In competing briefs filed yesterday evening and this morning, attorneys representing both sides in the ongoing legal fight over the New Jersey county organizational line submitted their reasons why the Third Circuit Court of Appeals should or shouldn’t issue a stay on a lower court ruling suspending the line in this year’s Democratic primary.
On March 29, U.S. District Judge Zahid Quraishi granted a preliminary injunction nullifying the line, writing that the anti-line plaintiffs – Rep. Andy Kim (D-Moorestown) and two congressional candidates, Sarah Schoengood and Carolyn Rush – had successfully convinced him of the irreparable harm they’d face if the line remained in place. (Quraishi later clarified that his decision only applied to the Democratic primary, since no Republican candidates were involved in the suit.)
Most of the state’s county clerks, who were named by the lawsuit as defendants, quickly signaled their intention to appeal to the Third Circuit. On Monday, they officially requested a stay of Quraishi’s decision pending appeal, saying that switching New Jersey’s ballots to an office-block format would lead to chaos for election administrators and confusion for primary voters.
But that argument, the attorneys representing Kim wrote in a response last night, was already addressed – and largely dismissed – by Quraishi, and is not nearly compelling enough to warrant a stay of his ruling.
“The issue of feasibility was prominently before the Court, which had an opportunity to not only receive and review various certifications and multiple rounds of briefing, but also hear the testimony of expert witnesses, and make credibility determinations,” the anti-line attorneys wrote. “The record evidence before the Court was clear on many levels that the various clerks, using the hardware and software they now deploy, already have the capability to [prepare ballots] with races presented in office-block ballot displays.”
The harm presented if the ruling is stayed, on the other hand, would be very real, the attorneys argued. Kim would be forced to associate with candidates against his will; Schoengood and Rush would be shoved off-the-line, and thus have their electoral prospects diminished; and voters would have to vote on ballots that many top officials, including New Jersey Attorney General Matt Platkin, believe to be unconstitutional.
“If Defendants’ stay application is granted, New Jersey voters will be forced to vote yet again using a ballot that violates multiple provisions of the U.S. Constitution, including the right to vote, equal protection, freedom of association, and the Elections Clause,” they wrote.
In a reply filed this morning, lawyers representing 15 of the state’s 21 county clerks rebutted the anti-line attorneys’ claims, writing that it’s in fact the other way around; the harm presented to the candidates is speculative, but the harm to the state’s elections administrators is very tangible.
“The Clerks’ ability to meet these statutory deadlines – or, if the district court’s injunction is not stayed, to risk contempt of court – is in jeopardy in the 19 of New Jersey’s 21 counties which for seventy years have balloted the same way,” they wrote. “That is why county clerks from both political parties swore with conviction (not speculation) before the district court that they, as highly experienced election administrators, and their vendors did not know whether and how the Candidates’ proposed ballot changes (now ordered by the district court) could be implemented in time for the 2024 primary elections.”
And in a separate reply filed by the Camden County Democratic Committee, Camden Democratic attorney Bill Tambussi argued a separate point: the line itself is constitutional, and Quraishi erred in his conclusion that Kim would succeed on the merits of his anti-line argument. The line does not prevent any candidates from reaching the ballot, Tambussi wrote, nor does it prevent voters from choosing them.
“It is undisputed that Plaintiffs have not been denied access to the ballot nor have voters been denied the ability to vote for Plaintiffs,” he wrote. “CCDC merely seeks to exercise its constitutional right to associate with candidates and to inform voters of the individuals who constitute their association in an intelligible and organized manner.”
It’s unknown when the Third Circuit will choose to weigh in on the case, but given the extremely accelerated timeline so far, it’s very possible that a stay ruling one way or another will come in the next day or two.
Tomorrow is a major deadline on the New Jersey election calendar, with clerks set to conduct ballot draws to determine the order of candidates on primary ballots. From there, they’ll begin the work of designing and printing the ballots themselves – a process that will grow more complicated with every day that the current legal limbo over the line persists.
Read the full response from Kim’s attorneys against a stay:
Kim 3rd Circuit stay response
Read the full reply from the county clerk’s attorneys in favor of a stay:
County clerks 3rd Circuit stay reply
Read the full reply from the Camden Democrats’ attorneys in favor of a stay:
Camden Democrats 3rd Circuit stay reply