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New Jersey Secretary of State Tahesha Way.

Voting rights groups’ complaint demands electronic ballots for displaced voters

Post Office delays, election official mistakes shouldn’t disenfranchise voters, suit says

By Nikita Biryukov, October 16 2020 2:00 am

Two voting rights groups sued New Jersey’s top election officials Wednesday, asking a Mercer County Superior Court judge to force the state to electronically transmit mail-in ballots to some voters.

The complaint, filed by the state branches of the American Civil Liberties Union and the League of Women Voters, requests Secretary of State Tahesha Way and Division of Elections Director Robert Giles be forced to allow New Jerseyans displaced by the pandemic who request but do not receive a ballot at an alternate address by Oct. 30 to obtain one via email.

The suit does not ask that residents who haven’t their ballot by the time the election is only four days out be allowed to vote electronically.

If a voter does not receive their ballot because of U.S. Postal Service Delays or errors by swamped election officials, they should still have a chance to, the voting rights groups say.

“In this case, voters have done nothing wrong: They have met deadlines, they have filled out all forms, they have fulfilled all the obligations imposed on voters,” the suit said. “Yet they risk disfranchisement because of errors by the County Board of Elections, the United State Postal Service or others.”

Under an executive order filed by Gov. Phil Murphy, county clerks mailed all active registered voters in the state a general election mail-in ballot, which voters can return through the post, at a secure ballot drop box or at a polling place on election day.

A voter assistance hotline operated by Election Protection, a non-partisan voting rights coalition, during the state’s July primaries recorded 41 reports of undelivered ballots from voters whose registration the group confirmed.

The suit doesn’t provide an estimate for how many voters might be eligible for such a program, noting only that the group would include university and boarding students forced home by the pandemic, as well as residents who relocated because of the virus, and could number in the tens of thousands.

“Given the higher turnout anticipated in the 2020 general election, as compared with the 2020 primary, the risk of mass disenfranchisement is significant if this issue arises again,” the complaint said.

Such voters can still cast a provisional ballot at their polling place on election day, though that may not be feasible for out-of-state students registered here and others currently residing outside of New Jersey.

The defendants do not believe they can deliver ballots to displaced voters electronically absent executive action, a change in state law or a judicial order.

New Jersey already has a such a system to deliver ballots electronically.

The state’s overseas and military voters receive and return their ballots via email. Residents with disabilities can request — but must be approved for — an emailed ballot, though they cannot cast their vote electronically.

Assignment Judge Mary C. Jacobson will hear arguments virtually at 11 a.m. on Oct. 23, which is also the last day to request a mail-in ballot.

The state must file its response to the complaint by Wednesday, and the plaintiffs must respond by the following day.

ACLU-NJ Legal Director Jeanne LoCicero, senior supervising attorney Alexander Shalom and staff Tess Borden will argue the case for the plaintiffs. Deputy Attorney General Susan Scott was noticed on Jacobson’s order to show cause.

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