Superior Court Judge John Deitch, whose sluggishness has made him the focus of election watchers across the state, is moving quickly to settle outstanding election challenges in Roselle and Hillside in advance of the September 20 deadline to begin mailing vote-by-mail ballots for the general election.
Earlier this week, Deitch threw out the results of a Democratic primary for Roselle Borough Council, stating that a two-vote victory by incumbent Denise Wilkerson over Cynthia Johnson wouldn’t stand if it were found that at least three voters were disenfranchised by poll workers who didn’t understand the procedures.
The veteran judge, new to election matters, held a case management conference on Thursday and will have a hearing this afternoon to decide the fate of the election. He promised a speedy decision.
“I think this needs to be brought to a head,” Deitch said. “I would anticipate that I’ll give you my decision at the end of argument, or certainly within a very, very short period of time after argument.”
Union County Counsel Bruce Bergen has proposed a do-over primary on December 9 — initially misstated in court yesterday morning as December 10– with a special election on Tuesday, January 27. Both dates, Bergen said, coincide with special school elections in other municipalities within the county.
“Because there are already elections taking place on those days, it makes the process much easier, that they don’t have to program the election booths more than once,” he told Deitch at a case management conference. “The paperwork is easier. So that’s why (the county clerk) chose dates.”
Those dates could be problematic – and muddy.
New Jersey election law requires vote-by-mail ballots to be mailed 45 days before the primary election. Ballots going in the mail on October 25, before the November 4 general election, could confuse voters.
Potentially worse is that the deadline to commence mailing VBMs for the January 27 general election is Saturday, December 13. That’s before the legal deadline for late-arriving, properly postmarked mail-in ballots to arrive at the Union County Board of Elections. And it doesn’t take into consideration the time it will take to design and print the ballots, unless Deitch orders them to print two sets of ballots: one for Wilkerson and another for Johnson.
Late-arriving vote-by-mail ballots have until six days after the primary, and the election could be certified within a week, as long as the cure letter deadline to repair technical deficiencies in VBMs is appropriately adjusted.
Deitch will also need to decide if the election plan will permit six days of early voting, which state law requires.
Deputy Attorney General Brian Ragunan said in a court filing that “it would be impossible to hold a special primary election at this juncture without violating other mandatory provisions of Title 19.” Ragunan opposes the special primary plan.
He said special elections “must be conducted in the same manner as primary and general elections.”
Ragunan maintains “there is no statutory authority… to hold a special primary election as a result of a voided primary election.”
Still, the New Jersey Globe has learned that at least half the members of the Union County Board of Elections were not consulted by Ragunan, their attorney, before his submission of his court filing yesterday afternoon. It’s not clear if the state attorney general’s office was authorized to take any position at all.
Maximilian J. Ranzato, who represents Wilkerson, wants a new election.
While the statutes do not expressly provide a mechanism for this precise situation, that absence cannot be the basis for disenfranchising the voters of Roselle,” he said in a legal filing today. “The court has both the authority and the responsibility to ensure that the people themselves, not party committees or procedural happenstance, determine who represents them.”
But Johnson’s attorney, Alyssa Duffy Zara, argued that New Jersey has no statute for holding special primary and special general elections for municipal office.
“Absent clear legislative guidance, (Bergen and Wilkerson) cannot unilaterally create their own form of relief,” Zara said. “The process failed to produce a Democratic nominee due to voter disenfranchisement. To now deprive the Democratic Party of the opportunity to select a nominee for the general election would frustrate the purpose of the primary and run counter to the legislative intent.”
Deitch said he’s open to reconsidering his decision to order a new primary.
“If the court was in error, the court would have no problem altering its decision,” he sta
A lawyer representing the Roselle Democratic County Committee, Timothy Howes, told Deitch on Thursday that he will not attend today’s court hearing and that local Democrats are preparing to select a nominee. If that candidate – likely to be Johnson – is not accepted, Howes hinted that another lawsuit is forthcoming.
On Thursday, Wilkerson emailed a statement from Roselle Mayor Donald Shaw alleging that the Democratic municipal chairman, Assemblyman Reginald Atkins (D-Roselle), was trying to force his preferred candidate.
“Reginald Atkins is trying to silence Roselle voters by asking a judge to hand him the power to appoint his own hand-picked candidate to the at-large council seat,” said Shaw. “This is nothing less than an attempt to take away the people’s right to vote.”
This afternoon, Deitch has scheduled a hearing on a petition challenge in Hillside that languished in his docket for more than a week.
