Panel May Explore Loosening Mail-In Ballot Election Challenge Rule

By Nikita Biryukov, New Jersey Monitor

July 17, 2022

An independent legislative panel tasked with recommending revisions to state law plans to explore changes to a provision that bars election challenges due to certain vote-by-mail processing errors.

That provision, which states that “no elections shall be held to be invalid due to any irregularity or failure in the preparation or forwarding of any mail-in ballots,” was at the center of an election contest over a 2020 county commissioner race in Atlantic County.

Initial counts in that race put Thelma Witherspoon, a Democratic candidate for county commissioner, 286 votes ahead of Andrew Parker, her Republican opponent. But the county clerk’s office had mailed incorrect ballots to 544 voters inside and outside of the area they sought to represent, District 3.

A Superior Court judge eventually ordered the race be rerun the following November after finding some ballots were improperly counted and some voters were disenfranchised by the errors. A little more than 200 voters outside the district received ballots that included the District 3 race, while 335 in-district voters got ballots without the same. In total, 389 of those mail-in ballots were returned.

An appellate panel declined to seat Witherspoon before the do-over race and Parker was elected to the seat in November 2021.

The saga was a frustrating one for Democrats, but it isn’t out of step with how the courts generally handle election law cases.

Judges in New Jersey interpret election law with deference to voter enfranchisement and ballot access. The broad latitude given to jurists in such cases can, at times, lead to decisions that directly conflict with the letter of the law.

“It’s all on the books, but then judges kind of have carte blanche to do what they want,” said Michael Suleiman, the Atlantic County Democratic chairman.

Most recently, a Superior Court Judge in Burlington County allowed Democrats to fill a vacancy on the county commissioner board months after the deadline to do so had passed. State law requires county commissioner vacancies to be filled within 35 days.

To align the law with court decisions in the Atlantic County case, the Law Revision Commission’s staff wants to explore allowing judges – in cases of elections where there are missteps in the preparation or forwarding of mail-in ballots — to order such races rerun without relying on their own discretion as they do now. Judges would have to assume that the rule barring election do-overs applies unless shown evidence the errors impacted the results of a race.

Keith Davis, who was Atlantic County Republican chairman at the time, deferred comment to Don Purdy, his successor. Efforts to reach Purdy were unsuccessful. A call to the law office of Tim Howes, the GOP election law attorney who argued the Atlantic County commissioner case, was not returned.

The Law Revision Commission meets next week.

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