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Trenton City Hall. (Photo: City of Trenton).

Trenton elections are screwed up and there may be no good fix

Judge will hold a Sunday court hearing to consider how to handle runoffs

By David Wildstein, December 04 2022 2:39 pm

The Trenton municipal elections appear irrevocably banjaxed with probably no easy way to make things right for the candidates and for the electorate.

Uncertainties following the local election follows four years of a toxic and dysfunctional city council in the state’s capital city.   Voters are being sent extraordinarily mixed messages about when they are expected to show up at the polls.

Democracy is at its best when turnout is at its highest.   Typically, voter confusion – which will almost certainly follow the mixed messaging —  will in low turnout.

Worse, the date for runoff elections for the North and South Ward city council seats, was changed after votes had already been cast.   That put Trenton on a slippery slope; the date of an election is frequently viewed as an immovable deadline, especially when voting had already begun (one notable exception was when terrorists crashed planes into the Word Trade Center on September 11, 2001, after voting in the New York City primary election was underway).

Instead, the court has made Election Day fungible.

So far, Trenton is on its fourth runoff date.

Statutorily, runoffs for the November 8 election were scheduled for December 6.  In a November 18 executive order that cited time constraints due to COVID, acting Gov. Sheila Oliver moved the runoff election to December 13.  On Friday morning,  Mercer County Assignment Judge Robert Lougy moved runoffs for city council seats in the North and South Wards to January 24 to be run simultaneously with at-large runoffs, but by the end of the day, Lougy had bifurcated the at-large and ward runoffs and through a stay of his original ruling, moved the North and South Ward runoffs back to December 13.

The apparent intent of moving Trenton’s non-partisan municipal elections was to maximize voter turnout.  Now it looks, albeit inadvertently, that the courts will effectively minimize it.

“Without the mayor’s race at the top of the ticket, we’d expect turnout to be low anyway, but with multiple date changes and confusing headlines about no runoffs for some of the races, voter participation will likely be an absolute record low,” said Micah Rasmussen, the director of the Rebovich Institute of New Jersey Politics at Rider University.  “That’s unfortunate, because the city is just turning the page from its most dysfunctional council and this should be a positive moment for Trenton.”

Possible appeals to Lougy’s final decision could easily continue the disruption of the electoral process.

In the end, fault could lie with the legislature, which has made multiple changes to election laws and deadlines without considering that producing a runoff election just four weeks later is no longer plausible.

Lougy appears to have agreed to review motions of consideration, possibly a signal that he realizes there may be some errors related to his initial ruling.

Some of the fault goes to broken technology.   It all started with Dominion voting machines that malfunctioned for the entirety of Election Day, with fault being bobbed between different private vendors and public officials.

Paper ballots allowed ever vote to be counted – no one was disenfranchised – but it did delay the release of election results.  That was followed by uncertainty as to how runoff elections were to be calculated in the at-large contest, where nine candidates were seeking three seats.

Initially, the process moved sluggishly and lost valuable time.

Unsurprisingly, the matter wound up in court but that didn’t happen right away.  Flavio Komuves, an attorney for the fourth, fifth and sixth place finishers filed a lawsuit, but he waited until five days after the election was certified to file a lawsuit.   That was on Monday afternoon of last week, but it took the judiciary until Thursday afternoon to hold a hearing.

The 52-year-old Lougy is widely viewed as one of the strongest legal minds in the state court system.  That that has led to a meteoric rise through the state court system since he traded his post as acting attorney general for a Superior Court judgeship in 2016 and resulted in his appointment last year as assignment judge in Mercer County – the most influential trial court post in the state – even though he remains untenured.

But Lougy might have gotten in front of his skies on his Friday order moving the ward election runoff date.

When Scott Salmon, an attorney representing the three top vote-getters in the at-large race, asked Lougy on Thursday how a January 24 runoff would work, Lougy shut him down because he had not yet decided if there would be a runoff at all.

Lougy said that he appreciated “the position that point that issue rather, because I think it’s an important thing for us to discuss if that comes to pass — but I’m not sure enough in a discussion on the merits that it just doesn’t get us bogged down and put the cart before the horse a little bit.”

Yet by Friday morning, citing Deputy Attorney General George Cohen’s court filing that asked for a new runoff date of January 24, Lougy moved the ward council runoff dates to next month.   Cohen, who has a history of pushing election-related dates further into the future than they need to be – perhaps to give his clients (in this case the Board of Elections and the Superintendent of Elections) more comfortable deadlines.

Since there was no discussion in court about the January 24 date – or how it would affect other statutory deadlines – arguments as to whether the election could be run sooner were never heard.

During a hearing several hours later, Matt Moench, who represents two ward council candidates, told Lougy that the vagueness attached to the date of the election would cause irreparable harm to candidates who, eleven days before a possible date of the election, would not know what to tell voters.

Deputy Attorney General Susan Scott, who represents the Mercer County Superintendent of Elections and the Board of Elections, apologized to the judge on Friday for Cohen’s confusing letter that somehow gave Lougy  the impression that the county wanted to move the ward elections to January.

“The Board and Superintendent do not take, and have never taken, any position as to whether there should be a run-off election for the Trenton City Council at-large seats,” she said in a court filing on Friday morning.

There has still been no mention of how ballots that began coming in last week would be handled.  And there’s been no discussion as to who authorized the Mercer County Superintendent of Elections to shut down secure ballot drop boxes on Friday.

Algernon Ward, Jr., who finished second in the North Ward council race behind Jennifer Williams, told the court on Sunday that he wants the election held on January 24.  This could be an example of a candidate seeking more time because he doesn’t think he can win on December 13.

Salmon has asked Lougy to reconsider his ruling based on the ability of the court to ignore, modify or overrule” an executive order, say that the Supreme Court “has repeatedly sustained executive orders” that ‘flow out of the Governor’s legislatively-delegated emergency powers to act on behalf of the safety and welfare of the people of New Jersey under the Disaster Control Act.’”

“Unless and until this Court rules that EO 313 is unconstitutional, which would have ramifications far beyond this one at-large election, there is nothing to suggest it has the authority to ignore, modify, or overrule the executive order,” Salmon agued.

Christina Brant-Young, a senior counsel to the attorney general, is no expected to appear in court today.

But Scott defended the right to move the election date despite the language in the executive order.

“If the court finds that a Trenton Council at-large runoff election should occur, Executive Order 313 does not prevent the court from ordering that election to occur on January 24, 2023,” she wrote. “Its stated purpose for doing so is to give the election officials sufficient time necessary to prepare for and administer the run-off elections known at the time.”

Still, Scott gives the impression that January 24 is the earliest possible date for the at-large runoff; several involved dispute that and pointed to a statute that intends for runoff elections to occur four weeks after Election Day.

City Clerk Brandon Garcia certified three winners in the at-large race based only on the numbers available to him at the deadline, is attorney, John Carbone, said.   On Thursday, the county was able to learn from Dominion, the manufacturer of the electronic counting machines, how to determine how many votes were cast in the at-large council race.  But no testimony or certification has come from Dominion.

There is also a controversy over the legality of runoff elections.  An attorney for South Ward city council candidate Damian Malave, Jerry Dasti, claims that Trenton never adopted an ordinance permitting runoff elections.   Malave was the top vote-getter in the South Ward, leading Jenna Figueroa Kettenburg by 57 votes, 47.7% to 42.4%.

In a court hearing on Friday, Trenton city attorney Wesley Bridges said his office was unable to locate government records relating to the runoff.

In his filing, Dasti has pointed to a 1982 referendum where Trenton voters ended runoffs in municipal non-partisan elections; as a result, there were no runoffs in 1986.  But In November 1987, Mayor Arthur Holland led a move to bring back runoff elections and Trenton voters approved the measure by about 200 votes.   Accordingly, runoff elections returned in 1990.

Lougy has set a rare Sunday court hearing for 3 PM.

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