Column: Voters Cheated When Court's Too Slow

And so Morris County Republicans are about to have yet another caucus to choose a public (usually elected) official.

They seem to be doing a lot of this lately. This will be the second time in six months that they are meeting on this particular seat: freeholder.

A New Jersey appeals court panel after finding “multiple legal errors” in a decision made last year by Superior Court Assignment Judge Thomas Weisenbeck—who had tossed out the primary win by Nordstrom’s opponent, Hank Lyon.

“We do not lightly determine that the Law Division erred and that Lyon should have been the Republican nominee to run in the November 2011 general election,” states the appellate decision.

That a higher court would rule Weisenbeck overstepped was not surprising to many court observers. The state Election Law Enforcement Commission had argued in a brief that the judge had usurped its authority as part of the justification for tossing out Lyon’s razor-thin David vs. Goliath victory, and the appellate court agreed.

What is surprising is that the court took so long to rule on this appeal.

Yes, the courts are crowded and everyone thinks his case is the most important, but this one, and a similar one in South Jersey, affects the democratic representation of hundreds of thousands of people.

To recap (and pay attention, because this one gets a bit confusing): After a recount, the 23-year-old Towaco political novice, Lyon, had beaten the four-term freeholder, Nordstrom, last June by 6 votes. Nordstrom went to court and Weisenback tossed Lyon’s victory based on  alleged campaign finance violations and supposed voting irregularities. That sent the question of who the GOP nominee should be to a convention and, among a group of 421 party faithful, Nordstrom won by 5 votes. Nordstrom then easily beat the Democrat in November—this is Morris County, after all.

But she shouldn’t have been on the ballot, and wouldn’t have been, had the appeals court acted sooner.

Lyon on Sept. 16 sought an immediate stay of Weisenback’s ruling. That was denied, but the court did agree to hear it on an accelerated basis last October.

Accelerated meant hearings in December, after the general election already had been decided.

In a somewhat similar case, people in South Jersey’s 4th District are short one Assembly member as they await their own court decision.

Briefly, Gabriela Mosquera won handily in the Democrat-dominated district. After the election, opponent Shelley Lovett challenged the result, saying Mosquera had not met the state’s one-year in-district residency requirement for an Assembly seat. Interestingly, that same argument got Olympian Carl Lewis kicked off the ballot in the 8th District, but in that instance, the GOP made it before the election.

The arguments are somewhat convoluted: the Secretary of State had to allow Mosquera on the ballot due to a prior federal court order, but that didn’t stop Lovett from challenging after she won. Mosquera has not been seated and the Supreme Court is still mulling the issue.

In the Nordstrom/Lyon matter, the appeals court ruled last week that NJ ELEC, and not the trial judge, has the authority to determine campaign finance violations. Nordstrom contends Lyon got an illegal $16,000 from his father just prior to the primary and did not file the appropriate report to disclose it, thus putting her at a disadvantage.

The trial judge last year also invalidated the election because of alleged voting irregularities in one Parsippany district. The higher panel disagreed again, saying the questions were not grounds for tossing aside the voters’ decision.

“The Law Division's use of a nuclear option—nullification of Lyon's nomination—was disproportionate,” said the appellate panel in using another nuclear option and unseating Nordstrom. With little other recourse at this late date, the court ordered yet another GOP caucus to temporarily seat a freeholder until the next election in November. Both Nordstrom and Lyon are again seeking the seat.

Interestingly, in deciding this case, the appellate division cited a 2005 decision involving a mayoral election in Parsippany, where some questionable ballots seem to have been cast—though no one knows for whom—in saying that “Free and fair elections are the foundation on which our democracy rests.”

If the courts really feel that way, why do they take so long in hearing election matters?

The appeals panel ruled that Lyon should have been the GOP nominee. But it did so too late and now there’s a freeholder vacancy and the need for year another caucus. The Mosquera case has been moving more quickly, still, it’s a month into the new legislative session and there’s still a vacancy in the 4th District.

To prevent the kind of turmoil that’s occurring in both North and South Jersey, the courts need to further speed the review of election challenges to keep the foundation of democracy sound and ensure voters are not disenfranchised, as tens of thousands were last November.'

Colleen O'Dea is a writer, editor, researcher, data analyst, web page designer and mapper with almost three decades in the news business. Her column appears Mondays.

This column appears on several Patch sites serving communities in Morris County. Comments below may be by readers of any of those sites.