Mercer County Assignment Judge Robert Lougy has promised a decision on the status of a runoff election for three at-large seats on the Trenton City Council by 9:30 Friday morning.
The race took a wide turn earlier today when the county clerk certified that of the 9,248 ballots cast citywide, 8,037 voters picked at least one candidate in the at-large race. The voting machine manufacturer, Dominion, was able to cull that information from the ballots.
City Clerk Brandon Garcia had certified three candidates as winners – Yazminelly Gonzalez, Crystal Feliciano, and Jasi Edwards.
John Carbone, an attorney representing the city clerk, told the judge that Garcia made his determination based on the information he had available at the time. According to Carbone, the clerk had a statutory obligation to certify a winner by November 21.
“Today we receive a certification saying, well, maybe the numbers are different. It’s not a moving target. It’s not nailing Jell-O to the wall,” Carbone said. “There was a date where he grabbed the number, made a decision, exercise his functions and advised the candidates that no runoff was necessary.”
Carbone said that Garcia “could not determine based upon the numbers, not yet certified by the clerk and not yet certified till today.”
“He could not determine to use the first part of the statute. So he went to the second part of the statute, exercising his function and discretion and made a decision,” stated Carbone. “That decision shouldn’t be overturned. That decision shouldn’t be ignored. And it’s not something where every iteration, every change goes back to his decision being changed again. There’s got to be finality.”
Complicating matters is that Trenton moved their non-partisan municipal elections from May to November this year, leaving the state’s most dysfunctional city council in office for an additional six months.
“Based upon the suggestions of the attorney general to do this next year, you’re going to have a council on November, which consists of holdovers whose terms expired in May of last year,” said Carbone. “That is an issue for that’s a legal issue as to whether or not it can function, the efficacy, the actions taken. Bonding, financing, which just raises too many issues . It is our position that the clerk exercised the appropriate decision. Utilize that part of the statute on the information available to him and determine that there was no need for a runoff in the at-large positions.”
Scott Salmon, an attorney representing Gonzalez, agreed with Carbone’s argument.
“The information made at the time was correct. It was therefore at the time, not arbitrary, capricious,” Salmon said. “It was based on based on the information that was available then, and therefore shouldn’t be overturned.
As a result, voting for the December 13 runoff for city council races in two Trenton wards has already begun. Vote-by-mail ballots were sent out earlier this week.
In a court filing this morning, Deputy Attorney General George Cohen told Lougy that the Mercer County Board of Elections would be unable to print and mail citywide ballots – or staff a citywide election – on December 13. Cohen suggested January 24 as the new election.
If Lougy determines that an at-large runoff is necessary, he may also need to determine if he’ll move the ward runoffs to another date as well. That’s problematic, since the city would have to bear the cost of two separate elections, and since voting is already underway.
Flavio Komuves, an attorney representing the fourth, fifth and sixth place candidates — Alex Bethea, Taiwanda Terry-Wilson, and Kadja Manuel, respectively – complained that the city clerk never provided him with data to show how he came to determine that no runoff was required.
“I think the main point, which is did Ms.. Gonzalez receive a majority or not, of the voters who voted in that race?” Komuves said. “That’s been answered. That’s settled. I don’t think there’s any further dispute on that or we’re on to simply scheduling at this point, in my view.”
Of the 8,037 at-large council votes, 4,114 ballots were cast for three candidates, 509 for two, and 3,414 for one.
Lougy suggested that all parties be prepared to return to court on Friday afternoon, either so that Komuves can move for an appeal, or to determine a new election schedule.
“There’s no body language in one way or the other,” Lougy said.