Donald J. Trump for President v. Way

On Aug. 18, President Donald Trump’s re-election campaign (along with the Republican National Committee and New Jersey Republicans) filed a lawsuit in federal court in New Jersey against the state’s governor, Democrat Philip Murphy, and its secretary of state, Tahesha Way. The Trump campaign asked the district court to overturn an executive order that would send mail-in ballots to all registered voters in the state, arguing that the order is a “brazen power grab” that violates the Constitution.

Murphy issued the order, known as Executive Order 177, at the center of the dispute on Aug. 14. The order directs the state to send mail-in ballots to all registered voters, and it requires election officials to count all ballots that are either received within 48 hours after the polls close on Nov. 3 (regardless of whether they have a postmark) or are received by Nov. 10 (as long as they are postmarked by Nov. 3). The order, the Trump campaign contended, violates the Constitution by usurping the state legislature’s power to set the time, place and manner for congressional elections, as well as the process by which the state chooses electors for the presidency. Moreover, the campaign continued, the order “has created a recipe for disaster” that violates New Jersey residents’ right to vote, because fraudulent votes dilute honest votes.

The Trump campaign told the court that “COVID-19 does not warrant throwing out longstanding safeguards that protect the integrity of elections.” But here, the campaign stressed, “New Jersey is containing the outbreak much better than other populous states”; indeed, the campaign observed, Dr. Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases, has said that Americans should be able to vote in person as long as social-distancing measures are observed. The executive order, the campaign suggested, is “less about protecting the health of New Jerseyans and more about protecting the electoral prospects of the Governor’s political party.”

The Trump campaign asked the court to rule that the executive order violates the Constitution and to bar the state from sending out mail-in ballots.

In late August, the state’s legislature passed a law that reiterated Murphy’s order to send mail-in ballots to all registered voters and to count all ballots received (regardless of whether they have a postmark) within 48 hours after the polls close on Nov. 3. The law also allows election officials to begin counting mail-in ballots 10 days before the Nov. 3 election. One co-sponsor of the bill indicated that the law was intended to “undermine” the Trump campaign’s lawsuit.

On Sept. 16, lawyers for the Trump campaign asked the district court to block election officials from counting ballots before Election Day and from accepting ballots that aren’t postmarked after the polls close. Calling voter fraud “an unfortunate tradition in New Jersey,” the Trump campaign argued that “COVID-19 is no basis to throw out longstanding safeguards that protect the integrity of elections.” The new law, the campaign contended, conflicts with Congress’ designation of a single day – this year, Nov. 3 — as Election Day, and it creates “conditions likely to incentivize and facilitate the same kind of fraud and confusion that have plagued New Jersey elections for years.”

U.S. District Judge Michael Shipp denied the Trump campaign’s request on Oct. 6. Citing the Supreme Court’s admonition that federal courts should generally defer to a state legislature’s decision to change election rules because of the COVID-19 pandemic, Shipp concluded that although New Jersey cannot count ballots cast after Election Day, it has the discretion to determine when ballots are counted as timely.