Trump's Suit Challenging NJ Mail-In Voting Thrown Out

By Jeannie O'Sullivan
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Law360 (October 22, 2020, 8:21 PM EDT) -- A New Jersey federal judge tossed a lawsuit by President Donald Trump's campaign seeking to invalidate the Garden State's pandemic mail-in vote system for the 2020 general election, ruling Thursday that the claims of constitutional violations and potential fraud were too speculative.

U.S. District Judge Michael A. Shipp granted the dismissal motion by the Democratic Congressional Campaign Committee, which intervened in the Trump campaign's challenge to the mail-in vote law passed just as election season began bearing down during the ongoing COVID-19 pandemic.

The Trump campaign alleged that election officials overwhelmed with an abundance of provisional ballots could skirt ballot processing and reviewing laws, leading to disparate treatment of voters in different counties.

The campaign pointed to massive increase in provisional ballots during the July primary election, but Judge Shipp said a past injury can't support their present assertion that an Equal Protection Clause violation could result.

"The court, accordingly, finds that the plaintiffs have not demonstrated a concrete, particularized and actual or imminent injury to their members' rights to equal protection under the law fairly traceable to A4475," the decision said, referring to the legislative bill that became the law.

Judge Shipp likewise rejected the Trump campaign's allegation that mail-in votes could lead to scores of ballots being "improperly and unlawfully repurposed" for a particular candidate

"Aside from the bald, conclusory allegations that the court has already rejected as not entitled to a presumption of truth, plaintiffs have not set forth specific allegations demonstrating that such a scheme is certainly pending," the decision said.

The state law at the heart of the lawsuit was passed in August and codified a primarily mail-in vote system allowing election officials to count mail-in ballots starting 10 days before the Nov. 3 election and up to two days after the election.

In addition to the equal protection clause argument, the Trump 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 Trump 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.

The Republican National Committee and the New Jersey State Republican Committee are also plaintiffs in the suit, which prompted the DCCC to join the battle. In a court brief filed in August, the DCCC argued that the law protects disenfranchised voters who may fear voting in person places them at higher risk for contracting the coronavirus.

"If the Republican Party succeeds and the state's plans to mail ballots to registered voters are thwarted, many of those voters — including significant numbers who would have supported Democratic candidates — will effectively lose their ability to vote in the coming election," the DCCC's brief said

On Oct. 6, Judge Shipp denied the Trump campaign's bid to enjoin the early counting, saying the act of counting the ballots doesn't determine the officeholder.

The Trump campaign has launched similar challenges to various aspects of mail-in voting plans in other states, such as Pennsylvania.

New Jersey Attorney General Gurbir S. Grewal hailed the ruling in a Tweet: "More good news in our fight to protect your right to vote! Today, the federal court DISMISSED the challenge to NJ's vote by mail law. Over 2M voters have already mailed in their ballots. Your vote is valid, and it will be counted."

 DCCC Executive Director Lucinda Guinn was likewise pleased. 

"Democrats prevailed and President Trump and his campaign won't be able to stop folks in New Jersey from having their vote counted. We've been fighting across the country to protect voting rights and we are not finished," Guinn said in an emailed statement from a DCCC representative.

Representatives for the Trump campaign didn't immediately respond to a request for comment Thursday. A representative for the DCCC said it didn't immediately have a statement ready.

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 Democratic Congressional Campaign Committee is represented by Angelo J. Genova, Rajiv D. Parikh, Michael C. McQueeny and Michael Mondelli III of Genova Burns PC and Marc E. Elias, Emily R. Brailey, Sarah R. Gonski and Mary N. Beall of Perkins Coie LLP.

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.

Update: This article has been updated to include commentary from DCCC Executive Director Linda Guinn.

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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