Bill would allow mail-in ballots to be counted before Election Day

Republicans warm to early counts, but progressives still wary

By: - December 6, 2021 7:00 am

A polling site at City Hall in Asbury Park, NJ on Nov. 2, 2021. (Daniella Heminghaus for New Jersey Monitor)

After widespread dismay about lagging and often opaque vote counts, a Republican legislator plans to introduce a bill Monday that would allow county election officials to begin tallying vote-by-mail ballots before Election Day.

The measure, sponsored by Assemblyman Christopher DePhillips (R-Bergen), would permit county election boards to open and canvass mail-in ballots as they are received, with results held under lock and key until polls close on Election Day.

“I think it will build that trust that people want to have — or maybe in the past had — about our election process,” DePhillips said.

The move comes after several counties around the state were slow to report mail-in results. Those delays caused consternation among candidates, elected officials, and political operatives.

Numerous races — including the contest for governor and close legislative contests in the 11th and 16th districts, among others — were not called on election night this year as officials raced to tally mail-in votes that could not be canvassed early.

In some cases, election night leads for Republicans evaporated as more heavily Democratic mail votes were added to the totals. That process, while familiar to political observers, spurred accusations of voter fraud from some GOP voters, though those calls were not echoed by officials from either major party.

“That fact alone, I think, damages the integrity of our elections process because that was unnecessary,” DePhillips said. “Those numbers could have been revealed and disclosed the second the polls closed at 8 o’clock.”

To account for voluminous returns in 2020’s elections, which were conducted almost entirely using vote-by-mail ballots, the Legislature passed a bill that allowed county election boards to begin canvassing mail-in ballots cast in the 2020 general election up to 10 days before Election Day.

The measure drew staunch opposition from Republican lawmakers and some progressive leaders over fears that early results might leak and lend established candidates an advantage in the final days of a race.

DePhillip’s bill won’t see mail-in returns finalized on election night. It leaves one newer provision of New Jersey election law intact that has been criticized by the GOP, a six-day grace period for mail-in votes postmarked by Election Day to be counted.

While Republican opposition to early counting appears to have ebbed after this year’s races, anti-establishment Democrats’ views are largely intact.

Sue Altman, state director for New Jersey Working Families and a longtime opponent of Camden Democrats aligned with powerbroker George Norcross, said DePhillip’s bill shouldn’t be advanced without protections and incentives against leaked results.

“We know that leaking occurs,” she said, citing mail-in results in the 2019 Camden County clerk race that were reported hours before polls closed. “I think without additional safeguards within those offices and without criminal penalties, in a state with billions of dollars at stake, this would be a big mistake.”

The temporary law that allowed early counting in last year’s elections made leaking results punishable by up to five years’ imprisonment and fines of not more than $15,000.

Altman said election boards should also purchase ballot counting machines that can keep tallies obscured until polls are closed. That would necessitate an appropriation, or else the law could be struck down as an unfunded mandate.

“We would need a machine upgrade for me to be comfortable with this,” she said. “So not only do we need criminal penalties, we need to not tempt fate.”

As introduced, the bill does not lay out penalties for early disclosure, though that may change as the lawmaking process wears on. Similar proposals made in the past have included criminal penalties for anyone who leaks results.

“It’s something I would look at,” DePhillips said of penalties. “I would defer to the election boards people on that issue, if they felt that that was necessary. I think security and confidentiality are still top concerns.”

While the bill’s chances at becoming law are still unclear at this early stage, it’s possible the measure will win support like-minded Democrats. DePhillips said he would seek Democratic cosponsors for his legislation.

Sen. Troy Singleton (D-Burlington), who was among the 2020 measure’s prime sponsors, has said he intends to introduce a bill that would allow officials to count mail-in ballots before Election Day.

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Nikita Biryukov
Nikita Biryukov

Nikita Biryukov most recently covered state government and politics for the New Jersey Globe. His tenure there included revelatory stories on marijuana legalization, voting reform and Rep. Jeff Van Drew's decamp to the Republican Party. Earlier, he worked as a freelancer for The Home News Tribune and The Press of Atlantic City.

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