IN THE MATTER OF THE PETITIONS OF HIRSH SINGH FOR RECOUNT AND RECHECK (L- 1757-20, MORRIS COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0323-20T4
HIRSH SINGH,
Plaintiff-Appellant,
v.
HONORABLE PHILIP D.
MURPHY, in his official
capacity as Governor of
New Jersey, HONORABLE
TAHESHA WAY, in her
official capacity as New
Jersey Secretary of State,
Defendant-Respondent.
_________________________
IN THE MATTER OF THE
PETITIONS OF
HIRSH SINGH FOR
RECOUNT AND RECHECK.
_________________________
Argued October 15, 2020 – Decided October 21, 2020
Before Judges Sabatino, Currier and Gooden Brown.
On appeal from Executive Order No. 144 and related
Executive Orders, pursuant to a transfer from the
Superior Court of New Jersey, Law Division, Morris
County, Docket No. L-1757-20.
Hirsh Singh, appellant, argued the cause pro se.
Beau C. Wilson, Deputy Attorney General, argued the
cause for respondents Philip D. Murphy, Governor and
Tahesha Way, Secretary of State (Gurbir S. Grewal,
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Beau C.
Wilson, on the brief).
Joseph J. Bell argued the cause for respondent Holly
Mackey, County Clerk, County of Warren (Bell &
Shivas, P.C., attorneys; Joseph J. Bell, on the brief).
PER CURIAM
Plaintiff Hirsh Singh 1 is a New Jersey resident who was a candidate in the
2020 New Jersey Republican primary election for the United States Senate.
Self-represented, he challenges the validity of the mail-in voting procedures that
were utilized in the July 7, 2020 primary. The modified procedures were
implemented pursuant to Executive Orders of the Governor issued in the wake
of the COVID-19 pandemic. Plaintiff further challenges the validity of the
modified mail-in voting procedures now being used for the 2020 general election
in accordance with an additional Executive Order and a cognate statute enacted
1
As he pointed out in a motion with the trial court, plaintiff’s first name had
been misspelled in some previous court documents, but it is correctly shown
here.
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2
by the Legislature this summer. He seeks injunctive and other relief, including
an order nullifying the announced results of the July 2020 primary election for
Senate and the House of Representatives, directing a new primary election to be
conducted, and enjoining the continued use of the modified mail-in system for
the November 2020 General Election.
Plaintiff brought lawsuits in several counties to obtain relief, contending
that if the modified mail-in voting procedures were nullified, he would have
been declared the winning candidate in the statewide primary election. After
the lawsuits were consolidated, plaintiff abandoned his efforts to seek a recount
of the primary results and narrowed his focus to seek to invalidate the modified
voting procedures under federal law. Insofar as that claim entails a facial
challenge to the validity of the Governor's Executive Orders, it was transferred
to this court procedurally for appellate review under the Court Rules, thereby
leaving to the trial court any lingering as-applied factual disputes or other
claims.
For the reasons that follow, plaintiff's facial challenges and his associated
requests for injunctive relief are denied. As to his claims that the modified
voting procedures for the primary election prescribed by Executive Order 144
did not comport with the federal constitution, we conclude that exercise of
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3
authority was permissible under the emergency powers the Legislature delegated
to the Governor under the Emergency Health Powers Act, N.J.S.A. 26:13-1 to -
31, and the Civilian Defense and Disaster Control Act, N.J.S.A. App. A:9-30 to
-63. Given the unassailable severity of the COVID-19 pandemic and the need
to reduce the risk of infection to New Jersey voters and polling workers, the
Governor was authorized to exercise those delegated emergency powers and
revise customary in-person voting processes in order to protect the public health
and safety.
As to plaintiff's claims that the modified voting procedures now being
implemented for the general election violate the federal constitution and federal
law, similar arguments were very recently rejected by the United States District
Court in a persuasive October 6, 2020 published opinion, and we likewise
decline to declare them invalid.
Further, plaintiff has not demonstrated a right to the extraordinary and
summary injunctive relief he seeks, applying the well-established criteria of
Crowe v. De Gioia, 90 N.J. 126 (1982). Among other things, plaintiff has not
established that his claims of invalidity are supported by settled law, that
alteration of the present status quo is equitably warranted, or that the public
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4
interest favors nullification of the statewide primary results and the immediate
cessation of the ongoing vote-by-mail processes for the general election.
Lastly, plaintiff's non-facial claims, including his claim of a deprivation
of free speech rights by the Attorney General, are reserved for the trial court for
disposition. The claims he has attempted to assert under the federal Freedom of
Information Act, 5 U.S.C. § 552(a)(4)(B), seeking records and information from
the United States Postal Service are dismissed without prejudice, for lack of
jurisdiction in this state court.
I.
The Executive Orders at Issue
On February 3, 2020, three days after the United States Department of
Health and Human Services Secretary declared a public health emergency for
the United States to aid the nation's healthcare community in responding to
COVID-19, Governor Philip D. Murphy issued Executive Order 102. That order
created the state Coronavirus Task Force, to be chaired by the Commissioner of
the New Jersey Department of Health (DOH), and consisting of the heads of the
Department of Human Services, the Department of Law & Public Safety, the
New Jersey State Police, the Department of Education, and the Office of
A-0323-20T4
5
Homeland Security and Preparedness. Exec. Order No. 102 (Feb. 3, 2020), 52
N.J.R. 366(b) (Mar. 2, 2020), ¶ 2-3.
On March 9, when there were more than 500 confirmed cases of COVID-
19 in the United States, and eleven in New Jersey, Governor Murphy issued
Executive Order 103, declaring a public health emergency and directing the
"State Director of Emergency Management, who is the Superintendent of State
Police, in conjunction with the Commissioner of DOH, to take any such
emergency measures as the State Director may determine necessary." Exec.
Order No. 103 (Mar. 9, 2020), 52 N.J.R. 549(a) (Apr. 6, 2020), ¶ 1.
Thereafter, on April 8, Governor Murphy issued Executive Order 120.
The Executive Order noted in a preamble that public health officials were
predicting that New Jersey's COVID-19 public health emergency was
anticipated to peak in April 2020, and to continue for an indefinite time beyond
the peak. Given those circumstances, Executive Order 120 postponed the
statewide primary elections for United States Congressional and state local
elections from the first Monday in June, as is normally called for by statute in
N.J.S.A. 19:2-1, and rescheduled that primary election for July 7. Exec. Order
No. 120 (Apr. 8, 2020), 52 N.J.R. 957(a) (May 4, 2020), ¶ 1.
A-0323-20T4
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According to the DOH, in the three weeks that followed the issuance of
Executive Order 120, there were 6,285 additional confirmed COVID-19 deaths
in New Jersey.2
More election-related changes designed to deal with the COVID-19 crisis
followed. On May 15, the Governor, through Executive Order 144, instituted a
series of changes to the election infrastructure for the July 7 primary elections.
Exec. Order No. 144 (May 15, 2020), 52 N.J.R. 1238(a) (June 15, 2020). In the
preamble to that order, Governor Murphy referred to data received from the
Center for Disease Control and Prevention (CDC) reporting that, as of that time,
there were more than 4,000,000 COVID-19 cases worldwide, with nearly
300,000 deaths. Of those, more than 1,000,000 cases and 80,000 deaths were in
the United States. As of that point, the Governor continued, there had been more
than 100,000 cases and nearly 10,000 deaths in New Jersey. The severity of the
pandemic had "ma[d]e it difficult for election officials, candidates, and voters
to properly plan and prepare for and fully participate in the July primary
elections if they were to proceed as they would under normal circumstances ."
Ibid.
2
See N.J. COVID-19 Information Hub, https://covid19.nj.gov/index.html (last
accessed on October 9, 2020).
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The Governor further stated in Executive Order 144 that social distancing
measures were necessary "for a period of as-yet-undetermined duration," and
that "the COVID-19 outbreak may have significant effects on New Jersey's
voting systems as long as social distancing measures are in place." Ibid. The
order recognized a danger that, without an alternative way of voting, the
pandemic would "hinder public participation in the democratic process,
particularly among elderly and immune-compromised voters," and thereby
would "undermine the legislative intent of N.J.S.A. 19:8-2 and 19:8-3.1,"
statutes aimed at securing the "right to vote," including for individuals with
disabilities and the elderly. Ibid.
Based on these risks to public health and safety recited in the preamble,
Executive Order 144 directed that "[a]ll elections that take place on July 7, 2020,
shall be conducted primarily via vote-by-mail ballots," which would be sent
automatically to all voters registered as Democrats or Republicans. Id. at ¶ 1.
The order further directed that each county would be required to keep polling
places open for the primary election and that voters who went to those polling
places would be able to fill out provisional ballots there. Id. at ¶¶ 8, 10.
The primary election took place as planned on July 7, with most voters
taking advantage of the vote-by-mail method for casting ballots.
A-0323-20T4
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Additional measures ensued. On August 14, Governor Murphy issued
Executive Order 177, titled "[A]n Order to Protect Public Health by Mailing
Every Active Registered Voter a [Vote-By-Mail] Ballot Ahead of the General
Election." Exec. Order No. 177 (Aug. 14, 2020), 52 N.J.R. 1701(b) (Sept. 21,
2020).
Two weeks later, on August 28, the Legislature enacted N.J.S.A. 19:63-
31, essentially incorporating the universal vote-by-mail procedures set forth in
Executive Order 177 into statutory law, to be operative for the November 2020
General Election.
The Primary Election Results and Plaintiff's Challenges
The tabulated results for the primary election, certified by the Secretary
of State, revealed that plaintiff received 146,139 votes, which was 8,727 votes
less than Rikin Mehta, who received 154,866 total votes, and was declared the
winner of the Republican Party nomination for United States Senate. 3
On September 1, plaintiff filed in the Superior Court in Morris County a
statewide petition to contest the primary election. Eight days later, on
September 9, the Assignment Judge for the Morris/Sussex Vicinage issued an
3
See Official Primary Election Results: U.S. Senate, N.J. Div. of Elections,
https://www.state.nj.us/state/elections/assets/pdf/election-results/2020/2020-
official-primary-results-us-senate-amended-0826.pdf.
A-0323-20T4
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order consolidating that petition in Morris County, along with various other
recount petitions which plaintiff had, as of that time, filed throughout the State.
On September 14, plaintiff filed an application for "partial summary judgment"
on his consolidated Morris County claims.
On September 16, the Attorney General, representing both the Governor
and the Secretary of State, entered opposition to plaintiff's motion for partial
summary judgment and simultaneously cross-moved to dismiss plaintiff's
petition, arguing that it was both unsupported and untimely. On the same day,
plaintiff filed an order to show cause seeking a temporary restraining order and
injunction to prevent the printing of mail-in ballots for the general election
containing the names of the candidates certified to have won the primary
election of July 7, 2020. Plaintiff also moved, as he phrased it, to "disqualify"
the Attorney General's response papers, which he alleged had been submitted
late. He asked the trial court to rule on the papers that had been submitted in
his motion for partial summary judgment. The Attorney General filed
opposition.
On September 22, the trial court denied plaintiff's motion to disallow
defendants' motion to dismiss but did not rule on the merits of the dispositive
motions. On the same day, the court denied plaintiff's order to show cause for
A-0323-20T4
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a temporary restraining order and preliminary injunction. Plaintiff concurrently
filed an amended verified petition to contest the Republican primary election for
United States Senator.
The next day, on September 23, the Chief Justice issued an order stating
that, pursuant to N.J.S.A. 19:29-2, any of plaintiff's still-pending recount
petitions or previously filed petitions to contest the primary election would be
consolidated in the trial court in Morris County.
On September 28, plaintiff filed a motion in the trial court seeking to,
among other things, withdraw from all pending recount applications he had
filed, and obtain a prompt resolution of his partial motion for summary judgment
on his petitions to contest the election. In that application, plaintiff argued that
only the in-person provisional ballots were constitutionally valid, that the mail -
in-ballots were constitutionally invalid, and that the court should "declare the
entire primary election null and void" and "hold it again" to avoid
disenfranchising voters.
Transfer to the Appellate Division of the Facial Challenge to Executive
Order 144
On September 30, the trial court transferred the consolidated matters to
the Appellate Division for review under Rules 1:13-4(a) and 2:2-3(a)(2), and
Vas v. Roberts, 418 N.J. Super. 509 (App. Div. 2011). Two days later, on
A-0323-20T4
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October 2, plaintiff filed an application for emergent appellate relief challenging
Executive Order 144, the primary election based on it, and the use of the results
of the primary election on the ballots for the general election to be held on
November 3, 2020.
On October 5, Presiding Judge for Administration Carmen Messano
issued an order of this court denying plaintiff's application for emergent relief,
noting that the matter had already been fully briefed in the Law Division and
had been transferred to the Appellate Division under Rule 1:13-4. The order
further stated plaintiff's application for emergent relief would be treated as a
motion seeking acceleration of the matter, which the court granted. The order
established an expedited simultaneous deadline for optional supplemental briefs,
"limited to the constitutional challenge plaintiff has brought to the Executive
Order issue," in anticipation of a prompt calendar date.
The following day, on October 6, plaintiff sent an email to this court,
asking for a dispositive ruling on the papers already submitted to the Law
Division. He also sought clarification as to whether an argument he had raised
under the federal Freedom of Information Act (FOIA) remained a part of the
case. The Attorney General separately advised this court that he intended to
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submit a supplemental brief by the court's specified October 13 deadline, and
that he requested oral argument rather than a disposition on the papers.
Later that same day, this panel issued a follow-up order, setting oral
argument for October 15, and clarifying that "[t]he discrete issues for which the
Appellate Division has accepted jurisdiction solely concern appellant's facial
challenges to the Governor's Executive Orders and the voting procedures for the
2020 election, and not any factual disputes or other disputes." The order further
made clear that "[t]he various County Clerks and U.S. Senate candidate Rik
Mehta who had responded to the trial court with regard to non-facial issues
concerning the 2020 U.S. Senate Republican Primary need not participate as
respondents in this appeal" unless they filed briefs by the common October 13
deadline.
In accordance with this scheduling order, plaintiff filed on October 13 a
twenty-nine-page submission, which he labeled as a "motion for summary
judgment."4 The submission concludes with these numerous requests for relief:
4
Consistent with appellate practice, we treat the pro se submission as a motion
for summary disposition under Rule 2:8-3, and, because it presents legal
arguments and citations to case law and various codified provisions, as an
appellant's brief. We have also considered plaintiff's various submissions to the
trial court.
A-0323-20T4
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i. Declare the Executive Order 144 issued by
Governor Phil Murphy to be unconstitutional and in
contravention of the Elections Clause and the Due
Process [Clause] of the United States Constitution[.]
ii. Restore the status quo ante as to the manner of
conducting elections[.]
iii. Declare the primary election of July 7, 2020 for
all political parties unconstitutional and hence null and
void[.]
iv. Forbid the use in the General Election of ballots
with names of candidates nominated through the
process of the unconstitutional primary election created
through the Executive Order 144 of Governor Phil
Murphy[.]
v. Direct the [S]tate of New Jersey to conduct fresh
primary elections in accordance with the law for all
races to fill up the offices of Senators and
Representatives mentioned in the Elections Clause of
the U.S. Constitution[.]
vi. Declare the cease and desist letter sent by New
Jersey's Attorney General to be election interference
and in violation of the due process clause[.]
vii. Declare the cease and desist letter sent by New
Jersey's Attorney General to be in violation of the free
speech clause[.]
viii. Direct the Attorney General's office to rescind
the letter and clarify that they were in violation of the
Constitution and admit that the Petitioner acted in
accordance with the Constitution and all laws[.]
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ix. Declare the entire system of mail-in ballots
except as provided by previously defined procedures
for the absentee ballots to be issued to the members of
the Armed Forces to be in violation of the Freedom of
Information Act[.]
x. Issue an injunction forbidding the use of the mail-
in ballot system for the general election of November
3, 2020[.]
On October 13, the Attorney General submitted a timely supplemental
brief opposing plaintiff's application. The Attorney General argues that
plaintiff's claims are procedurally untimely and that he should be equitably
estopped from seeking relief. As to the merits, the Attorney General further
argues that the Executive Orders at issue are facially and constitutionally valid,
and that no injunctive or other relief is warranted.
In addition, the County Clerk of Warren County submitted a short letter
brief requesting that plaintiff's appeal be denied in its entirety. The County
Clerk argues that the special circumstances of the COVID-19 pandemic
supported the Executive Orders modifying customary election processes, that
the County dutifully carried out those processes, and that there is no reason at
A-0323-20T4
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this juncture to nullify the outcome of the primary election or to alter the
ongoing voting methods in the general election.5
No other county clerks or parties submitted briefs or appeared in the
appeal, including the declared Republican Party nominee for Senate. Oral
argument was conducted on October 15, and the issuance of this opinion has
been expedited.
The District of New Jersey Federal Decision
Meanwhile, on October 6, 2020, the United States District Court for the
District of New Jersey issued a 31-page published opinion in Donald J. Trump
for President, Inc. v. Way, __ F. Supp. 3d __ (D.N.J. 2020) (slip opinion). In
that case, the Republican National Committee, along with President Donald J.
Trump for President, Inc., and the New Jersey Republican State Committee,
primarily sought a preliminary injunction enjoining N.J.S.A. 19:63 -31. The
plaintiffs argued the newly enacted statute violated the Elections Clause of the
United States Constitution. The plaintiffs argued the new state statute violates
the Elections Clause because it authorizes the canvassing of mail-in ballots
beginning up to ten days before election day and the canvassing of ballots not
5
The County Clerk also observes that plaintiff received the most tabulated votes
in Warren County in the Republican Senate primary.
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postmarked but received within forty-eight hours of the polls' closing. Way, slip
op. at 16, 21. The plaintiffs asserted this was inconsistent with the Elections
Clause because Congress had set forth the time, place, and manner of holding
national elections by federal statute in establishing a uniform general election
day to be the Tuesday following the first Monday in November. 2 U.S.C. §§ 1,
7.
The District Court in Trump v. Way declined to enter the injunction and
allowed the ongoing mail-in voting procedures to continue. Among other things,
the opinion found no violation of the Elections Clause or federal law occurring
as the result of the modified procedures. 6
II.
Pursuant to Rule 2:2-3(a)(2), "appeals may be taken to the Appellate
Division as of right . . . to review final decisions or actions of any state
administrative agency or officer." Under this rule, "agencies whose actions have
been held to be reviewable in the first instance by the Appellate Division are
those located within the principal departments in the executive branch of state
government." Vas v. Roberts, 418 N.J. Super. at 517. As "the Governor is the
6
We discuss the opinion in more detail, infra, with respect to plaintiff's
arguments to enjoin the vote-by-mail processes being used in the present general
election.
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State's chief executive or administrative officer," id. at 519, a challenge to the
constitutionality of an Executive Order of the Governor falls within the scope
of a challenge to a final administrative decision or order under Rule 2:2-3(a)(2),
Commc'ns Workers of Am., AFL-CIO v. Christie, 413 N.J. Super. 229, 251
(App. Div. 2010).
Plaintiff's main argument of facial invalidity rests upon the application of
the Elections Clause set forth in Article I, Section 4, Clause 1 of the United
States Constitution. That clause reads:
The Times, Places, and Manner of holding Elections for
Senators and Representatives, shall be prescribed in
each State by the Legislature thereof; but the Congress
may at any time by Law make or alter such Regulations,
except as to the Places of [choosing] Senators.
[U.S. Const. art. I, § 4, cl. 1.]
Plaintiff contends that Executive Order 144 violated this provision because the
Elections Clause requires a state's "Legislature thereof" to enact the procedures
for holding elections for Senators and members of Congress. He argues that
Executive Order 144 was a unilateral action of the Governor that needed to be
concurrently adopted by the New Jersey Legislature in order to be
constitutionally valid. However, that argument is not supported by settled law.
In fact, precedents of the United States Supreme Court have adopted a more
A-0323-20T4
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expansive notion of the form of state legislative power that may satisfy the
Elections Clause. 7
The Elections Clause authorizes each state to enact processes to be
followed in electing members of the House and Senate from their respective
states. As the Supreme Court recognized in Storer v. Brown, 415 U.S. 724
(1974), states retain the power of establishing the time, place, and manner of
primary elections under the Elections Clause. "[A]s a practical matter, there
must be a substantial regulation of elections if they are to be fair and honest and
if some sort of order, rather than chaos, is to accompany the democratic
processes." Id. at 730. The Court explained in Foster v. Love, 522 U.S. 67, 69
(1997), that the Elections Clause "is a default provision; it invests the States
with responsibility for the mechanics of congressional elections." The Court
reiterated in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832 (1995) that
the Framers intended the Elections Clause to grant states the authority to create
procedural regulations for such federal elections.
7
Respondents do not dispute that the Elections Clause and federal power
potentially extend to state primary elections for federal offices. See Foster v.
Love, 522 U.S. 67, 71 n.2 (1997) ("Congressional authority extends not only to
general elections, but also to any 'primary election which involves a necessary
step in the choice of candidates for election as representatives in Congress. '")
(citing United States v. Classic, 313 U.S. 299, 320 (1941)).
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Recent Supreme Court precedent has established that the reference to the
"Legislature" in the Elections Clause encompasses more than just legislative
lawmaking bodies. In Arizona State Legislature v. Arizona Indep. Redistricting
Comm'n, 576 U.S. 787, 806-09 (2015), the Court upheld the validity of an
independent congressional redistricting commission created by a voter ballot
initiative rather than through a statute enacted by the Arizona Legislature. The
Court rejected the challengers' argument that only the Arizona Legislature could
specify the district boundaries and electoral processes. Tracing the history of
Article I, Section 4, Justice Ginsburg's majority opinion for the Court observed
that "[t]he dominant purpose of the Elections Clause, the historical record bears
out, was to empower Congress to override state election rules, not to restrict the
way States enact legislation." Id. at 814-15.
The Supreme Court has made clear that the term "Legislature" as used in
the Elections Clause does "not mean the representative body alone." Id. at 805.
Instead, the term more broadly refers to a state's legislative power, "performed
in accordance with the State's prescriptions for lawmaking." Id. at 808; see also
Smiley v. Holm, 285 U.S. 355, 367-68 (1932) (holding that the Elections Clause
allows a state's governor to exercise veto powers under state law to override
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decisions made by the legislature concerning the time, place, and manner of
elections).
In our own state, constitutional powers are distributed among the three
classic branches of democratic government: the Governor, the Legislature, and
the Judiciary. See N.J. Const. art. III. Lawmaking power is shared by the
Legislature and the Governor in numerous ways, including the Governor's power
to veto legislation, N.J. Const. art. V, § 1, and the Legislature's reciprocal power
to invalidate certain administrative regulations, which otherwise have the force
of law, issued by the Executive Branch, N.J. Const. art. V, § 4. Our case law
has long recognized that the branches of state government are not "water-tight
compartments," but rather that the "aim of the separation-of-powers doctrine is
not to prevent such cooperative action, but to guarantee a system in which one
branch cannot" usurp the powers of another. Commc'ns Workers of Am., AFL-
CIO v. Florio, 130 N.J. 439, 449-50 (1992).8
The State convincingly argues that in issuing Executive Order 144 while
the public health crisis caused by COVID-19 escalated, the Governor lawfully
8
Plaintiff's appellate brief states that "no challenge is made under the provisions
of the New Jersey Constitution," although he has referred to its provisions at
times for purposes of context. An issue not briefed on appeal is deemed waived.
See Midland Funding LLC v. Thiel, 446 N.J. Super. 537, 542 n.1 (App. Div.
2016).
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acted pursuant to his legislatively-assigned responsibilities vested in him by two
statutes: The Emergency Health Powers Act, N.J.S.A. 26:13-1 to -31 (EHPA),
and the Civilian Defense and Disaster Control Act, N.J.S.A. App. A:9-30 to -63
(Disaster Control Act). These statutes, duly adopted by the Legislature,
respectively define emergencies to include "an occurrence or imminent threat of
an occurrence" of disease that "poses a high probability of," among other things,
"a large number of deaths, illness, or injury in the affected population," N.J.S.A.
26:13-2, and "any unusual incident resulting from natural or unnatural causes
which endangers the health, safety or resources of the residents of one or more
municipalities of the State," N.J.S.A. App. A:9-33.1.
The Disaster Control Act, the older and more invoked provision, is
especially on point. Enacted in 1941, the statute bestows on the Governor broad
authority "to utilize and employ all the available resources of the State
Government and of each and every political subdivision of this State, whether
of men, properties or instrumentalities, and to commandeer and utilize any
personal services and any privately owned property necessary to avoid or protect
against any emergency." N.J.S.A. App. A:9-34.
The purpose of the statute is to "protect the public by centralizing control
over local government resources in situations whose remedies were beyond the
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22
authority and power of local government." Worthington v. Fauver, 88 N.J. 183,
195 (1982). For this reason, the Governor is not required to "wait for a serious
disruption to occur" before invoking the powers granted under the Act. Ibid.
The Governor's broad delegated authority to issue emergency orders
encompasses "any matter that may be necessary to protect the health, safety and
welfare of the people," N.J.S.A. App. A:9-45(i), even where such action alters
the rules that would govern in non-emergency periods. Cnty. of Gloucester v.
State, 132 N.J. 141, 145 (1993).
Our courts on multiple occasions have sustained executive orders that
"flow[ ] out of the Governor's legislatively-delegated emergency powers to act
on behalf of the safety and welfare of the people of New Jersey under the
Disaster Control Act." See Commc'ns Workers of Am., AFL-CIO v. Christie,
413 N.J. Super. at 259 (listing such cases in which the Governor invoked his or
her emergency powers).
"Where the executive acts pursuant to an express or implied authorization
from the Legislature . . . he exercises not only his own powers but those of the
Legislature." Worthington, 88 N.J. at 208 (emphasis added). Hence, as a matter
of established New Jersey law, the Governor may exercise powers that have
been delegated to him by the Legislature in order to address emergency
A-0323-20T4
23
situations. Such emergency action does not offend legislative hegemony in its
delegated sphere.
Nor do the emergency statutes repose in the Governor, as plaintiff argues,
unbridled “dictatorial” power. If the Legislature disagrees with a Governor’s
emergency action it can respond by passing legislation, subject to veto, that
repeals or amends the Disaster Control Act or EHPA with language disallowing
a particular exercise of authority.
Judicial review of the exercise of delegated powers is limited. "In such
circumstances the executive action should be 'supported by the strongest of
presumptions and the widest latitude of judicial interpretation, and the burden
of persuasion would rest heavily upon any who might attack it.'" Ibid. (quoting
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson,
J., concurring)) (concerning analogous concepts of federal separation of
powers). "In such a case [the executive's] actions pursuant to that delegated
authority are constitutionally valid as long as he has not exceeded his statutory
authority and the government as a whole has the power to act." Worthington,
88 N.J. at 208.
Executive Order 144 was issued and implemented consistent with this
legislative delegation of emergency authority. Plaintiff has not demonstrated
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any basis on which to conclude that the Governor's issuance of Executive Order
144 to conduct the primary election in a way designed to canvass votes while
minimizing person-to-person contact due to the COVID-19 emergency exceeded
his broad authority "to utilize and employ all the available resources of the State
Government and of each and every political subdivision of this State . . . to avoid
or protect against any emergency." N.J.S.A. App. A:9-34.
Plaintiff's brief asserts that the Disaster Control Act does not support the
Executive Order because the modifications of the election process "have nothing
to do with property damage or destruction." But that argument overlooks the
other language within the Act empowering the Governor to protect the "health,
safety and welfare of the people." N.J.S.A. App. A:9-33. It is plain that the
measures undertaken to reduce in-person contact at the polls are aimed at
promoting the health and safety of voters and poll workers in the midst of a
deadly pandemic that still has yet to be contained. 9
9
The Attorney General has drawn our attention to a recent opinion of the federal
district court in Montana involving parallel issues. In that case, the Montana
Governor, under emergency powers delegated to him by the Legislature to
suspend enforcement of regulatory statutes, issued a directive that the ordinary
statutory prohibition on the use of mail-in ballots in the general election in
Montana was going to be lifted for the 2020 general election due to concerns
caused by COVID-19. Against a challenge that, among other things, the
Governor's suspension of the regulatory prohibition on mail-in balloting
(continued)
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Plaintiff argues that the Executive Order itself represents an improper
delegation of authority to other executive agencies, such as the State DOH and
the county departments of health, as well as the CDC. The Executive Order
merely recites in this regard that vote-by-mail ballots shall be processed and
canvassed "in accordance with guidelines provided" by such health agencies.
The reference to health guidelines is not a misuse or transfer of the emergency
powers delegated to the Governor. Rather, it bespeaks a commitment that those
powers will be implemented in accordance with public health standards. If
anything, the reference to such guidelines helps assure that the emergency
powers are not implemented recklessly or arbitrarily.
Plaintiff has pointed out that on April 14, six days after Governor Murphy
issued Executive Order 120, which postponed the primary election, the
Legislature ratified the postponement of the primary date. L. 2020, c. 21, titled
violated the Elections Clause, the District Court held that by invoking his
emergency powers under state law in enacting the regulatory suspension, the
Governor acted within the scope of the delegated powers of the Legislature in
affecting the time, place, and manner of Montana's federal elections. The
Attorney General contends this result and reasoning, although not binding
precedent, happens to be consistent with the similar delegation of emergency
powers exercised by Governor Murphy in his Executive Orders under the EHPA
and the Disaster Control Act. Because the opinion apparently has not been
published, we do not cite to it or rely on it as precedential authority, see Rule
1:36-3, and mention it only for comparative and historical purposes.
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"An Act Concerning the Date of the Primary Election." The complete text of
that April 14 legislation reads:
1. a. Notwithstanding the provisions of [N.J.S.A.
19:2-1], [N.J.S.A. 19:23-40], any provision of Title 19
of the Revised Statutes, or any other law, rule, or
regulation to the contrary, the 2020 primary election
shall not be held on the Tuesday next after the first
Monday in June, falling on June 2, 2020, and shall be
held instead on the Tuesday next after the first Monday
in July, falling on July 7, 2020. Any other election
scheduled to occur between May 13, 2020 and July 6,
2020, inclusive, shall be rescheduled to be held on July
7, 2020.
b. Nothing in this act shall be interpreted to affect
the deadlines prescribed under the provisions of Title
19 of the Revised Statutes for the nomination of
candidates, filing of petitions, acceptance of
nominations, certification of nominations, and any
other deadline required to be met preceding the primary
election, when that deadline occurs before April 11,
2020, including, but not limited to, the deadline for
filing nominating petitions under [N.J.S.A. 19:23-14],
for amending defective petitions under [N.J.S.A.
19:23-20], for the filing of objections to nominating
petitions under [N.J.S.A. 19:13-10], for determining
the validity of objections to nominating petitions under
[N.J.S.A. 19:13-11], and for drawing for ballot
positions under [N.J.S.A. 19:23-24], which dates shall
continue to be determined by reference to June 2, 2020.
All other deadlines prescribed under the provisions of
Title 19 of the Revised Statutes for meeting statutory
requirements for a primary election shall be calculated
using the July 7, 2020 primary election date.
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c. Notwithstanding the provisions of subsection
b. of this section, or any other law, rule, or regulation
to the contrary, the party affiliation deadline
established under [N.J.S.A. 19:23-45] shall be
calculated based on the July 7, 2020 primary election
date.
d. Notwithstanding the provisions of Title 19 of
the Revised Statutes, or any other law, rule, or
regulation to the contrary, petitions for direct
nomination for the general election required to be filed
under [N.J.S.A. 19:13-3] through [N.J.S.A. 19:13-9]
shall be due by 4:00 p.m. on July 7, 2020.
2. This act shall take effect immediately.
[Ibid.]
To be sure, the Legislature did not pass similar legislation ratifying the
universal vote-by-mail procedures effectuated by Executive Order 144 between
its issuance on May 15, and the primary election on July 7. As we have already
shown, the passage of such cognate legislation was not vital, because the
Governor already possessed the delegated authority to take emergency action to
safeguard public health and safety.
Moreover, although it is not essential to our analysis, subsequent events
are indicative of an arguable legislative ratification of, or acquiescence to, the
health and safety measures undertaken in Executive Order 144. Such ratification
or acquiescence is intimated by the statute that established the vote-by-mail
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28
procedures for the 2020 general election, enacted on August 28, 2020. L. 2020,
c. 71 (Chapter 71).
Chapter 71 states that "[n]otwithstanding any other law to the contrary, to
allow enough time for the county clerks to print and mail the ballots to voters,
the following deadlines are modified as follows . . . the last day a vacancy may
occur for primary election nominees for the November 2020 General Election
. . . shall be August 28, 2020," the date that the law went into effect. N.J.S.A.
19:63-31(k)(2). The statute further states that "the deadline to fill a vacancy in
the primary election nominees for the November 2020 General Election . . . shall
be August 31, 2020." N.J.S.A. 19:63-31(k)(3). By thereby foreclosing the
possibility of a special election to fill any vacancy for primary election nominees
for the 2020 general election, the Legislature appears to have implicitly ratified
the outcomes of the July 7 primary election and, also by implication, the validity
of the modified election procedures that were used in that election.
Additionally, the legislative fiscal estimate prepared by the non-partisan
Office of Legislative Services for the 2020 general election legislation expressly
references Executive Order 144, stating that "many of the requirements of [L.
2020, c. 71] coincide with those of Executive Order 144 requiring the
procurement of secure ballot drop boxes for the July 7, 2020 primary elections.
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29
This bill expands that requirement to any subsequent election in the State."
Office of Legis. Servs., Fiscal Note to Assembly Bill No. 4475 (Aug. 26, 2020)
(emphasis added).
Courts "may refer to [a] bill's fiscal note to ascertain legislative intent if
necessary." Matter of 1997 Assessments, 311 N.J. Super. 600, 606 (App. Div.
1998). Here, the August 26 Fiscal Note's express declarations that the
provisions of N.J.S.A. 19:63-31 "coincide with" and "expand" election
procedures and "requirements" implemented by Executive Order 144 provide
further indicia that the Legislature intended to ratify those emergency
procedures. See In re Plan for Abolition of Council on Affordable Hous., 424
N.J. Super. 410, 419-20 n.3 (App. Div. 2012) (holding that legislative history
referencing a reorganization plan enacted by the Governor through legislatively
delegated powers constituted a ratification of executive action), aff'd as
modified, 214 N.J. 444 (2013).
As we have said, we need not and do not rely on an inference of
ratification to uphold the constitutional validity of Executive Order 144. We
mention it simply as an indication that the Legislature itself evidently has not
concluded that its institutional lawmaking powers were usurped. For that
matter, the Legislature has not brought suit or moved to intervene in this
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30
litigation, as contrasted with the lawsuit pursued by the Arizona Legislature in
the redistricting commission case seeking to nullify the commission's authority
under the Elections Clause. Arizona State Legislature, 576 U.S. at 787.
In sum, plaintiff's argument that Executive Order 144 was facially invalid
and violated the Elections Clause of the United States Constitution is
unpersuasive. Through the exercise of the emergency powers delegated to him
by the Legislature, the Governor took authorized action to address a mounting
pandemic and protect the public health, safety, and welfare.
Due Process and Equal Protection Clauses
Plaintiff's facial challenge to the Governor's actions under the Due Process
Clause of the Federal Constitution is also unavailing. Plaintiff alleges he was
deprived by Executive Order 144 of his due process right to cast ballots in an
election created by the Legislature in accordance with the Constitution .
The Due Process Clause of the Fourteenth Amendment to the United
States Constitution provides that no state may "deprive any person of life,
liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1.
"[A] statute is invalid on substantive due process grounds if it 'seeks to promote
[a] state interest by impermissible means.'" Caviglia v. Royal Tours of Am.,
178 N.J. 460, 472 (2004) (alterations in original). "[A] state statute does not
A-0323-20T4
31
violate substantive due process if the statute reasonably relates to a legitimate
legislative purpose and is not arbitrary or discriminatory." Greenberg v.
Kimmelman, 99 N.J. 552, 563 (1985).
Plaintiff offers no controlling legal authority for a claimed Due Process
right to cast a vote by a particular method. Nor has he convincingly argued that
by changing the primary rules to limit person-to-person contact and the spread
of infection from COVID-19, Executive Order 144 was enacted with an
illegitimate, arbitrary, or discriminatory purpose.
Although plaintiff has made factual contentions that the vote-by-mail
processes for the primary election were incorrectly administered in certain
locations and resulted in irregularities in the counting of ballots, those claims
are beyond the scope of a facial challenge to the Executive Orders properly
before this court. Any remaining as-applied factual contentions must be
litigated in the trial court. R. 2:2-3(a)(2) (noting the appellate court's function
as a reviewing court, and not as a fact-finder that can hear witnesses and make
factual findings); see also State v. S.S., 229 N.J. 360, 365 (2017) ("the customary
role of an appellate court is not to make factual findings but rather to decide
whether those made by the trial court are supported by sufficient credible
evidence in the record"); In re Contest of Democratic Primary Election of June
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32
3, 2003 for Off. of Assembly of Thirty-First Legis. Dist., 367 N.J. Super. 261,
265 (App. Div. 2004) (reviewing a Law Division adjudication of an election
contest petition brought under N.J.S.A. 19:29-1).
We similarly discern no basis for relief as to plaintiff's facial arguments
under the Equal Protection Clause. U.S. Const. amend. XIV, § 1. He asserts
that if the court nullifies the results of the Republican Primary Election, then it
must likewise nullify the results of the Democratic Primary Election, or else that
would give the other major political party an unfair campaigning advantage. We
need not adjudicate that hypothetical situation, because, as noted above, plaintiff
has failed to demonstrate that the Executive Order regulating the primary
election as a whole was facially unconstitutional.
The Freedom of Information Act
Plaintiff alleges that the procedures implemented by Executive Order 144
violate the FOIA by creating an "opaque process," alleging he has no means of
obtaining information regarding certain procedures followed by the county
canvassing boards. In particular, plaintiff alleges that the United States Postal
Service has failed to produce records relating to the election that he has requested,
which also violates the FOIA. Plaintiff has not, however, made the United States
Postal Service, or any federal entity, a party in this case.
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33
The FOIA states that, absent certain exceptions, "each agency, upon any
request for records which (i) reasonably describes such records and (ii) is made in
accordance with published rules stating the time, place, fees (if any), and procedures
to be followed, shall make the records promptly available to any person." 5 U.S.C.
§ 552(a)(3)(A).
State courts do not have jurisdiction over a FOIA claim. Jurisdiction for FOIA
claims lies in "the district court of the United States in the district in which the
complainant resides," not in state court. 5 U.S.C. § 552(a)(4)(B). Plaintiff has not
pointed to any authority in which a state court has entertained such a claim in the
context of an election contest, or in any other context. His FOIA claims against the
United States Postal Service or any other federal agency must be brought in federal
court, should he choose to pursue them.
Free Speech Claims
Plaintiff contends that a cease-and-desist letter he received from a Deputy
Attorney General on June 25 directing him to stop asking voters to submit duplicate
ballots and change their votes was a violation of his free speech rights under the First
Amendment to the United States Constitution. U.S. Const. amend. I. The letter was
apparently founded upon 52 U.S.C. § 10307(e), which makes it illegal for voters to
vote twice in federal elections, subject to certain exceptions.
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34
The factual, as-applied issue as to whether plaintiff's speech was
unconstitutionally chilled by the Attorney General's letter is outside the narrow
appropriate scope of this court's review of a final administrative decision under Rule
2:2-3(a)(2). The claim does not assert facial invalidity of the Governor's Executive
Orders, which were the only claims properly transferred here pursuant to the
appellate rules. Consequently, that particular claim must be adjudicated in the trial
court.
Claims Concerning the General Election and for Injunctive Relief
Apart from his arguments concerning the primary election, plaintiff
contends the administration of the present general election is likewise invalid
under the federal constitution. He argues the inclusion of prevailing nominees
for federal office from the primary election on the ballot for the general election
violates the Due Process Clause, because the primary election itself was
unconstitutional. The premise of that argument is incorrect, for the reasons this
opinion has already noted.
Plaintiff specifically requests the court to "[d]eclare the entire system of
mail-in ballots except as provided by previously defined procedures for the
absentee ballots to be issued to members of the Armed Forces" to be invalid. He
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35
further asks this court to "[i]ssue an injunction forbidding the use of the mail-in
ballot system for the general election."
These and other requests for injunctive relief asserted by plaintiff
implicate well settled principles under New Jersey civil law. In Crowe v. De
Gioia, 90 N.J. at 126, the Court identified several factors to guide whether
injunctive relief is appropriate.
First, a preliminary injunction should not be granted except to prevent
irreparable harm, which the Court defined as harm that "cannot be redressed
adequately by monetary damages," "severe personal inconvenience," or where
the "nature of the injury or of the right affected" make it appropriate. Id. at 132-
33. The second principle is that "temporary relief should be withheld when the
legal right underlying the plaintiff's claim is unsettled." Ibid. Third, a
preliminary injunction should not issue unless the plaintiff makes a preliminary
showing of "a reasonable probability of success on the merits." Ibid. Fourth, a
court must evaluate "the relative hardship to the parties in granting or denying
relief." Id. at 134.
In addition, and germane here, a case that "'presents an issue of significant
public importance' requires the court to 'consider the public interest in addition
to the traditional Crowe factors.'" N.J. Election Law Enf't Comm'n v.
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36
DiVincenzo, 445 N.J. Super. 187, 195-96 (App. Div. 2016) (quoting Garden
State Equal. v. Dow, 216 N.J. 314, 321 (2013)) (emphasis added).
These traditional Crowe factors likewise bear upon requests for permanent
injunctive relief. See, e.g., Murray v. Lawson, 136 N.J. 32, 50-51 (1994), cert.
granted, judgment vacated on other grounds, 513 U.S. 802 (1994); Horizon
Health Center v. Felicissimo, 135 N.J. 126, 139 (1994).
The Crowe analysis has been applied in the context of injunctive relief
sought concerning an election. See, e.g., Finkel v. Twp. Comm., 434 N.J. Super.
303, 310 (App. Div. 2013); McKenzie v. Corzine, 396 N.J. Super. 405, 416
(App. Div. 2007) (citing N.J. Democratic Party, Inc. v. Samson, 175 N.J. 178,
190 (2002)).
Applying those factors here, plaintiff has not demonstrated that injunctive
relief of any kind should be ordered.
First, for simplicity, we will assume purely for sake of discussion that
plaintiff has alleged that his rights as both a political candidate and voter will be
irreparably harmed if the court does not compel an immediate halt to the
processes being used in the general election. Even if that assumption were true,
the other Crowe factors overwhelmingly tip against his requests for the
extraordinary and massive injunctive measures he has sought.
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37
On the second prong, plaintiff has not shown his legal theories of
invalidity are supported by "settled law." Nor, on the related third prong, has
he made a sufficient showing of a probability of success on the merits to justify
enjoining the ongoing general election.
To the contrary, we have already dispelled above plaintiff's arguments of
unconstitutionality under the Elections Clause. And, to the extent that plaintiff
argues the mail-in voting procedures now being used for the general election
violate "settled" federal law, the recent published opinion of the United States
District Court in Trump v. Way shows otherwise.
The District Court in Trump v. Way declined to enter an injunction
regarding the 2020 general election and rejected the plaintiffs' "broad
construction" of the federal election laws, noting that states had historically been
given wide discretion in permitting various forms of absentee voting and early
voting. Way, slip op. at 16. As to the late-received ballots, the court held there
was "no direct conflict" between New Jersey's law and the federal election day
statutes. Id. at 24. The court also found, in balancing the harms, that entering
an injunction against the universal vote-by-mail procedures "would frustrate
. . . ongoing efforts to educate voters about the new by-mail election . . . at the
risk of time and expense for the State and confusion for the voters." Id. at 29.
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The court held, for the same reason, that enjoining a state's election procedures
on the eve of an election would not be in the public interest and would risk voter
disenfranchisement. Id. at 30.
"[I]t is well-established that under principles of comity, and in the
interests of uniformity, federal interpretations of federal enactments" by federal
courts in published cases, though not controlling on state courts, are nevertheless
"entitled to our respect." Ryan v. American Honda Motor Co., Inc., 186 N.J.
431, 436 (2006). The District Court's precedential opinion in Trump v. Way
appears to be soundly reasoned, and, at the very least, reflects that plaintiff's
requests for injunctive relief are not supported by "settled" law and that they
lack rather than possess a probability of success. 10
The fourth and fifth Crowe factors—concerning the relative interests of
the parties and the interests of the public at large—manifestly tip against
granting the extraordinary measures plaintiff seeks. McKenzie, 396 N.J. Super.
at 416 (including the consideration of the public interest in the Crowe analysis
in the context of an election). The general election utilizing the mail-in voting
10
Since plaintiff’s facial challenges lack merit, we need not ponder the legal
and voter confusion that would ensue if a federal court ruled under federal law
that an election may continue to proceed as planned and a state court separately
ruled under federal law that it may not.
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39
procedures has been underway for many weeks. According to the representation
of the Deputy Attorney General made to us at oral argument, it is estimated that
over a million New Jersey voters have already marked and mailed in their
ballots. Disrupting that process now would inevitably cause widespread
upheaval and potential voter disenfranchisement. Similarly, an order nullifying
the primary election at this juncture and invaliding nominees on the general
election ballot would produce comparable harm.
It must also be underscored that the entire state, including political
candidates such as plaintiff, were on notice as of May 15 when Executive Order
144 was issued, that the procedures for the primary election would be modified
to allow mail-in voting due to the COVID-19 pandemic. Apparently no one,
including plaintiff, filed suit to enjoin that process before the primary election
took place.
The voters and other candidates who participated in that primary election
had a right to expect that the votes would be counted and that the results would
be certified and used in the general election. Although we need not reach or rest
upon defendants' argument that plaintiff is "equitably estopped" from bringing
his claims, his inaction before the primary took place surely affects the
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40
comparative equities. 11 Plaintiff took advantage of the extended opportunity to
campaign and attract voters for the primary election and did not attempt to halt
the process. It was only after he was not victorious in the primary that he went
to court and argued that Executive Order 144 is unconstitutional. Meanwhile,
other candidates for the Senate and the House of Representatives, as well as
other offices, had their status as nominees (or, as the case may be, defeated
candidates) determined.
In addition to the Crowe factors under state law, there is a wealth of
federal precedent that weighs heavily against entertaining on-the-brink
challenges to the voting procedures of upcoming elections. See, e.g., Purcell v.
Gonzalez, 549 U.S. 1, 5-6 (2006) ("Court orders affecting elections, especially
11
We recognize that plaintiff filed his election contest petition on September 1
apparently in compliance with the twelve-day deadline for such petitions under
N.J.S.A. 19:29-3, as the last Senate recount from Sussex County was announced
on August 20. Nevertheless, mere compliance with the statutory deadline for an
election contest does not mean the equities and the public interest support the
extraordinary injunctive relief he seeks. Plaintiff knew weeks before the July
primary what Executive Order 144 said, and that it was allowing citizens to vote
by mail without an advance request for a ballot. The change from usual voting
processes was clear. There was no need to wait for the election to occur in order
to bring a challenge to the procedures. Ideally, “[t]he time to protest [to the
process] is before the election, and not, as here, after the event.” Two Guys from
Harrison, Inc. v. Furman, 32 N.J. 199, 233 (1960). Even if plaintiff’s complaint
is not time barred or estopped, its timing bears upon the balancing of Crowe
factors for obtaining injunctive relief.
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41
conflicting orders, can themselves result in voter confusion and consequent
incentive to remain away from the polls. As an election draws closer, that risk
will increase."); Nader v. Keith, 385 F.3d 729, 736 (7th Cir. 2004) (disallowing
third-party presidential candidate's suit challenging constitutionality of state
election code that was not filed until June of an election year, which was four
months after his candidacy was announced, and "created a situation in which
any remedial order would throw the state's preparations for the election into
turmoil"); Kay v. Austin, 621 F.2d 809, 813 (6th Cir. 1980) ("As time passes,
the state's interest in proceeding with the election increases in importance as
resources are committed and irrevocable decisions are made, and the candidate's
claim to be a serious candidate who has received a serious injury becomes less
credible by his having slept on his rights.").
To the extent we have not discussed them, any other arguments made by
plaintiff that bear upon facial validity lack sufficient merit to warrant discussion.
R. 2:11-3(e)(1)(E).
III.
For these abundant reasons, plaintiff's facial challenges to Executive
Order 144 and any other pertinent Executive Orders are denied, and his requests
for injunctive relief and summary judgment/decision are likewise denied.
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42
Jurisdiction in this appellate court is concluded, and the matter is remanded to
the trial court to adjudicate in due course plaintiff's as-applied and other claims,
including any necessary determinations of material fact.
Affirmed in part, remanded in part.
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