In a mystifying punt of two ballot access lawsuits, a New Jersey appellate court judge will allow primary elections to be held on June 7 with the intention of deciding the eligibility of candidates after Election Day.
Appellate Judge Hany A. Mawla today vacated his own stay of nominating petition challenges in the Democratic primary for Union County Commissioner and the Republican primary for Howell Township Council.
Mawla denied a request for emergent relief, which means there will not be an immediate ruling.
“The stay entered in this court’s order dated April 22, 2022 is hereby vacated,” Mawla said in his order. “The appeal shall proceed in the normal course.”
Instead, Mawla ordered a briefing schedule that begins on June 10 – three days after the primary – and ends on July 21.
Election officials may begin to print and mail ballots. Federal law required them to have mailed military and overseas ballots last Saturday, a missed deadline that is not the fault of county clerks.
“It makes it more obvious that they don’t know what they’re doing,” one election lawyer said about the New Jersey judiciary’s handling of election matters. “The legislature needs to fix this.”
The two cases are entirely different.
In Union County, three off-the-line challengers to incumbent county commissioners, are appealing Superior Court Judge Alan Lesnewich’s ruling that tossed them off the ballot because they fell three signatures short of the 100 needed to qualify.
Kathleen Sheedy, another Superior Court judge, put two Republicans on the ballot in Howell even though neither received the required 50 signatures. She allowed three candidates to retroactively combine their nominating petitions, even though signers saw just one name. That creates a four-way race for three seats in the GOP primary.
The problem for the candidates who filed the appeal is that there is no real remedy if the appellate court were to find in their favor, leading some to potentially view Mawla’s ruling as slick and disingenuous – perhaps pushing the plaintiffs to simply drop their challenge.
If the plaintiffs, the “Democrats for Change” slate in Union and John Hughes, who filed on behalf of the Howell Democrats, win, it’s possible that the court could wind up invalidating the primary election results and ordering a new election
But the runway for a new primary is extremely narrow.
Let’s say Mawla and the other appellate judge on the panel, Michael Haas, were to decide the case on the July 21 – the day the last brief is filed, without oral arguments – in favor of the plaintiffs.
Go one step further and say that a Superior Court Judge were to set the date of a new primary that day.
In the past, county election officials have testified that they need at least six weeks lead time to run an election that would also include early voting. It’s unrealistic to expect a new primary before August 30, and hard to predict voter turnout in a late August special primary for county commissioner.
With recount periods and time allotted for vote-by-mail cure letters to be remedied, the earliest the new primary could be certified would be September 23. That’s one day before the September 24 statutory deadline to mail out general election ballots.
It’s not clear how this might affect other races. In New Jersey’s 10th district, Democratic congressional candidate Akil Khalfani is bracketed with the “Democrats for Change” slate in Union County and won’t have the benefit of their being on the ballot in the June primary.
A federal appellate judge handled another New Jersey election issue differently than Mawla.
Judge Thomas Ambro of the 3rd Circuit U.S. Court of Court of Appeals denied Passaic GOP sheriff candidate Troy Oswald’s emergency motion for a temporary restraining order or preliminary injunction in his bid to have a state statute on residency requirements declared unconstitutional.
On the same day the appeal was filed, Ambro cited U.S. District Court Judge Madeline Cox Arleo’s “well-reasoned opinion.” The appeal continues, but effectively added clarity to the race. Republicans have now replaced Oswald on the ballot.