New Jersey’s Sore Loser Law prohibiting the loser of a primary from running as an independent in the general election will get tested in court next month.
Joseph Abutel, who mounted an unsuccessful write-in campaign for the Colts Neck Township Committee in the June Republican primary, now wants to get on the ballot as an independent.
But the Monmouth County Clerk, Christine Hanlon, finding clear evidence that Abutel had actively sought the Republican nomination, rejected Abutel’s nominating petition — filed before the polls closed on June 7 — for the fall election.
“Mr. Abutel is no longer able to utilize the petition process for general election ballot access,” Hanlon said.
Abutel launched a write-in challenge to incumbent Sue Fitzpatrick last April, but lost the GOP primary, 980 to 179. He waged a full-scale campaign, spending $5,800 of his own money on direct mail, lawn signs, a campaign website, and a digital effort, according to his New Jersey Election Law Enforcement Commission filing.
Fitzpatrick had filed a challenge to Abutel’s candidacy.
“The law does not allow Abutel to now run against me again in the general election after he already lost the primary election,” she said.
The statute states that “no petition for direct nomination.. shall nominate to any elective public office a candidate who unsuccessfully sought the nomination of a political party to that office in the primary election held in the same calendar year and no unsuccessful primary candidate shall sign an acceptance of such a petition for direct nomination”
But Kevin Starkey, an attorney representing Abutel, disagreed. He claims the Sore Loser Law doesn’t apply to write-in candidates, only to candidates whose name appeared on the ballot. He says the courts need to follow it’s own guidelines that election laws “are to be liberally construed.”
“The issue to be decided by this Court is the meaning of the phrase ‘sought the nomination,’” Starkey wrote in a brief filed with the court. “The County Clerk, at the request of Ms. Fitzpatrick, has broadened that understanding and has interpreted “sought the nomination” to include any person, whose name does not appear on a primary election ballot, if they have undertaken an effort to be a write-in candidate.”
Starkey said the simple interpretation of the statute is that a candidate who ran in a primary by filing a nominating petition is different that being a write-in candidate.
“The problems with this approach are obvious, starting with the question of what does it mean to seek the nomination as a write-in? Would the candidate have to ask others to vote for him or her? Would a candidate who received just one write-in vote be barred? Or would a greater number be required? What if the potential independent candidate was unaware of the write-in votes? County clerks would have to review a full record of ELEC filings, campaign mailers, Facebook posts, phone records, text messages, lawn signs, and every other manner of campaign efforts, to make a judgment call on whether such actions by a write-in candidate constituted ‘seeking the office,’” Starkey said. “Perhaps asking a neighbor to write ones name on a ballot would be enough, perhaps more would be required, but that determination would be up to the unbridled discretion of individual county clerks.”
Starkey maintains that if the court interprets the Sore Loser Law the way Hanlon did, county clerks would be forced to make “a judgment call, on a case-by-case basis, as to whether a particular candidate’s actions or activity met some undefined and undefinable standard of ‘seeking a nomination.’”
“Where would that line be drawn? Would every county clerk, or court, draw it in the same place?” Starkey asked. “The effect will be an ad hoc application of an arbitrary and capricious standard of review based on the unguided judgment of each clerk.”
Superior Court Judge Linda Grasso Jones signed an order to show cause on Tuesday and set a court hearing for July 21. But she rejected a bid by Starkey to restrain the county clerk from preparing the general election ballot without Abutel’s name.
Judges have viewed the Sore Loser Law as fungible in the past.
After Middlesex County Democrats declined to support Assemblywoman Arline Friscia (D-Woodbridge) for re-election in 2003, she ran off the line and came within 735 votes of winning.
Republicans threw Friscia a lifeline in August when Robert Mauro dropped out of the race.
Friscia announced that she was switching parties and would seek re-election as a Republican.
Democrats went to court, arguing that Friscia was violating the state sore-loser law designed to prevent candidates defeated in primaries from running as independents.
A judge ruled that Friscia was eligible to become a replacement candidate for the winner of the Republican primary. In the general election, Vas defeated Friscia by 3,197 votes.