By Jeannie O'Sullivan

Law360 (September 28, 2020, 5:42 PM EDT) -- A New Jersey Republican group has launched a state court lawsuit alleging Democratic Gov. Phil Murphy's vote-by-mail mandate lacks security measures, marking the Garden State's latest legal battle sparked by the COVID-19 pandemic's stretch into a contentious election cycle.

Like a federal lawsuit filed in August by President Donald Trump's reelection campaign, the Monmouth County Republican Committee's  Sept. 24 lawsuit challenges the legality of Murphy's Executive Order 177, formalizing a primarily mail-in voting system for the general election. The suits come on the heels of legal challenges over voting systems in Arizona, Delaware, Pennsylvania, Illinois and Massachusetts.

In the New Jersey state court matter, the committee said the August executive order conflicts with state election law provisions requiring "rules and regulations necessary to ensure the secure and successful implementation of the mail-in ballot drop boxes."

Under the order, voters can mail in ballots on or before Nov. 3, place them in drop boxes or return them in person to polling locations. But New Jersey Secretary of State Tahesha Way and the Board of Elections have yet to provide any of the "procedures, rules and regulations or guidance required by P.L. 2020, c.72" for the system, the complaint said, referring to the state's election statute.

"The absence of any rules governing the above-described voting procedures creates a scenario where chaos will abound, inconsistent procedures may be employed at different polling locations and where no person or entity will be held responsible if lawful votes are rejected or illegal votes are received," says the complaint, which seeks to compel state officials to provide the procedures.

The committee also wants a declaration that the order's provision allowing ballots to be received by the elections board and counted before and up to two days after Nov. 3, even if they haven't been postmarked, to be in violation of federal election law barring votes from being cast after an election.

"States cannot create a process where ballots marked or mailed after Election Day can be considered timely," the complaint says.

The suit outlined a history of vote-by-mail "gamesmanship" in the Garden State, starting with a 2009 measure allowing any registered voter to vote remotely "simply" by requesting a mail-in ballot. Murphy and the Democratic-led state legislature continued to expand vote-by-mail after he took office in 2018, including by automatically sending ballots to those who requested them in previous election cycles, the committee alleged.

During the primary elections held around the state in May and June, the vote-by-mail system led to "lawful votes being rejected (or not counted at all) or illegal votes being received," the complaint says. The committee pointed out how the city of Paterson's election was invalidated by a court order following the indictments of four individuals, including two city council members, on election fraud charges.

In the federal court lawsuit, Donald J. Trump for President Inc. contends that the Garden State and other states show evidence 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."

The Aug. 18 complaint was filed four days after the governor signed the order authorizing vote-by-mail as the primary process for the general election. The campaign alleged the order violates the 14th Amendment of the U.S. Constitution by promoting voter fraud, and that the order runs afoul of the elections clause and the electors clause of the U.S. Constitution, which give state legislatures the power to determine how federal elections are conducted.

The campaign makes a legal argument that counting ballots received after Nov. 3 violates federal election law establishing the Tuesday after the first Monday in November as the only legal day for an election.

In a brief filed Friday, New Jersey Attorney General Gurbir S. Grewal called the mail-in vote plan necessary given that the coronavirus has claimed the lives of more than 14,000 Garden State residents. He urged the court to reject the campaign's bid to overturn Murphy's order.

"As state officials explained, certain adjustments were necessary to protect the health of voters and poll workers, as well as to ensure that every resident — including the elderly and residents with underlying medical conditions — could safely exercise their right to vote," the brief said.

Addressing the campaign's issue with counting votes received before and after Nov. 3, Grewal said, "Federal law establishes the day for the election, but says nothing regarding how to figure out whether a particular ballot was cast on time. Because federal law is wholly silent on that issue, it has been left to the states, and New Jersey's approach is well justified by the evidence in this case."

A representative for Grewal said the office has no comment. Representatives for the other parties didn't immediately respond to requests for comment on the filings in either suit.

The Monmouth County Republican Committee is represented by Jason N. Sena of Cutolo Barros LLC.

Counsel information for the state is unknown.

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 state court complaint is the Monmouth County Republican Committee v. Tahesha Way in her official capacity as Secretary of State of New Jersey, case no. MON-L-003019-20, in the Superior Court of New Jersey in Monmouth County.

The federal 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.

--Additional reporting by Craig Clough. Editing by Haylee Pearl.

UPDATE: This article has been updated to indicate that the New Jersey Office of the Attorney General has no comment.

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