Council on Local Mandates ruled that two relatively new laws concerning mail-in ballots ‘constitute unfunded mandates’ and are no longer mandatory

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A group of New Jersey Senate lawmakers will today consider a measure to fund, and presumably reinstate, the expansive vote-by-mail process that an obscure state council essentially invalidated two months ago as an unfunded mandate.

The Senate Budget and Appropriations Committee has included on the agenda for its noon meeting a bill (S-4315) which would create the Mail-In Ballot County Reimbursement Fund within the Department of State. The measure would provide money to county clerks to implement two recent laws that had the clerks send 600,000 ballots to voters across the state last fall. It would place $4 million into the fund immediately, more than enough to reimburse the clerks for spending on the ballots in 2018 and 2019.

Laws enacted in the summer of 2018 and 2019 required the county clerks to automatically send mail-in ballots to all those who had voted by mail in the 2016, 2017 and 2018 elections, unless the voters opted out of receiving a ballot. As a result, clerks issued 437,000 more mail-in ballots than in the past and spent $2.8 million in printing, postage, labor and other costs on the 2018 general and 2019 primary and general elections, according to the New Jersey Association of Counties.

Although the 2019 law required funding, so far the Murphy administration has provided no money to the counties to cover their costs, prompting the counties association to complain and the state Council on Local Mandates to declare the laws unfunded mandates, meaning that counties no longer need to follow them.

An attempt by the state to get the council to reconsider its November ruling failed. The bill introduced in both houses of the Legislature last month is specifically designed to address the council’s decision.

“Only the Legislature, by passing a new version of the law with appropriate funding and having it signed by the Governor has the ability to” reinstate a law considered an unfunded mandate, the council wrote on Dec. 6.

Giving county clerks enough money

The legislation would require the state to create the reimbursement fund and put money in it each year. Clerks would have to file a request for reimbursement from the fund each Jan. 1 for expenses incurred in the previous year related to the 2018 and 2019 vote-by-mail (VBM) expansion laws. The bill would appropriate $4 million into the fund in the current fiscal year and reinstate the two expansion laws.

There is not a lot of time for the Legislature to pass the new bill before the Senate committee — and a companion bill in the Assembly — given the current legislative session ends at noon next Tuesday, Jan. 14. However, there are two voting sessions left for both houses. If the legislation is not sent to Gov. Phil Murphy by then, lawmakers could try to advance it in the new session, although they would have to do it relatively early if the vote-by-mail laws are to be back in effect in time for the June primary.

Democrats, who pushed through the laws requiring the automatic mailing of VBMs, touted it as a way to boost voter participation by making it easier to cast ballots. That seems to have worked: Both the number and percent of those registered who voted in the last general election was higher than in 2015, the last time the Assembly topped balloting, and 16.7% of all those who voted did so using a mail-in ballot — the highest percentage for a general election in state history.

Political observers have said that Democrats have benefited more from the expansion, as more Democrats have returned VBMs than Republicans, although a greater percentage of the GOP registrants who requested the ballots returned them.

If the state does not provide the funding, voters would no longer automatically receive a mail-in-ballot solely by virtue of having voted by mail in prior years. They would have to affirmatively request a VBM in the future, unless they had previously informed the clerk that they wanted to receive a mail-in-ballot for every election.

County officials have said they expect the legislation to pass at some point. According to the New Jersey Association of Counties, county clerks would wind up spending close to $1.9 million each year to comply with the expanded VBM mailings for primary and general elections alone, not including the VBM costs for school, municipal, fire district or special elections held at other times.