Citing the need to allow voters to be heard, Superior Court Judge Michael Blee will permit 1,909 disputed vote-by-mail ballots from the June 4 primary election that were opened weeks too early to be counted, but blasted the Atlantic County Board of Elections for their sloppiness and tighten up some of their procedures.
“ What happened in this election was sloppy, perhaps inexcusable. However, no one disputes that the affected envelopes arrived at the board in a condition that complies with the requirements,” Blee said. “There was no testimony, nothing in the letter briefs or the testimony here today that suggests that the ballots in the prematurely opened-up ballots were taken out, examined, altered, or tampered with.”
Those ballots, and others still uncounted, should determine the outcome of the Democratic primary for Congress in New Jersey’s 2nd district, where Joseph Salerno leads Tim Alexander by a scant 412 votes.
Blee acted as the tiebreaker after the commissioners of the Board of Elections deadlocked 2-2 in a vote on the counting of the ballots on Tuesday. Democrats wanted the votes counted, but Republicans, citing the need to strictly follow state election laws, opposed it. He heard from two election workers called as witnesses by Deputy Attorney General Steven Gleeson.
One witness, Edward O’Donnell, Jr., said that election officials were unaware that there was a simple switch on the machines that would have allowed ballots to be date stamped without slicing them open.
“We know now,” O’Donnell said.
In early May, election workers began date stamping the VBMs and later realized that they had been sliced open from the top or bottom of the envelope. New Jersey law doesn’t permit ballots to be opened until five days before Election Day.
“It is clear from the testimony that that was violated,” said Blee.
Blee said the statute requires ballots received by the Board of Elections be rejected if the inner or outer envelopes are unsealed, or if the envelope or envelope seal had been tampered with. But he found that the “statute is silent as to what to do if the board intentionally or unintentionally opened the inner envelope before or five days prior to election.”
The judge was bothered that Gleeson could not tell the court how many ballots were not sliced, or about dates and deadlines.
“The presentation really lacked those two due to the details,” he said. “Nobody could provide the date that they actually realized this inadvertent error. No one could provide the date that once that error was corrected, when they started. And no one could really differentiate to this court those ballots that were not sliced, the inner ballot, which certainly should not have been rejected, and if they were open five days before the election, as they’re supposed to do by statute. It’s somewhat perplexing to the court. No one is perfect.”
“It was an inexcusable error … it could be corrected with a simple movement of a button,” said Blee.
But Blee found that the intent was simply to mark the date the ballot was received by the Board of Elections.
In his ruling, Blee noted that there were issues that concerned and perplexed him, including representations by O’Donnell that the Board of Elections was sometimes overstaffed and that too many people made the vote counting chaotic.
After O’Donnell testified that there are times when open ballots are not under video surveillance, Blee suggested that election officials change that, noting that the cost of cameras has dropped considerably. He also appeared concerned to find that lighting at the Board of Elections is poor and that sometimes puts seasonal election workers – some of them are octogenarians, O’Donnell said – in an environment that creates mistakes.
“But those concerns would never, in this court’s opinion, outweigh the sanctity of not disenfranchising the voter. The intent of those voters was not tampered with,” Blee said. “They wanted to vote. They filled out the forms and they should not be penalized because of inadvertent technical error.”