Election Law @ Moritz

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Free & Fair

Absentee Ballots in Close Elections: Will They Provide Grounds for a Contest?

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October 23, 2006

As the New York Times reported on Sunday, there is a national trend towards increased use of "no excuse" absentee voting. While this trend clearly affects the politics of campaigning, will it also affect the vote casting-and-counting process in such a way as to invite post-voting litigation when the apparent margin of victory is exceedingly narrow? This issue has been considered before, but it is worth examining in the context of those Senate races that are currently considered the tightest.

According to an extremely valuable chart prepared by electionline.org, these "swing" states (in terms of controlling the Senate) have no-excuse absentee voting: Maryland, Montana, New Jersey, and Ohio. By contrast, these other swing states still require an excuse for casting an absentee ballot: Michigan, Missouri, Rhode Island, Pennsylvania, Tennessee, Virginia. Tennessee, while requiring an excuse for casting a mailed-in absentee ballot, permits early voting at the county election commission's office without an excuse; but in-person early voting does not raise the same risk of post-election litigation that mailed-in absentee ballots do.

If New Jersey is the tightest race where no-excuse absentee voting is permitted, as various reports over the weekend suggest, it may become the state to watch most closely to see if an increase in mailed-in absentee ballots, as a percentage of total ballots cast, invites post-voting disputes alleging improprieties in the handling of these absentee ballots. New Jersey adopted no-excuse absentee voting only last year. Thus, this election may prompt allegations that some absentee voters were improperly influenced, or other absentee ballots were tampered before being returned for counting. Whether or not these allegations are well-founded, they may cause the result of the Senate race to remain uncertain during the initial hours or days after the polls close on November 7.

This Star-Ledger story from this morning contains further information on New Jersey's new no-fault absentee voting law, including a discussion of problems that surfaced in a local primary election. A state judge invalidate 31 absentee ballots on the ground that supporters for one candidate gave excessive help to voters in filling out these absentee ballots. The case is on appeal, but as the story suggests it may be an indication of the kind of challenges that could surface if the result of the state's Senate race is close enough to be worry fighting over.