UPDATE: Since this article was written, the New Jersey Supreme Court has denied an appeal, leaving the issue for the Legislature to address.
Permitting Election Day Registration for Voters
In a test case with nation-wide implications, the New Jersey Supreme Court is being asked to decide whether it is constitutional to require voters to register prior to Election Day now that electronic voter databases have made it much easier and faster to determine eligibility.
The plaintiffs in Rutgers Student Assembly v. Middlesex County Board of Elections seek to convince the Court to strike down the New Jersey law requiring that voters to register at least 21 days before an election.
Two lower courts have refused to do so, and the plaintiffs now seek to have the New Jersey Supreme Court decide the case.
They have been backed in the litigation by Common Cause, which says the case is the first in the U.S. to ask if advance registration remains constitutional where a state has a Statewide Voter Registration System (SVRS).
The suit was brought by the New Jersey chapter of the ACLU, the New Jersey Appleseed Public Interest Law Center and the Rutgers Constitutional Litigation Clinic on behalf of Rutgers University students, Middlesex County residents, the Latino Leadership Alliance of New Jersey and New Jersey Citizen Action.
They assert that having to register at least three weeks in advance is no longer necessary and presents an unjustified obstacle to the fundamental right to vote. They rely on the state constitution, which guarantees the right to vote to every U.S. citizen over the age of 18 who has lived in New Jersey for at least 30 days.
They say the 21-day rule burdens some would-be New Jersey voters more than others, such as those who have recently relocated to or within the state and younger people, who tend to be more mobile, as well as new citizens and those just released from prison.
The plaintiffs provided examples of their own disenfranchisement due to the advance registration requirement despite their meeting the constitutional criteria to vote.
Two registered on time but when they showed up to vote were not on the voter rolls. One was refused a provisional ballot and though the other received one, it was later deemed ineligible and not counted because officials could not verify that he met the 21-day mandate. Another moved from Mercer to Middlesex but did not change her registration by Election Day and though she was provided with a provisional ballot, it was likewise deemed ineligible and not counted.
Speaking to the scale of the problem, the complaint noted that, nearly 19,000 provisional ballots cast in New Jersey for the 2008 presidential election were not counted even though more than 16,000 of them contained affirmations that were accepted as registrations for future elections. In other words, those 16,000 did not get to vote in the 2008 elections because they did not register in time despite being otherwise eligible.
Voters are required to register in advance so that their eligibility, including place of residence, can be verified by the date of election.
The federal Help America Vote Act, enacted in the aftermath of the 2000 presidential election with its butterfly ballots, hanging chads and interrupted recount, required states to implement computerized voter systems, or SVRS’s.
In 2007, New Jersey implemented its SVRS, which allows same-day verification of eligibility by cross-referencing against other government databases such as Motor Vehicle Commission records.
Three presidential elections have been held since then and two since the suit was commenced in 2011 against the Middlesex County Board of Elections and Commissioner of Registrations.
The plaintiffs believe that many of the millions of New Jerseyans who failed to vote in those election — more than 110,000 and as many as 250,000 in each—were disenfranchised by the 21-day law.
Judge Heidi Willis Currier of Middlesex County Chancery Court, granted summary judgment for the defendants, dismissing the case, a decision was upheld by the Appellate Division in a precedential July 1, 2016 opinion.
The appeals court applied the balancing test from Burdick v. Takushi, a 1976 decision by the U.S. Supreme Court that the validity of a voting restriction is determined by weighing the burden on the right to vote against the state’s interest in imposing that burden.
The appeals court found that the burden on the right to vote from the 21-day requirement was minimal and non-discriminatory and thus a reasonable restriction. Its view was that voters have ample opportunity to register beforehand in accordance with the statute, which can be done by mail or in person at numerous government offices, using registration forms that are available in a variety of languages anc can be downloaded from the internet.
The judges rejected plaintiff’s position that the SVRS rendered advance registration obsolete because unregistered voters who show up on election day and complete provisional ballots could have their eligibility determined within 24 hours.
Relying on evidence from the Middlesex County Board that in 2008, it took 30 employees working overtime for a full seven days to process 5,617 provisional ballots, the court worried about what would happen if huge numbers of unregistered voters showed up on election day and cast provisional ballots. The judges thought it would delay final election results by weeks, “creating uncertainty, tension, and likely increased litigation as to election outcomes, which would undermine public confidence in the integrity of the election process.
The judges were also concerned that Election Day registration would interfere with the ability to verify voter addresses by sending sample ballots beforehand, even while noting that only two cases of voter fraud had occurred in recent years.
Other States’ Experience
The amicus curiae brief that Common Cause filed on the appeal urged the court to take into account the success of Election Day voting in those states that have it and described how it works in some of them.
For example, California which now requires registration two weeks in advance will start using its own SVRS called VoteCal next year. Under VoteCal, for the two weeks prior to before Election Day and on the day itself, unregistered voters will be allowed to file a conditional voter registration and cast a provisional ballot at a county elections office. Voting officials will be required to try to validate voter information in time for the vote to count, cross-checking it against motor vehicle and Social Security records.
The New Jersey appeals court did not view what other states were doing as relevant to the issue before it, which it defined as whether the New Jersey law was constitutional, “not whether an alternate form of registration might be a better policy choice.”
One of the three judges in the case, however, Mitchel Ostrer, filed a concurring opinion, in which he agreed that the law did not violate the constitution but indicated he did not necessarily support it on policy grounds. Ostrer pointed out that although it is for the Legislature to decide whether to allow same-day registration, if it did allow it, New Jersey would be following the example of at least 16 other states that have adopted it, including Connecticut, Illinois, Minnesota and Wisconsin.
The petition for certification, filed in late September, asserts that a heightened level of scrutiny should have been applied to the law, given the fundamental right at stake, and that the lower court judge improperly resolved on summary judgment, without factual support, questions regarding the state’s ability to process Election Day voter registrations.
If the Supreme Court does grant review, it will have the benefit of the intervening decision by the Fourth U.S. Circuit Court of Appeals in NAACP v. McCrory. That case involved North Carolina, which had a same-day registration process similar to California’s until it was eliminated by a 2013 law that also imposed a photo ID requirement, ended out-of-precinct voting and preregistration by 16 and 17 year olds applying for their drivers’ licenses and reduced the number of early voting days, among other provisions.
On July 29, the Fourth Circuit struck down those provisions as violating the Voting Rights Act because they discriminated against African Americans who were more inclined to use same-day registration and early voting and less likely to have photo IDs.
On the legislative front in New Jersey, there is no pending bill that would eliminate the advance registration requirement, although one measure, S-1502, would reduce the 21 days to 14. The last time the law was amended was 2005, when the same legislation that led to implementation of the SVRS cut the then-30 day advance registration requirement to the current 21 days.
S-1502 has only one sponsor, Sen. Shirley Turner, D-Mercer and no Assembly counterpart and there has been no action on it since it was introduced in February. Some version of it has also been kicking around since 2008 and though it passed the Senate by a 21-17 vote in 2012, it has never been introduced in the Assembly.
Another measure that could shorten registration time and might get more traction is S-1403/A-2816, which requires the state to provide online voter registration and set new deadlines for it that would presumably be less than three weeks.
Voter information would be checked against Motor Vehicle Commission records and drivers’ license signatures would be used as signatures of record for voting.
That bill has been introduced in both houses, with a total of five sponsors, including Senator Loretta Weinberg, D-Bergen. It won approval from a Senate committee last March though that is something it has done in two prior sessions without advancing any further.
Thirty one other states plus the District of Columbia provide online voter registration, according to the National Conference of State Legislatures.