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Hearing Set in New Jersey Ballot Column Headings Case

A Superior Court in Mercer County, New Jersey, will hear oral arguments in D-R Organization of New Jersey v Guadagno, 2-1829-14, on Wednesday, September 10, at 11 a.m., in Trenton. The issue is whether New Jersey election officials should eliminate party column headings for the Democratic and Republican Party on the November 4 ballots.

The Defendant election officials are ordered to explain why the court should not find that “in calculating the 10% threshold in N.J.S.A. 19:5-1 the election official defendants may only count each voter who appeared and participated at the June 3, 2014 Regular Primary Elections and Special Primary Elections ‘once’ or as ‘1’ toward the numeric threshold of 372,197.” The Defendants are also ordered to explain why the court shouldn’t declare “that with the correct application of the 10% conditional caveat threshold in N.J.S.A. 19:5-1, that neither defendant Republican Party nor defendant Democratic Party is entitled to preferential ballot placement or a ‘separate party column.'”

New Jersey law, section 19:5-1, says, “No political party which fails to poll at any primary election for a general election at least 10% of the votes cast in the State for members of the General Assembly at the next preceding general election, held for the election of all of the members of the General Assembly, shall be entitled to have a party column on the official ballot at the general election for which the primary election has been held.” The state has already calculated that only 240,749 voters voted in the Democratic June 2014 primary, and only 175,316 voted in the Republican primary. In November 2013, the last time the state voted for members of the General Assembly, there were 2,120,866 votes cast for Governor, and approximately twice as many votes cast for Assembly, since each voter is asked to vote for two candidates, and each party runs two nominees in each district.

All candidates whose names are on the ballot for U.S. House this year have been notified of this hearing, because they are considered to be ‘interested parties.”

If the plaintiffs win this case, the normal New Jersey general election ballot will be altered. The normal ballot has a column for Democratic nominees, with a label in large letters at the top reading “Democratic”; and similar treatment for Republicans. Then, all other candidates are put in a single column, or multiple columns, headed by “Nomination by Petition.” Thanks to Len Marshall for the news.

The New Jersey legislature was in a special session July 31-August 4, and in theory the Governor could call another special session so that the legislature could repeal 19:5-1, which seems to have no purpose whatsoever.

3 Responses

  1. Jim Riley

    Do you have the actual court order?

    In 2013, there were 3,721,973 votes cast for all General Assembly candidates. 10% of that is 372,197(.3). To ensure 10% or more, that has to be truncated upward to 372,198. The number of votes cast for governor is irrelevant, I don’t why you cited it.

    But when NJSA 19.5-1 was added to the statute books, the number of assemblymen per district (county) varied widely, from between 1 and 14. If one calculated the threshold in the same manner as is indicated in the court order, you would add the votes cast for each of 14 Democratic, and each of 14 Republican candidates, etc., in Essex County. All things considered you would expect the number of votes cast for each candidate to be 14 times as high as in Cape May. The number of votes totaled in Essex would 14×14 or 196 times as many as in Cape May, even though it only had 14 times as many voters.

    If the number were based on Essex County alone, a party would have to have 140% of the total turnout in the previous general election to have a heading. Clearly this is nonsensical.

    The law was changed soon after New Jersey switched from annual elections for the General Assembly. Since there was a primary for the General Assembly every year following a general election, there may have been a more meaningful test. The current version is trying to produce a threshold for both odd-year legislative elections, and even-year federal elections.

    Election reports just after the switch used to calculate the average number of votes per party candidate in each district (county) and totaled these to produce something it called the total assembly vote.

    If this method were used, then the threshold would be about half of 372,197 or around 186,000; in which case if we interpret “polled” to be voters accepted in a primary, the Democratic Party would qualify for a ballot heading.

  2. Jim Riley

    I think the court order is saying that the plaintiff’s case is plausible enough to require an official response, and not that the court agrees with the plaintiff’s theories.

    In a 1999 case (in which Leonard Marshall was a plaintiff) the argument was made that the test applied only to the biennial election of General Assembly members; and that a party would qualify or not qualify for a party column for the federal election the next year based on the number “polled” in the General Assembly primary.

    The court said essentially that the state had been doing it that way for a long time, and that the threshold was established every two years, to be applied to the subsequent two primaries and general elections.

    The court did not appear to make note of the fact that the statute in question had been amended in 1948, in the first session following the constitution that eliminated annual election of the General Assembly. Unfortunately the session laws simply show the section (19:5-1) as being amended in total. But dollars to doughnuts says that the change was made to accommodate the fact that there would no longer be annual elections of the General Assembly.

    When the statute was changed, General Assembly members were elected at-large by county. A voter in Essex County could cast 14 votes; while a voter in Cape May County could cast one vote. It is laughable to think that the legislature wanted all those votes in Essex County to be totaled up, and yet when a voter showed up to vote in the primary the next year they would only be counted as one.

    In 1955, around 8 million votes were cast for candidates for the General Assembly (about 1.5 votes per person in New Jersey). Voters in Essex could voter for 12, Hudson for 9, Bergen for 6, etc. But only 1.6 millions ballots were cast. That is, the average ballot had votes for 5 assemblyman candidates. The 2014 plaintiffs would argue that each party needed to have 50% of the 1955 general election turnout in the 1956 primary to qualify for there own ballot column. The statewide total of the average number of votes cast in each county was around 1.5 million.

    The 2014 plaintiffs would apparently argue that the Republican and Democratic parties would need 800,000 (10% of 8 million votes) in the 1956 congressional primary to qualify for separate columns.

    There were 480,000 votes cast in the 1956 primary, 327,000 Republicans and 177 Democrats. Even using the more reasonable measure of the electorate, the Democrats did not qualify by a wide margin.

    It is not credible that the legislature in 1948 anticipated the subsequent change to the constitution in the 1960s, plus additional litigation that resulted in the current electoral system of electing two assemblymen from every district.

    In the 1949 election returns, the Secretary of State reported the average number of votes cast for the General Assembly candidates of each party in each county. It then totaled these (1,616,555) a called it “The Total Vote Cast for the Candidates for the Office of Members of the General Assembly”. I don’t know how they calculated the averages for minor parties, which presumably were not for full slates. If a voter had five votes and voted for 4 Democrats and 1 Communist, he would be counted as having cast 4/5 of a vote for the Democrats, but possibly also casting 1 vote for the Communists, if there were only one on the ballot.

    The 1948 election returns has a table titled “Registered, Polled. and Rejected Vote, Also Election Districts” which shows the number registered, ballots cast, ballots rejected, and election districts (precincts) in previous elections. This would suggest that the 1948 understanding of “polled” was “ballots cast”

  3. Jim, I’m one of the plaintiffs in this case. The law is very simple. One vote for one assemblyman. In 2013, Superior Court Judge Mary Jacobson found for the exact same thing when we requested that the GOP and all the country clerks follow the law. If you don’t get 10% of your registered voters to the primary and count their vote(one vote for one person), you aren’t certified for columns one or two. Our example was the LaVergne vs Lonegan case and the judge agreed with LaVergne and also ordered attorney fees. That case was recorded and is on Youtube. You don’t get attorney fees when you lose. Ballots cast across the board isn’t in the statue. 1 vote per one person. That’s what Judge Jacobson agreed with and her case is binding on the state. Here we are in 2014 and Guadagno screws it up again. Completely incompetent. I hate to name call but the other option that she knowingly violated election laws for a 2nd time means she really needs to be removed from office. Do we really need a Lt. Governor who can’t do the most simple thing like add and follow simple laws? 2 plus 2 doesn’t equal 22. Len Marshall has been fighting the good fight with the state for 20 years as the helmsman for the NJ Conservative Party. I just wish the Dems and the GOP can admit when they don’t follow the Laws of NJ and run a fair and honest election. Do you realize that the entire 2014 election could be voided because it just doesn’t meet the statutes of NJ.
    Scott Neuman for Congress 2014 4th CD NJ D-R Party Candidate

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