New Jersey Supreme Court Protects 100 Foot Zone At Polling Locations

The New Jersey Supreme Court today upheld and expanded upon the Attorney General's Exit Polling Directive, holding that: New Jersey’s election law statutes direct that voters will have a 100-foot free, unobstructed passage to polling places, without interference from any person, and this ban applies to all expressive activities within the 100-foot zone, including exit polling and handing out voting-rights cards. The election laws are constitutional because they are reasonable time, place, and manner restrictions under the First Amendment intended to secure and enhance another vital constitutional right—the right to vote.

Law Partner's Contribution Lands Municipal Judge In Hot Water

The New Jersey Law Journal reports that a municipal court judge has been recommended for public admonishment by the New Jersey Supreme Court's Advisory Committee on Judicial Conduct (ACJC) because his law partner, allegedly unbeknowst to him, made political contributions from their law firm's business account. The article provides that:

At issue are four donations made between May 27, 2004 and May 18, 2005, via check drawn on the business account of Durkin & Boggia of Ridgefield Park, where Boggia and Martin Durkin are the sole partners. Two $500 checks and one for $600 were made out to the Edgewater Democratic Campaign Fund, while another $600 went to the Bergen County Democratic Organization. * * * *

The ACJC charges Boggia violated Canon 7A(4) of the Code of Judicial Conduct, which bars political contribution by judges, Rule 2:15-8(a)(5), which prohibits judges from "engaging in partisan politics" and Rule 2:15-8(a)(6), which prohibits judicial conduct prejudicial to the administration of justice that beings the judicial office into disrepute.

* * * * While recognizing that Boggia, like most municipal judges, is part-time and also practices law, the ACJC said he is subject to the same absolute proscription from politics as a full-time judge. The committee disagreed that Durkin's First Amendment rights were implicated, saying Durkin was free to contribute, though not from the firm account, and whatever burdens that imposed on him were a "necessary consequence of a private law partnership with a part-time municipal court judge."

This case raises many interesting questions. Under most pay to play rules and ELEC regulations, partnership contributions are attributable to each partner, depending on the corporate form and ownership interests. Individual contributions by such partners could also implicate the firm if the individual partners have an equity stake. Seemingly here, the ACJC would allow a law partner of a judge to contribute from his own checking account, but not the firm's business account. Is there really any difference with respect to addressing the ACJC's concerns? After all, contributions reported from an individual partner's checking account will still be linked to the law firm's name via their requisite employer reporting information and Business Entity Annual Disclosure Statements if they do public work; therefore, creating the same perception of political engagement by the firm. While it would be uncommon, what if the judge was an employee or associate of the firm with no equity interest?

Better Late Then Never: State Treasurer Releases EO118 Redevelopment Entity List

As called for pursuant to Executive Order 118, the State Treasurer has finally provided guidance relating to applicable state redevelopment entities subject to pay to play restrictions. The following entities have been determined to meet definition of a "state redevelopment entity":

1) New Jersey Meadowlands Commission
2) New Jersey Redevelopment Authority
3) Capital City Redevelopment Corporation

The notice states that the list may be subject to future amendment. This notice, however, significantly limits the scope of E.O. 118 so as not to apply to redevelopment projects financed through certain agreements with the NJEDA, NJEIT, or other state entities.

State Treasurer Issues New Guidance and Forms for Compliance With Executive Order 117

The New Jersey Division of Purchase and Property has recently issued new forms and instructions for State contractors to comply with Governor Corzine's Executive Order 117 that expands upon P.L. 2005, c. 51 by greatly limiting the ability of State contractors to make political contributions not only to state political parties, county political organizations and gubernatorial candidates, but now also legislative leadership and municipal political party committees.

New Jersey Supreme Court Upholds and Strictly Construes State Pay To Play Restrictions

The New Jersey Supreme Court today upheld the Appellate Division's decision in the Appeal by Earle Asphalt Co., holding that P.L. 2005, c. 51, restricting contributions by state contractors to county political organizations, gubernatorial candidates and state political party committees is constitutional. The Court also strictly construed the 30 day safe harbor for the return of contributions. This decision carries more significance as this restriction has recently been expanded to apply to Legislative Leadership and Municipal Party Committees pursuant to Governor Corzine's Executive Order No. 117.

ELEC To Take Up Rulemaking On Use of Campaign Funds for Legal Fees

On January 20, 2009, the New Jersey Election Law Enforcement Commission (ELEC) is going to formally propose rule making clarifying the rules regarding the expenditure of campaign funds on legal fees.

Clearly, in light of more sophisticated campaigning and the rules governing the same, the expenditure of campaign funds on legal fees is permissible in many circumstances, but not all. The involvement of lawyers to provide guidance on ballot access issues, campaign finance, on election day and in recounts or election contests is commonplace in the post Bush v. Gore environment.

This proposal would explicitly exclude the use of campaign funds for legal fees and expenses relating to the "criminal defense of a candidate or officeholder, including defense in a criminal inquiry or criminal investigation, and defense of a criminal indictment or other criminal proceeding."

This rule making arises from now-convicted former New Jersey State Senator Wayne Bryant's advisory opinion request filed in January 2008, in which ELEC held that the use of campaign funds for legal fees and other expenses in connection with Bryant's defense of a criminal indictment, is not an “ordinary and necessary expense” of an officeholder and therefore is not a permissible use of campaign funds. On December 4, 2008, ELEC's advisory opinion was affirmed by the Appellate Division. See In Re Election Law Enforcement Commission Advisory Opinion No. 01-2008 (A-2816-07T1).

What About Others Who Spent Campaign Funds On Legal Fees for Their Criminal Defense? According to the Star-Ledger: Former state Sen. and Newark Mayor Sharpe James (D-Essex) and former Sen. Joseph Coniglio (D-Bergen) did not ask for ELEC approval when they dipped into their own campaign accounts to fight corruption charges. ELEC has not filed complaints against James or Coniglio. Frederick Hermann, ELEC's executive director, said today he could not comment on either case. But he said ELEC will "review the decision in terms of possible future commission action."

Will Paper Trails Be Ready For New Jersey's Most Important Election?

Having blown a statutorily-imposed January 1, 2009 deadline, New Jersey Secretary of State Nina Mitchell Wells has ordered the implementation of paper trail printers to most of New Jersey's direct electronic voting (DRE) machines for which the technology is available. At the close of 2008, efforts to delay implementation of paper trail technology failed and a debate has erupted regarding whether New Jersey should scrap the DRE machines all together and replace them with optical scan voting technology used by many other states. According to the Star-Ledger:

A spokeswoman for Sequoia said the company hopes to get approval to start work on the new component in February, and have enhanced machines ready for the November gubernatorial election. Three trial runs of the enhanced voting machines will be held this month in special school elections in Rumson, Pompton Lakes and Bound Brook, state officials said.

The modified machines will have a small window that will allow voters to peak at the paper printout to verify their vote before hitting the "cast vote" button. That paper then will be collected in an attached bag, with contents available for recounts, officials said.

Wells, in certifying what is formally known as the "Voter-Verified Paper Record for the Direct Electronic Voting Machines," said New Jersey would be a "pioneer" in this effort.

Wells, in acknowledging that the new system will require plenty of education and scrutiny, quoted the report of the special committee: "The devices add an additional level of complexity to the voting process, as well as expense, and problems should be anticipated, at least for the first several rounds of voting, given the fact that poll workers are unfamiliar with these devices and that the technology has a limited operating history."