By Steven F. Huefner
New Jersey’s Lieutenant Governor, the state’s chief elections officer, today issued a directive permitting voters affected by last week’s superstorm to cast an absentee ballot through this Friday. The directive explains that “County Clerks are receiving applications at a rate that outpaces their capacity to process them without an extension of the current schedule.” The order maintains today at 5 pm as the deadline for applying for a ballot, but directs county election officials to continue processing these requests through Friday at noon, and then gives voters until Friday at 8 pm to return their voted ballot, by fax or email.
This extension of Election Day for three additional days is a remarkable accommodation of displaced voters. Though the move is unquestionably a well-intentioned effort to preserve the voting opportunities of displaced voters, it raises several significant issues. These issues bear some additional and urgent attention.
First, as a matter of federal law, the extension could undermine the legitimacy of the state’s choice of presidential electors. Federal statute, the Electoral Count Act, provides that the date for selecting a state’s slate of electors is today, November 6. The same statute provides that if a state has held an election today, but for some reason has “failed to make a choice,” the state’s electors may be chosen thereafter in a manner directed by the state legislature. Arguably, the Lieutenant Governor could maintain that the New Jersey legislature has delegated the authority to establish this emergency voting mechanism, but it is by no means certain that Congress or the federal courts would accept this claim. To avoid this problem, the New Jersey legislature perhaps could formally act to ratify the process that the Lieutenant Governor established by directive today . But nonetheless the extension of voting beyond the uniform nationwide date for the presidential election in theory could jeopardize New Jersey’s presidential electors.
Second, a separate and much more recent federal statute, the Help America Vote Act, provides that if any voting occurs after poll closing time (which time must have been established at least ten days before Election Day), all ballots cast because of that extension of time must be cast as provisional ballots. The New Jersey directive does appear to direct that absentee ballots cast by fax or email after the close of polls today be treated as provisional ballots. This is fortunate, because in the event that federal courts or Congress determine that the extension is contrary to federal law regarding the presidential election, it may provide a mechanism for preserving the validity of New Jersey’s selection of presidential electors on the basis solely of the votes cast on Election Day. Of course, any decision about the validity of the extension for the presidential race, or for New Jersey’s congressional races, need have no effect on whether the votes cast by fax or email after the close of the polls tonight can be counted for state and local races.
Third, as a matter of sound election management more than strict legal requirements, the extension raises the immediate question of whether tonight New Jersey will withhold its unofficial Election Eve results for three days, so as not to influence those displaced voters who have requested a ballot but still have not received or cast it. This issue may not seem particularly salient unless an outcome, according to the unofficial Election Day tally, remains relatively close, but of course many down-ballot races may well be close even if the presidential race or other races likely are not. Absentee ballots, because they are not voted in the protected setting of a polling booth, are already more susceptible to fraud and undue influence than regular ballots. That could be especially true if an outcome is known to turn on these late votes.
This is a rapidly developing story that Election Law @ Moritz will continue to follow closely.