Judge: Election goes ‘forward’ after complaints
TRENTON » Disturbed by a sample ballot snafu that caused massive headaches for county election officials and led some candidates to scream voter suppression, a Mercer County judge sounded like she was about to do the unthinkable and side with North Ward candidate Algernon Ward Jr. in pushing back Tuesday’s election.
Crediting the community activist for bringing an issue to her attention, Assignment Judge Mary Jacobson said she was disturbed by a “pretty significant” mistake that led to at least three dozen households of South Ward voters receiving North Ward sample ballots, but she didn’t have enough evidence to warrant taking the unprecedented step of putting the North and South ward races on hold as Ward had hoped.
“I’m not stopping the election. The election will go forward,” said Jacobson, who has made other highprofile decisions in her time on the bench, including one in 2013 that allowed samesex New Jersey couples to get married.
In her ruling, Jacobson threw Ward a bone for bringing the issue of potential voter disenfranchisement to her attention by not completely dismissing the case. She said the county Board of Elections must take steps to figure out what caused the mailing of incorrect sample ballots to South Ward residents.
Ward was just one of the candidates who went before Jacobson on the eve of Trenton’s municipal election to try to convince the judge to issue an injunction. Mayoral candidate Paul Perez also wanted Jacobson to sideline Board of Elections chairwoman Joanne Palmucci from her role administering the election because of her unabashed support of Walker Worthy Jr., the 2014 third-place finisher who works as deputy clerk to Mercer County clerk Paula Sollami-Covello.
Perez’s attorney tried convincing Jacobson that Palmucci’s ability to impartially handle any issues with provisional or voteby-mail ballots on Election Day was in doubt after she threw Worthy a joint fundraiser in March and openly endorsed him.
Perez’s camp didn’t gain as much traction with the judge as Ward with Jacobson deciding against benching Palmucci.
Jacobson was more convinced of Ward’s arguments that the integrity of the election was in doubt following a sobering admission from county election officials at Monday’s hearing that they were unsure of the scope of a sample ballot problem, which worsened since first coming to officials’ attention Thursday afternoon.
Initial figures put the affected households in the South Ward who received North Ward sample ballots at 21, but that number rose to 36 spread across Federal, Furman, Lamberton and South Broad streets, Cathy DiCostanzo, the county superintendent of elections, testified at the hearing.
DiCostanzo also provided varying figures to The Trentonian last week as she beat back suggestions her office was somehow at fault for the gaffe amid escalating pressure from candidates like Assemblyman Reed Gusciora who questioned the integrity and impartiality of county officials who have openly supported Worthy.
The county clerk’s office was forced to own a mistake earlier this year when a seasonal worker unwittingly opened three provisional ballots. Gusciora charged the county clerk was “too busy campaigning” for workmate Worthy to ensure an accurate and fair election.
Seizing on those sentiments in his aggressive questioning, Ward got the superintendent and her confidential aide Joe Truch to admit they were primarily concerned about fixing the sample ballot error days out from the election and weren’t as concerned with determining how it happened which falls to the county Board of Elections.
“I wouldn’t put my life on it,” DiCostanzo said when Ward asked her whether she was certain the sample ballot error was relegated to the North and South wards.
DiCostanzo had attributed the error to a glitch in the state system following the redistricting of Trenton’s wards in 2012. Vague mention was made of an engineering firm responsible for making sure the system was programmed to reflect changes in the wards.
Officials couldn’t assuage Jacobson’s fears the problem was more widespread and may have even impacted the 2014 election. But the judge went out of her way to credit the herculean effort made by DiCostanzo and her workers going door to door ensuring affected voters received letters detailing the sample ballot error and they knew where to vote.
Luckily, DiCostanzo noted the impacted areas of the North and South wards have the same polling location at the McDade building on South Broad Street, easing some concerns raised by Ward about potential voter suppression.
George Cohen, the DAG who argued both matters for the state Attorney General’s office, successfully pitched to the judge that putting the North and South ward races on ice until a runoff may be more harmful for voter turnout since residents know about Tuesday’s election. Pushing it back may create more confusion.
But even the DAG was forced to admit “there’s no way to know if this is the end of it.”
Jacobson was partially swayed by testimony from confidential aide Truch who detailed steps the superintendent and investigators took to rectify the issue. They fanned out on the North-South ward border Friday and late into Saturday combing neighborhoods for other affected voters, some of whom lived on border streets while others didn’t.
Feeling she didn’t have enough hard evidence to rule in Ward’s favor, Jacobson said officials put in a tight spot with a looming deadline did the best they could.
Splitting the baby in weighing the competing interests, she made Cohen swear to keep on top of Board of Elections officials about an audit to uncover the true extent of the problem and assured Ward she would get answers ahead of any potential runoff for City Council seats.
It was something Ward, who represented himself despite no formal education or training as a lawyer, could live with.
“Half a loaf is better than none,” he said outside the fourth-floor courtroom. “It was always going to be an uphill fight to get an injunction. I nearly won. I thought she was gonna go with it.”
If Ward’s case was decided by inches, Perez’s camp was miles away from convincing Jacobson.
The judge was unmoved by the 2014 runner-up camp’s arguments for a lastminute injunction temporarily removing Palmucci, a Democrat, as chairwoman of the Board of Elections.
Perez attorney Rudy Palombi pointed out that Palmucci’s decisions to support Worthy appeared to violate the state’s conflict of interest law. More than that, he said it deprived the public of confidence that the Board of Elections – which is responsible for administering elections by creating and maintaining voting districts and receiving, counting and certifying voter-bymail and provisional ballots – had a horse in the race.
Palombi also represented Perez in an unsuccessful quest in 2014 to have the election pushed back after the city clerk mistakenly allowed candidates on the ballot without them securing the amount of signatures required by law.
Perez was irked this time around by Palmucci’s decision to throw a joint March 12 fundraiser with Mercer County sheriff Jack Kemler for Worthy, a Democrat.
Perez’s camp sent a letter to the AG’s Office, which oversees election issues, raising concerns about Palmucci’s involvement with Worthy. They filed court papers when they felt the issue went beyond “party politics” and amounted to a “proverbial fox in the hen house,” Palombi said.
“It’s difficult to separate her private interests from her public duty,” he said.
Cohen, who represented the board at Palmucci in her official capacity, suggested at the hearing that sidelining her would create an imbalance since another Democrat on the board, Peter Nichols, reportedly resigned for reasons not shared at the hearing.
Both sides cited another case involving Newark Mayor Ras Baraka who sued in 2014 to try to get two Essex County election commissioners to step down after they supported his challenger, Shavar Jeffries.
Jacobson said the cases were similar except for the fundraising issue raised by Perez, also a Democrat, and she likened the controversy to national delegates supporting certain candidates in the presidential race in distinguishing between an election superintendent and a board member showing support.
The judge said if the former did that it might raise legitimate concerns but she felt it wasn’t as big of a deal for the chairwoman because her job entails and encourages politicking.
“The Legislature created this position for better or worse,” Jacobson said, pointing to Cohen’s argument in court papers that the “Legislature and our courts have recognized that county board of elections members are entitled to hold political positions and engage in political activity while Board members.”
In a sworn certification, Palmucci, who didn’t testify at the hearing, promised to do her job without bias.
“I have never permitted my political activities or political position as a county committeeperson to conflict with my duties as a Board member,” she said.
Perez respected the judge’s ruling but felt it was an important issue purely pursued without hopes it may boost him over on Election Day.
“We are just here to look out for the best interest of the community,” he said, seizing on Jacobson’s comment that Baraka still won the election after losing his court bid. “I feel strong. I feel like we’re going to have a great day. Trenton Is ready for a change.”