election officials to notify voters whose ballots are slated to be rejected due to signature issues within 24 hours by sending them a form to complete and return in which they attest that they submitted the ballot and provide some proof of their identity. They will have until July 23 to do so, which could further delay the calling of races expected to be close in a handful of congressional districts.
This procedure will also apply to the validation of provisional ballots. That is important, because nearly all people who decide to vote in-person on July 7 will have to do so by provisional ballot, which is similar to a mail-in ballot and which a voter will sign. Only those with disabilities will be allowed to use a machine to vote.
Ensuring protocol is followed
Under the settlement, county boards of election will have to meet between now and the election and again eight days after the election to ensure the new procedure is followed. The boards will also be required to send Way on July 15 information on how many ballots they have counted and how many they have left to count.
Finally, the settlement requires Way to educate voters about the importance of signatures on mail-in ballots and their right to know if their ballot is rejected and to fix a problem. This needs to be available on the state’s website and via social media and be shared with counties and advocacy groups. Burns said the league is one of those groups that will work to educate voters about the ability to fix a signature problem for the primary.
Since the settlement applies only to the primary, the case on the constitutionality of rejecting mail-in and provisional ballots based on a signature match for all future elections continues.
Several bills are pending that seek to fix some of the other issues that have led to ballot rejections.
The most recent of these is S-2496, which last week cleared the Senate Budget Committee along party lines. Among other provisions, the bill would allow voters to drop off ballots with the municipal clerk, rather than rely on the postal service or have to drive to the county seat or the location of a secure drop box. The measure also provides for ballots to be counted up to six days after the close of polls, provided they are postmarked by Election Day, and allows some people to deliver more than three ballots to the county elections office, which is the maximum currently allowed.
Held up in the mail
An NJ Spotlight analysis of the May 12 special municipal elections found that almost 2,200 ballots were rejected because they were not received on time. Most of the delays were blamed on slower than usual mail delivery due to COVID-19’s effect on U.S. Postal Service staffing and operations.
For the primary, Murphy has extended the deadline by which a ballot can be received and counted from the current 48 hours after the close of polls to seven days to account for continuing delays.
Sen. Paul Sarlo (D-Passaic), a bill sponsor, said he does not want voters to have to count on the postal delivery for future elections.
“Relying on the Postal Service had disastrous results, with ballots that were lost or delayed, meaning the votes were not counted,” he said. “Requiring individuals to travel all the way to their county seat to hand deliver their ballot to ensure it is received and properly counted is an unfair burden and an inefficient process.”
Yet none of the bills that have moved provide a larger solution to ballot rejections by doing what 16 states do and notifying all voters when their votes may not be counted for any reason and allowing them to fix any problem.
NJ Spotlight found that election officials rejected more than 11,000 ballots cast in 31 municipal elections across the state on May 12, which was an entirely vote-by-mail election. That represented 9.6% of all those sent in. There were more than a dozen reasons for rejecting ballots. The most common were that the signature on the ballot did not match the one on file, the ballot arrived too late or the required certificate was not enclosed.
“This is just a first step,” said Ravi Doshi, senior legal counsel at the Campaign Legal Center, who also worked on the lawsuit. “It is now incumbent on the state to continue improving its mail-voting system, and to make permanent the notice and cure provisions that this settlement secures for the July election.”
Way’s office did not respond to a request for comment.