Mercer County Assignment Judge Robert Lougy has stayed his own order moving runoff elections for the Trenton City Council in the North and South wards, returning Election Day to December 13 and opening the possibility of a separate Election Day for three at-large seats on January 24.
The move came after Deputy Attorney General Susan Scott said her office might have unwittingly screwed up by suggesting in a court filing that the North and South ward runoffs would have to be moved to late January along with the at-large contest.
“I’d like to apologize because it seems that our filing created some confusion. Our filing was simply focused on the runoff election and the scheduling of that,” Scott said in a court hearing on Friday afternoon. “The Board of Elections and the Superintendent of Elections did not mean to request an adjournment of the North and South ward elections.”
Scott acknowledged that the county election officials did not intend to suggest to Lougy that the ward runoffs, where voting is already underway, would need to be moved if he found that the final election results necessitaed a runoff, which he did.
“We did not intend to make any request for an adjournment of the currently scheduled North and South ward elections,” Scott said.
Lougy said that none of the attorneys in yesterday’s hearing raised equal protection issues regarding the bifurcation of the at-large and ward runoff.
“Perhaps this is one of those instances where the court’s creativity caused more problems than its worth,” he said.
While Mercer County Counsel Paul Adezio said no harm would come by waiting until Monday afternoon to address the runoff time schedule.
But Matthew Moench, who was representing two ward city council candidates, Jennifer Williams and Jenna Figueroa Kettenburg, said the uncertainty of the ward runoff Election Day was unfair to the candidates and confusing to the voters.
“If we wait until Monday to decide that issue…we have a weekend where my candidates won’t know, none of the candidates will know, what they should be saying to voters, because you can’t lose the weekend,” Moench. “ It’s only 11 days left, so you have to go out and knock on doors. If your Honor over turns it on Monday, you can’t lose a weekend. There’s going to be newspaper reports over this issue…(saying) the election (was) cancelled. We still have to campaign, but we’re campaigning, telling people we don’t know when the election is. It becomes a real problem.”
Jack Carbone, the attorney for the Trenton City Clerk, also disagreed with Adezio, saying that the county clerk has stopped the preparation of sample ballots that must be mailed to Monday.
“None of that is being done as a result of the AG’s position,” Carbone said. “Even carrying until Monday, somebody needs to determine soon if the county clerk is to do what she is required to do.”
Lougy, a former acting New Jersey attorney general, noted that Scott has “an odd relationship” as the lawyer for Mercer County election officials, noting that it might be unfair to suggest that this is the position of the attorney general himself.
Carbone also questioned the judge’s decision to overturn an executive order.
“The statute was superseded by the executive order of the acting governor who changed the dates for the draws and the dates of the runoff elections, so the statute is not applicable then and is not applicable now,” Carbone said. “We don’t have a new executive order.”
He said there needs to be a new executive order before the court can act.
“Somebody’s welcome to make that argument,” Lougy said. “I think I’ve already stepped off that pier.”
Jerry Dasti, an attorney representing South Ward council candidate Damien Malave, questioned whether runoffs are legally required, saying there is no evidence that Trenton every technically authorized them. Wesley Bridges, the city attorney, said he could find no record of runoffs being legally authorized, except that the Trenton has been holding them for more than 40 years.
“Are we going to upset 40 years’ worth of precedent?” Bridges asked.
Briefs on that matter are due on Sunday morning.