Appellate court finds Gloucester County officials must scrap and remake ballots

Gloucester County officials must scrap their ballot design — already declared unlawful — and replace it before in-person voting in the state begins on Oct. 25, a New Jersey appeals court ruled.

The decision, handed down Friday, reverses Superior Court Judge Benjamin Telsey’s determination last week that although the ballots are “violative” of state statute, newly created ballots would cause confusion because mail ballots had already been sent out.

The appellate court disagreed with Telsey’s order that the original unlawful ballot design should remain without change to avoid having two different ballots before the voters as Election Day approaches on Nov. 4.

At the heart of the case, County Clerk James Hogan, a Democrat, had designed the ballot in so-called office-block format, grouping candidates in boxes under the title of the offices they were seeking. However, statute dictates the ballot should have been arranged in columns with party-endorsed candidates listed in a line.

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Republicans, whose candidates were to be listed in the first column on the left (Column A) as arranged by random drawing, appealed last week.

Republican New Jersey Assemblyman Brian Bergen (Morris, Passaic) says he was so enraged by the altered ballot format that he’s calling for Hogan’s impeachment for “electioneering by altering the ballot.”

In the vertical-line configuration that Telsey described as conforming to state statute, gubernatorial candidate Jack Ciattarelli would head a list of GOP candidates running for other offices and opponent Mikie Sherrill would top a slate of Democrats.

“People would see Ciattarelli’s name on top, then vote Republican down the line,” Bergen said in an interview. But, he asserted, the Democrats realized that the line led by the well-known Ciattarelli gave the GOP too much advantage, and so it presented an alternate, unlawful format.

“The law is clear, and so was the court,” the New Jersey Republican Party wrote on its Facebook page after the ruling. “Gloucester County must fix its illegal ballots after Democrats tried to rewrite the rules. Ballots will be fixed. Justice served. See you at the polls, Gloucester County. Column A, of course.”

County Democrats didn’t respond for requests for comment.

In its ruling, the New Jersey Appellate Court agreed with Telsey that ballots created by the Democrats violated state statute.

But it differed on the idea that changing the ballots would be confusing because mail ballots with the clerk’s original office-block design had been sent out beginning Sept. 19.

Since nothing could be done about the already distributed mail ballots, the only issue was the in-person ballots, the appellate court observed. And there was no evidence of voter confusion over the existence of two ballot formats, the court determined.

“All things considered,” the court found, “we are convinced the record did not support the judge’s denial of relief as to the ballots for in-person voting, which are the only ballots that remain at issue in this application.”

To control the matter, “the county clerk decided to change the ballot design only after realizing the order in which the candidates would appear,” election attorney Yael Bromberg asserted Monday. “Clerks are not immune from abusing their discretion as it relates to ballot design, even after years of various litigations to ensure fair ballots.”

Bromberg, a professor of election law at American University Washington College of Law, is one of the attorneys who worked with then-U.S. Rep. Andy Kim, a Democrat, to eliminate the so-called county line ballot format from New Jersey primary elections. The line format is still functional in general elections.

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Hogan could not be reached for comment.

Brett Pugach, an attorney at Weissman & Mintz LLC in Somerset who also worked with Bromberg and Kim on the ballot format change, agreed, saying, “There can be no room in our political system for county election officials to make decisions on how to design the ballot based on providing partisan advantage to favorite candidates over others.”