Donald J. Trump for President, Inc. v. Way

• Decision Date: 06 October 2020
• Docket Number: Civil Action No. 20-10753 (MAS) (ZNQ)
• Parties: DONALD J. TRUMP FOR PRESIDENT, INC., et al., Plaintiffs, v. Tahesha WAY, in her official capacity as Secretary of State of New Jersey, Defendant.
• Court: U.S. District Court — District of New Jersey

492 F.Supp.3d 354

DONALD J. TRUMP FOR PRESIDENT, INC., et al., Plaintiffs,

v.Tahesha WAY, in her official capacity as Secretary of State of New Jersey, Defendant.

Civil Action No. 20-10753 (MAS) (ZNQ)

United States District Court, D. New Jersey.

Filed October 6, 2020

Michael L. Testa, Jr., Testa Heck Testa & White, P.A., Vineland, NJ, for Plaintiffs.

Matthew Jon Lynch, State of New Jersey Office of the Attorney General, Trenton, NJ, Penny Venetis, Rutgers Law School, Newark, NJ, for Defendant.

MEMORANDUM OPINION

SHIPP, District Judge

In response to the COVID-19 pandemic, the New Jersey Legislature authorized the November 2020 General Election to be conducted predominantly by mail. Among other things, the legislation allows election officials to canvass mail-in ballots ten days before Election Day and to canvass mail-in ballots received within two days of Election Day even if those ballots lack a postmark from the United States Postal Service. Plaintiffs Donald J. Trump for President, Inc., the Republican National Committee, and the New Jersey Republican State Committee (collectively, "Plaintiffs") seek to enjoin these provisions, asserting they are preempted by federal law that establishes a national uniform election day for Congress and the Presidency. (ECF No. 35.)

Defendant Secretary of State Tahesha Way and Defendant-Intervenors DCCC, League of Women Voters of New Jersey, and NAACP New Jersey Conference (collectively, "Defendants") opposed (ECF Nos. 57, 58, 59), and Plaintiffs replied (ECF No. 63). The Court has carefully considered the parties’ submissions, as well as the submissions of amicus curiae, and decides the matter without oral argument pursuant to Local Civil Rule 78.1.

The Constitution "principally entrusts the safety and health of the people to the politically accountable officials of the States." Andino v. Middleton , No. 20A55, ––– U.S. ––––, 141 S.Ct. 9, 208 L.Ed.2d 7 (Oct. 5, 2020) (Kavanaugh, J., concurring in grant of application for stay) (quoting South Bay United Pentecostal Church v. Newsom , ––– U.S. ––––, 140 S. Ct. 1613, 207 L.Ed.2d 154 (2020) (Roberts, C.J., concurring in denial of application for injunctive relief)). "When those officials undertake[ ] to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad." Id. (internal quotation marks and citation omitted) (alteration in original). "It follows that a State legislature's decision ... to make changes to election rules to address COVID-19 ordinarily should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people." Id. (internal quotation marks and citation omitted). The Court agrees. For the reasons set forth herein, the Court denies Plaintiffs’ request for a preliminary injunction.

The Court finds that Plaintiffs fail to establish they are likely to succeed on the merits of their claims. Federal law establishing a national uniform election day does not prevent New Jersey from canvassing ballots before Election Day so long as the election is not consummated and the results reported before the polls close on Election Day. Although federal law prohibits New Jersey from canvassing ballots cast after Election Day, it is within New Jersey's discretion to choose its methods of determining the timeliness of ballots, so long as there is no appreciable risk of canvassing untimely ballots. The Court also finds that Plaintiffs fail to establish they face a likelihood of irreparable harm without their requested injunction, that entering an injunction would cause greater harm to the State, and that Plaintiffs’ proposed preliminary injunction is against the public interest.

I. BACKGROUND

A. New Jersey's May and July 2020 Elections during the COVID-19 Pandemic

COVID-19, a highly contagious and life-threatening respiratory disease, has sparked an unprecedented public health crisis across the United States, including in New Jersey. The virus has already claimed the lives of over 200,000 Americans and 14,000 New Jersey residents. See Centers for Disease Control and Prevention, Provisional Death Counts for Coronavirus Disease 2019 (COVID-19) , https://www.cdc.gov/nchs/nvss/vsrr/covid19/index.htm (last visited Oct. 6, 2020).

On March 9, 2020, in response to the rapidly unfolding public health crisis, Governor Phillip D. Murphy ("Governor Murphy") declared a Public Health Emergency and State of Emergency. (Am. Compl. ¶ 55, ECF No. 33.) Soon after, Governor Murphy implemented multiple social distancing policies to the reduce spread of the virus, including Executive Orders 105 and 144. (See id. ¶¶ 55–63.) These Orders authorized the May 2020 and July 2020 elections respectively to be conducted primarily via vote-by-mail ballots. (Id. ¶¶ 77, 87.)

1. Allegations of Fraud

News reports after the May 2020 election suggest that the State faced serious challenges in conducting its elections. According to those reports, ten percent of ballots cast were invalidated. (Colleen O'Dea, One in Ten Ballots Rejected in Last Month's Vote-by-Mail Elections , NJSPOTLIGHT.COM , June 10, 2020, Ex. 14 to Weir Decl., ECF No. 35-16.) More troubling still, there were allegations of voter fraud in connection with elections in Paterson, New Jersey. (See David Wildstein, Evidence of Massive Voter Fraud in Paterson Election, Court Records Show , NEW JERSEY GLOBE , June 14, 2020, Ex. 15 to Weir Decl., ECF No. 35-17.) In that incident, a campaign worker reportedly stole ballots out of mailboxes, both completed and uncompleted, at the direction of a local campaign. (Id. ) There were also reports that authorities discovered nearly 900 votes that were mailed in bulk from three individual mailboxes, including more than 300 rubber-band-bound ballots from a single mailbox.¹ (Id. )

2. USPS and the July 2020 Primary Election

During the July 2020 Primary Election, the State experienced problems arising from the United States Postal Service's ("USPS" or the "Postal Service") postmarking practices. The Postal Service's general policy is to not apply postmarks to postage prepaid envelopes. (USPS, Handbook PO-408 § 1-1.3, Ex. 22 to Weir Decl., ECF No. 35-24.) Notwithstanding that general policy, "the Postal Service has directed personnel to postmark all ballots to assist state election boards." (USPS, OFFICE OF INSPECTOR GENERAL , ELECTION READINESS REPORT 3 (Aug. 31, 2020), Ex. 7 to Lynch Decl., ECF No. 58-2.)

Despite the Postal Service's direction to postmark all ballots, a report by the USPS Office of the Inspector General found "it is a challenge for the Postal Service to ensure full compliance." (Id. ) Some ballots will not be postmarked due to "(1) envelopes sticking together when processed on a machine; (2) manual mail processing; or (3) personnel unaware that all return ballots, even those in prepaid reply envelopes, need to receive a postmark." (Id. ) For primary elections in other states this year, there is evidence the USPS failed to postmark thousands of ballots.² There is no evidence, however, of a correlation between a ballot lacking a postmark and a ballot being mailed after Election Day.

A Camden County official reports the following experiences related to USPS's postmarking practices during the July 7, 2020 Primary. According to the official, "certain mail-in ballots delivered to the Board [of Elections] on the morning of July 8, 2020 and bearing postmarked dates of July 8, 2020 had in fact been received by USPS on or before July 7, 2020." (Campisi Decl. ¶ 5, ECF No. 58-7.) Additionally, "certain mail-in ballots were in possession of USPS on the morning of July 8, 2020 that did not have postmarks. USPS postmarked those ballots with a July 8, 2020 date and delivered them to the Board on July 8, 2020." (Id. ¶ 6.) The official further reports that "USPS stated that based on its operational processes, it believed that the mail-in ballots located at a delivery unit on the morning of July 8, 2020 and delivered later that same day, would have been received by USPS on or before July 7, 2020." (Id. ¶ 7.) Officials in Essex and Ocean counties report similar communications with USPS regarding ballots returned for the July 7, 2020 Primary Elections. (McGuckin Decl. ¶¶ 4–7, ECF No. 58-9; Von Nessi Decl. ¶¶ 4–7, ECF No. 58-11.)

Election officials also struggled to canvass the substantially greater number of mail-in and provisional ballots by statutory deadlines. New Jersey saw a significant increase in mail-in ballots in 2020 compared with 2016.³ Additionally, New Jersey extended the statutory deadline for the receipt of mail-in ballots by boards of elections by seven days. (Campisi Decl. ¶ 10 (citing N.J. Stat. Ann. § 19:63-22 ).) But "to ensure that a provisional ballot was not counted from a voter who also submitted a mail-in ballot," New Jersey only reviewed provisional ballots after the deadline for receiving mail-in ballots passed. (Id. ) The extension of time for receiving mail-in ballots prevented the State from reviewing provisional ballots until July 14. (Id. ) The combination of these logistical challenges led to petitions from Camden, Monmouth, Middlesex, and Somerset counties for extensions of time to canvass and count ballots. (Giles Decl. ¶ 11, ECF No. 58-6.)

B. New Jersey's 2020 General Election Legislation

On August 14, 2020 Governor Murphy issued Executive Order 177. (Am. Compl. ¶ 64.) Within two weeks, the State legislature passed Assembly Bill No. 4475 ("A4475"), which codified several of Executive Order 177's voting provisions. Pursuant to A4475, the November 2020 General Election will take place primarily by mail: all active registered voters will be sent a mail-in ballot at least twenty-nine days before the election. See N.J. Stat. Ann. § 19:63-31(a).

New Jersey's A4475 also allows voters to return their ballots by mail. N.J. Stat. Ann. § 19:63-31(m). Consistent with the Postal Service's guidance, ballot...