New Jersey Election and Campaign Finance Law Blog

Robertson v. Bartels Under the Microscope

2012-01-30T06:17:00.000-08:00

At the end of the highly litigious legislative reapportionment fight of 2001, Federal District Court Judge Dickinson Debevoise determined under a strict scrutiny analysis that the New Jersey State Constitution's one year residency requirement for Assembly candidates violated the Equal Protection Clause of the U.S. Constitution. As reported by the New Jersey Law Journal last Friday, the New Jersey Supreme Court is now determining whether a State judge's decision annulling the election of Democrat Gabriela Mosquera's to the Fourth Legislative District may stand.

Other federal jurisdictions have ruled differently in recent years regarding residency restrictions depending on a number of factors, but generally upholding shorter restrictions while overruling more lengthy ones that were seemingly unjustified for lesser offices. For example, a Governor could be required to reside in a State for at least 10 years, but a state legislator in a state where they only represent a few thousand people could not be subject to a 10-year residency requirement as there is no rational basis for such a lengthy residency. In New Jersey, the Robertson v. Bartels decision has stood for a decade as the law of the land, in 2011 however, it was brought into question in the case of Olympian Carl Lewis where the Third Circuit, upholding a lower court decision, declined to apply a strict scrutiny analysis to the New Jersey Constitution's lengthier residency requirement for State Senators.

The instant case raises not only the question of whether New Jersey's residency requirement is constitutional, but the role of federal courts passing judgement on the State's constitution. The Mosquera case is made even more unique in that it was brought post-election, just days before Mosquera was to be sworn into office. The State argues that while it was bound by Judge Debevoise's decision in Bartels, which is why the Secretary of State certified Mosquera's placement on the ballot, it can now question the decision in State court. Should Mosquera lose before the New Jersey Supreme Court, it appears that this matter could end up being resolved in federal court.

How Should Surrogates Balance Need To Run for Office With Judicial Canons?

2011-11-18T04:58:00.000-08:00

Many states elect judges who have to strike a tricky balance when running for office. Controversies often arise when elected judges accept contributions from parties who may regularly appear before them. In New Jersey, where all are judges are appointed (not that politics ever plays into that process), entanglements regarding balancing political engagement and serving on the bench seldom arise. The only judicial officers who must be elected are County Surrogates who act as judges in matters of probate, wills, estates, adoptions and incapacitated persons. In almost no easily contrived circumstance would politics ever interfere with or play into such matters, nonetheless, surrogates are bound by the Judiciary's rules.

As the New Jersey Law Journal reports, Atlantic County Surrogate Chris Brown has now responded to a formal complaint against him relating to his participation in a fundraiser for a legislative candidate. The Code of Judicial Conduct for Judiciary Employees is pretty clear that Surrogates and other judiciary employees cannot serve in leadership positions or as spokespersons for political organizations that support "partisan political activity." But does serving on paper as a member of a host committee of a political fundraiser for a friend to be on the same ballot column with you cross the line? That is essentially the question that now must be answered in this case in which there appear to be little or no clear precedents.

This all begs the question of whether a surrogate ruling on a will could really harm the perception of the independence of the judiciary while serving in the ceremonial position of the member of a host committee for a political fundraiser for another candidate on the ballot with them? If so, then how are Surrogates supposed to run for office on a political party's organization ticket, appear on the same yard sign, or the same political mailers as their running mates in their county?

I think the ACJC really needs to create some bright lines for Surrogates who face these tricky circumstances that will likely trigger future complaints in the heat of election season.

When Should Campaign Finance Violations Overturn The Result of Close Election and Who Does It, ELEC or the Court?

2011-09-26T13:14:00.001-07:00

The New Jersey Election Law Enforcement (ELEC) today decided to intervene in an election contest in which a judge voided the outcome of a primary election due to what appears to have been an excessive and/or improperly reported campaign contribution in the amount of $16,000.

While this does not necessarily seem significant, for a Republican primary in sleepy Morris County, $16,000 is a lot of money. Plaintiffs in this case successfully argued that $16,000 represented such a large sum of the total amount of money spent in the election that it was enough to impact its outcome where the candidates were separated by only a handful of votes.

ELEC, however, appears to asserting its primal jurisdiction over such matters as it has done before. In Re the Contest of the Democratic Primary in 2003, 367 N.J. Super. 261 (App. Div. 2004). In this case the Appellate Division remanded an election contest to ELEC to "develop a record and utilize its expertise in interpreting the Act's provisions as to the claimed violations."

SEC Posts Pay To Play Staff Guidance Online

2011-08-18T14:38:00.000-07:00

The staff of the Division of Investment Management at the Securities & Exchange Commission ("SEC") is now providing responses to questions posed in relation to its recently adopted pay to play Rule 206(4)-5 under the Investment Advisers Act of 1940. The last update was provided on April 28, 2011, so I would anticipate additional responses being provided in the near future.

Link Here: http://www.sec.gov/divisions/investment/pay-to-play-faq.htm

Reading Between The Lines: Redistricting In New Jersey

2010-11-10T08:23:00.000-08:00

On November 18, 2010, the Eagleton Institute of Politics at Rutgers will be hosting a forum on legislative reapportionment and congressional redistricting where Ben Brickner, author of a new report on congressional and state legislative redistricting, will present a summary of his report entitled "Reading Between The Lines." Participating in the panel will be former longtime Executive Director of the New Jersey Senate Democratic Office, Kathy Crotty, Evelyn Liebman, Director of Organizing and Advocacy for New Jersey Citizen Action, and Brian M. Nelson, Esq., a former Executive Director of the New Jersey Republican State Committee. The purpose of the forum is to shed more light on the reapportionment and redistricting processes in the State of New Jersey and to explore what the new legislative and Congressional maps can, and can't, be expected to accomplish.

More Important Than Election Day

2010-11-08T05:47:00.000-08:00

A timely Sunday Star-Leger story by Matt Friedman on the pending legislative reapportionment process in New Jersey. Matt covers Benjamin Brickner's excellent paper on the process in New Jersey and other states, which even if you do not agree with Ben's recommendations, is a worthwhile read. Matt's article also covers little known facts, such as what reapportionment costs the taxpayers, and mentions, as much as a straight news article can, the impact that the United States Supreme Court's Strickland decision may have on New Jersey's mapmaking process this time around.

Tweet Linked To Government Run Website Lands Sheriff In Hot Water

2010-09-14T06:36:00.001-07:00

What is seemingly a matter of common sense--not to use government resources to promote political fundraisers--has become more complicated of an issue in the world of Internet-based social media networking.

The New Jersey Law Journal reports that an action brought by Bergen County Republican Sheriff candidate Michael Saudino, citing a violation of campaign finance laws prohibiting the use of public funds for political campaigns, has resulted in the entry of a consent order banning Bergen County Sheriff Leo McGuire from advertising for political fundraisers through a Tweeter feed on the Sheriff's official taxpayer-funded website.

According to the Sheriff's spokesperson, Sean Darcy, the entire incident was just an innocent mishap. Specifically, the New Jersey Law Journal reports that:

the series of events that led to the suit was set in motion when McGuire's campaign posted the information about the fund-raiser on his personal Facebook account. From there, according to Darcy, the sheriff's account on LinkedIn, another social networking site, "grabbed that entry." Subsequently, Darcy says, McGuire's Twitter account "grabbed" the information from his LinkedIn page. This movement of information among sites took place without the knowledge of the sheriff or his campaign staff, says Darcy.

The relevant provisions of the New Jersey Campaign Contributions and Expenditures Reporting Act provide that "[a] public agency shall not pay or make any contribution of money or other thing of value, whether out of public funds or any other funds which the public agency may control, to any candidate . . . and no such candidate or committee shall accept such contribution." N.J.S.A. 19:44A-11.9. Any willful or intentional violation of this provision can result in significant penalties under the Act. N.J.S.A. 19:44A-22.

In sum, keep this in mind next time you Tweet or link a government website to your facebook page.

Muni Judge Gets A Pass On Law Partner's Political Contributions from Business Account

2010-07-28T05:16:00.000-07:00

The New Jersey Law Journal today reported that the New Jersey Supreme Court "found no clear and convincing evidence that Judge Philip Boggia knowingly violated Canon 7A(4) of the Code of Judicial Conduct, which bans political contributions by judges" when his law partner, unbeknownst to him, made a political contribution from their firm's business account. The Court warned that: "Faced with similar fact in the future, however, the rule we announce today would require a different outcome." Accordingly, lawyers at firms where part-time municipal court judges have law practices may make political contributions, but only from the donors' personal accounts. READ THE DECISION.

New Jersey Redistricting & Reapportionment Story

2010-07-26T06:20:00.000-07:00

Tom Baldwin of Gannett penned an article this weekend relating to New Jersey Congressional districts maintaining that those in the central part of the state appear to be the most tortured. Ernest Reock, professor emeritus in the Center for Government Services at Rutgers also pointed out some population shifts that could make the legislative reapportionment process more interesting, as follows:

As for state legislative districts, Reock says districts in Essex, Union and Passaic counties, along with areas of Hudson and Mercer counties, have been slow to grow and the districts there may need to be expanded geographically in 2011.
The fastest-growing legislative districts, he said, are the 30th in Burlington, Mercer, Monmouth and Ocean counties; the 9th in Atlantic, Burlington and Ocean counties; the 23rd in northwest New Jersey; and the 2nd in Atlantic County.
These, he says, may require geographic downsizing with their newer, more dense populations.

Record Columnist Picks-Up On Different Legal Landscape As New Jersey Enters Reapportionment Process

2010-07-19T06:36:00.000-07:00

In a Sunday column entitled, Redistricting the 800 lb. invisible gorilla, Bergen Record columnist Frank Hannon picks-up on the new legal landscape New Jersey's mapmakers are going to face this coming year that turns precedents followed during the last reapportionment process on their head.

Redistricting could have even greater consequences on the state level. Several complicated court cases, specifically Bartlett v. Strickland, McNeil v. Legislative Apportionment and others, may produce a more favorable map for New Jersey Republicans. Both parties will be vying to get a "good map." A "good map" is one that gives a particular party a better or at least a fighting chance of securing a majority in one or both houses. In 2001, Republicans got a "bad map."

The Interest Is Only A "Special Interest" When It Is Not Our Interest

2010-07-14T09:48:00.000-07:00

In a frightening display, politickernj.com reports that New Jersey Senate Democrats plan to attempt to regulate certain 501c4 organizations that disagree with their political views, compelling not only the disclosure of contributors, but also applying pay-to-play rules to them.

Setting aside issues of federal preemption for the moment, Senate Democrat spokesperson Derek Roseman actually said that the proposed legislation would "clearly define the groups that were exempted" by "delineat[ing] between legitimate groups with a legitimate policy orientation and shadow organizations that are merely acting as a front for a political party." Further, Assemblyman and State Democratic Party Chairman John Wisniewski (D-Sayreville) said the application of such restrictions "would likely be based on the length of time the group had been in existence."

Does this mean that recently formed politically active 501c4's, such as Garden State Equality, which held events at which former Governor Corzine appeare d at as an honored guest while advocating its agenda, and vice-versa, should be subject to such restrictions being sought to be imposed against Reform New Jersey Now by this legislation? Who decides?

While on the subject, why is the Legislature still avoiding real pay-to-play reform, such as that long-proposed by Assemblywoman Amy Handlin, which would entirely ban both corporate and union contributions in New Jersey? In throwing out the restrictions imposed on labor unions under Governor Christie's Executive Order No. 7, the Appellate Division held that while the Executive Branch could not do so unilaterally, the Legislature could act to apply pay-to-play restrictions to labor organizations that hold the largest no-bid public contracts in the State of New Jersey.

Symons: Population estimates suggest major redistricting looms

2010-06-29T07:42:00.000-07:00

Michael Symons of Gannett reports on the Census Bureau's final population estimates for every municipality before this year’s official counts are released in early 2011 indicating that "some serious retooling of the legislative map is in store in advance of next year’s Senate and Assembly races." According to Symons' analysis of the numbers. . . .

Six districts have estimated populations that are too large, if the estimates prove correct, with another three districts are are pretty close. The six that would have to shed towns include the 2nd and 9th districts along the Shore, the 12th and 30th districts in Central Jersey, the 3rd District in rural South Jersey and the 23rd District in rural northwest New Jersey.
Another seven districts have estimated populations that are too small and would need to expand. These include the 27th, 29th and 34th districts in Essex County, the 31st, 32nd and 33rd districts in Hudson County and the 15th District in Mercer County.

New Jersey Legislative Reapportionment and Congressional Redistricting Primer

2010-06-25T06:57:00.000-07:00

New Jersey's legislative and congressional districts will soon be redrawn by two separate independent commissions made up of members selected by leaders of the Republican and Democratic parties in the State.

First, by November 15, 2010, members State's Legislative Reapportionment Commission must be appointed by the respective chairs of the Republican and Democratic State Committees. This Commission must create a map by February 1, 2011, or within one month after the census data becomes available. This is the map that will govern the next round of legislative contests that partisan candidates must file to run in by April 2011.

Republicans will likely be seeking a more competitive map from what was adopted in 2001 that has resulted in Democratic pluralities in both houses of the Legislature for the last decade despite aggregate statewide election results favoring Republican candidates in recent years. Democrats will likely be seeking to maintain the status quo, but could face constitutional hurdles due to the March 2009 decision of the United States Supreme Court in Bartlett v. Strickland. This is very similar to questions raised in relation to New Jersey's current legislative map in 2001 regarding whether section 2 of the Voting Rights Act required the division of municipalities into more than two legislative districts contrary to the political boundary requirements of Article IV, Section 2, Paragraph 3 of the New Jersey Constitution. See: McNeil v. Legislative Apportionment Commission.

Second, with respect to Congressional redistricting, it is almost certain that when the results of the census are in, New Jersey will lose a congressional district for the first time in 30 years. We should know for sure by January 10, 2011 when Congressional seats are to be apportioned to the states. This should make for much more interesting mapmaking than the incumbency protection plan that was adopted in October 2001. Members of New Jersey's Congressional Redistricting Commission must be selected by respective legislative and state party leaders by June 15, 2011. The Commission must complete its work by January 17, 2012, which will govern where partisan candidates file to run for Congress by April 2012.

New Jersey Supreme Court Protects 100 Foot Zone At Polling Locations

2009-09-30T06:48:00.000-07:00

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

2009-06-08T05:54:00.000-07:00

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

2009-05-29T12:30:00.000-07:00

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

2009-03-30T20:10:00.000-07:00

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

2009-01-15T07:31:00.000-08:00

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

2009-01-10T09:16:00.001-08:00

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?

2009-01-10T08:50:00.001-08:00

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."

Paper Trail or Paper Ballots?

2008-12-17T06:39:00.000-08:00

During the last session day of the Legislature for 2008, the Senate surprisingly rejected a bill (S2380) that would, once again, extend the deadline for retrofitting the State's Direct Recording Electronic (DRE) voting machines with printers that would produce a verified paper trail by January 1, 2009.

This legislation would have only launched a pilot program to examine whether the retrofitted DRE machines operated properly during the June 2, 2009 primary election. If successful, the Secretary of State would then establish a statewide implementation schedule to retrofit all machines with verified paper trails by the general election to be held on November 2, 2010.

The paper trail legislation, originally predicated by a lawsuit filed by Assemblyman Reed Guisciora in 2004, required the mechanisms to be in place by January 1, 2008. This, of course, did not happen as two extensions were granted moving the deadline to January 1, 2009.

Testimony by the Plaintiff's expert Princeton Professor Andrew W. Appel, who garnered significant attention after purchasing some of the DRE machines on the Internet to demonstrate how they could be reasonably easily compromised, believes that even with the paper trail the DRE machines are problematic. Specifically, Mr. Appel recently testified before the Senate State Government Committee that the technology in the machines is already dated and that the printers are subject to jams and other issues that could cause significant problems on election day. Appel also doubted that a new version of software to be uploaded on the DRE machines would be helpful to resolving any of the problems, particularly since the printers being considered are designed to operate with the older version of the software on most of the State's DRE machines.

The County Clerks support the continued use of the DRE machines as there have not yet been any widespread problems after a number of elections cycles, including this year's high turnout presidential election. Most of the problems with the DRE machines relate to either user or poll worker errors, such as, failing to push the "cast vote" button.

Now, there is a movement underway to completely scrap the DRE machines by reverting to optically scanned paper ballots that are currently used for absentee and provisional voting in New Jersey. Such ballots are currently at issue in the recount for the U.S. Senate seat in the State of Minnesota. Advocates of reverting to optically scanned ballots claim that even while the machines scanning them may not produce a perfect count every time, they may always revert to a hand recount in a close election to ascertain the intent of the voter.

Despite Professor Appel's testimony and experiments with the DRE machines, I believe it is highly unlikely that someone, outside of the controlled environment in which he compromised the programming on the DRE machines, would be able to accomplish the same task as easily as he did without being detected. The DRE machines in New Jersey do have seals that are easily checked to see whether the machines have been compromised. I would suggest it is much more likely that problems are more likely to result after a close election headed to a recount, rather than before the conduct of the election.

For example, in Monmouth County this year, the candidates for freeholder were separated by 18 votes on election night. After being uploaded on election night, the vote counting cartridges were placed in an unsecured publicly accessible hallway for more than two weeks. While there may be some paper printouts retained from election night of the tallies, these cartridges could have easily been compromised by walking past them with a magnet or simply taking a few out of the building. Further, the recheck and recount statutes under Title 19 fail to address processes and procedures for the preservation, rechecking or recounting of such electronic machines and/or cartridges.

No vote casting or counting system is perfect under all circumstances. While votes may be lost when someone fails to press a "cast vote" button or a machine malfunctions without a paper trail, paper ballots are highly susceptible to marking, over voting and under voting. Also, the optical scan machines that count paper ballots are far from perfect. In Minnesota, for example, some 130 optical scan ballots were either scanned twice or lost in an election recount where the candidates are separated by about 200 votes. With so many people participating in the process, there will always be a certain degree of human and/or technical error. In the end of the day, the most important question is not related to the process by which votes are cast or counted--that will never be perfect--but which will instill the most confidence in the results so that the voters and candidates abide by them.

Supreme Court Hears Argument On Pay-To-Play

2008-11-06T11:48:00.000-08:00

On November 5, 2008, the New Jersey Supreme Court heard arguments regarding the application of state pay-to-play restrictions (P.L. 2005, c. 51) on a state contractor who contributed to a county political party. According to the New Jersey Law Journal's report, the focus was not on the constitutional aspects of pay-to-play restrictions, but simply related to the strict application of the 30 day safe harbor provision for seeking refunds of contributions believed to be made in violation of the law that resulted in the company's debarment.

New Jersey Supreme Court To Consider Constitutionality of Pay-To-Play Restrictions

2008-10-23T08:14:00.000-07:00

As first reported by politickernj.com columnist Wally Edge, on November 5, 2008, the New Jersey Supreme Court will hear oral arguments in the appeal of IMO the Appeal by Earle Asphalt Co. in which the Appellate Division upheld the constitutionality of the state-level contracting provision under P.L. 2005, c. 51 that prohibits contributions by state contractors to county political organizations, gubernatorial candidates and state political party committees.

In this case, Earle was stripped of a state paving contract as the result of a contribution that the company's president had made to the Monmouth County Republican Organization. When realizing that the contribution could result in the company's debarment, a refund was sought, but received outside of the 30 day safe harbor provision.

As of November 15, 2008, this decision will have even 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.

The Appellate Division did not specifically render a holding on the constitutionality of local pay-to-play ordinances authorized by state law under P.L. 2005, c. 271. Arguably, however, the same rationale could be applied. And a Middlesex County trial court has thrown out a local ordinance, holding that it was unconstitutional on a number of grounds, including that it was not narrowly-tailored under a strict scrutiny analysis. This particular ordinance, however, was very far reaching.

The Rules Are Set For 2009

2008-10-23T06:54:00.001-07:00

On Tuesday, October 21, 2008, ELEC voted to adopt the proposed amendments to implement inflationary campaign cost adjustments for all candidates and committees. The proposal was adopted as it appeared in the New Jersey Register on August 18‚ 2008:

For Gubernatorial Candidates: http://www.elec.state.nj.us/pdffiles/regulations/oal_prop_gub_071708.pdf

For All Others:
http://www.elec.state.nj.us/pdffiles/regulations/oal_prop_nongub_071708.pdf

At its September 30, 2008 meeting, ELEC voted to adopt some minor amendments to the Gubernatorial public financing program:
http://www.elec.state.nj.us/pdffiles/regulations/oal_adopt_10032008.pdf

ELEC Hearing On Contribution Limits and Adoption of Public Financing Rules for 2009 Gubentorial Campaign

2008-09-25T08:41:00.000-07:00

On September 30, 2008, the New Jersey Election Law Enforcement Commission has provided notice that it will be holding a public hearing concerning proposed amendments to the spending limits and thresholds applicable to gubernatorial candidates, and thresholds applicable to non-gubernatorial candidates and committees. ELEC will also consider the adoption of new rules and amendments governing the gubernatorial public financing program and on the wrapping up of publicly-financed gubernatorial campaigns with outstanding liabilities.

Preliminary Analysis of Corzine's Executive Orders and Legislative Proposals To Restrict Wheeling and Pay To Play

2008-09-25T08:02:00.000-07:00

After approximately 140 public corruption convictions by United States Attorney Chris Christie, Governor Jon Corzine took surprisingly swift action to close a number of well known loopholes in New Jersey’s campaign finance and public contracting laws. My preliminary analysis can be downloaded here.

Seemingly Sweeping Campaign Finance & Ethics Reform Proposal To Be Presented By Governor

2008-09-24T06:22:00.000-07:00

According to the Associated Press, Governor Jon Corzine is set to enact a significant new campaign finance and ethics reform package by both executive order and through the introduction of new legislation addressing, among other items, the long-criticized practice of wheeling contributions between political and campaign committees. The Associated Press story outlines the pre-released proposal.

DOCUMENTS RELEASED AT 2:30 Press Conference Today:

The Overall Plan and Statement outling the Governor's executive orders that are intended to be codified into law and proposed legislation.

State Vendor Contribution Prohibition Expanded To Legislative Leadership and Municipal Party Committees

Executive Order 117 expands P.L. 2005, c. 51 (originally McGreevey E.O. 134) to further restrict contributions made by state vendors, and equity holding partners or members of such business entities, regardless of their equity interests, to provide a complete ban on reportable contributions ($300+) to legislative leadership committees and municipal political party committees. Such entities, or partners with 10% or more equity interests, are already banned from making such contributions to state political party committees, county political party committees and gubernatorial candidates pursuant to Chapter 51. This executive order also extends the gubernatorial candidate contribution ban to candidates for Lieutenant Governor who will be running for the first time next year. This order becomes effective November 15, 2008.

State Vendor Contribution Prohibition Expanded To Redevelopers

Executive Order 118 extends the Chapter 51 reportable contribution ban to redevelopers and their lobbyists or agents. No redevelopment agreements may be entered by state entities if the redeveloper has violated the contribution ban. This order appears to include redevelopment agreements required to secure state financing from the New Jersey Economic Development Authority, New Jersey Redevelopment Authority and New Jersey Environmental Infrastructure Trust, similar to the financing procured for the EnCap project that this order specifically intends to address. This order becomes effective November 15, 2008.

Local Government Ethics Task Force

Executive Order 119 creates a Local Government Ethics Task Force to determine whether changes need to be made to the 1991 Local Government Ethics Law and whether responsibility for enforcement of it should be removed from Local Finance Boards to some other entity focused on ethics. The Task Force will consist of eleven members appointed by the Governor, four of which will be at the recommendation of the legislative leadership from both parties. Upon formation, it must issue a report within ten months with its recommendations. This order is effective immediately.

Expansion of Personal Financial Disclosures

Executive Order 120 expands upon Governor Corzine's Executive Order No. 1 (2006), which required all personal financial disclosures from all executive branch officials and others serving on various state boards and commissions.

Fair Use and Licensing of Media Used By Campaigns

2008-09-16T08:52:00.000-07:00

Politico.com provides an informative report regarding the licensing and use of music and other media for campaigns under federal copyright and trademark laws where property rights clash with free and unfettered political speech. This often overlooked area of law, as it relates to elections, arises every year as musicians, photographers, authors and other intellectual property owners claim that their works or products are being illegally used in the course of a political campaign. This clash of property versus political speech rights has grown with the proliferation of campaigning on the Internet.

One of the best resources for more information on fair use is Standford University's Copyright & Fair Use Library sponsored by the Stanford Law School's Center for the Internet & Society.

New Jersey 'Clean Elections' Program Dead -- For Now

2008-09-02T08:18:00.000-07:00

Politickernj.com is reporting that Assembly Speaker Joseph Roberts (D-Camden) has declared New Jersey's Clean Elections program effectively dead due to Arizona's rescue/matching funds provision being held unconstitutional by a federal court. The suit was brought by the Goldwater Institute on August 21, 2008 in response to the U.S. Supreme Court's Davis decision earlier this year. See: Goldwater Institute's Complaint.

Attorney General's Polling Location Directive Upheld -- Only Exit Polling Allowed

2008-08-06T07:25:00.000-07:00

An Appellate Division opinion today upheld the Attorney General's 2007 exit polling directive maintaining 100 foot zones around the entrances of polling locations that are free from non-partisan groups distributing voters' rights cards and which requires advance notice for the conducting of exit polling, whether by the media or a non-partisan group.

The crux of the Court's reasoning is that permitting alleged non-partisan groups to provide voters' guides within 100 feet of polling locations is likely to be abused. This would require poll workers to make unruly on-the-spot determinations regarding whether the materials being handed out are truly non-partisan, rather than thinly-veiled campaign or issue-oriented materials.

Citing the U.S. Supreme Court's decision in Perry Educ. Ass'n v. Perry Local Educators' Ass'n, the court held that there is a compelling state interest in protecting voters from confusion and undue influence, while preserving the integrity of the electoral process within such 100 foot zones.

Forfeiture Statute Put To Work On Newark Councilwoman

2008-08-05T11:32:00.000-07:00

Newark Central Ward Councilwoman Dana Rone has been ordered to forfeit her public office after having been convicted for obstructing justice, a disorderly persons offense, during a routine traffic stop involving a relative. In a written opinion, Essex County Assignment Judge Patricia Costello held that the offense "touches and involves" Rone's public position, and therefore, compels forfeiture of her public office. N.J.S.A. 2C:51-2a(2) provides that such forfeiture is an automatic civil penalty which is a collateral consequence of a conviction for a crime or offense as the convicted official "shall forfeit such office [if] convicted of an offense involving or touching such office. . . ."

Legislators To Meet To Address Rescue Funds Provision for Clean Elections Program Reauthorization

2008-08-04T12:36:00.000-07:00

Matt Friedman at politickernj.com is reporting that members of the New Jersey Legislature will be informally meeting this summer to determine how to address the impact of the U.S. Supreme Court's Davis decision as interpreted in a letter opinion by the New Jersey's non-partisan Office of Legislative Services, determining that the rescue funds provision of the proposed law (A100) is unconstitutional. Advocates of the program believe that the rescue funds provision is essential to ensuring that legislators are not deterred from participating in the clean elections program.

More On Clean Elections 'Rescue Funds'

2008-07-29T18:52:00.001-07:00

The New Jersey Lawyer also covered the story on the non-partisan Office of Legislative Services opinion that the rescue funds provision of New Jersey's proposed clean elections law is unconstitutional as per the holding of the United States Supreme Court in Davis.

The Constitutionality of Pay-To-Play Restrictions

2008-07-29T18:46:00.000-07:00

Dennis Galvin, a member of the Legal Task Force of the 'Citizen's Campaign,' penned a column in this week's New Jersey Lawyer in response to critics of New Jersey's ever growing patchwork of local pay-to-play ordinances.

The column is seemingly in response to the assertion by plaintiffs in the recent Earle Asphalt appeal that New Jersey's pay-to-play laws are unconstitutional. Earle Asphalt, however, unsuccessfully challenged the constitutionality of the state-level contracting provision under P.L. 2005, c. 51 that prohibits contributions by state contractors to county political organizations, gubernatorial candidates and state political party committees, but not the constitutionality of local pay-to-play ordinances authorized by state law under P.L. 2005, c. 271.

While all the focus has been on the interesting constitutional questions surrounding such restrictions, there is seemingly a lack of focus on other arguments that don't seem to have been addressed in the Earle Asphalt appeal: (1) an equal protection argument relating to how the law been applied by the State Treasurer; and (2) whether federal transportation funds were included within the paving contract in question that would prohibit the application of the state pay-to-play law under the 2005 decision State of New Jersey v Mineta, Civil No. 05-228 (D.N.J. 2005), holding that Executive Order 134 (now codified at P.L. 2005, c.51) unduly restricts the potential bidding pool for federally funded state highway projects in violation of 23 U.S.C. §112.

Additionally, some local pay-to-play ordinances have recently been held unconstitutional. In Monroe Township in Middlesex County, for example, a trial court held that the Township's pay-to-play ordinance was unconstitutional on a number of grounds in that it was not narrowly-tailored under a strict scrutiny analysis.

Ocean County Clerk Takes Issue With Voter Registration Service

2008-07-29T07:52:00.000-07:00

The Asbury Park Press reports that Ocean County Clerk Carl Block is upset about a website (http://www.iwanttovote.com/), which is charging people to complete voter registration forms electronically for a fee of $9.95 while voters can, of course, register for free. According to the article, the website acknowledges that voter registration is free, but that it is providing a service similar to tax preparation services to ensure voters are properly registered. I wonder how many more businesses such as this will surface during this presidential election year, which is likely to garner high voter turnout and include many new voters.

OLS: Clean Elections 'Rescue Funds' Unconstitutional

2008-07-24T20:42:00.000-07:00

In a letter opinion, New Jersey's non-partisan Office of Legislative Services determined that the rescue funds provision of the State's proposed Clean Elections legislation (A100) is unconstitutional based on the U.S. Supreme Court's Davis decision holding, in part, that the federal Millionaire's Amendment is unconstitutional.

The rescue funds provision was previously part of the New Jersey clean elections legislation and regulations, and was utilized, without legal challenge, in the 14th Legislative District in 2007.

The Asbury Park Press reported that Assembly Speaker Joseph J. Roberts Jr., D-Camden, plans to reconvene a bipartisan group of lawmakers in August to try to salvage the proposal that was passed by the Assembly State Government Affairs Committee earlier this year.