School board candidates in Livingston and Millburn sought to remove their names from the general election ballot on September 4 after deciding to drop out of the race, but Superior Court Judge Robert Gardner denied their request without holding a hearing.
Gardner, who issued no written opinion, appears to have strictly interpreted an election law that sets the deadline for withdrawing from school board elections as August 16. Now, voters in those two municipalities might wind up wasting their votes on candidates forced to remain on the ballot by a judge against their will.
The decision comes in a state where judges routinely decide election matters liberally, making deadlines fungible to best serve voters.
Samantha Messer in Livingston and Howard Wachtel in Millburn had both decided not to continue their campaigns and filed motions with the court to remove their names from the ballot. Neither requested oral arguments, and neither used an attorney.
At the time of his decision, Gardner was aware that ballots in Livingston and Millburn had not been printed and the machines remained programmed, the New Jersey Globe has confirmed.
At the same time, Gardner was hearing a petition challenge in the West Orange Township Council race. He did not make a final ruling on that matter until September 16.
On the same day the two candidates filed to get off the ballot, 70 miles away in Mount Holly, Superior Court Judge John Harrington told attorneys in an election matter that election deadlines set by the legislature were “merely advisory.”
While the deadline for school board and fire commissioner candidates to withdraw is August 16, federal, county, and municipal office candidates aren’t until August 27.
Rep. Bill Pascrell, Jr. (D-Paterson) died on August 21, and Democrats had eight days to replace him on the ballot.
Gardner was criticized last year for refusing to permit a recount in a Caldwell council race that was decided by just four votes. That led to Assemblyman Al Barlas (R-Cedar Grove) introducing “Robert’s Law” – a bill that would mandate recounts in local elections won by ten or less votes.
“If it’s within single digits, it’s preposterous that you have to go to court,” Barlas said earlier this year. “I think we can all agree that if it’s within single digits, it’s worthy of a recount.”
Messer, a former school board member, ran as an independent for the Livingston township council in 2022 after Democrats declined to support her for the nomination. She finished seventh in a race for three seats with just 9.7% of the vote.
Messer narrowly avoided some difficulties during that campaign when a mysterious ad with no disclaimer appeared in a local newspaper, pushing votes toward her. The ad was paid for in cash, and the person who delivered it had ties to Messer.
Robert F. Kennedy, Jr., a Democrat-turned-Independent presidential candidate, dropped out of the the race in August and endorsed Donald Trump. He sought to get off the ballot in New Jersey, but was told it was too late to withdraw; Secretary of State Tahesha Way found that some counties had already begun printing ballots.
In 2018, Democrat George Youngkin suspended his campaign for Burlington County freeholder after a late September report that he had been arrested on domestic violence and stalking charges in 2006. It was too late to be removed from the ballot, and Youngkin won anyway in the Democratic wave election that year. He was quietly sworn in and then immediately resigned.
Before vote-by-mail ballot dates were moved up, the state had more flexibility to make late changes to ballot designs. In the old days, when absentee ballots were less frequent – and only for cause – election officials could quickly remove a name from the ballot before Election Day.
In a landmark New Jersey Supreme Court decision, Democrats were able to replace U.S. Senator Bob Torricelli on the ballot a month before the 2022 general election with a replacement candidate, Frank Lautenberg. The court ruled that it was “administratively feasible” to make the change, if the party reimbursed election officials for any costs to reprint.
Gardner, it appears, neglected to consider that option; the cost would have been zero since no ballots had been printed.