By Bill Wichert

Law360 (August 19, 2020, 6:17 PM EDT) -- President Donald Trump's reelection campaign has demanded a New Jersey federal court block an executive order from Democratic Gov. Phil Murphy authorizing vote-by-mail procedures for the November general election amid COVID-19 concerns, claiming the move was unconstitutional and would lead to voter fraud in a state with "a sordid history of illegitimate elections."

Four days after the governor signed the directive — which orders that vote-by-mail ballots be sent to all active registered voters — the campaign and national and state GOP committees launched a suit Tuesday accusing Murphy of usurping the state Legislature's authority to regulate elections and creating "a recipe for disaster" with respect to invalid voting.

"The order, which upends validly enacted election law and requires automatic mailing of ballots to all active voters — especially given New Jersey's rampant history of voter fraud — makes voter fraud and other ineligible voting inevitable," according to the complaint filed against Murphy and New Jersey Secretary of State Tahesha Way.

The complaint alleges that evidence from the Garden State and other places shows that "voter fraud — or even inadvertent double voting or nonfraudulent illegal voting — is guaranteed when hundreds of thousands of ballots are indiscriminately distributed, regardless of whether a real, eligible, present or desiring person exists to receive them."

"When citizens are denied the right to vote in this way, the validity of the electoral process crumbles," the complaint said.

The campaign and Republican committees cited various examples of alleged voter fraud in New Jersey, including a purported voter bribery scheme during Hoboken's 2013 municipal election and the allegedly improper collection of mail-in ballots for a May 2020 special election in Paterson.

The state's vote-by-mail system runs afoul of the U.S. Constitution's Fourteenth Amendment by promoting voter fraud, the complaint said. Murphy's executive order also violates the elections clause and the electors clause of the Constitution, which gives state legislatures the power to determine how federal elections are conducted, according to the complaint.

Citing the New Jersey Appellate Division's 2013 opinion in State v. Saavedra , the complaint said, "Because 'no deviation from the separation of powers doctrine will be tolerated which impairs the essential integrity of one of the three branches of government,' the order is unconstitutional."

In Friday's Executive Order No. 177, Murphy directed that the general election be conducted primarily with vote-by-mail ballots. Voters will be able to return their ballots at secure drop boxes or turn them in at polling places on Election Day, according to the order.

If they show up at a polling location and don't return a mail-in ballot, voters could cast provisional ballots, the order says.

The governor pointed to concerns over spreading the novel coronavirus in implementing the vote-by-mail procedures, saying in the order that permitting the general election "to proceed as it would under normal circumstances during this unprecedented COVID-19 health crisis will create hardships and health risks for voters, poll workers and candidates alike."

But the Trump campaign said in the complaint that the measures were at odds with how Murphy has eased virus-related restrictions in recent months — and suggested the vote-by-mail system was more about helping Democrats win elections.

"The governor's inconsistencies, coupled with the order's timing amid a nationwide push by the Democratic Party for the same measures, reveal that the order is less about protecting the health of New Jerseyans and more about protecting the electoral prospects of the governor's political party," the complaint said.

Matthew Morgan, the campaign's general counsel, said in a statement Wednesday to Law360, "Across the country, the Democrat Party is launching an alarming assault on the safety and security of our elections. In the state of New Jersey, where their universal vote-by-mail system has already resulted in fraud and disenfranchisement, Governor Murphy continues to remove safeguards against abuse."

"With a stroke of his pen, the governor told his people their votes may not count — they may even be stolen — and that's fine by him," Morgan said. "Despite constant attacks on our election system, President Trump and the Trump campaign will continue to defend our democracy."

The state attorney general's office declined to comment, but Murphy indicated in a series of tweets Wednesday that he would not back off from the legal fight over his vote-by-mail order.

"If vote-by-mail is good enough for the president, it's good enough for us. As the president and his team try to delegitimize our election and impact the health and safety of millions of New Jerseyans, we will defend our rights vigorously and we will not back down," the governor said in one tweet. "Bring it on."

The campaign is represented by Thomas R. McCarthy, Bryan Weir and Cameron T. Norris of Consovoy McCarthy PLLC, and Michael L. Testa Jr. of Testa Heck Testa & White PA.

Counsel information for Murphy and Way was not immediately available Wednesday.

The case is Donald J. Trump for President Inc. et al. v. Philip D. Murphy et al., case number 3:20-cv-10753, in the U.S. District Court for the District of New Jersey.

--Editing by Stephen Berg.

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