A Tug-of-War over the Election Process, and the Post-Election Challenge


With just five days left until November 3rd, New Jersey election officials say at this point voters might want to consider switching up plans and dropping off their sealed, mail-in ballots at secure drop boxes or taking them directly to County Board of Elections Offices.

As the deadline nears in the most consequential election of our time, the United States Postal Service, which normally needs about a week to deliver any piece of mail, can’t guarantee ballots will arrive at their destinations by Election Day.

In New Jersey, though, where Democratic Governor Phil Murphy signed an executive order back in August instituting universal, mail-in voting, ballots will be counted up to seven days after Election Day as long as they’re postmarked by November 3rd. Another provision allows election officials to accept mail-in ballots without postmarks up to 48 hours after the polls close. Voters can also hand-deliver their ballots or fill out a Provisional ballot at local polling places on Election Day.

The new, urgent reminder comes after the U.S. Supreme Court, now a conservative majority, failed to uphold a lower court ruling in Wisconsin that would have allowed the counting of mail-in ballots up to six days after Election Day.

In the midst of an historic pandemic that’s claimed the lives of more than 228,000 Americans, Republicans have been waging a fierce battle challenging mailed ballots in swing states like Wisconsin and Pennsylvania, where Electoral votes could determine the outcome of the Presidential Election.

In his concurring opinion in the Wisconsin case, Supreme Court Associate Justice Brett Kavanaugh, a Trump nominee, argued in favor of maintaining election deadlines, writing, “Those states want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after Election Day and potentially flip the results of an election.”

Angelo J. Genova (pictured, above), a long-standing attorney on behalf of Democratic candidates, says Justice Kavanaugh’s opinion is telling.

“In my view, that statement foreshadows how the Supreme Court may consider post-election lawsuits that could determine the outcome of the Presidential race,’” Genova said. “Justice Kavanaugh’s language mirrors President Donald Trump’s rhetoric.”

New Jersey traditionally votes for Democrats in Presidential races so the state’s 14 Electoral Votes don’t make or break elections. Even so, the Trump campaign, along with the Republican State and National Committees, filed a lawsuit against New Jersey’s mail-in election. In October, a Federal Judge threw out the lawsuit.

Kennedy and Van Drew
Kennedy and Van Drew

But political insiders say post-election challenges could possibly rock hotly-contested Congressional races in New Jersey, as well, — that’s if the race is close. Both Republicans and Democrats are closely watching the 2nd and 7th Congressional District races in the Garden State. In the 2nd, down in South Jersey, newcomer and Kennedy family member, Amy Kennedy, is challenging incumbent Congressman Jeff Van Drew, who switched parties and is now running as a Republican. In the 7th, incumbent Democratic Congressman Tom Malinowski is facing an ugly race against Republican State Senator Tom Kean, Jr.

While most campaigns don’t want to fight it out in court, New Jersey Congressional races are crucial in this election because a win or lose could change the makeup of the U.S. House of Representatives. That’s why attorneys are likely to push for a recheck or recount in a tight race.

“People are going to look back retrospectively, and say, ‘this was done correctly or this should have never

Trump co-chair Joe Pennacchio.
Trump co-chair Joe Pennacchio.

been done,’” said Republican State Senator Joseph Pennacchio (R-26), who’s also the Co-Chair of the New Jersey Trump Campaign.

Pennacchio, a long-time Republican politician in the Garden State, is concerned about New Jersey’s mail-in election and he’s still fuming over the fact he can’t physically go into a booth and vote in-person. Pennacchio is angry Governor Murphy took that option away from him and other voters.

“We’re not being governed, we’re being ruled,” Pennacchio said. “I didn’t request a ballot! A ballot was given out en mass to everybody. More than one person handles that ballot. Every time somebody else handles that ballot, something nefarious may happen. It can be done on purpose or totally by accident. The more people handle it, the more mistakes can happen.”

Like many other Republicans, Pennacchio continues to push the argument that if people can wait in lines at grocery or chain stores like Target, they should be able to carefully maneuver voting lines. However, Pennacchio’s reasoning doesn’t make sense to many Garden State residents, who are avoiding stores, ordering food and goods online or asking others to shop for them. Pennacchio says they can stay home but he should have the option to vote in-person.  It’s why New Jersey election officials continue to assure voters that steps are in place to prevent mistakes or any “nefarious” activity.

“The Election process is secure,” said Chris Durkin, the Essex County Clerk, who is running for re-election as a Democrat.

Durkin adds the process he’s in charge of is bipartisan because the Essex County Board of Elections is evenly split, with three Republicans and three Democrats.

All Primary
Joe DiVinceno, Durkin and Kevin McCabe.

“No different than voting in person,” Durkin said, responding to Pennacchio’s concerns, “Voters can still drop off their (sealed) ballots on Election Day.”

As for Provisional ballots, Pennacchio complains, “the danger with a Provisional ballot is — The reason they are provisional — they’re much more scrutinized.”

Post-election challenges are likely to center around delayed ballots, the eligibility of voters, forgetting to sign the Certificate of Mail-in Voter forms on the flap of envelopes, and signatures that don’t match Voter Registration forms.

Durkin says Essex County is prepared for mailed ballots and that workers are trained to handle election rules just like they have done in the past. For instance, during in-person elections, voters are required to sign in before voting inside a booth. While an identification card or Driver’s License isn’t required in New Jersey, signatures are used to confirm identities. Durkin says similar procedures will be followed with mail-in ballots. Signatures will be compared to stored Voter Registration forms and if a mismatch is detected, voters will be notified within 48 Hours so they can fix the problem.

Many Democrats say they are confident election rules will be followed but what concerns them more is President Trump’s continued efforts to delegitimize the election should Vice-President Joe Biden win.

The President continues to push the narrative that there’s something inherently wrong with mail-in

Donald Trump
Donald Trump

voting, even though he’s voted by mail.  He’s also leading the Republican argument that ballots have to be received by Election Day and counted that night. But in elections, absentee ballots are accepted after Election Day and results aren’t certified until all the votes are counted.

In New Jersey, because of an inundation of mail-in ballots, another bill signed by Murphy allowed election officials to start counting ballots this past weekend, 10 days before Election Day. While Republicans have said they worry about leaks, under the law, anyone who knowingly divulges the results of the election before polls close on November 3rd, could face fines and several years behind bars.

Meantime in Pennsylvania, Democrats are celebrating a temporary victory. The Supreme Court Wednesday kept a Pennsylvania lower court ruling in place that permits ballots to be counted up to three days after the election. Newly-appointed Conservative Judge Amy Coney Barrett didn’t take part in the consideration of the motion because a spokesperson says she didn’t have enough time to prepare.

Judge Coney Barrett
Judge Coney Barrett

In a statement, Justice Samuel Alito, joined by Justices Neil Gorsuch and Clarence Thomas, concluded there wasn’t enough time this close to the election for a decision but he appears to have left the door open to a post-election hearing.

Both sides agree, we may not know who won the Presidential race on Election Night. It could take days for the results to come out. It won’t be normal. Nothing has been in 2020. But at a time when many Americans are on edge about rising Coronavirus cases and demanding action to address racial inequality, November 3rd could turn out to be another tense and unpredictable day during a year that’s held so many emotionally and physically hostage.

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