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The Superior Court Upholds the Constitution in Jersey City Ballot Case

The Jersey City election found its way into the courthouse this week when one of the independent candidates for City Council At-Large asked the court to reverse the decision of the Hudson County Clerk to allow bracketing of candidates on the ballot.  Howes & Howes appeared in the case on behalf of another independent candidate, P.J. Leonard, who agreed with the decision of the County Clerk.  After reading our brief and hearing oral argument, the court upheld the law and the constitution, and allowed the County Clerk to proceed as planned.

Be it before, after or on Election Day itself, Hudson County elections, both big and small, have a way of finding the courthouse.  Such is the case with the November 8, Special Election for two at-large seats on the Jersey City City Council.  The legal issue involved the setup of the ballot, and the right of candidates to group together on the ballot as teams.  Nineteen candidates originally were certified.  Howes & Howes represents independent candidate, P.J. Leonard.

Another independent candidate filed papers with the Superior Court to try to block the County Clerk from designing a ballot that allows teams of two to be grouped ("bracketed") together on the ballot with a common slogan.  The problem with the application is that the law clearly states that bracketing is allowed. 

First, the First Amendment to the United States Constitution protects bracketing as part of the right to free speech and association.  The New Jersey Supreme Court most recently articulated this principle in Schundler v. Donovan, 377 N.J. Super. 339, 348 (App.Div 2005), aff’d 183 N.J. 383 (2005).  (Howes & Howes represented the plaintiff in that case.) The Schundler decision followed a long line of United State Supreme Court precedents protecting the right of free association on the ballot.  See also, Eu v. San Francisco Co. Democratic Central Comm., 489 U.S. 214, 222 (1989).

Second, New Jersey law instructs election officials to grant bracketing requests, both in party primaries and in non-partisan municipal elections.

Howes & Howes submitted a very thorough brief on behalf of P.J. Leonard.  Mr. Leonard elected NOT to bracket with any other candidates because he wants the ballot to demonstrate that he is an independent candidate, not part of any of the various factions in Jersey City politics.  The court agreed that the bracketed tickets have the right to bracket together, and Mr. Leonard has the right to elect not to bracket.  The court concluded its five-page opinion as follows:

“Thus, in light of the clear mandate of N.J.S.A. 40:45-10, I am not only compelled to affirm the Clerk’s bracketing determination in this matter but would in fact be compelled to overturn her determination had she refused to permit bracketing.”

If you are a candidate or a campaign in a primary election or a non-partisan election, and you have a bracketing question, you should contact Howes & Howes.  We have experience in bracketing cases at the state, county and local levels, in several New Jersey counties.


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