This story first appeared in the New Jersey Globe on September 20, 2018.
It’s the morning after the midterm election and America wakes up to this scenario:
* The United States Senate has 50 Democrats and 49 Republicans, and the margin that separates Bob Menendez and Bob Hugin is less than the total number of uncounted provisional ballots cast statewide.
* The U.S. House of Representatives has elected 216 Republicans and 216 Democrats, with three races still undecided: Tom MacArthur vs, Andy Kim in the 3rd, Leonard Lance vs. Tom Malinowski in the 7th, and Jay Webber vs, Mikie Sherrill in the 11th. In all three House races, the margins are less than the uncounted provisional votes.
Control of the Congress will be decided based on how New Jersey election officials count provisional ballots. The national media swarms New Jersey, much as it did in Florida eighteen years ago.
It might be Steve Kornacki’s ultimate dream situation — MSNBC might as well put him and his big board on the air 24/7 — but New Jersey officeholders would hate it. Imagine local officials like Morris County Clerk Ann Grossi suddenly in the national spotlight. She could make Katherine Harris look like Oliver Wendell Holmes.
The storyline is a bit of a stretch, but it’s not impossible as county election officials struggle to implement New Jersey’s new vote-by-mail (VBM) law that is very likely to expand — substantially expand — the number of provisional ballots cast in the 2018 general election.
Under the new law, any voters who received a VBM in the 2016 presidential election will automatically be considered a VBM voter. County Clerks are now required to mail ballots to these voters.
Voters who for some reason don’t receive their ballots — or decide, accidentally or on purpose, to ignore them — can still vote at the usual polling location on election day. The difference is that they can’t vote by machine and will need to use a provisional ballot.
Something to watch for: will each county clerk properly anticipate the extraordinary demand for provisional ballots and have an appropriate inventory available? Or will a lack of planning create even more confusion on election day?
Potentially, this could have a big effect on county and municipal races, where traditional turnout models might be drastically altered.
Under typical circumstances — that’s not really a thing in New Jersey — the counting of provisional ballots is tedious and could take more than a week to complete. They are are sent to the Board of Elections in crates, then opened and sorted by town and voting district with big rubber bands holding the ballots in place. Then the ballots are sent to the Superintendent of Elections/Commissioner of Registration to be be verified — that means confirming the voter is registered and, among other things, making sure the voter hadn’t already voted. In some counties, that could take days. In 2016, it took 2.5 weeks to finish counting provisionals in some parts of New Jersey.
Bottom line is that counting the provisionals typically doesn’t start until the Friday after the election. It’s up to the individual election officials to decide if they want to work on Saturday and Sunday, or on Monday, Veterans Day, a state holiday.
Another relevant change: vote by mail ballots used to have an arrival deadline of 8 PM on Election Day; now the VBM’s just need to be postmarked by November 6 and have an extra two days to arrive at the county.
And as is almost always the case, challenges to provisional ballots are likely to wind up before a judge who struggles to make sense of New Jersey’s contradictory and flexible election laws.
There are some big numbers involved. Camden County produced more than 40,000 vote-by-mail ballot in 2016 — more than one out of every ten registered voters. Middlesex had more than 37,000, Ocean had more than 29,00, Morris had more than 22,000, Essex had nearly 17,000, and Hudson almost 10,000.
One possible twist, especially if the MacArthur/Kim race is close: the director of the state Division of Elections is Robert Giles, a holdover from Chris Christie’s administration. Before moving to the Secretary of State’s office, Giles ran the Ocean County Board of Elections, which is chaired by the Republican County Chairman, George Gilmore.
Editor’s Note: For the purposes of an example,50 Democrats includes Sen. Bernie Sanders (D-VT) organizing with the Democratic Party. A 50-50 Senate would give Republicans working control, since Vice President Mike Pence would act as the tiebreaker.