Administrative Law Judge Kim Belin mishandled a challenge to LaMonica McIver’s nominating petitions in a special primary election for the late Donald Payne’s seat in the U.S. House of Representatives, according to another candidate’s attorney, who wants Secretary of State Tahesha Way to reject them.
Matthew Moensch, who is representing another Democratic candidate, Brittany Claybrooks, alleges that Robin McIver, the candidate’s mother, “falsely represented that she was the sole circulator personally responsible for obtaining the signatures.”
Belin found that Claybrooks “has failed to prove that McIver committed false statements of fact necessary to disqualify her petition. “
Moensch says that would have been impossible.
“If one circulator did not sleep and did nothing but circulate this petition, they would be required to have obtained one signature every 4 minutes for 67 hours straight,” Moench said in his letter of exceptions to Way. “Of course, the purported circulator would have had to have slept, eaten, stopped for bathroom breaks, and traveled between locations.”
According to Moensch, “This is a completely unrealistic and implausible feat for a singular individual, which becomes more implausible if the circulator, the 65-year-old mother of the candidate, did not circulate the petitions for 12 hours straight two days in a row – without breaks.”
In his filing, Moench said that he was “improperly prohibited from presenting relevant evidence in testimony” at a court hearing.
“Judge Belin abused her discretion by arbitrarily limiting petitioner’s ability to present her case, improperly rejected evidence, and did not provide Petitioner a realistic opportunity to present newly discovered evidence,” he said.
On Friday morning, McIver’s aide, Hassan Abdus-Sabur, told the New Jersey Globe that multiple people circulated the petition, including himself. He had attended Thursday’s hearing as a private citizen.
Belin reopened the hearing several hours later but closed it again when Moench told her that he was unable to serve Abdu-Sabur with a subpoena in the 66-minute window she gave him.
By then, Adbus-Sabur appeared to have gone underground.
Belin told Moench that she had a deadline of 5 PM on Friday to issue her ruling; that turned out to be incorrect since Way’s special election timeline established the deadline to be on Sunday.
Belin, Moench argues, didn’t “meaningfully reopen the record” to provide an opportunity to subpoena Adbus-Sabur. He also alleges that Belin “improperly denied” his admission of evidence by misapplying the Office of Administrative Law’s hearsay rules and wouldn’t consider the New Jersey Globe’s discovery that Abdus-Sabur had circulated some of the petitions.
Additionally, Moench says that Bellin would not allow him to present corroborating text messages.
“The court barred the testimony and text messages as impermissible hearsay, even though they are an exception to the hearsay rule as an admission by a party-opponent, and regardless, that hearsay is explicitly and absolutely permitted in an administrative proceeding,” Moench said in his letter to Way.
Belin also declined to allow a recorded conversation Moench said would prove their claim into evidence.
“The court absurdly refused to even allow Petitioner to identify the name of the witness, which is not hearsay, because the name of the witness, unlike the conversation itself, is not an out-of-court statement made to prove the truth of the matter assert,” Moench stated. “Had petitioner been able to simply identify the voter, it would have corroborated one of the five signatures identified below that were shown as proof of the fraud.”
Moench told Way, a former administrative law judge, that Belin “improperly limited” his ability to call witnesses by arbitrarily limiting him to two witnesses and a review of only five signatures.
“Such a limitation was arbitrary and is not in conformity with the typical practice in an election petition challenge hearing,” he said. “Of the five signatures challenged, four of them did not match. Review of additional signatures would have further developed the record that the petition was replete with forged signatures.”
In two other challenges last week, judges spent hours hearing challenges to dozens of signatures.
Belin also rejected a bid to call an expert witness, Mazo, a candidate and a law professor who is an expert on ballot access issues.
In his argument to Way, Moench maintains that he “demonstrated by a preponderance of the evidence that the nominating petitions of LaMonica McIver were not circulated by one circulator.”
“Regardless of whether 200 valid signatures are contained somewhere within the petitions, candidates are not permitted to go before the voters on a falsely sworn petition,” said Moench. “McIver’s petitions must be rejected.
Moench offered an alternative option to Way: remand the matter back to the court “to further develop the factual record.”
“Any such remand must be accompanied by clear power to subpoena witnesses and a reasonable time in which to do so, along with a direction to consider probative hearsay evidence, as permitted in an administrative hearing,” he said.