Recently the South Hunterdon BOE filed a Motion to Dismiss the elections contest. A redacted version of that motion and supporting documents can be found here:
Motion to Dismiss Elections Contest
A response to that motion was filed very quickly by the plaintiffs, that is found here:
The Superior Court will rule on this in the next few weeks. We expect them to deny the motion to dismiss.
The Motion to Dismiss
So let’s look at the Motion to Dismiss first. FYI, in the linked file the actual Motion starts on page 7. The Motion to Dismiss tries to assert a few legal grounds to dismiss the elections contest:
- First, it claims that improper conduct by a BOE can’t overturn an elections’ result. In other words, a BOE can do whatever it wants to promote a referendum and not have a result over turned.
- Similarly, they claim that under specific elections law, improper conduct on a question can’t be grounds to over turn it. Critically, they claim that one clause in elections law (section i) is not applicable “as the contest in this matter is over a public proposition rather than a candidate for election“. This is important.
- They claim that because a West Amwell resident filed an ethics complaint with the School Ethics Commission against all 9 BOE members, that amazingly no other lawsuits can be filed against the district in other courts or venues.
- In the same section they allege that the ethics complaint has “the same accusations” as the elections contest.
- That Citizens vs. Parsippany-Troy Hills Bd. of Ed doesn’t indicate that improper advocacy for an election or referendum can’t be used to overturn an election result.
- That the Civil Rights portion of the petition should be thrown out for unspecified reasons.
It all looks very impressive for those not familiar with legal briefs. There are a number of problems those with those assertions that the Response to the Motion point out.
Plaintiff Response to the Motion to Dismiss
Here are the counter arguments put forth in the Response:
- That the Motion to Dismiss left out significant parts of case law in their arguments, and that accusations of “malconduct, fraud or corruption” are indeed in-bounds for contesting an election.
- That specific sections of NJ elections law support the contest going forward. Specifically, “N.J.S.A. 19:29-1(h) states that an election may be vacated based upon “The paying, promise to pay or expenditure of any money or other thing of value or incurring of any liability in excess of the amount permitted by this title for any purpose or in any manner not authorized by this title.””
- That another section of elections law may also apply here as a “catch all” for circumstances not envisioned by law makers yet nonetheless represent a valid concern about election outcomes.
- That section i) is applicable and the Board can’t escape it due to a technicality.
- That the ethics complaint has nothing to do with the elections contest. The point of the ethics complaint is to hold individual BOE members accountable under NJ State ethics laws. The elections contest is a wholly different matter attempting to overturn the referendum outcome under an entirely different set of laws. Further, the SEC routinely is involved in matters that involve multiple lawsuits with various agencies and courts, and in those instances the SEC puts any ethics charges in abeyance until all other matters are concluded.
- It re-iterates that plainly the district violated Citizens vs. Parsippany-Troy Hills Bd. of Ed by engaging in a massive public relations campaign in favor of the referendum. And that Citizens does in fact indicate that improper conduct by a board could vacate an election or referendum result.
- That the civil rights violations must stand because the petitioners right to due process was violated by the district, and the district makes no specific argument in favor of striking it.
Analysis
In understanding the Board’s Motion to Dismiss, remember that their lawyer is trying to convince the judge that there is no case to contest the election based on the Board’s conduct. Obviously we disagree, but there is no specific case law that is 100% on-point here. So it will be up to the judge (or judges in the case of appeals) to decide who is right.
With that in mind, the Board here is claiming basically that the only thing that can ever be contested in an election is individual votes and nothing else. We don’t think this is correct. Candidates and referendums can and have been challenged based on elections fraud in the past. We believe that the district illegally influenced voters, and it should not be allowed to get away with that. Put another way, without the BOE’s vast illegal PR machine, the referendum would never have passed.
The argument the BOE makes about the ethics complaint somehow interfering with the elections contest also doesn’t make a lot of sense. Multiple legal challenges revolving around the same core set of facts happen all the time. There are different legal arguments arguing for very different outcomes happening in these different venues. The ethics challenge seeks to hold the individual BOE members accountable for their actions under their sworn duties under NJ ethics laws. The elections contest may be based partially in the same set of facts, but the contest is seeking a wholly different outcome (overturning the referendum result) based on an entirely different set of laws (NJ elections law). And besides that, the NJ School Ethics Commission routinely puts any ethics complaint on hold if other lawsuits come up involving the same issues.
Either way, the judge will rule on these motions on February 4th, 2022.
