NJ GOP Loses Bid For Count Of Mail-In Ballots At Polls

Law360 (November 3, 2020, 6:35 PM EST) -- A New Jersey state judge on Tuesday knocked down a GOP demand for a count of the vote-by-mail ballots delivered to each Garden State polling location to ensure the integrity of Tuesday's general election, saying it was not required under state regulations and that imposing such a last-minute mandate could disrupt the election process.

Superior Court Judge Mary C. Jacobson denied a request from the New Jersey Republican State Committee for an order directing poll workers to provide at 8 p.m. Tuesday the total number of vote-by-mail ballots received at polling sites in the same way that state statutes require them to turn over the number of voters who used voting machines and provisional ballots.

During a Zoom hearing, the judge noted that, in revising election laws to permit vote-by-mail procedures amid the COVID-19 pandemic, the New Jersey Legislature did not amend those statutes to impose such a requirement.

New Jersey lawmakers gave New Jersey Secretary of State Tahesha Way the discretion to establish appropriate standards for accepting vote-by-mail ballots at polling places, and she also has not required that poll workers count the number they receive, Judge Jacobson said.

The judge said "the court will not substitute its judgment for either the Legislature or for the secretary of state."

The state Republicans argued that it wouldn't take much effort for poll workers to count the vote-by-mail ballots, but the judge found that directing them to do so via a court order on the afternoon of Election Day could be disruptive.

To curb the spread of the novel coronavirus, the Garden State's general election is being conducted primarily with vote-by-mail ballots. Voters were able to return their ballots by mail, place them in secure drop boxes, bring them to county board of elections offices or turn them in at polling places on Election Day.

The GOP sought a count of those ballots in a lawsuit filed late Monday against Way and county boards of election. The other plaintiffs included two county Republican organizations and the campaign of GOP candidate and state Sen. Thomas H. Kean Jr., who is looking to unseat Democrat Tom Malinowski in New Jersey's 7th Congressional District.

A recording of vote-by-mail ballots delivered to polling sites was needed to provide an extra layer of security and determine whether ballots are added or lost after the polls closed, the Republicans claimed. The GOP wanted to receive those counts when the polls close at 8 p.m. Tuesday.

Matthew C. Moench of King Moench Hirniak & Mehta LLP, representing the Republicans, said during Tuesday's hearing that such a count aligned with the goal of transparency underlying the statutes that cover the reporting of machine and provisional ballots. He called the count "another check and balance on the integrity of the election."

"Not including these VBM vote counts works completely against the entire legislative purpose behind allowing ... these counts," Moench said. "It's to make sure that the public and the various stakeholders, the campaigns, the candidates, all know what's happening in the polling places on Election Day."

But Deputy Attorney General Steven Gleeson, representing Way and the county boards of election, stressed Tuesday that the Legislature chose not to require a count of vote-by-mail ballots delivered to polling locations.

Case law is "pretty clear that the best way to determine the Legislature's intent is the plain language of the statute, and the plain language of the statute does not require vote-by-mail ballots to be tallied on Election Day at the polling locations," Gleeson told the judge.

"As I said, the Legislature had the opportunity to change that if they had a different intent," he added.

In siding with Gleeson's argument, Judge Jacobson said "there are checks and balances already inherent in the process," noting that voters must sign a certification if they deliver vote-by-mail ballots at polling locations and those certifications later can be matched against the ballots.

The judge recognized there's a "huge public interest in voter integrity," but said she wasn't sure that the "additional requirement that plaintiffs want to impose is necessary for voter integrity, and the secretary of state obviously has not deemed it necessary to preserve voter integrity."

The state Republicans are represented by Matthew C. Moench of King Moench Hirniak & Mehta LLP.

Way and the county boards of election are represented by Deputy Attorney General Steven Gleeson.

The case is New Jersey Republican State Committee et al. v. Tahesha Way et al., case number L-1947-20, in the Superior Court of New Jersey, County of Mercer.

--Editing by Jack Karp.

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

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