Fifteen Montclair residents, including mayoral candidate Renee Baskerville, have filed a complaint asking Essex County officials to count and include the votes in Montclair’s mail-in-only municipal election last month that were rejected by the county. 

It also seeks to postpone the July 1 swearing in of the mayor and council until the recount is conducted. 

The plaintiffs in the suit, all but one of whom live in either the Third or Fourth wards, contend that their ballots were postmarked by election day, May 12, but were disallowed.

According to records from the county clerk’s office, 674 ballots from Montclair were delivered but not counted, either because they were postmarked after May 12 or because they were received after the May 14 deadline.

The 2020 election was conducted mail-in-only for the first time ever due to the COVID-19 pandemic. In the mayoral race, Third Ward Councilman Sean Spiller edged Baskerville by 195 votes. The other five competitive township council races — David Cummings ran unopposed in the Fourth Ward — saw margins of victory between 294 and 458 votes.

The complaint, filed May 29, names New Jersey’s chief election officer, Tahesha Way, Essex County Clerk Christopher Durkin, Essex County elections clerk Linda von Nessi and Montclair Township clerk Juliette Lee among the defendants. 

Von Nessi said that 219 ballots were rejected due to signatures. But 674 were not counted due to late postmarks or being received late. State law requires the mail-in ballots to be postmarked by the day of the election, May 12, and received within 48 hours, by the evening of May 14.

According to the county clerk’s records, 60 ballots postmarked May 12 were received by the county after the May 14 deadline: 56 on May 15, two on May 18, and one each on May 20 and May 26. 

The remaining 614 were either postmarked after May 12 or had no postmark.

Baskerville asserts that roughly 1,086 ballots in possession of the Essex County Clerk’s Office have not been counted. “Four hundred and four ballots in possession of the clerk’s office that were determined to have signatures that are not in alignment with other signatures on file for the voter. They were not counted,” she said.

“There are roughly 191 to 256 ballots in the possession of the Essex County Clerk’s Office with no postmark that were not counted. Between 263 and 267 ballots are believed to be in the possession of the clerk’s office with postmarks indicating that they were posted on May 13, one day after the May 12 cut date; others reflecting a later date of receipt. Still other ballots are believed to be in the office of the clerk that have not been counted for other reasons that we would like to explore.” 

While historically only about 10 percent of New Jerseyans vote by mail, for the May elections township residents had no choice but to do so because of Gov. Phil Murphy’s executive order on the COVID-19 pandemic. 

Voter turnout was better than typical for a municipal election, with 10,946 of Montclair’s 30,093 registered voters mailing in ballots as of the deadline of May 14, representing a 36-percent turnout. In the November 2019 election, only 6,798 Montclairians cast votes. 

The complaint claimed that there were problems that affected the vote tally, including decreased hours and personnel shortages at the post office on May 11 and 12.

“During this coronavirus pandemic that caused decreased post office hours and personnel shortages at the Montclair post office, we have to make sure that every ballot that should be counted is counted,” Baskerville said.

The suit cited a news report, not confirmed by the post office, that the main Montclair post office closed at 3 p.m. on election day, four hours before its scheduled closing time, due to labor shortages connected to the pandemic.

“In the extraordinary circumstances of these times, that means not adhering to the general rule that the return dates for ballots and other post-balloting deadlines be strictly enforced, but rather applied in a manner that will not deny otherwise valid mail-in ballots from being counted,” the suit reads.

Some of the plaintiffs’ ballots were not received by the deadline, while others were rejected due to problems with their signatures on the envelope. Sixteen states currently have laws allowing voters to cure signatures that are rejected. New Jersey does not.

In states that allow for verification, the voter is contacted, the problem is explained, and the voter is asked to verify the information. Recently, the New Jersey NAACP and League of Women Voters filed a complaint against New Jersey’s secretary of state asking that a procedure be established by which voters are notified of deficiencies in their ballots and then given an opportunity to “cure” their ballots to get them counted. 

The suit seeks not only the recount of all ballots and to allow voters whose ballots were rejected to cure them, but also seeks to prohibit swearing in the “proclaimed victors” until the process is complete.

In preparation for a mostly mail-in statewide primary July 7, Murphy signed an executive order last week allowing for the primary to be conducted by mail and to allow a seven-day window, stating that all ballots received up until July 14 would be counted. Some polling locations will also be open in July.

“The governor resolved to adjust the procedure for all of the elections taking place after the May 12 elections to include both mail-in and in-person voting options. And he decided to include special provisions for protecting the franchise of traditionally underrepresented residents, e.g., disabled voters, low-income voters, black and brown voters. These responsive remedial actions assist in highlighting some of the flaws of the process in place on May 12,” Baskerville said. “The state should have postponed the May 12 elections and put in place an elections plan that accommodated the known suppressive possibilities.”