For the third time in five years, New Jersey courts have changed the rules of a statewide election campaign after the campaign itself was in progress. This May, Howes and Howes represented former Jersey City Mayor in litigation that went to the New Jersey Supreme Court.
The litigation focused on Bergen County, but has statewide application. Schundler rival Doug Forrester brought a lawsuit to enforce a statute that had been declared unconstitutional more than a decade ago. N.J.S.A. 19:23-26.1 provides that all candidates for United States Senate or Governor are entitled to the preferred first column or first row ballot position in a primary. However, a trial judge ruled N.J.S.A. 19:23-26.1 unconstitutional in Lautenberg v. Kelly in 1994.
Designation of ballot position to candidates is a matter for the discretion of the political parties and of the elected county clerks. Practice varies across the state. Due to the Lautenberg decision, the practice has been to award the preferred ballot position to the candidate endorsed by each county political organization. That was the practice when the race began, and that was the practice upon which the candidates relied.
Mr. Forrester did not fare as well with the county conventions as he had planned. Since ballot position is very important in a primary (there are seven candidates in this race), Mr. Forrester’s lawyer brought suit asking the court to declare N.J.S.A. 19:23-26.1 constitutional. After two weeks of litigation, the New Jersey Supreme Court agreed with Mr. Forrester’s lawyer, and ordered that all 21 county clerks re-draw the ballot.
The net result was a pyrrhic victory for Mr. Forrester. While he appeared to succeed in his lawsuit, the courts applied the law to all candidates and all counties. His ballot position weakened statewide while that of his rival, Bret Schundler strengthened statewide.