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The 2012 Primary Ballot:  Storm Clouds on the Horizon

There is one aspect of elections that receives little public attention:  The creation of the ballot in primary elections.  There are statutes and constitutional principles that undergird the ballot creation process.  Each and every one of those legal principles will be in play in the coming months as County Clerks all across the Garden State design primary election ballots for the June primary.  H&H partner Tim Howes has been involved in significant ballot litigation since 2001, and currently serves as Associate General Counsel to the NJGOP, and is keeping a watchful eye on the ballot design process.

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Ballot construction for a primary election can be a tricky process, especially in a year in which there are elections for many different offices on the primary ballot, and especially where there are a large number of competing candidates.  The 2012 primary promises to be such a year, and the ballot construction process may well land where it has landed twice in the past decade:  The New Jersey Superior Court.

New Jersey law vests the County Clerk in each of New Jersey’s twenty-one counties with the authority to construct the primary election ballot.  The County Clerk has a degree of discretion in how to arrange the offices and names of candidates on the grid of the ballot for use in the voting machine.  For the most part, logic prevails and the candidates are placed in the familiar grid.  When there are statewide elections, the process is more complicated.  It is more complicated because statewide elections tend give rise to “slates” of candidates who wish to “bracket” together on the ballot.  Two New Jersey statewide primaries in the past decade resulted in significant litigation and reported decisions.  The 2001 Republican gubernatorial primary gave rise to the Schunder v. Donovan decision.  The 2008 Democratic primary gave rise to the Andrews v. Rajoppi decision.  Both of those decisions establish interpretive principles for the County Clerks.

This year, the County Clerks will have to use those principles, together with the specific mandate of New Jersey statutes to design the ballot in a year in which there are a multiplicity of offices on the ballot: 

(1) Presidential preference;
(2) At-large delegates to the national convention;
(3) Congressional district delegates to the national convention;
(4) United States Senate;
(5) House of Representatives in all 12 Congressional Districts;
(6) State Assembly in at least two districts;
(7) County Freeholders in most counties;
(8) County Constitutional officers in many counties;
(9) Municipal mayors and council people in most municipalities (as many as four in some places);
(10) Local party county committee persons (Two in each voting district.).

In addition to the proliferation of offices on the 2012 primary election ballot, there are potentially several competing slates of candidates.  Candidates for different offices who share a philosophy or agenda have a right under the First Amendment of the Unites States Constitution to be associated together on the primary election ballot.  This applies both to candidates who are endorsed by county party committees, and to those who are not.  There are limitations on that right, however.  In order to bracket together on the ballot, candidates must comply with certain legal requirements before the County Clerk will group them together in a column or row on the ballot.

In the 2012 Republican primary, there are four presidential candidates who may still be in the race when the ballot is designed.  That means that there may be four slates of delegates to the Republican National Convention on the ballot in addition to the presidential preference.  At present there are three candidates in the Republican primary for the United States Senate.  The great unknown is how the presidential candidates and U.S. Senate candidates will choose to appear on the ballot.  Will they associate with candidates for other office?  If the answer is yes, then there may be entire columns or rows of competing candidate slates on the ballot.

With competing slates for all the different offices, the ballot design process promises to be both complex and interesting.  As counsel to the NJGOP, I will be keeping a close eye on the process.

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