It's hard to tell the 'county line' is gone on these Essex County, NJ ballots

Published May 3, 2024 at 6:01 a.m. ET

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Published May 3, 2024 at 6:01 a.m. ET

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A court ruling has nixed the so-called “county line” from ballots in this year’s New Jersey Democratic primary races — but in much of Essex County this year, candidates endorsed by the party machine are still getting coveted top slots on the ballot. That’s even after a process meant to randomize positions so that officials designing ballots can’t deliberately give any candidate an advantage over another.

This year’s Democratic primary ballots will use the “office block” format typical throughout the rest of the country, though it’s up to clerks in each county to come up with a specific design. Candidates for each race are grouped in a box, or “block” — such as President Joe Biden and primary challenger Terrisa Bukovinac in one box. The ballots being used by Essex County Democrats in the 11th Congressional District put races for five positions side by side.

Because candidates endorsed by the Essex County Democratic Committee appear in the first position of each box, it creates the appearance of a row of party-backed candidates straight across the top — mimicking the “county line” that party officials have long used to influence races, and that’s been barred in this year’s races. There are other candidates also seeking four of those seats, and odds of the endorsed candidate getting the first position for all four of those boxes through a randomized drawing is just 4.2%.

“The odds would suggest that it's not an accident,” said Scott Salmon, an attorney who specializes in New Jersey election law.” However, he was not present for the April 4 ballot draw, and did not allege there was evidence of wrongdoing.

Essex County Clerk Christopher J. Durkin did not return a message seeking comment.

Government reformers say Essex County's ballot illustrates how even without the country line, New Jersey relies on unnecessarily dated ways of randomizing ballot positions that can undermine public confidence. In past lawsuits, Republicans have accused both the current county clerk and a predecessor of taking advantage of weaknesses in the system to manipulate ballots in favor of Democrats.

A sample ballot sent to Democratic residents of Maplewood, New Jersey for the 2023 primary election. The boxes for president, senator, congressperson, sheriff and register are common to all ballots for 11th Congressional District voters in Essex County, but the two for township committee and county committee are specific to Maplewood voters.

In the boxes on the ballots for Essex County voters in the 11th Congressional District, the top positions went to Biden, Rep. Andy Kim for Senate, Rep. Mikie Sherrill for the House, and Amir Jones — the son of state Democratic Party and Essex County Democratic Party Chair LeRoy Jones — for sheriff. All four candidates have been endorsed by the party machine.

Following a process for randomizing ballot positions dictated by state law, Durkin — the county clerk — places the names of the candidates in small capsules the size of a pill that go into a wooden barrel that looks like it could be used to play bingo. He spins the barrel, then shakes it, and then reaches in to pull out a capsule. Once the name inside is removed, he shows it to observers sitting in the front row at the County Hall of Records. The public is allowed to attend.

Salmon, the elections attorney, said he believes a person running that process could manipulate the capsules.

“From what I've seen, I think there's definitely a lot of room for foul play in the way that Essex [County] does it," he said.

Mara Novak, director of NJ 11th for Change — a nonpartisan group that advocates for election reform in the district — attended this year’s ballot draw and said she didn’t see anything inappropriate.

“It seems like it would be hard to rig, and it's very public. So, it's just, the results seem surprising,” Novak said. “I think there are better, more modern procedures that we could put in place.”

Some government reform advocates want to see computerized random drawings. Salmon said every town and county in the state is required to have the software necessary to create a random drawing because that software is also used for random drug testing for police officers. That software, Salmon said, can be configured for any kind of random drawing of names.

“It has an audit trail. It's highly regulated and all that stuff,” Salmon said. “That's absolutely something that should be done and they already have the capability to do it.”

Salmon recently won a case against the city of Orange, also in Essex County, in which he accused city officials of rigging a municipal election ballot drawing by snipping off a corner of the paper slips, so that they could tell which names they were pulling out. The judge ordered the city to redo its ballot draw.

Julia Sass Rubin, a Rutgers University professor whose research has driven ballot reform in New Jersey, is also calling for computerized drawings.

“First and foremost, candidate order matters,” Sass Rubin wrote in an op-ed published by the Edward J. Bloustein School of Planning and Public Policy. “There is a rich literature around what is known as the primacy effect that indicates being first on the ballot is helpful. To counter this effect, many states randomize the order of candidate names by voting district. This is easily done by computer and the process of ballot creation is quick, inexpensive, and fair. Clerks would not need to draw names from a drum or exercise any discretion in ballot design.”

Sass Rubin also suggests county clerks should be nonpartisan. In New Jersey, the county clerk is an elected position — usually held by a member of the same party that dominates a county.

The Essex County ballot position drawing has been the subject of controversy and legal action for decades. Political observers and critics dubbed County Clerk Nicholas Caputo, who served from 1961 to 1991, “the man with the golden arm” because he picked Democrats out of the barrel to be listed at the top of general election ballots in 40 of 41 elections. In 1985, he was sued by local Republicans who alleged that was statistically impossible in a random draw. A judge’s ruling in the case said there wasn’t conclusive proof of any wrongdoing, but noted that the chances of that happening randomly is 1 in 50 billion.

Last year, Essex County Republican Michael Byrne filed a lawsuit to stop the ballot draw, arguing that Durkin could not have randomly picked Democrats for the top position in 18 consecutive previous drawings for general election positions.

The court rejected an emergency request to stop the drawing and told Byrne to return to court if anything happened that would prove the 2023 ballot draw was rigged. Byrne filed an additional statement with the court that details a conversation Byrne and his attorney say Durkin had with the two men before the ballot drawing later that day.

“I think you’ll be happy with the process,” the affidavit alleges Durkin told Byrne. The Republican was the first name pulled out of the barrel.

“We got line A that one time for the first time in 17 years,” said Giancarlo Ghione, the attorney for Bryne, referencing the top line on the ballot.

Ghione said he believes there is something about the capsules that allows them to be differentiated, either a scratch, or one is not completely closed up.

“But the judge found that we did not prove any evidence of fraud. Despite the fact that the probability was just so astronomical for that to happen that way,” Ghione said.

Byrne and his attorney ultimately stopped pursuing the case in court, and the judge dismissed it because they hadn’t taken further action. Ghione says he plans to challenge the Essex County ballot drawing again in the future.

Not all counties have yet published sample ballots online, but those in Hudson, Burlington, Monmouth and Atlantic counties do not list the party-endorsed candidates across the top row.

A spokesperson for LeRoy Jones, who chairs both the Essex County Democratic Committee and the New Jersey State Democratic Committee, told Gothamist that Jones supports the state moving to a unified ballot rather than separate designs for each county, and didn’t comment on the Essex County ballot draw specifically.

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