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."