Trump campaign loses challenge to NJ’s new election rules

A federal judge Tuesday denied a request from President Donald Trump’s campaign and the national and state Republican Party to block portions of New Jersey’s mostly vote-by-mail election.

Specifically, Trump and the GOP had sought an injunction to prevent two things – allowing counties to begin counting mail-in ballots 10 days before the Nov. 3 election and requiring mail-in ballots to be counted even if they lack a postmark so long as they arrive by the evening of Thursday, Nov. 5.

U.S. District Judge Michael Shipp declined, without hearing oral arguments, reiterating Supreme Court decisions from earlier this year that found an unelected federal judiciary shouldn’t second-guess a state legislature’s changes to election rules to address COVID-19.

“New Jersey voters have already received news of the changes to the November 2020 general election. Some voters have already received and cast ballots,” Shipp wrote in his 31-page ruling. “Further changes to the state’s election procedures on the eve of the election are likely to cause confusion among the electorate that is against the public interest.”

Election Day is in four weeks, though nearly 322,000 people in New Jersey – more than 5% of the state’s registered voters – had already returned mail-in ballots as of Monday, according to the U.S. Elections Project.

“The court must not only consider the public’s interest in the election, but also the public’s interest in the crisis the precipitated New Jersey’s new election regulations: the COVID-19 pandemic,” Shipp wrote.  “Here, the risk is not just voters remaining away from the polls, but also voters traveling to the polls.

“It is foreseeable that an injunction on the eve of the by-mail election could prompt such confusion or distrust that voters opt to avoid the mail system altogether and cast provisional ballots in person,” he wrote. “Such an outcome would defeat the purpose of the vote-by-mail election and needlessly force voters and poll workers into close proximity.”

It is possible that Trump and the Republicans could appeal the decision to the 3rd Circuit Court of Appeals.

Henal Patel, director of the Democracy & Justice Program for the New Jersey Institute for Social Justice, welcomed the decision.

“The election is underway. We are already having it,” Patel said. “The election format is different this year because of the pandemic, and voters are learning about it. They have been spending the last few weeks getting comfortable, getting ready to vote. Any changes are just going to lead to more confusion.”

Patel said the early count is important for counties, which will be processing more mail-in ballots than ever before. In the July primary, some needed extra time to complete their counts, but the November election has less flexibility because the Electoral College meets to choose presidential electors Dec. 14.

The election results must be certified by the counties on Nov. 20.

“It is early counting, but the way it’s being done, there are security measures in place,” Patel said. “It’s not the type of thing where we’re going to get a broad count every night. They’re just going through the vote-by-mail ballots. They do not tabulate the results. So you don’t get a total count at the end of the day. They’re not going to do that until Election Day.”

“They have machines, and they put them in. They’re scanned. They can put them in. But there’s apparently a separate thing where you tabulate to get a total count, and they’re not doing that,” she said. “They’re just kind of going through the actual stacks without getting total numbers, even internally.”

The state Division of Elections says counties will be audited to ensure they didn’t run tabulation reports before Election Day.

Next week, county boards of elections will begin meeting four times a week to begin verifying signatures for mail-in ballots. People whose submissions are flagged for lacking signatures or having one that doesn’t match the one on file will be notified so they have a chance to ‘cure’ their ballot.