NJ Election Code is Stuck in the Past
by Scott Salmon
As an elections lawyer, I think my favorite section of New Jersey’s election code is N.J.S.A. 19:16-7. It states that after the polls close on Election Day, the poll workers present at a given polling location are to open the ballot boxes, remove the physical ballots “singly,” and audibly read them aloud. After a ballot is read aloud, it is to be numbered on its back and folded “to a size of about five inches square,” and—most importantly—strung up in the order read “by means of a needle and string to be provided for that purpose.” Yes, you read that correctly. Even though New Jersey has used electronic voting machines—almost all of which do not produce a paper ballot—for nearly 30 years, ballots are still technically required to be strung up on a string.
This is not a new law. In fact, while this specific version of the statute was most recently revised (albeit marginally) in 1992, it traces its origins back to 1846 when it was first written and passed into law. Actually, until about 1920, the statute referred to “needle and twine,” rather than “needle and string.” In any case, the law made sense back then. All voting took place in-person using physical ballots. Affixing the ballots to a single string was a good way to ensure that no ballots were lost, or, just as importantly—added—after voting had concluded. But like most sections of Title 19, which is how New Jersey’s election code is generally referred to, it is woefully out-of-date.
That Title 19 desperately needs a head–to–toe rewrite is widely known among politicians, lawyers, and elections officials. Although New Jersey’s first election laws were created in 1777, almost nothing was on the books until 1846. Much of the election code was rewritten in 1876, and that is where most of the current version of Title 19 originated. Between 1903 and 1911, there were some notable updates as a wave of progressive reforms hit New Jersey. We created a primary system—rather than simply having party bosses anoint nominees—and created the county and municipal committee system to govern political parties. Title 19 underwent further modifications in 1920, 1930, 1941, and 1979, with the most recent major changes occurring in 2009, when New Jersey began allowing anyone to request a mail-in ballot (which—to digress for a moment—has its own interesting history: first being allowed from 1815 to 1820 for members of the military, then being banned again until 1876, after which its use was limited to the military during war until 1953, when civilians with a sufficient excuse were allowed to use absentee ballots in lieu of voting in person on Election Day).
As a result, Title 19 is a patchwork of updates and archaic rules—for example, the needle-and-string requirement—that, in most counties, simply do not exist. In fact, it was not until 2018 that majority Spanish–speaking populations were guaranteed bilingual ballots. What about areas with populations speaking other languages? Some counties are covered by the federal Voting Rights Act, which requires multilingual ballots depending on the population, but this is a relatively modern problem that was simply not an issue back in 1846.
Our election system underwent a stress test this past November 3rd, with staggeringly high turnout numbers and a near–complete reliance on voting by mail—revealing the cracks in Title 19. The New Jersey Legislature is currently trying to patch those gaps once again, an action that will still fall short of what’s needed. Now is the time for a wholesale rewrite of Title 19, one that not only is expressed in modern vernacular, but that ensures our ability to elect our representatives accurately and fairly.
About the blogger: Scott Salmon is a partner at the law firm of Jardim, Meisner & Susser, P.C., where he serves as Co-Chair of the Election Law and Government Representation practice groups. Scott also practices employment law and has been named a 2020 Rising Star by New Jersey Super Lawyers® in that field. He resides in Union County where he is active in his synagogue, Temple Emanu-El; serves on the Board of Trustees for Action Together New Jersey, the largest grassroots activist organization in the State of New Jersey; and sits on the Board of the New Jersey Higher Education Student Assistance Authority.