‘Wildly outdated’ election laws in N.J. need revamp | Opinion

January 31, 2022 6:18 am

An 1880 engraving by Howard Pyle in Harper’s Weekly titled “Women at the Polls in New Jersey in the Good Old Times.” (Courtesy of Ann Lewis/Museum of the American Revolution)

New Jersey holds some of the most secure elections in the nation, with broader access to the ballot than almost anywhere else.

But New Jersey also boasts an egregious number of horribly written and wildly outdated election laws that govern the way we vote. These laws are an arcane, often incoherent mess that desperately need to be rewritten. Doing so would give New Jersey the most understandable, transparent, and reliable election laws, benefitting campaigns and voters alike.

A startling portion of our election laws — mostly contained in what is referred to as Title 19 — were written and passed into law in 1876 and are still on the books. Over time, patchwork additions were made, such as the creation of primary elections in 1903, the predecessor to what we now know as “the line” in 1908, and the Election Law Enforcement Commission in 1973.

There have been seismic changes to how we conduct elections since the 1800s. We first allowed voting machines in 1902, and began requiring them in New Jersey’s largest counties in 1940. The Legislature expanded absentee voting for members of the military in 1948, and then included civilians in 1953. In 2009, the Legislature removed the requirement that voters provide a reason for being absent from the state to receive a vote-by-mail ballot, massively increasing access to mail-in ballots to every New Jerseyan. This was arguably the biggest change to voting since the introduction of voting machines themselves, and it was awkwardly glommed onto an already existing framework.

Title 19’s framework is still based around the premise that voting takes place by paper ballots stuffed into a box and then read aloud when polls close. This is a completely outdated concept, as most voting today is done by machine and vote-by-mail ballots.

But the legal framework is not built in a way that reflects how we actually vote, so we have unnecessarily complicated administration and oversight of our elections. Instead of reworking our laws to accurately reflect how we vote by structuring our system around voting machines and vote-by-mail ballots, we have instead added additional laws on top of an already existing system, resulting in a messy pile of confusing and inconsistent laws that can add to a general distrust of the system when they have to be reconciled on the fly.

Here’s one example: N.J.S.A. 19:14-4 lays out in detail how paper ballots must be designed and printed. This law was originally passed in 1920, when voting machines were legal but rarely used. When voting machines became mandatory in 1940 in many counties, the Legislature passed N.J.S.A. 19:48-3.2, which prohibits the use of those same paper ballots. Absurdly, the initial paper ballot law remained on the books even though it was otherwise inapplicable. Then, in 1992, the Legislature created emergency ballots for use when voting machines broke down. When the Legislature passed that law, for some reason they also kept an earlier section of the law that only allowed emergency ballots to be used when all other ballots were destroyed, stolen, or otherwise not delivered to the polling location.

This bizarre retrofitting has resulted in one of my favorite outdated laws, N.J.S.A. 19:16-7. This statute takes the paper ballots — which, remember, are now only used for emergency ballots — and requires them to be read aloud individually after the polls close on Election Day by the poll workers, folded “to a size about five inches square,” and then strung, in order, “by means of a needle and string to be provided for that purpose.” Now, N.J.S.A. 19:53B-17 still requires the ballots to be strung up but does not require that they be folded or that a needle be used (despite the old law). I can’t speak for all 21 counties, but at least one elections board administrator told me recently the string is still in fact provided to poll workers, although they are not provided a needle anymore.

Another example of the inconsistency created by this patchwork system: By a strict reading of N.J.S.A. 19:48-3.2, provisional ballots are allowed only for voters “who no longer reside at the place from which they are registered.” This conflicts with the later-adopted, vote-by-mail section of Title 19, which permits provisional ballots to be used by voters if they already received a vote-by-mail ballot but simply prefer to vote in person on Election Day.

As a result of our mishmash of laws, we have numerous statutes on the books that overrule and contradict one another, instead of a cohesive structure that makes sense to anyone who is not an election lawyer.

There are so many similarly outdated sections that need to be addressed if we ever want to have a semblance of cohesive rules regarding our elections. Title 19 requires your signature on a mail-in ballot match the signature you used when you registered to vote. But many voters now register to vote when they get their driver’s license. Anyone who has tried to use the terrible electronic signature pads at the MVC knows how inaccurate those signatures can be. How are we supposed to accurately and consistently duplicate that signature on all of our future ballots? How are boards of elections supposed to verify a handwritten signature matches an electronic signature?

Other sections are worse. One provision of Title 19 states a vote for a write-in candidate should not be disregarded for failure to include the candidate’s “Christian” name, which would be an interesting question for a Jewish, Muslim, or atheist candidate. Another section, long since ruled as unconstitutional by multiple judges but one that inexplicably remains on the books, limits seats on political party county committees to just men and women, which could be construed as a prohibition against anyone who doesn’t identify as either gender from serving.

Many of the laws that govern municipal elections are not in Title 19 itself and change based on whatever form of government each municipality has adopted. Municipalities can be governed by the Faulkner Act, the Walsh Act, the 1923 Municipal-Manager Law, or one of the other half-dozen forms of local government that exist in New Jersey. Some municipalities hold elections that are partisan versus non-partisan, some contain ward or at-large council seats, and some have their elections in May instead of November. There are also two additional, completely different sets of laws (the Uniform Non-Partisan Elections Law and the Municipal Vacancy Law) that govern some forms of municipal elections, but they are neither listed in Title 19 nor is it always clear to which form of government they apply. And still, even more laws for elections can be found partially within Title 19 as well as in other sections of the law (such as Title 18 for public elections for school boards), making the system even more convoluted.

For years, our election system has been held together by little more than duct tape and by the exemplary work of our county boards of election, who have somehow managed to operate and create secure elections despite the incongruity of the laws meant to govern them. Too much bench-made law has been made by our judiciary as it is forced to reconcile unclear, unexplainable, and outdated rules.

In 2003, the New Jersey Law Revision Commission proposed a wholesale rewrite of Title 19 that restructured it in such a way, and using plain enough language, that any voter could read it and understand the law. While our Legislature never put these recommendations into practice at the time, it’s long past time that they revisit the subject and fix the most important section that underpins our entire democratic structure.

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Scott Salmon
Scott Salmon

Scott Salmon is a partner at Jardim, Meisner & Susser, P.C., where he is the chair of the firm’s election law practice group.