Whether to count more than 1,900 mail ballots cast in one New Jersey county will be up to a judge after their envelopes were unsealed prematurely and members of the local election board deadlocked on how to proceed.

Superior Court Judge Michael J. Blee will hear arguments Friday in Atlantic City. The decision could affect the outcome of the Democratic primary in the race for the state’s 2nd Congressional District, where businessman Joe Salerno holds a 400-vote lead over attorney Tim Alexander in unofficial results.

At the center of the dispute is a state law that allows local election officials to open mail ballots five days before an election day.

In Atlantic County this year, the envelopes containing the 1,909 ballots were unsealed about a month before Tuesday's primary, but the ballots themselves were not removed at that time, said Creed Pogue, a Democrat appointed to the county Board of Elections.

Atlantic County ballot box
Atlantic County ballot box (Atlantic County Department of Administration)

The circumstances that led to the envelopes being unsealed early are in dispute. Democratic officials have described what happened as a mistake, while Republican officials say there are indications it might have been done intentionally to speed up ballot counting.

The political and legal wrangling over fewer than 2,000 ballots, while a local dispute, also signals how carefully both parties are paying attention to the voting process this year and how local election offices are under intense scrutiny.

Similar problems surfacing during the November general election, especially if they occur in swing states where the presidential election is likely to be close, are almost certain to draw the attention of national campaigns and parties.

Pogue said an error occurred when Atlantic County election workers were implementing a new procedure of adding timestamps to the inner envelopes containing the mail ballots.

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A mail-in ballot for the presidential election is positioned in a mailbox
A mail-in ballot for the 2020 presidential election is positioned in a mailbox (AP Photo/Ted Shaffrey)

Previously, timestamps were added only to the outer envelope, which contains no information that identifies the voter. To improve ballot tracking, Pogue said, it was decided that a timestamp also should be added to the inner envelope. But the machine was still programmed to unseal the envelopes when adding the timestamp, Pogue said.

At no time were the ballots removed and counted before the five-day window outlined in state law, he said.

"Because of no fault of their own, because of an innocent mistake, that should not disenfranchise a voter, particularly when there was no evidence of malicious intent, no evidence of any tampering," Pogue said. “We should, therefore, make sure these ballots are counted and the wishes of the voters known.”

The board met on Tuesday, with Pogue and the other Democratic member voting for a motion to accept the prematurely opened ballots for counting while the two Republican board members voted against.

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Mail-in ballots are organized by town and wards in Linden
Mail-in ballots are organized by town and wards in Linden (AP Photo/Seth Wenig)

Don Purdy, chair of the Atlantic County Republicans, said he believed the ballots were opened intentionally based on conversations with election workers and the fact that the opening of the inner envelopes continued for several days. If it was a mistake, he said officials would have realized it immediately and stopped the process.

Purdy said Republicans want the ballots, which were cast in both the Democratic and Republican primaries, to be counted. But they want an investigation to determine what happened, a plan to ensure it doesn’t happen again and for affected voters to be notified.

Purdy said election officials were aware of what happened weeks ago and that public confidence in the election office has suffered as a result. He wants more oversight.

“I’m not saying to throw these ballots out. I’m saying the election process was compromised,” Purdy said. “You can’t fix something unless you admit there is a problem and fix it.”

In a court filing Thursday, the state attorney general’s office noted that state law was silent on what a local board should do if the inner envelopes are opened “intentionally or unintentionally” before the five-day window.

The state has asked the judge to break the tie vote by the county board and decide whether the ballots should be accepted or rejected.

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