Trump Campaign Can't Stop NJ's Remote Voting Plan

By Jeannie O'Sullivan
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Law360 (October 6, 2020, 8:10 PM EDT) -- President Donald Trump's reelection campaign lost its challenge to New Jersey's coronavirus-prompted remote voting plan procedures Tuesday with a judge ruling that federal election law doesn't stop election officials from counting ballots before and after Election Day.

U.S. District Judge Michael Shipp denied the campaign's bid for a preliminary injunction to stop the Garden State from counting mail-in ballots starting 10 days before the Nov. 3 election and up to two days after the election, a system codified in a state law passed in late August as election season began bearing down on the ongoing COVID-19 pandemic.

The campaign argued that the counting system violates the U.S. Constitution's election clause setting a uniform day to vote: the Tuesday after the first Monday in November. The campaign invoked the U.S. Supreme Court's 1997 decision in Foster v. Love , in which the justices held that an election can't be consummated before Election Day.

Judge Shipp, however, reasoned that the act of counting the ballots doesn't determine the officeholder.

"Canvassing ballots before Election Day does not consummate the election because that cannot occur before the polls close on Election Day and election officials run a final tabulation report," the decision said.

Turning to the campaign's objection to New Jersey's willingness to count ballots without postmarks up to two days after the election, the judge said that the U.S. Postal Service has not always abided by the policy of postmarking ballots.

"There is no evidence, however, that the Post Office's failure to postmark a ballot is correlated with the date of the ballot's mailing, or that a ballot cast after Election Day will, or is more likely to, lack a postmark," Judge Shipp wrote.

The judge went on to reject the campaign's arguments that the system is vulnerable to voter fraud and likely to confuse citizens. The only credible harm that could result is the early disclosure of election results, but that possibility is too speculative and remote, the decision said.

"Plaintiffs provide no reason to suspect election officials would intentionally violate the law and disclose election results before the polls close, and defendants have provided evidence of sufficient safeguards to prevent accidental or intentional early disclosure of election results," the decision said.

Judge Shipp found the campaign failed to meet the preliminary injunction standards of showing a likelihood of the case succeeding on the merits, that irreparable harm would result absent the relief, that the balance of harms weigh in the campaign's favor, and that the injunction is in the public's interest.

The Trump campaign has launched similar challenges to various aspects of mail-in voting plans in other states, such as Pennsylvania. New Jersey, meanwhile, is also battling a challenge to the plan by the Monmouth County Republican Committee.

In a statement Tuesday, New Jersey Attorney General Gurbir S. Grewal said: "Despite unprecedented conditions, New Jersey is committed to having fair and safe elections this November. We're grateful that today a federal court recognized what we've said all along: New Jersey's approach to this year's election is lawful, and any arguments trying to undermine our election are simply misguided. We will continue to defend New Jersey's elections rules against any court challenge."

Representatives for the Trump campaign didn't immediately respond to requests for comment.

The Trump 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.

Gov. Phil Murphy and New Jersey Secretary of State Tahesha 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 Orlando Lorenzo.

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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