Also upholds legislative presumption that mail-in ballots received by 11/5, two days after Election Day, were timely mailed, even without a postmark...
UPDATE 10/23/20: In a subsequent order, the court dismissed the Trump campaign's complaint...
By Ernest A. Canning on 10/12/2020, 9:35am PT  

By way of a 31-page Memorandum Opinion this past week, U.S. District Court Judge Michael A. Shipp rejected the Trump Campaign's effort to challenge the legality of a recently enacted New Jersey statute that permits Garden State election officials to begin "canvassing" mail-in ballots ten days prior to the November 3 Presidential Election Day.

As defined by the U.S. Election Assistance Commission (EAC), a "canvass" is a "compilation of election returns and validation of the outcome that forms the basis of the official results".

NJ's COVID-driven election law in question, AB 4475, was enacted last August by the New Jersey state legislature and promptly signed into law by the Garden State's Democratic Governor Phil Murphy. The statute contains a number of provisions designed to facilitate an efficiently-run, mostly mail-in ballot Presidential Election. These include a directive that election officials, 29 days prior to the election, send mail-in ballots to every registered voter. The statute also includes a requirement that election officials provide secure absentee ballot drop-boxes in every county.

Existing NJ law mandates that the State's election officials certify the Nov. 3 election results by Nov. 20. The results must then be submitted to the NJ Secretary of State by Nov. 24.

AB 4475 streamlined the procedures for tallying the expected heavy influx of mail-in ballots by permitting election officials to begin processing and canvassing mail-in ballots ten days prior to Election Day. The new law, however, prohibits Garden State election officials from running a tabulation report or revealing any results before the polls close on Nov. 3.

Contending that the NJ statute was preempted by federal Election Day law, the Trump Campaign sought a preliminary injunction that would prevent NJ officials from canvassing mail-in ballots before Nov. 3. The Campaign also contested a section of AB 4475 establishing that "every ballot without a postmark...received by the county boards of elections from the [U.S. Postal Service] within 48 hours of the closing of the polls, shall be considered valid and shall be canvassed, assuming the ballot meets all other statutory requirements."

The court rejected the Trump Campaign's legal arguments and denied Trump's motion for a preliminary injunction.

The Trump Campaign did not respond to a Fox "News" inquiry as to whether it intended to appeal the decision. The President's "favorite propaganda network" described the decision as "a significant ruling for the state that will keep the current rules in place, barring a swift and successful appeal from the Trump campaign"...

Early canvassing not preempted by federal law

The doctrine of federal preemption arises out of the Supremacy Clause in Article VI of the U.S. Constitution, establishing that every state is bound by federal laws and treaties. Any provision in a state constitution or state statute that conflict with federal law is superseded (preempted) by federal law, which is the supreme law of the land.

Under the Elections Clause, Art. I, §4 of the U.S. Constitution, "the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations."

The Trump Campaign argued that, because federal statutes mandate that all states abide by a uniform date set by federal statute for holding the Presidential Election, NJ could not begin to canvass mail-in ballots until the polls closed on Nov. 3. The portion of AB 4475 that provides for early canvassing of mail-in ballots, the Campaign asserted, is preempted by federal law.

Judge Shipp disagreed. Foster v Love, the 1997 U.S. Supreme Court case the Trump Campaign relied upon, held only that state-run elections for federal office "may not be consummated prior to" the day of the federal election. Per the decision in Foster, in passing Election Day statutes, Congress sought only to avoid "the distortion of the voting process when the results of an early election in one State can influence later voting in other States."

Multiple decisions issued by federal appellate courts establish that early voting and the submission of mail-in ballots before Election Day are lawful. "Several states [AZ, CO and FL]," Judge Shipp added, "allow some form of canvassing or tallying ballots received prior to Election Day." (Since last April, PA election directors have sought state legislative authority to initiate pre-canvassing before Election Day. The legislation, HB-2626, cleared the PA House, but, oddly enough, only with 3 Democratic votes. PA's Democratic Governor Tom Wolf threatened to veto it --- go figure!)

(As we previously reported, in covering the sabotage of mail delivery under the aegis of Postmaster General Louis DeJoy, last June, CA enacted a statute that permits its election officials to begin processing mail-in ballots, as they are received, beginning 29 days before the election. CA election officials can also run the hand-marked, paper absentee ballots through the optical scanners used to tabulate the votes, but may not access the tally until after the polls close on Election Day.)

The critical feature is that, so long as a State does not canvass the final results or publicize the initial tallies prior to the close of polls on Election Day, early canvassing is not preempted by federal Election Day statutes. NJ's pre-election canvassing does not entail a tally of the final results. To the contrary, AB 4475 not only forbids the preparation of a tally report but also prohibits election officials from disclosing partial tallies prior to poll closure on Election Day.

Mailed ballots received by Nov. 5 in NJ are timely

The Trump Campaign argued that, by presuming mail-in ballots that do not contain postmarks received within 48 hours of the close of the polls were timely cast, AB 4475 violated the rule that no ballots may be cast after Election Day.

Based upon evidence that included what occurred during the primaries, as well USPS admissions about about delivery times and its inability to accurately postmark all election mail, Judge Shipp expressed "a high degree of confidence" that ballots lacking a postmark that are received within the 48-hour time window were timely cast. He, thus, declined to block the State's creation of a presumption those ballots were timely cast.

UPDATE 10/23/20: On Oct. 22, Judge Shipp issued an Order granting defendants' motion to dismiss the Trump campaign's federal complaint. The Court found that the campaign lacked standing to file this action because it did not demonstrate "a concrete, particularized, and imminent future injury" to Trump supporters occasioned by the passage of the NJ mail-in voting statute.

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

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