Trump Campaign Asks Judge To Halt NJ's Vote-By-Mail Law

By Craig Clough
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Law360 (September 16, 2020, 10:52 PM EDT) -- The Trump campaign urged a New Jersey federal court Wednesday to grant a preliminary injunction blocking expanded vote-by-mail provisions recently enacted by the Garden State government, saying the move "has opened the door to voter fraud and widespread confusion."

The motion offered a blitzkrieg of criticism of mail-in voting, including an argument that the state Legislature's recently passed bill expanding the process, A4475, violates federal election statues because it allows officials to begin counting ballots before the Nov. 3 Election Day. The bill also allows voters to cast ballots after election day because officials are required to accept unpostmarked ballots for up to two days after the polls close, the Trump campaign said.

"By extending election day forward and backward, A4475 facilitates the precise behavior that the federal election day statutes were enacted to prevent — avoiding improper influences on elections, letting early returns give certain candidates or parties an advantage, and making fraud easier," the campaign said in the motion.

The motion came in a lawsuit the campaign filed last month opposing an executive order from New Jersey's Democratic Gov. Phil Murphy authorizing vote-by-mail procedures for the November general election amid COVID-19 concerns.

Murphy directed that the general election be conducted primarily with mail-in 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."

A main argument of the lawsuit filed against Murphy and New Jersey Secretary of State Tahesha Way is that Murphy does not have the power to issue the executive order overhauling the mail-in voting rules, but since it was filed the state Legislature passed A4475, Murphy then signed into law.

In its motion seeking a preliminary injunction, the Trump campaign argued A4475 violates federal election statutes and the U.S. Constitution. The motion also includes a long list of alleged or documented voter fraud incidents in New Jersey, which it says has an "unfortunate history" with mail-in voter fraud.

The campaign's move comes as President Donald Trump continues to oppose mail-in voting around the nation in the upcoming November election while he trails former Vice President Joe Biden in many polls.

Some of Trump's critics say the apparent aversion to mail-in voting is nothing more than an attempt to undermine the election results, and Biden during public comments in August said Trump is telling "bald-faced lies" about mail-in voting.

The Trump campaign said in its motion that because A4475 will allow election officials to begin counting votes 10 days before election day and allow voters to cast ballots after the election, it will "establish conditions likely to incentivize and facilitate the same kind of fraud and confusion that have plagued New Jersey elections for years."

The campaign cited the Fifth Circuit 2000 ruling in Voting Integrity Project Inc. v. Bomer , which it said held the "tallying takes place on Federal Election Day" and not before it.

"It is only by counting votes on election day rather than before, that states can hope to avoid the dangers of multi-day voting that Congress sought to avoid in the creation of a single election day," the campaign said.

The campaign also cited the Fifth Circuit's 1997 ruling in Love v. Foster , which it said held that a trio of federal statutes "mandates holding all elections for Congress and the presidency on a single day throughout the union," and said A4475 would violate those statutes.

The New Jersey Attorney General's Office and the counsel for the Trump campaign did not immediately respond to requests for comment.

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.

Murphy and Way are represented by Matthew John Lynch of the New Jersey Attorney General's Office.

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 Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

DONALD J. TRUMP FOR PRESIDENT, INC. et al v. MURPHY et al


Case Number

3:20-cv-10753

Court

New Jersey

Nature of Suit

Civil Rights: Voting

Judge

Michael A. Shipp

Date Filed

August 18, 2020

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