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“I want to be buried in Hudson County so that I can remain active in politics." -- Gov. Brendan T. Byrne (1924-2018)

N.J. election law now allows some dead people to vote in upcoming election

Unintended consequence of early counting could let some deceased New Jerseyans vote from the grave

By David Wildstein, September 25 2020 9:09 am

Brendan Byrne’s joke about deceased New Jerseyans voting from their graves has been around for years, but now it might actually be legal.

A new law allowing county election officials to begin counting vote-by-mail ballots ten days before Election Day appears to allow dead people to vote, in certain instances.

Here’s how it works: a voter casts a mail-in ballot early and then passes away after early counting commences.  The vote counts.

“If someone dies after their ballot has been counted, you can’t disqualify their vote,” said State Sen. Jim Beach, one of the legislature’s resident election law experts.  “There’s nothing you can do about it.”

New Jersey statues say that when a county Board of Elections receives evidence that a VBM voter has died “before the opening of the polls on the day of the election, the ballot shall be rejected.”

An Assembly sponsor of the bill that changed the law told the Globe that there was no explanation offered about the effect of allowing New Jerseyans who have expired to still vote.

The late amendment to a bill passed by the Legislature and signed by Gov. Phil Murphy in August gives local election officials more time to count votes.  Some counties said they need the extra counting time to process what could be 4 million paper ballots in a presidential election year where voting is being conducted primarily through vote-by-mail ballot in response to the coronavirus pandemic.

In a state where local elections are often close – one Paterson council race is being run again in November after the two candidates finished in a tie last May – it’s possible that a deceased voter could represent the winning vote.

Two Nutley residents died after casting their vote-by-mail ballots for the May 12 non-partisan municipal elections.

The process worked the way it was supposed to, and election worker pulled the ballots before they were counted on Election Day.  Early counting might have assured their ballots be counted.

At least one of those votes could have been crucial to the outcome of the race for mayor, where incumbent Joseph Scarpelli and Commissioner Mauro Tucci ended the election tied – the one cast by James Battaglino, 77, who died on April 14.

Nobody really knows how Battaglino voted, but there is a belief that the ballot cast by Dr. Michael Giuliano, who died at age 64 on April 18, wouldn’t have affected the outcome of the Scarpelli vs. Tucci contest.

“We were both his patients,” Scarpelli told the New Jersey Globe earlier this year.

It’s unlikely that any fixes will come now, and the ability of a voter to cast their ballots after death looks like it will stand this year.

Any changes would have to come in 2021.

“I can help with that, being a funeral director,” said former Gov. Richard J. Codey.

Byrne, known for his humor, often said he wanted to be buried in Hudson County so that he could “remain active in politics” – a hat tip to the myth that party bosses used to cast votes from cemeteries in Jersey City.

The unintended consequences of New Jersey’s new election law appear to validate Byrne’s statements.

“You prove Brendan Byrne to be correct,” said Beach.


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