A common feature of our legal system is the statute of limitations (SOL). SOLs says that if a lawsuit is brought too long after its underlying events, the claim is barred, no matter how valid the claim, or how deep the injustice would be. Among the reasons for SOLs is finality – that idea that people have the right to assurances that a matter is over and can’t be litigated or relitigated after too much time has passed.
In the world of election law, SOLs can be brutally short, just like the host of deadlines surrounding the filing of nominating petitions, returning mail ballots, and voting hours on Election Day. Just to name some, a challenge to signatures on a candidate’s nominating petition has to be brought within four days of a petition’s due date, and a lawsuit in court over a nominating petition is due within 12 days after the petition due date. Post-election, similar cutoffs apply to going to court to change an election’s outcome: a recount and recheck has to be requested in court within 17 days of Election Day, and a contest (a more extended legal challenge to an election outcome) generally has to be brought within 32 days of Election Day.
Against this backdrop, New Jersey voters are now witnessing Monmouth County election officials approach the Superior Court to ask for exemption from the same SOLs that apply to candidates and voters. Their papers so far contain some second-hand hearsay about how Monmouth’s voting machine vendor supposedly botched the tabulation software, but they supply no direct evidence or documentation of this.
Courts should be loath to allow tardy election challenges of any kind. Our country is awash in election deniers of all kinds who persist, months and years after the fact, that an election was stolen (see: Kari Lake, Donald Trump, the fringe Michigan election commissioner who would not support election certification). These eccentrics claim that just one more audit, one more recount, or one more frivolous lawsuit will prove them right. Even though timely audits, recounts and rechecks prove that the right winner was declared, their attacks on legitimate government can continue unabated if late ones are allowed. While I’m generally referring to candidates, New Jersey law presents a complication: here, it’s not just office-seekers who can file a recount or contest; in some cases, any indiscriminate group of 15-25 voters can set the process into motion, even without the candidate’s approval.
As such, the judge presiding over the request of Monmouth election officials faces a difficult decision. It’s not clear at all whether election officials have standing to bring even timely claims to contest their own canvass and the results of their risk-limiting audit. But even if they could, what excuse does anyone involved have for missing every applicable SOL? Remember that here, the Superintendent of Elections was on notice of a possible systemic malfunction in their tabulation software by mid-November, well before the clear deadlines for certification, the risk-limiting audit, recounts, rechecks, and contests. Neither these officials nor anyone with standing acted timely, and election officials now want the court to excuse their lack of urgency.
While the court should enforce the relevant SOL, if the court nevertheless allows the suit, great care must be taken that this suit doesn’t give license to bring fact-free claims and sow discord. Before the courthouse door is even opened to someone looking for a mulligan on a certified election, a relevant factor is whether it comes with the unanimous consent of all the relevant election officials, and not just the partisan members of a county Board of Elections. It can never be enough that it comes just from a candidate or an unhinged group hawking mad conspiracy theories, and this court should say so. Another consideration is whether there is exceptionally good excuse for missing a deadline, which is generally not going to include a failure to follow up on a substantial and known irregularity brought to election officials’ attention pre-certification.
Further, for actions that miss the deadline, there must be a showing, by testimonial evidence, that the claimed irregularities are real, and not just the ephemeral fantasy of a voter, candidate, election official, or voting systems vendor that ‘something’ might be wrong. The thin papers filed in the Monmouth case so far are insufficient. In addition, by calling for a special investigative counsel, it’s not clear that the attorneys for Monmouth County fully believe the narrative that’s being offered. Tall tales making spurious claims of voting irregularities might amuse on election night, but they’re not evidence. When brought late – after the legal deadlines – they are usually pathetic, rather than entertaining, and present real threats to democracy and electoral legitimacy.
To even entertain belated claims asking to change election results risks opening Pandora’s box. If the court does so here, very strict barriers and safeguards must accompany it.
Flavio L. Komuves is an election law attorney with Weissman & Mintz, Somerset. In addition to serving as the state’s voting rights watchdog in Gov. Jon Corzine’s administration, he has represented and counseled dozens of candidates and voter groups on a wide variety of election matters, and is a four-term prior chair of the state bar association’s election law committee.