absentee ballots in new jersey
Kim Lane Scheppele
kscheppe at LAW.UPENN.EDU
Thu Oct 3 19:17:03 PDT 2002
One last relevant bit of New Jersey law. Forrester's stay application today makes much of the same argument Republican counsel made yesterday -- that the main reason why the substitution of names cannot occur at this late date is that it will disenfranchise absentee voters. And they want to make the argument that federal law (specifically the Uniformed and Overseas Citizen Absentee Voting Act) requires that absentee ballots be sent out at lest 35 days ahead of an election.
But there is New Jersey election law that says the following:
§ 19:57-4. Applications for absentee ballots
At any time not less than seven days prior to an election in which he desires to vote by mail, a civilian absentee voter may apply to the person designated in section 6 of this act, for a civilian absentee ballot. Such application or request shall be made in writing, shall be signed by the applicant and shall state his or her place of voting residence and the address to which said ballot shall be sent, and the reason for which the ballot is requested.
Any military service voter desiring to vote in any election or any relative or friend of a military service voter who believes that such voter will desire to vote in any election, may apply to the person designated in section 6 of this act for a military service ballot to be sent to such voter. . . .if such a request is made, a military service ballot shall be sent in a timely manner to the voter for all such elections.
[The mliitary absentee voter rules do not specify any deadline for application.]
Any civilian absentee voter who fails to apply within the seven-day time prescribed above may apply in person to the county clerk for an absentee ballot on any day up to 3 p.m. of the day before the election. . . .
This means, as I read it, that New Jersey law allows absentee ballot requests in cases of civilians to be made in writing up to 7 days before the election and in person up until the day before. Doesn't that make it harder to argue that the part of the New Jersey law contested yesterday anticipated that absentee voters would have their ballots mailed 35 days ahead of the election? If federal law requires more time for military overseas voters, couldn't this be solved in the individual case (as apparently it was handled under the DOJ-Florida consent decree) to count military overseas absentee ballots for an extra number of days after the election and to continue doing this for all subsequent elections until such time as state law is made consistent with federal law? If indeed federal law is interpreted as requiring a mailing of absentee ballots 35 days ahead of an election, then nearly all New Jersey counties were in violation before the Torricelli issue came up and there is no solution, Torricelli or no, consistent with federal law now. If one believes that these numbers are absolutely immune from any attempt to interpret the law in order to effectuate the law's purposes, then the only solution, on such a reading, would be to say that military overseas voters could no longer vote in New Jersey's election in those counties in which absentee ballots were not already mailed out several days ago.
For those who believe that the state legislature should have the last word -- here goes:
§ 19:57-3. Persons entitled to vote by absentee ballot; manner; liberal construction
The following persons shall be entitled to vote by absentee ballot in any election to be held in this State, in the manner hereinafter provided:
[followed by specification of who is allowed to apply for an absentee ballot]
This act shall be liberally construed to effectuate these purposes. [emphasis added].
Kim Lane Scheppele
Professor of Law and Sociology
University of Pennsylvania
3400 Chestnut Street, Philadelphia PA 19104
Phone: 215-898-7674 Fax 215-573-2025
Email: kimlane at law.upenn.edu
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