Ballot • Atlantic County • U.S. County • Primary election

The original lawsuit challenging the constitutionality of New Jersey’s county organization line system was filed on July 6, 2020, initially with now-retired U.S. District Court Judge Freda Wolfson.  It was reassigned to U.S. District Court Judge Zahid Quraishi on June 4, 2021, and there has been little movement over the last year,

But a bid by Rep. Andy Kim to end organization lines before he faces Tammy Murphy in the Democratic U.S. Senate primary in June has escalated the matter.   Quraishi held a scheduling conference with lawyers last Thursday and set a court hearing for March 18.

Here is some information from a transcript of the conference in a Q&A format.

How fast is this going?

At warp speed.  The lawsuit was filed last Monday.  In a conference with lawyers on Thursday, Quraishi ordered briefs opposing Kim’s motion for a preliminary injunction and motions to intervene on March 6, with responses due on March 12 and a March 15 deadline for parties to jointly propose an agenda for a court hearing on March 18.

“That’s the schedule so that I can get what I need before this court, and I can make a decision that will be timely,” Quraishi told the lawyers.  “We need to move quickly, and I need to get this information before me so I can make a decision.”

Quraishi asked the lawyers if they had any objections to his plan.  “By the way, if there is, I’m not so sure that I’m going to change my mind about it,” he said.    There were no objections.

When will Quraishi issue his ruling?

When he wants to, he’s a federal judge.  In Thursday’s conference, he said he needs to decide by April 5 or 6.  Kim’s lawyer, Brett Pugach, had told Quraishi that the decision must come before the ballot draw and the preparation of ballots.

“Part of this is in line with me attempting to get what I need before me and sufficient time to review the evidence and the facts and the briefs and whatever is done during the preliminary injunction hearing so that I can issue a decision by April 5th or April 6th, which is not very far off,” the judge stated.

Jack Carbone, the lawyer for several county clerks, told the judge that if he can decide earlier, that would be better.  “I understand your honor needs time, but April 5th or 6th is,  to me, concerning.”

Is the judge’s timeline right?

No.  He’s not taking into consideration that the filing deadline is March 25.  Presumably, Quraishi won’t issue a ruling that helps only Kim and two congressional candidates; the lawsuit is supposed to be about fairness, not helping one campaign over another.   A ruling after the filing deadline potentially disenfranchises any other candidate, including those running for county committee and municipal, county, and federal office, from deciding to run if lines were to disappear.  It’s unlikely that Quraishi will want to be seen as selectively changing the rules at the last minute without giving others a chance to run for office under the new guidelines.

The judge sort of said as much: “I’m giving you guys a general sense of where I think this decision is going to come out … I will say this: If you present evidence on March 18th that makes me reconsider that, that I need to get a decision out sooner than that date, I will absolutely take that under advisement.  But I’m going to have to hear some folks and see what that evidence is, and I don’t know what the plaintiff may have.”

Can the filing deadline be extended?

Probably, but not by much.  Election officials must commence mailing vote-by-mail ballots by April 20, 45 days before Election Day.  A judge could shorten that window, but it becomes more complicated in a federal election year.  Quraishi, a former JAG officer and combat veteran, must decide if he wants to do battle with a federal law dictating how overseas military vote.

Why can’t he just postpone the primary?

A federal judge can do that if he wants, but that comes with some realities.  The Democratic National Committee rules require all delegates to the national convention to be elected by June 11; Republicans have already lost their delegates because of the late primary unless Donald Trump, as the presumptive nominee, pushes for a waiver to return New Jersey’s GOP delegates.

Quraishi could bifurcate the primary with the presidential contest in June and push off everything else until late July to give the process more time, but that’s expensive.   August is less workable since ballots go out on September 21.

Superior Court Judges don’t always react as quickly as Quraishi.  The chances of the results of a July primary being challenged in court and having a state judge set the hearing from October are greater than zero.

Will there be witnesses on March 18?

It looks like there will be.  Quraishi wants a witness list three days in advance and an outline and advance notice of exhibits.

But when Paul Kaufman, the attorney for Bergen County, asked if there would be an opportunity for pretrial depositions on fact witnesses, the judge quickly shot him down.

“Absolutely not.  This is an expedited schedule because they’re requesting a preliminary injunction,” Quraishi stated.  “So, no, we’re not going to be able to pause this to take depositions.  I’m not going to resolve this issue three months from now.”

How long will the hearing last?

“I’ve carved out the entire day,” Quraishi told the lawyers.  “I’m not so sure you’re going to need it.”

Will the judge simply accept the representations of election officials?

Quraishi demands proof from election officials that they can’t change how they run the primary in time for this year.

“I can tell you that saying it doesn’t make it so.  If that’s your position, you better put somebody in the witness stand at the PI hearing to at least testify to that,” Quraishi said.  “If you try to write the court today and say,  ‘Hey, Judge, even if you grant the relief the plaintiffs are requesting, we can’t comply,’ I think it’s a very dangerous argument to make, and it’s a bit premature.  But if you want to make that argument, you’re going to present testimony on that.”

That represents a significant difference from election matters in state court, where many (but not all) Superior Court Judges frequently rely on the deputy attorney general or a county election official to tell them what they can and can’t do.

Who has to prove the case?

The best answer is in the judge’s own words:  “Look, the plaintiffs have the burden. They’re the ones requesting this relief from the Court.  But to the extent the defense wants to present anything in rebuttal or simply cross-examine the proofs that are provided by the plaintiffs, I defer to you.  I mean, you guys handle your case the way you deem appropriate.  But what I’m telling you all is, putting in a piece of paper that tells me ‘we can’t do this’ or ‘here’s an expert that says this,’ they’re going to have to testify.  I may have to make credibility determinations on some of these witnesses before I can assess how to move forward on the case and whether to grant or deny the plaintiffs’ request.  So I just want to make sure you’re all tracking that it’s a hearing, not an oral argument.”

What’s your guess on how the judge will rule?

People make guesses on judicial rulings to their detriment.  Judge Quraishi doesn’t come out of the political arena, so it’s hard to anticipate his decision.

Still, Quraishi offered some hints, but again, the challenge is in the interpretation.   What he said to Jack Carbone, the attorney for several county clerks, might be most important:  “You guys are going to have to present something at least at the hearing.  I mean, the hearing is on March 18th, and if you present evidence that I find to be credible that says a decision has to be made prior to that April 5th or 6th time frame, I will absolutely take it under consideration.  And I don’t have any of that evidence presented to me yet.  I just have an argument without evidence.  So I presume that you’re going to present something on March 18th … that is going to support that contention.”

The judge added, “But I’ve got to tell you, you know, some of the cases even cited in your letter, I mean, you’re talking about voter ID laws and things of that nature.  We’re talking about moving names on a piece of paper or a computer screen.  So I don’t really analogize those.  So you’re going to have to have folks that are willing to testify that this can’t be done.  Because that is a strange argument to make to a court prior to the Court making any kind of ruling that is basically trying to hint to me that if I were to grant the plaintiffs’ relief, you cannot comply with it.”

Is Quraishi correct in saying this is all about “moving names on a piece of paper or a computer screen?”

Not really, but he’s a respected jurist, and he’ll likely figure out the complexities of elections on his own.

Could one of the lawyers get this case dismissed before the hearing?

Quraishi said he “wouldn’t entertain a dispositive motion in advance of March 18.”

Will there be amicus briefs?

Maybe.  One of Kim’s lawyers,  Yael Bromberg, requested a March 12 deadline for amicus briefs.  Quraishi said he had no objection to the deadline, but stressed that “if I set a deadline, don’t read the tea leaves that that means I’m going to be accepting a hundred amicus briefs.”

Where does the attorney general fit in?

Deputy Solicitor General Angela Cai reminded Quraishi that while Kim’s complaint lists Secretary of State Tahesha Way as an interested party, federal rules make Attorney General Matt Platkin the actual interested party in state government.

“Our office received the filings this week.  We’re still evaluating them, Cai said.  “We have not made a decision as to whether the attorney general will intervene or participate in this matter, including at the PI stage.”

But Cai also reminded the judge that “the attorney general has 60 days to make a decision on intervention.”

“So while we will make a decision as expeditiously as possible, possibly before March 6th, I just wanted to clarify if the date that the Court set for other intervenors applies in light of our Rule 5.1 which gives the attorney general 60 days to intervene,” she stated.

Quraishi appeared to push back on that: “I’m not going to resolve that at all. I’m not going to decide that on the phone.  If you’re telling me that somehow you can go past March 6th to intervene, I’ll address that if you submit something to the Court.”

The judge added, “The deadline for motions to intervene is March 6th. If you’re saying that there’s an exception with respect to the attorney general, then you submit something after March 6th. I presume you’ll brief that, and I’ll review it at that time, but I’m not making any decision or concession today on that issue.”

What’s the best way to watch the hearing?

You have to go to Trenton; there is no other way.   Federal court does not permit livestreams or even recording devices in the courtroom.