New Jersey

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

Election Law Society · November 1, 2012 ·

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 9^th 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

Election Law Society · October 30, 2012 ·

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 6^th. 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 6^th 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 6^th[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 6^th, 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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Caught with Your Hand in the Cookie Jar? Better Not Bail Yourself Out with Campaign Funds

Election Law Society · October 15, 2012 ·

by Melanie Walter

When you write a check to support a candidate’s political campaign, you have a general expectation as to how the money will be spent. You anticipate the candidate using an election account to buy signs, make commercials, hire staffers, and even buy tickets to fundraisers or pick up coffee and donuts for volunteers. When you donate to a candidate you have faith in, one you want to see in an elected position, the odds are that one thing you do not expect, or want, your money to be spent on is a criminal lawyer. However, this use of campaign funds has been considered in New Jersey of late, as more than one New Jersey elected official has faced indictment and found himself scrambling to rally the funds necessary to mount a legal defense. [Read more…] about Caught with Your Hand in the Cookie Jar? Better Not Bail Yourself Out with Campaign Funds

Update: Nordstrom out, ELEC in, Lyon still unelected (for now)

Election Law Society · March 14, 2012 ·

by Kevin Elliker

Charles Dudley Warner wrote, “Politics make strange bedfellows.” When a candidate who violated campaign finance laws is joined in a lawsuit by the agency in charge of enforcing against such violations, politics must be involved.

In November, I wrote about the debacle in the Republican primary election for freeholder in Morris County, New Jersey. At that time, a Superior Court judge overturned 23-year-old Hank Lyon’s 6-vote victory over incumbent Margaret Nordstrom in the June primary election. Judge Weisenbeck found that Lyon violated New Jersey campaign finance laws when he failed to submit certain donations and expenditures to the New Jersey Election Law Enforcement Commission (ELEC), and voided the primary election in favor of a party convention to choose the nominee. The convention selected Nordstrom, who went on to victory in the November general election before Lyon’s appeal could be heard.

Just prior to the election, the Appellate Division granted ELEC permission to intervene as a respondent to the lawsuit. (Non-lawyers: this means the court allowed ELEC to join the pre-existing lawsuit as a party that can claim an interest in the case which will not undermine the original suit). ELEC argued that Judge Weisenbeck overstepped his jurisdiction and that the agency should resolve election disputes such as this. [Read more…] about Update: Nordstrom out, ELEC in, Lyon still unelected (for now)

A time for change: an examination of Baltimore City’s record low voter turnout

Election Law Society · December 14, 2011 ·

by Ashley Ward

As you drive through the streets of Baltimore City, many areas still bare the campaign efforts of the six mayoral candidates. Posters plastered on walls, fliers in store front windows and stickers on bumpers. The abundance of the campaign fanfare throughout the city turned out to be a rouge when the September 13^th primary produced the lowest voter turnout in Baltimore’s history. After the polls closed, 23% of registered voters had participated, equaling only 12% of the city’s population (rounded from the Unofficial Polling Place Turnout). Even more disappointing was the turnout for the November 8^th general election, which produced an even lower turnout than the primaries—reportedly, only 10-12% of registered voters showed. Until September, the lowest turnout Baltimore had seen for a primary was 27% in 1991.

Maryland is not the only state dealing with disappointingly low voter turnout. Kentucky’s November 8^th gubernatorial race had only a 29% turnout, and New Jersey saw their lowest turnout in history with 26%. So what is causing such low voter turnout and should there be concern with a Presidential election year approaching? Many scholars and political analysts have their own theories. One of the most popular reasons is voter apathy. The 2010 census reported that the highest population within the 20-24 years and 25-29 years age group. The Unofficial Polling Place Turnout reported that both ages were the least likely to vote, especially the males within the age group. When asked why he did not vote, 21 year old Kevin Clark said, “It was all the same old stuff.” Many younger citizens do not understand the importance of voting. [Read more…] about A time for change: an examination of Baltimore City’s record low voter turnout