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Judge Ernest M. Caposela in his courtroom on April 18, 2018. (Photo: Nikita Biryukov for the New Jersey Globe).

Judge gives Passaic one hour to produce list of provisional ballots

Deputy attorney general fought GOP push for disclosure of provisional voters

By David Wildstein, November 15 2021 12:00 pm

A Superior Court Judge ordered Passaic County Superintendent of Elections Shona Mack-Pollock to release a partial list of voters who cast provisional ballots in the November 2 general election over the objection of the Murphy administration’s deputy attorney general.

The order came just hours before the Passaic County Board of Elections begins counting votes for the first time since last Wednesday for countywide contests with razor-thin margins, including an incumbent county commissioner who trails his GOP challenge by just 11 votes out of more than 100,000 cast.

Deputy attorney general George N. Cohen defending Mack-Pollock’s decision not to release the list last week.

“It’s not in their workload,” Cohen said.  “They’ve been working non-stop.”

But Judge Ernest Caposela saw the release of the list as “preventive medicine vs. surgery” in the event that races for county commissioner and surrogate wind up back in court as part of a recount.

Caposela challenged Cohen on the ability to remove votes from the tally once they are counted, in the event that the loser in the race is able to successfully challenge the provisional vote.

Cohen said there was a remedy: that voters could be subpoenaed as witnesses and under oath, be forced to say who they voted for.

Caposela didn’t like that option, pointing to the reluctance of voters to appear in court and publicly declare who they voted for on a secret ballot.

“I’ve witnessed that it is injurious to our Republic, into the democratic process,” he told Cohen.

An attorney for the Passaic County Republicans, Tim Howes, said he didn’t think the request – one that they began making last week –was terribly laborious.

“We’re not really asking for the keys to the city or for Mohammed to move a mountain,” said Howes, one of the state’s top election lawyers.  “We’re asking for a list that can be generated by a couple of keystrokes.”

Cohen repeatedly told the judge that the statute didn’t require the list to be released, but Caposela maintained that there have been so many changes to the state’s voting laws over the last few years that statutes don’t necessarily all fit together.

“We’re not living in the same voting environment that we were in even five years ago,” Caposela stated.

A spokesperson for Gov. Phil Murphy declined comment.

“I think the public is more interested in not so much when the results come in, but that the results are in fact valid, Caposela said, pointing to GOP gubernatorial candidate Jack Ciattarelli’ declaration ten days after Election Day that the election was fair.

There are about 4,000 vote-provisional ballots – and at least a dozen vote-by-mail ballots – still uncounted in Passaic County.

Democrat Zoila Cassanova has taken a 710-vote lead in the race for Passaic County Surrogate, and another Democrat, John Bartlett, is now trailing by just 11 votes in his bid for re-election to as county commissioner.

Cassanova had trailed Republican Aisha Mamkej by 224 votes before remaining vote-by-mail ballots were counted on Wednesday.

County Commissioner Sandi Lazzara, a Democrat, leads the balloting with 50,367 votes.  Republicans Nick Gallo, a Totowa landscaper, is in second place with 49,953.

Wayne Councilwoman Lucy Rivera has a narrow lead over Bartlett for the third seat, 49,392 to 49,381.

Veteran Ringwood Councilman William Marsala is running fifth with 49,300 votes, just 81 votes behind Bartlett and 92 behind his running mate, Rivera.

A Democratic incumbent, Assad Akhter, is running sixth with 48,321 – 1,071 votes out of third place.

Before today’s count, Gallo and Rivera led with Lazzara up by 74 and Bartlett 830 votes out of third place.

Republicans haven’t won a county commissioner race in Passaic since 2009 and last won a Surrogate contest in 1992.

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