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“It’s the most pathetic thing I’ve ever seen in politics.”

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by Aaron C. Carter

Whether hyperbole or not, Rep. Bill Pascrell had harsh words for his Democratic primary opponent Rep. Steve Rothman in their June 5, 2012 primary election contest.  After redistricting, New Jersey lost a congressional seat and two sitting Congressional members faced head to head in the 9th Congressional district, which is comfortably Democratic.  Rep. Pascrell won the primary 30,227 (61%) to 19,118 (39%)but there was an interesting maneuver by the Rothman campaign and their attorneys that raised the ire of Congressman Pascrell.

A lawyer for the Rothman Campaign complained about irregularities in the absentee voting process in a request to have 2,000 absentee ballots from Passaic County impounded.  The Passaic County Superintendent of Elections felt that to protect the election process the ballots should be impounded Monday afternoon before the Tuesday election to give the parties time to review them.  Judge Ernest M. Caposela later vacated the order. Judge Caposela ruled that the Rothman campaign could inspect the ballots, but required the ballots to be counted starting the next morning.

The initial impoundment was possible under N.J.S.A. 19:58-30.  The statute reads “Specific power is hereby granted to the superintendent of elections in counties having a superintendent of elections and the prosecutor in all other counties to impound all such ballots whenever he shall deem such action to be necessary.”  Superintendent Robert J. De Mers exercised this power in the face of possible irregularities.  These irregularities included a Paterson storefront covered with signs for Rep. Bill Pascrell, telling passers-by they could fill out mail-in ballots inside and a Facebook wall post by a Passaic County Sheriff deputy that said he had a number of ballots he “collected for Bill. “

In reaching his decision to release the impoundment ballots, Judge Caposela, helped shine some light on why he considered the action “arbitrary, capricious and unreasonable.” Traditionally, [the Court] will not reverse an agency’s decision unless: (1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which it was based were not supported by substantial, credible evidence in the record. In re Taylor, 158 N.J. 644 (1999).

Judge Caposela looked to In re Absentee Ballots Cast by Five Residents of Trenton Psychiatric Hosp. 331 N.J. Super. 31(App. Div. 2000) for guidance on what the court considered reasonable in regards to impounding absentee ballots.  The Judge in that case, similar to Supervisor of Elections De Mers reasoned “that the ‘safe approach’ was to segregate the ballots now, and only allow the ballots to be opened if the voter was later determined competent.”

The Appeals Court for the Psychiatric Hosp. case held, “(1) a challenge based            on residency at the psychiatric hospital alone is illegal; (2) the voters were deprived of their fundamental right to vote because their ballots were segregated; and (3) the judge erred by not placing the burden on the challengers to show by clear and convincing evidence that the voters were ineligible to vote.”

These determinations were deemed applicable for the Rothman case as well.  Judge Caposela considered the wholesale impoundment of ballots from a particular county disturbing in light of the evidence.  There was definitely a strategic aspect to going after specifically Passaic County vote-by-mail ballots in a wholesale fashion.   Pascrell overwhelmed Rothman 9-to-1 in his home county base, running up a 22,000-vote cushion that Rothman could not offset in parts of Bergen and Hudson counties that had sent him to Congress for eight terms before.  A Facebook post and darkened windows were not considered “evidence” in the legal sense of the word according to Judge Caposela.  With a fundamental right at stake, the action was considered “arbitrary, capricious and unreasonable.”

The impoundment statute, N.J.S.A. 19:58-30, vests significant discretion in the prosecutor or Superintendent of Elections to take action. Often in an effort to protect elections, these parties slow down the process to the detriment of one candidate or another.  While there is recourse in the courts for these maneuvers, if the Superintendent of Elections’ actions were upheld, 2,000 people could have lost their voice until all the in-person votes were counted.  Whether justified or not, these type of maneuvers raise significant questions on the vote by mail process.  If the legislature is interested in upholding the integrity of the electoral process, it may want to reconsider the power it vests in the Superintendent of Elections and prosecutors to impound ballots.

Aaron C. Carter is a second-year student at William & Mary Law School.

permalink:  http://stateofelections.pages.wm.edu/2012/11/01/most-pathetic-thing-ever/

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What’s in a date? Moving school board elections in New Jersey

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by David Noll, Staff Writer

The way that seemingly innocuous procedural matters can shape the outcomes of elections is quite frightening. This year, New Jersey’s school board elections will showcase this phenomenon. Towns in New Jersey are now allowed to move their elections from mid-April to November 6th. Most districts have made the change in order to capitalize on a lower cost to hosting the elections. Also, by moving the elections districts are allowed to increase budgets within the district’s tax levy. The state passed legislation allowing this in the hopes of producing higher voter turnout. This isn’t a new idea. Other states hold school elections along with the general elections and states like New York have talked about moving the election date for decades. So why would it matter to change the date?

In the past, estimates for school board election turnout ranged from 25% to under 15% of registered voters in the state. In 2010, 55.6% of New Jersey citizens were registered to vote; New Jersey had a total population of approximately 8.8 million people, meaning between 0.6 and 1.2 million people in Jersey care about school board elections enough to vote. The problem may be in putting the levers to vote in front of the 36.2% of New Jersey that goes to vote in the general election (or 3.2 million people). As long as the current school board voters are a more homogenous group then the total electorate, the outcomes and interests of school board elections will face pressure to shift.

Part of the incentive for districts to move their elections to Nov 6th is that by doing so they may increase their budget within the tax levy (~%2) without needing a vote on the budget. This was a good move by legislators. Without this provision, few districts would pass their budgets once the new voting body shows up on the 6th[P1] . The new school board election date is going to see a voting body closer to that of the state average in all demographics. If the old voting group had higher than average numbers of parents and grandparents in it, who may have been willing to increase school budgets, then the new voting group will, theoretically, be broader and less inclined to vote for increased taxes and school budgets.

By allowing the board to increase the budget for the coming year without a vote there is now a larger incentive for tax conscious voters to take an active role in school boards. When this is combined with a larger, less education-oriented voting group, the chance that voters will deny budget increases is higher.

This is bad for the schools but it is also bad from an electoral standpoint. America doesn’t have compulsory voting so that people that don’t want to vote or don’t care about electoral outcomes are free to abstain. A simple calculation using rational voter theory shows us that the voters who already turn out to school board elections benefit more. Those that will vote out of convenience only do so because their cost to voting, or their minimum required level of interest, is reduced.

This year’s elections won’t result in a large-scale change to school boards. Undoubtedly, some veteran board members will lose their seats to new faces that campaign to the full electorate better. And in the first year, budgets are going to increase as they have in the past. Keep in mind that the board from the year before writes the budget for the coming year. It is in the next few years that the change will be most evident. The broadening of the voting body and shifting of those voter’s goals means that candidates for school boards will change as well.

Because elections are an iterated game, as the voters and the candidates get a better feel for the new playing field the best campaigners will move away from the interests of schools and parents. Instead, their primary interest will be on the taxes that fund schools. If this newer group in the electorate realizes the power they have, then it is unlikely that veteran board members will get re-elected unless they move from their pro-education focus.

For districts that did choose to move elections to Nov 6th, they are ineligible to move the elections back into April for four years. This is a good length of a test period for an electoral change. The worry is that by the end of four years the board members will have been elected by the general voting body of New Jersey and not the original smaller body who had a motivating interest in the elections in the first place. Meaning that, like in all other elections, the man who won by the rules in place will be hesitant to change them.

David Noll is a first-year student at William & Mary Law School and a Staff Writer for the State of Elections blog.

permalink: http://stateofelections.pages.wm.edu/2012/10/30/4590/

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Is a “Top 2” Primary in Arizona on the Horizon?

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by James Adam

Come November, voters in Arizona will have the opportunity to drastically alter their election law. If passed, Proposition 121, the “Open Elections/Open Government Act,” will constitutionally eliminate politically affiliated primary elections. The new scheme will allow primary voters to vote for any candidate they wish, regardless of party registration. Although not a requirement, this new law will give voters the option of writing on the ballot their party affiliation when they cast their vote.  Currently Arizona has closed primaries, and voters are allowed to vote solely within their own registered party. If Proposition 121 passes, a primary between all the candidates will occur, and voters will be entitled to vote for whichever candidate they prefer. The two candidates acquiring the most votes will subsequently be placed on the general election ballot. Therefore, it is possible for a scenario where two Republicans gain the most votes in the primary, so both of their names appear on the final general election ballot.  There would thus be no Democratic or third party options. Current examples of states using the top-two primary format include Washington and California. [Read more…] about Is a “Top 2” Primary in Arizona on the Horizon?

Sticker Candidates in a Technological Age: The Case of Massachusetts

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by Jaclyn Petruzzelli

Robert Fennel has been the State Representative in the 10th Essex District in Massachusetts for the past 18 years. In September, he won the primary handily, receiving nearly 90% of the vote. While this scenario is not unique among incumbents across the nation, what makes the story of the 10th Essex County race interesting is that sticker candidate Gardy Jean-Francois earned the other 10% of the votes via write-in. [Read more…] about Sticker Candidates in a Technological Age: The Case of Massachusetts

New Yorkers For Mitt: Who Cares? The Winner-Take-All Electoral College and the Disenfranchisement of New York Republicans

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By Brenden P. Dougherty

The lawn in front of 155 Brandon Terrace in Albany, New York is adorned with campaign signs reading “Romney: Believe in America” and “Romney & Ryan: America’s Comeback Team.” These signs are clearly indicative of the fact that Romney supporters reside within this household. Indeed, Mr. & Mrs. Brian Dougherty, who live in this home, will undoubtedly vote for Governor Mitt Romney and Representative Paul Ryan on November 6. But will their votes matter? Given that the winner-take-all Electoral College system still plays the dominant role in selecting the President of the United States, the answer is a resounding no.

The Electoral College is the body which elects the President of the United States. The college is made up of 538 electors. In order to be elected president, a candidate needs to win a majority of these electors, which is 270. A portion of these electors is allocated to every state in the union. The number of electors given to a state depends on the number of Representatives and Senators that particular state has in the federal Congress. The state of New York currently has 29 electors. In every state except Maine and Nebraska, the candidate who wins the popular vote in a particular state gains all of that state’s electoral votes. This means that whichever candidate wins the popular vote in New York on November 6 will take all 29 of the state’s electoral votes.

Since 1988, the popular vote in New York has favored the Democratic candidate. The election results from 2008 illustrate how Democratic presidential candidates have been able to win the total popular vote in New York. The counties in New York that vote for Democratic presidential candidates have extremely large populations. In addition, the number of votes separating Democratic candidates and Republican candidates in these counties is substantial. For example, in 2008, 318,920 registered voters in Suffolk County cast their ballots for Senator Barack Obama, while 289,236 people voted for Senator John McCain. Not only did Senator Obama gain a large number of votes, but the margin of victory for Obama in this county was 29,684 votes. Likewise, in Brooklyn County, 545,785 voters cast their ballots for Obama, while only 139,594 people voted for McCain. This was a margin of victory for Obama of 406,191 votes. In contrast, the counties won by Republican candidate John McCain were more sparsely populated, and the number of votes separating the two candidates in these counties was not very large. For example, in Hamilton County, Senator McCain won the popular vote with 1,903 votes. However, 1,060 people voted for Senator Obama, meaning that McCain’s margin of victory in this county was only 843 votes.

Indeed, with heavily populated counties in the New York City metropolitan area voting overwhelmingly for Democratic candidates, it has simply not been possible in recent years for Republican presidential candidates to close the gap in the statewide popular vote tally. The same patterns were present in the 2004 presidential election.  In 2004, 283,994 citizens voted for Senator John Kerry in Bronx County, while only 56,701 people cast their ballots for President George W. Bush. This was a margin of victory of 227,293 votes for Kerry. Likewise, in New York County, the margin of victory for Senator Kerry was 419,360 votes. President Bush won the popular vote in smaller, more rural New York counties. For example, President Bush won Allegany County with 12,310 votes. Senator Kerry only received 6,566 votes. However, the smaller number of total votes in these rural counties, combined with the fact that fewer votes separated the two candidates in these counties, meant that President Bush was unable to catch up to Senator Kerry in the statewide popular vote. Therefore, all of New York State’s electoral votes were awarded to Senator Kerry.

This reality continues to leave many New York Republicans frustrated, as their vote cannot in any way prevent the entire sum of New York State’s electoral votes from going to the Democratic candidate. As Kathleen Melinda Moses wrote in the Watertown Daily Times, a publication that serves Jefferson, St. Lawrence, and Lewis Counties, “residents of Northern New York are never considered by the candidates, because all of New York state’s electoral votes are guaranteed to go to President Obama…our votes for president in essence do not matter.” This demoralization was also noted during an email interview with a conservative business leader at CMA Consulting Services in Albany County. This business woman, who wishes to remain anonymous, expressed her anguish by stating that it has become increasingly frustrating to be “registered as a conservative in a staunchly liberal state…The feeling that your vote counts, given the nature of the Electoral College’s ‘winner takes all method,’ is a distant memory…It leaves one only to vote out of moral obligation…not because you feel your vote has contributed to the election of your chosen candidate.” A member of the Republican Party working in the Saratoga County Board of Elections, who also wishes to remain anonymous, brought out an additional problem during a telephone interview. When asked whether Republican voters in New York feel disenfranchised by the electoral process, the Board of Elections member noted that most “average Joe” Republican voters simply “do not understand the process.” Consequently, these voters do not even realize that their voices are not making the slightest difference in the presidential election. These voters are operating under a false assumption that their vote is making a difference, and this is a travesty considering the immense feeling of satisfaction most people feel after casting their ballot for Commander in Chief.

When asked whether the Electoral College system disenfranchises Republican voters in New York State, the election official from Saratoga County stated, “yes, (the electoral college) is a problem (because) it does not represent the diversity of the state.” Given that presidential candidates are always speaking about the importance of going to the polls on Election Day, shouldn’t we strive for a system where everyone who casts a ballot actually does have the opportunity to affect the election? Isn’t it time to start caring about New Yorkers for Mitt?

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