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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 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/