PROCEDURAL HISTORY

Complaint filed.  On January 24, 2019, via FedEx, a Complaint was filed by John G. Donnadio, Esq., on behalf of the New Jersey Association of Counties, in which it submits that P.L. 2018, Chapter 72 constitutes an unfunded mandate in violation of Article VIII, Section II, Paragraph 5 of the New Jersey Constitution.  Specifically, N.J.S.A. 19:63-3.a.(1) and N.J.S.A. 19:63-3.A.(2), which requires county clerks to furnish mail-in ballots to all qualified voters in future elections without further request; N.J.S.A. 19:63-3.1.a., which requires county clerks to add to the list of registered voters recieving mail-in ballots in all future elections: all voters who requested and recieved mail-in ballots for the 2016 general election; and, N.J.S.A. 19:63-3.1.b., which requires county clerks to provide written notice to voters who vote-by-mail that they will automatically recieve mail-in ballots for all future elections and until a voter informs a clerk that the voter no longer chooses to vote-by-mail, have forced county governments to expend monies in which a reciprocal source of funding is not provided under the new law.  Moreover, P.L. 2018, Chapter 72 does not authorize resources, other than the use of property taxpayer dollars, to offset the additional direct expenditures required for implementation of the new law.  A summary of the New Jersey Association of Counties Complaint may be viewed under Pleading Summaries.

To view the full version of the New Jersey Association of Counties Complaint, please click here.

Council Publication.  Because of the identity of the issue raised, on January 29, 2019 via hand delivered letter, the Council ordered that the complaint should be served on the Attorney General, the Department of Law & Public Safety, the Secretary of State, and the officials listed in Council Rule 9a.  The Council also determined that the Attorney General would be directed to file an Answer to the Complaint, and that any other official served with the Complaint that chose to do so might file an Answer, as Respondent.

Respondent, State of New Jersey, Department of Law & Public Safety submits Answer and Motion to Dismiss. On March 22, 2019, an Answer and Motion to Dismiss the Complaint was filed on behalf of Respondent, State of New Jersey, Department of Law and Public Safety, via email.  A summary of that pleading may be viewed under Pleading Summaries.

To view the full version of the Respondent's Answer and Motion to Dismiss, please click here.

Claimant, New Jersey Association of Counties (NJAC), submits Letter Brief in Opposition to the State of New Jersey, Department of Law & Public Safety Motion to Dismiss. On April 18, 2019, a Letter Brief in Opposition to Motion to Dismiss the Complaint was filed on behalf of Claimant, New Jersey Association of Counties (NJAC), via email.  A summary of that pleading may be viewed under Pleading Summaries.

To view the full version of the Claimant's Letter Brief in Opposition to the Motion to Dismiss, please click here.

Respondent, State of New Jersey, Department of Law & Public Safety submits Letter Brief in Response to NJAC's Opposition of Respondent's Motion to Dismiss.  On May 3, 2019, a Letter Brief in Response to the Claimant's Brief in Opposition to Motion to Dismiss was filed on behalf of Respondent, State of New Jersey Department of Law & Public Safety, via email and hand delivery.  A summary of that pleading may be viewed under Pleading Summaries.

To view the full version of the Respondent's Letter Brief in Response to NJAC's Opposition of Respondent's Motion to Dismiss, please click here.

Council issues Notice of Hearing.  On June 17, 2019, via email and hand-delivery, the Council informed all interested parties in their Notice of Hearing in the New Jersey Association of Counties Matter, of the date, time and location of the scheduled hearing (see below).

Date/Time of Hearing:  July 24, 2019, at 10:00 a.m.

Place of Hearing:  Committee Room 10, 3rd floor, State House Annex, 125 West State Street #2, Trenton, NJ 08608.

Purpose of Hearing:  To hear oral argument of Claimant New Jersey Association of Counties, and Respondent State of New Jersey Department of Law & Public Safety, regarding both parties request for Summary Judgment.

Council issues Notice of Trial.  On August 28, 2019, via email and hand-delivery, the Council informed all interested parties in their Notice of Trial in the New Jersey Association of Counties Matter, of the date, time, and location of the scheduled trial (see below).

Date/Time of Trial:  September 23, 2019, at 9:30 a.m.

Place of Trial:  Committee Room 16, 4th floor, State House Annex, 125 West State Street #2, Trenton, NJ 08608.

Purpose of Trial:  Trial on complaint filed by the New Jersey Association of Counties (law requiring county clerks to furnish mail-in ballots to all qualified voters in future elections).

Council issues Memorandum Decision and Order.  On November 15, 2019, via email and hand-delivery, the Council informed all interested parties in their Memorandum Decision and Order in the New Jersey Association of Counties Matter, that the challenged laws constitute unfunded mandates.

To view the full version of the Council's Memorandum Decision and Order, please click here.

Claimant, New Jersey Association of Counties (NJAC), submits Final Summation. On October 23, 2019, the Final Summation was filed on behalf of Claimant, the New Jersey Association of Counties via email and hand-delivery.

To view the Claimant, New Jersey Association of Counties final summation, please click here.

Respondent, State of New Jersey, submits Final Summation.  On October 23, 2019, the Final Summation was filed on behalf of Respondent, State of New Jersey via email and hand-delivery.

To view the Respondent, State of New Jersey final summation, please click here.

Respondent, State of New Jersey, submits Objection to Claimant's Final Summation.  On October 25, 2019, an objection to the claimant's final summation was filed on behalf of Respondent, State of New Jersey via email and hand-delivery.

To view the Respondent, State of New Jersey's, objection to the claimant's final summation, please click here.

PLEADING SUMMARIES.

This portion of the site reproduces summaries, written by parties and amici, of their pleadings, as they are filed with the Council, beginning with the filed Complaints.  The summaries do not represent the views of the Council; they are provided to facilitate understanding of the positions reflected in the pleadings.

Complete copies of all filed pleadings may be obtained by contacting the Council office as described under Address & Telephone.

Claimant New Jersey Association of Counties Summary of Complaint:

  The New Jersey Association of Counties ("NJAC") submits that P.L. 2018, Chapter 72 constitutes an unfunded mandate in violation of Article VIII, Section II, Paragraph 5 of the New Jersey Constitution.  Specifically, N.J.S.A. 19:63-3.a.(1) and N.J.S.A. 19:63-3.A.(2), which requires county clerks to furnish mail-in ballots to all qualified voters in future elections without further request; N.J.S.A. 19:63-3.1.a., which requires county clerks to add to the list of registered voters recieving mail-in ballots in all future elections: all voters who requested and recieved mail-in ballots for the 2016 general election; and, N.J.S.A. 19:63-3.1.b., which requires county clerks to provide written notice to voters who vote-by-mail that they will automatically recieve mail-in ballots for all future elections and until a voter informs a clerk that the voter no longer chooses to vote-by-mail, have forced county governments to expend monies in which a reciprocal source of funding is not provided under the new law.  Moreover, P.L. 2018, Chapter 72 does not authorize resources, other than the use of property taxpayer dollars, to offset the additional direct expenditures required for implementation of the new law.

The above summary is a quotation from the Complaint filed by John G. Donnadio, Esq., on behalf of the New Jersey Association of Counties, on January 24, 2019.

Respondent, State of New Jersey, Department of Law and Public Safety Summary of Answer and Motion to Dismiss the Complaint:

 "Claimant, the New Jersey Association of Counties ("NJAC") challenges the 2018 Amendment to the Vote By Mail Law, N.J.S.A. 19:63-1 to -28 (the "2018 Amendment") as imposing an unfunded mandate upon the counties and county clerks of New Jersey.  The Complaint should be dismissed because it fails to set forth a viable claim that the 2018 Amendment imposes any additional costs when balanced against the cost savings to the counties.  Under the provisions of the 2018 Amendment, registered voters who recieved a vote by mail ballot ("mail-in ballot") for the November 2016 General Election are no longer required to submit new mail-in ballot applications for processing each year.  Rather, those individuals automatically recieve a mail-in ballot for all future elections, unless they opt out from automatic mail-in ballots.

  The costs alleged by Claimant in the Complaint do not demonstrate any net increase in costs related to the 2018 Amendment.  The Complaint fails to distinguish costs related to the 2018 Amendment and previously existing costs for mail-in ballots.  In fact, the 2018 Amendment saves the county clerks significant time and costs by eliminating the need to process tens of thousands of mail-in ballot applications that no longer are required to be filed by voters due to the "all future elections" provision of the 2018 Amendment.  The counties also achieve savings from the elimination of the expense of sending mail-in ballot applications to these voters.  The Complaint fails to recognize the cost savings from the 2018 Amendment and the offset of such savings against any alleged increased costs.  Because the Complaint fails to provide a basis for asserting increased costs to county clerks associated with the 2018 Amendment, the Complaint fails to state a viable claim that there is any unfunded mandate.

  Beyond that, both the Vote By Mail Law and the 2018 Amendment fall within multiple exemptions from the constitutional definition of an unfunded mandate.  The 2018 Amendment is not an unfunded mandate because it implements a provision of the New Jersey Constitution by enforcing and promoting the right to vote set forth in Art. II, §1, ¶3 of the New Jersey Constitution.  In addition, the 2018 Amendment cannot be considered an unfunded mandate because pursuant to N.J.S.A. 52:13H-3c, itrevises and eases an existing requirement or mandate in providing voters with mail-in ballots.  Accordingly, the Council should grant the State's motion to dismiss."

The above summary is a quotation from the Answer and Motion to Dismiss the Complaint filed by George N. Cohen, Deputy Attorney General, on behalf of the State of New Jersey, Department of Law and Public Safety, on March 22, 2019.

Claimant, New Jersey Association of Counties Summary of Letter Brief in Opposition to the State of New Jersey's Motion to Dismiss:

  “NJAC's primary purpose is to advocate for the best interests of New Jersey's twenty-one (21) counties, and by extension, for the well-being of the county taxpayers. The biggest challenges currently facing NJAC's membership stem from the counties' ongoing struggle to reduce and streamline costs so that they can effectively fulfill their duties and obligations while maintaining compliance with various spending caps imposed by the New Jersey Legislature.

  In accordance with the standard to be applied on a motion to dismiss, such as that which has been filed by the State of New Jersey in this matter, NJAC is not required to prove the content of its Complaint at this time, and it is respectfully submitted that the Council must view all evidence in the record in a light most favorable to NJAC. In NJAC's Complaint, and the proofs submitted in support of its application for relief, NJAC set forth a valid cause of action and presented facts establishing the cost associated with implementing' of the 2018 Amendment and the unfunded financial hardship that it has imposed on counties. The facts, as presented, support a denial of the motion for summary disposition at the initial pleading stage and require a plenary hearing. Moreover, the State has offered only conjecture and unsubstantiated arguments regarding the purported positive fiscal outcome of the 2018 Amendment. The Counties have been experiencing actual increased costs while implementing of the 2018 Amendment and anticipate that these costs will carry into the future.

  Due to the magnitude of the actual and potential costs imposed on county taxpayers by the 2018 Amendment, and the rules of constitutional and statutory construction, the Act cannot be deemed to implement the New Jersey Constitution within the meaning of the exemption set forth in N.J. Const., Art. VIII, § 2, 'I] 5(c)(5) and N.J.S.A. 52:13H-3(e). The broad application of the exemption to the legal definition of an "unfunded mandate" being urged by the State would undermine the general constitutional prohibition and public policy against unfunded State mandates.

  For these reasons, and given the significant factual allegations contained in the record, it is respectfully submitted that the Council should deny the State's Motion to Dismiss NJAC's Complaint; and, permit the matter to proceed to a plenary hearing to afford NJAC the right to prove that the 2018 Amendment constitutes an unfunded mandate.”

The above summary is a quotation from the Letter Brief filed by John G. Donnadio, Esq., on behalf of the New Jersey Association of Counties, on April 18, 2019.

Respondent, State of New Jersey Department of Law & Public Safety Letter Brief in Response to NJAC's Opposition of Motion to Dismiss.

  "On behalf of Respondent, State of New Jersey ("State"), in response to the New Jersey Association of Counties' ("NJAC") opposition to the State's motion to dismiss the complaint in the above-captioned matter. In its opposition to the State's. motion to dismiss, NJAC continues to fall short of its requirement to state a claim that the 2018 Amendment to the Vote By Mail Law, N.J.S.A. 19:63-1 to -28 (the "2018 Amendment") has created an unfunded mandate. NJAC' s claim of increased costs associated with the 2018 Amendment is undermined by NJAC's failure to offset such alleged costs with the cost savings the 2018 Amendment provides to each county. In addition, pursuant to the Local Mandates Act ("LMA"), N.J.S.A. 52:13H-1 to -22, NJAC does not provide a credible argument in opposition to the fact that the 2018 Amendment is exempt from being found to be an unfunded mandate based upon its implementation of a State constitutional provision. 

  NJAC admits in its filing with the Council that the Office of Legislative Services ( "OLS"), in reviewing the 2018 Amendment, stated that "increase in costs was not able to be determined at the time of its [OLS] Fiscal Estimate report. (NJAC Opposition at 3). OLS also "predicted" that while there would be an increase in the number of mail-in ballots sent to voters, "there would also be a reduction in the number of sample ballots produced, mailed and returned as undeliverable." Id. at 3-4. Thus, NJAC's claim that the 2018 Amendment imposes additional costs on counties is not viable when balanced against the cost savings achieved under the statute. In its motion to dismiss, the State notes that counties also achieve savings from the elimination of the expense of sending mail-in ballot applications to voters who automatically receive mail-in ballots under the provisions of the 2018 Amendment, as well as the associated cost savings in staff time. Because the Complaint does not provide a basis for asserting actual increased associated with the 2018 Amendment, the Complaint fails to state a claim of an unfunded mandate. 

  NJAC also fails to present a meritorious argument disputing that the 2018 Amendment falls within the constitutional exemption applied to a claim of an unfunded mandate. The 2018 Amendment implements the right to vote granted by the New Jersey Constitution. N.J. Const., art. II, §1, 13. As noted in the Council's decision IMO of Mayors of Shiloh Borough and Borough of Rocky Hill, et al. (December 12, 2008), when reviewing legislative action and its application to a State constitutional provision, the issue is "whether the Act's provisions. . implement the provisions of the New Jersey Constitution." Id. at 9; N.J. Const. art. VIII, § 2, 1 5(c) (5); N.J.S.A. 52:13H-3(e). Here, the 2018 Amendment implements the fundamental State constitutional right to vote.

  As cited in the State's previously filed motion to dismiss, the New Jersey Supreme Court upheld the Legislature's 1953 adoption of the civilian absentee ballot law. In so doing, the Court held the 1947 Constitution's limitation of absentee voting to military personnel "is not in itself a bar to civilian absentee voting by legislative allowance in furtherance of the exercise of the basic right of suffrage, a civil and political franchise--of the very essence of our democratic process--that is to be liberally and not strictly construed to promote and not to defeat or impede the essential design of the organic law." Gangemi v. Berry, 25 N.J. 1, 12 (1957) (emphasis added). The 2018 Amendment continues to carry forth the legislative goal of implementing New Jersey citizens' right to vote by assisting in and easing the ability of voters to exercise this constitutional right.

  In addition to implementing the constitutional provision insuring the right to vote, the 2018 Amendment also acts to revise and ease an existing requirement or mandate by providing voters with a greater ability to vote by mail-in ballot. Pursuant to N.J.S.A. 52:13H-3c, such a result of legislative action cannot be found to create an unfunded mandate. The 2018 Amendment eases the previous statutory requirements for obtaining a mail-in ballot. Under the 2018 Amendment, county clerks now automatically provide mail-in ballots to all voters who voted by mail-in ballot in the 2016 General Election, removing both the requirement for such voters to apply for mail-in ballots and the need for county clerks to process those applications. Instead, the 2018 Amendment revises and eases those requirements, resulting in less administrative steps in obtaining mail-in ballots. Further, the 2018 Amendment streamlines and lessens the procedures that county clerks were already performing. In this way, the 2 018 Amendment revises an existing statutory requirement and therefore, does not result in an unfunded mandate. 

  Again, NJAC fails to present a viable argument in opposition to State's assertion that the 2018 Amendment, pursuant to N.J. Const. art. VIII, § 2, 􀀆 5(c) (3) and the LMA, is specifically exempt from a finding of an unfunded mandate where the legislative action repeals, revises, or eases an existing requirement. Because the 2018 Amendment revises existing statutory requirements, it is not an unfunded mandate.

CONCLUSION

  For the foregoing reasons, and those set forth in the State's previously filed Motion to Dismiss, the Council should grant the State's motion and dismiss NJAC's Complaint with prejudice."

The above summary is a quotation from the Answer and Motion to Dismiss the Complaint filed by George N. Cohen, Deputy Attorney General, on behalf of the State of New Jersey, Department of Law and Public Safety, on May 3, 2019.