IN THE MATTER OF THE PETITIONS OF HIRSH SINGH FOR…

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0323-20T4

HIRSH SINGH,

          Plaintiff-Appellant,

v.

HONORABLE PHILIP D.
MURPHY, in his official
capacity as Governor of
New Jersey, HONORABLE
TAHESHA WAY, in her
official capacity as New
Jersey Secretary of State,

     Defendant-Respondent.
_________________________

IN THE MATTER OF THE
PETITIONS OF
HIRSH SINGH FOR
RECOUNT AND RECHECK.
_________________________

                   Argued October 15, 2020 – Decided October 21, 2020

                   Before Judges Sabatino, Currier and Gooden Brown.

                   On appeal from Executive Order No. 144 and related
                   Executive Orders, pursuant to a transfer from the
            Superior Court of New Jersey, Law Division, Morris
            County, Docket No. L-1757-20.

            Hirsh Singh, appellant, argued the cause pro se.

            Beau C. Wilson, Deputy Attorney General, argued the
            cause for respondents Philip D. Murphy, Governor and
            Tahesha Way, Secretary of State (Gurbir S. Grewal,
            Attorney General, attorney; Melissa H. Raksa,
            Assistant Attorney General, of counsel; Beau C.
            Wilson, on the brief).

            Joseph J. Bell argued the cause for respondent Holly
            Mackey, County Clerk, County of Warren (Bell &
            Shivas, P.C., attorneys; Joseph J. Bell, on the brief).

PER CURIAM

      Plaintiff Hirsh Singh 1 is a New Jersey resident who was a candidate in the

2020 New Jersey Republican primary election for the United States Senate.

Self-represented, he challenges the validity of the mail-in voting procedures that

were utilized in the July 7, 2020 primary. The modified procedures were

implemented pursuant to Executive Orders of the Governor issued in the wake

of the COVID-19 pandemic. Plaintiff further challenges the validity of the

modified mail-in voting procedures now being used for the 2020 general election

in accordance with an additional Executive Order and a cognate statute enacted


1
  As he pointed out in a motion with the trial court, plaintiff’s first name had
been misspelled in some previous court documents, but it is correctly shown
here.
                                                                          A-0323-20T4
                                        2
by the Legislature this summer. He seeks injunctive and other relief, including

an order nullifying the announced results of the July 2020 primary election for

Senate and the House of Representatives, directing a new primary election to be

conducted, and enjoining the continued use of the modified mail-in system for

the November 2020 General Election.

      Plaintiff brought lawsuits in several counties to obtain relief, contending

that if the modified mail-in voting procedures were nullified, he would have

been declared the winning candidate in the statewide primary election. After

the lawsuits were consolidated, plaintiff abandoned his efforts to seek a recount

of the primary results and narrowed his focus to seek to invalidate the modified

voting procedures under federal law. Insofar as that claim entails a facial

challenge to the validity of the Governor's Executive Orders, it was transferred

to this court procedurally for appellate review under the Court Rules, thereby

leaving to the trial court any lingering as-applied factual disputes or other

claims.

      For the reasons that follow, plaintiff's facial challenges and his associated

requests for injunctive relief are denied. As to his claims that the modified

voting procedures for the primary election prescribed by Executive Order 144

did not comport with the federal constitution, we conclude that exercise of


                                                                           A-0323-20T4
                                        3
authority was permissible under the emergency powers the Legislature delegated

to the Governor under the Emergency Health Powers Act, N.J.S.A. 26:13-1 to -

31, and the Civilian Defense and Disaster Control Act, N.J.S.A. App. A:9-30 to

-63. Given the unassailable severity of the COVID-19 pandemic and the need

to reduce the risk of infection to New Jersey voters and polling workers, the

Governor was authorized to exercise those delegated emergency powers and

revise customary in-person voting processes in order to protect the public health

and safety.

      As to plaintiff's claims that the modified voting procedures now being

implemented for the general election violate the federal constitution and federal

law, similar arguments were very recently rejected by the United States District

Court in a persuasive October 6, 2020 published opinion, and we likewise

decline to declare them invalid.

      Further, plaintiff has not demonstrated a right to the extraordinary and

summary injunctive relief he seeks, applying the well-established criteria of

Crowe v. De Gioia, 

90 N.J. 126

(1982). Among other things, plaintiff has not

established that his claims of invalidity are supported by settled law, that

alteration of the present status quo is equitably warranted, or that the public




                                                                         A-0323-20T4
                                       4
interest favors nullification of the statewide primary results and the immediate

cessation of the ongoing vote-by-mail processes for the general election.

      Lastly, plaintiff's non-facial claims, including his claim of a deprivation

of free speech rights by the Attorney General, are reserved for the trial court for

disposition. The claims he has attempted to assert under the federal Freedom of

Information Act, 5 U.S.C. § 552(a)(4)(B), seeking records and information from

the United States Postal Service are dismissed without prejudice, for lack of

jurisdiction in this state court.

                                        I.

      The Executive Orders at Issue

      On February 3, 2020, three days after the United States Department of

Health and Human Services Secretary declared a public health emergency for

the United States to aid the nation's healthcare community in responding to

COVID-19, Governor Philip D. Murphy issued Executive Order 102. That order

created the state Coronavirus Task Force, to be chaired by the Commissioner of

the New Jersey Department of Health (DOH), and consisting of the heads of the

Department of Human Services, the Department of Law & Public Safety, the

New Jersey State Police, the Department of Education, and the Office of




                                                                           A-0323-20T4
                                        5
Homeland Security and Preparedness. Exec. Order No. 102 (Feb. 3, 2020), 52

N.J.R. 366(b) (Mar. 2, 2020), ¶ 2-3.

      On March 9, when there were more than 500 confirmed cases of COVID-

19 in the United States, and eleven in New Jersey, Governor Murphy issued

Executive Order 103, declaring a public health emergency and directing the

"State Director of Emergency Management, who is the Superintendent of State

Police, in conjunction with the Commissioner of DOH, to take any such

emergency measures as the State Director may determine necessary." Exec.

Order No. 103 (Mar. 9, 2020), 52 N.J.R. 549(a) (Apr. 6, 2020), ¶ 1.

      Thereafter, on April 8, Governor Murphy issued Executive Order 120.

The Executive Order noted in a preamble that public health officials were

predicting that New Jersey's COVID-19 public health emergency was

anticipated to peak in April 2020, and to continue for an indefinite time beyond

the peak.   Given those circumstances, Executive Order 120 postponed the

statewide primary elections for United States Congressional and state local

elections from the first Monday in June, as is normally called for by statute in

N.J.S.A. 19:2-1, and rescheduled that primary election for July 7. Exec. Order

No. 120 (Apr. 8, 2020), 52 N.J.R. 957(a) (May 4, 2020), ¶ 1.




                                                                        A-0323-20T4
                                       6
        According to the DOH, in the three weeks that followed the issuance of

Executive Order 120, there were 6,285 additional confirmed COVID-19 deaths

in New Jersey.2

        More election-related changes designed to deal with the COVID-19 crisis

followed. On May 15, the Governor, through Executive Order 144, instituted a

series of changes to the election infrastructure for the July 7 primary elections.

Exec. Order No. 144 (May 15, 2020), 52 N.J.R. 1238(a) (June 15, 2020). In the

preamble to that order, Governor Murphy referred to data received from the

Center for Disease Control and Prevention (CDC) reporting that, as of that time,

there were more than 4,000,000 COVID-19 cases worldwide, with nearly

300,000 deaths. Of those, more than 1,000,000 cases and 80,000 deaths were in

the United States. As of that point, the Governor continued, there had been more

than 100,000 cases and nearly 10,000 deaths in New Jersey. The severity of the

pandemic had "ma[d]e it difficult for election officials, candidates, and voters

to properly plan and prepare for and fully participate in the July primary

elections if they were to proceed as they would under normal circumstances ."

Ibid. 2

  See N.J. COVID-19 Information Hub, https://covid19.nj.gov/index.html (last
accessed on October 9, 2020).
                                                                          A-0323-20T4
                                        7
      The Governor further stated in Executive Order 144 that social distancing

measures were necessary "for a period of as-yet-undetermined duration," and

that "the COVID-19 outbreak may have significant effects on New Jersey's

voting systems as long as social distancing measures are in place."

Ibid. The order recognized

a danger that, without an alternative way of voting, the

pandemic would "hinder public participation in the democratic process,

particularly among elderly and immune-compromised voters," and thereby

would "undermine the legislative intent of N.J.S.A. 19:8-2 and 19:8-3.1,"

statutes aimed at securing the "right to vote," including for individuals with

disabilities and the elderly.

Ibid. Based on these

risks to public health and safety recited in the preamble,

Executive Order 144 directed that "[a]ll elections that take place on July 7, 2020,

shall be conducted primarily via vote-by-mail ballots," which would be sent

automatically to all voters registered as Democrats or Republicans.

Id. at ¶ 1.

The order further directed that each county would be required to keep polling

places open for the primary election and that voters who went to those polling

places would be able to fill out provisional ballots there.

Id. at ¶¶ 8, 10.

      The primary election took place as planned on July 7, with most voters

taking advantage of the vote-by-mail method for casting ballots.


                                                                               A-0323-20T4
                                         8
      Additional measures ensued. On August 14, Governor Murphy issued

Executive Order 177, titled "[A]n Order to Protect Public Health by Mailing

Every Active Registered Voter a [Vote-By-Mail] Ballot Ahead of the General

Election." Exec. Order No. 177 (Aug. 14, 2020), 52 N.J.R. 1701(b) (Sept. 21,

2020).

      Two weeks later, on August 28, the Legislature enacted N.J.S.A. 19:63-

31, essentially incorporating the universal vote-by-mail procedures set forth in

Executive Order 177 into statutory law, to be operative for the November 2020

General Election.

      The Primary Election Results and Plaintiff's Challenges

      The tabulated results for the primary election, certified by the Secretary

of State, revealed that plaintiff received 146,139 votes, which was 8,727 votes

less than Rikin Mehta, who received 154,866 total votes, and was declared the

winner of the Republican Party nomination for United States Senate. 3

      On September 1, plaintiff filed in the Superior Court in Morris County a

statewide petition to contest the primary election.      Eight days later, on

September 9, the Assignment Judge for the Morris/Sussex Vicinage issued an


3
   See Official Primary Election Results: U.S. Senate, N.J. Div. of Elections,
https://www.state.nj.us/state/elections/assets/pdf/election-results/2020/2020-
official-primary-results-us-senate-amended-0826.pdf.
                                                                        A-0323-20T4
                                       9
order consolidating that petition in Morris County, along with various other

recount petitions which plaintiff had, as of that time, filed throughout the State.

On September 14, plaintiff filed an application for "partial summary judgment"

on his consolidated Morris County claims.

      On September 16, the Attorney General, representing both the Governor

and the Secretary of State, entered opposition to plaintiff's motion for partial

summary judgment and simultaneously cross-moved to dismiss plaintiff's

petition, arguing that it was both unsupported and untimely. On the same day,

plaintiff filed an order to show cause seeking a temporary restraining order and

injunction to prevent the printing of mail-in ballots for the general election

containing the names of the candidates certified to have won the primary

election of July 7, 2020. Plaintiff also moved, as he phrased it, to "disqualify"

the Attorney General's response papers, which he alleged had been submitted

late. He asked the trial court to rule on the papers that had been submitted in

his motion for partial summary judgment.           The Attorney General filed

opposition.

      On September 22, the trial court denied plaintiff's motion to disallow

defendants' motion to dismiss but did not rule on the merits of the dispositive

motions. On the same day, the court denied plaintiff's order to show cause for


                                                                           A-0323-20T4
                                       10
a temporary restraining order and preliminary injunction. Plaintiff concurrently

filed an amended verified petition to contest the Republican primary election for

United States Senator.

      The next day, on September 23, the Chief Justice issued an order stating

that, pursuant to N.J.S.A. 19:29-2, any of plaintiff's still-pending recount

petitions or previously filed petitions to contest the primary election would be

consolidated in the trial court in Morris County.

      On September 28, plaintiff filed a motion in the trial court seeking to,

among other things, withdraw from all pending recount applications he had

filed, and obtain a prompt resolution of his partial motion for summary judgment

on his petitions to contest the election. In that application, plaintiff argued that

only the in-person provisional ballots were constitutionally valid, that the mail -

in-ballots were constitutionally invalid, and that the court should "declare the

entire primary election null and void" and "hold it again" to avoid

disenfranchising voters.

      Transfer to the Appellate Division of the Facial Challenge to Executive
      Order 144

      On September 30, the trial court transferred the consolidated matters to

the Appellate Division for review under Rules 1:13-4(a) and 2:2-3(a)(2), and

Vas v. Roberts, 

418 N.J. Super. 509

(App. Div. 2011). Two days later, on

                                                                            A-0323-20T4
                                        11
October 2, plaintiff filed an application for emergent appellate relief challenging

Executive Order 144, the primary election based on it, and the use of the results

of the primary election on the ballots for the general election to be held on

November 3, 2020.

      On October 5, Presiding Judge for Administration Carmen Messano

issued an order of this court denying plaintiff's application for emergent relief,

noting that the matter had already been fully briefed in the Law Division and

had been transferred to the Appellate Division under Rule 1:13-4. The order

further stated plaintiff's application for emergent relief would be treated as a

motion seeking acceleration of the matter, which the court granted. The order

established an expedited simultaneous deadline for optional supplemental briefs,

"limited to the constitutional challenge plaintiff has brought to the Executive

Order issue," in anticipation of a prompt calendar date.

      The following day, on October 6, plaintiff sent an email to this court,

asking for a dispositive ruling on the papers already submitted to the Law

Division. He also sought clarification as to whether an argument he had raised

under the federal Freedom of Information Act (FOIA) remained a part of the

case. The Attorney General separately advised this court that he intended to




                                                                           A-0323-20T4
                                       12
submit a supplemental brief by the court's specified October 13 deadline, and

that he requested oral argument rather than a disposition on the papers.

      Later that same day, this panel issued a follow-up order, setting oral

argument for October 15, and clarifying that "[t]he discrete issues for which the

Appellate Division has accepted jurisdiction solely concern appellant's facial

challenges to the Governor's Executive Orders and the voting procedures for the

2020 election, and not any factual disputes or other disputes." The order further

made clear that "[t]he various County Clerks and U.S. Senate candidate Rik

Mehta who had responded to the trial court with regard to non-facial issues

concerning the 2020 U.S. Senate Republican Primary need not participate as

respondents in this appeal" unless they filed briefs by the common October 13

deadline.

      In accordance with this scheduling order, plaintiff filed on October 13 a

twenty-nine-page submission, which he labeled as a "motion for summary

judgment."4 The submission concludes with these numerous requests for relief:



4
   Consistent with appellate practice, we treat the pro se submission as a motion
for summary disposition under Rule 2:8-3, and, because it presents legal
arguments and citations to case law and various codified provisions, as an
appellant's brief. We have also considered plaintiff's various submissions to the
trial court.


                                                                           A-0323-20T4
                                      13
i.    Declare the Executive Order 144 issued by
Governor Phil Murphy to be unconstitutional and in
contravention of the Elections Clause and the Due
Process [Clause] of the United States Constitution[.]

ii.  Restore the status quo ante as to the manner of
conducting elections[.]

iii. Declare the primary election of July 7, 2020 for
all political parties unconstitutional and hence null and
void[.]

iv. Forbid the use in the General Election of ballots
with names of candidates nominated through the
process of the unconstitutional primary election created
through the Executive Order 144 of Governor Phil
Murphy[.]

v.    Direct the [S]tate of New Jersey to conduct fresh
primary elections in accordance with the law for all
races to fill up the offices of Senators and
Representatives mentioned in the Elections Clause of
the U.S. Constitution[.]

vi. Declare the cease and desist letter sent by New
Jersey's Attorney General to be election interference
and in violation of the due process clause[.]

vii. Declare the cease and desist letter sent by New
Jersey's Attorney General to be in violation of the free
speech clause[.]

viii. Direct the Attorney General's office to rescind
the letter and clarify that they were in violation of the
Constitution and admit that the Petitioner acted in
accordance with the Constitution and all laws[.]



                                                            A-0323-20T4
                          14
            ix. Declare the entire system of mail-in ballots
            except as provided by previously defined procedures
            for the absentee ballots to be issued to the members of
            the Armed Forces to be in violation of the Freedom of
            Information Act[.]

            x.    Issue an injunction forbidding the use of the mail-
            in ballot system for the general election of November
            3, 2020[.]

      On October 13, the Attorney General submitted a timely supplemental

brief opposing plaintiff's application.     The Attorney General argues that

plaintiff's claims are procedurally untimely and that he should be equitably

estopped from seeking relief. As to the merits, the Attorney General further

argues that the Executive Orders at issue are facially and constitutionally valid,

and that no injunctive or other relief is warranted.

      In addition, the County Clerk of Warren County submitted a short letter

brief requesting that plaintiff's appeal be denied in its entirety. The County

Clerk argues that the special circumstances of the COVID-19 pandemic

supported the Executive Orders modifying customary election processes, that

the County dutifully carried out those processes, and that there is no reason at




                                                                          A-0323-20T4
                                       15
this juncture to nullify the outcome of the primary election or to alter the

ongoing voting methods in the general election.5

      No other county clerks or parties submitted briefs or appeared in the

appeal, including the declared Republican Party nominee for Senate. Oral

argument was conducted on October 15, and the issuance of this opinion has

been expedited.

      The District of New Jersey Federal Decision

      Meanwhile, on October 6, 2020, the United States District Court for the

District of New Jersey issued a 31-page published opinion in Donald J. Trump

for President, Inc. v. Way, __ F. Supp. 3d __ (D.N.J. 2020) (slip opinion). In

that case, the Republican National Committee, along with President Donald J.

Trump for President, Inc., and the New Jersey Republican State Committee,

primarily sought a preliminary injunction enjoining N.J.S.A. 19:63 -31. The

plaintiffs argued the newly enacted statute violated the Elections Clause of the

United States Constitution. The plaintiffs argued the new state statute violates

the Elections Clause because it authorizes the canvassing of mail-in ballots

beginning up to ten days before election day and the canvassing of ballots not



5
  The County Clerk also observes that plaintiff received the most tabulated votes
in Warren County in the Republican Senate primary.
                                                                         A-0323-20T4
                                      16
postmarked but received within forty-eight hours of the polls' closing. Way, slip

op. at 16, 21. The plaintiffs asserted this was inconsistent with the Elections

Clause because Congress had set forth the time, place, and manner of holding

national elections by federal statute in establishing a uniform general election

day to be the Tuesday following the first Monday in November. 2 U.S.C. §§ 1,

7.

      The District Court in Trump v. Way declined to enter the injunction and

allowed the ongoing mail-in voting procedures to continue. Among other things,

the opinion found no violation of the Elections Clause or federal law occurring

as the result of the modified procedures. 6

                                        II.

      Pursuant to Rule 2:2-3(a)(2), "appeals may be taken to the Appellate

Division as of right . . . to review final decisions or actions of any state

administrative agency or officer." Under this rule, "agencies whose actions have

been held to be reviewable in the first instance by the Appellate Division are

those located within the principal departments in the executive branch of state

government." Vas v. 

Roberts, 418 N.J. Super. at 517

. As "the Governor is the


6
   We discuss the opinion in more detail, infra, with respect to plaintiff's
arguments to enjoin the vote-by-mail processes being used in the present general
election.
                                                                         A-0323-20T4
                                       17
State's chief executive or administrative officer,"

id. at 519,

a challenge to the

constitutionality of an Executive Order of the Governor falls within the scope

of a challenge to a final administrative decision or order under Rule 2:2-3(a)(2),

Commc'ns Workers of Am., AFL-CIO v. Christie, 

413 N.J. Super. 229

, 251

(App. Div. 2010).

      Plaintiff's main argument of facial invalidity rests upon the application of

the Elections Clause set forth in Article I, Section 4, Clause 1 of the United

States Constitution. That clause reads:

            The Times, Places, and Manner of holding Elections for
            Senators and Representatives, shall be prescribed in
            each State by the Legislature thereof; but the Congress
            may at any time by Law make or alter such Regulations,
            except as to the Places of [choosing] Senators.

            [U.S. Const. art. I, § 4, cl. 1.]

Plaintiff contends that Executive Order 144 violated this provision because the

Elections Clause requires a state's "Legislature thereof" to enact the procedures

for holding elections for Senators and members of Congress. He argues that

Executive Order 144 was a unilateral action of the Governor that needed to be

concurrently adopted by the New Jersey Legislature in order to be

constitutionally valid. However, that argument is not supported by settled law.

In fact, precedents of the United States Supreme Court have adopted a more


                                                                          A-0323-20T4
                                        18
expansive notion of the form of state legislative power that may satisfy the

Elections Clause. 7

      The Elections Clause authorizes each state to enact processes to be

followed in electing members of the House and Senate from their respective

states. As the Supreme Court recognized in Storer v. Brown, 

415 U.S. 724

(1974), states retain the power of establishing the time, place, and manner of

primary elections under the Elections Clause. "[A]s a practical matter, there

must be a substantial regulation of elections if they are to be fair and honest and

if some sort of order, rather than chaos, is to accompany the democratic

processes."

Id. at 730.

The Court explained in Foster v. Love, 

522 U.S. 67

, 69

(1997), that the Elections Clause "is a default provision; it invests the States

with responsibility for the mechanics of congressional elections." The Court

reiterated in U.S. Term Limits, Inc. v. Thornton, 

514 U.S. 779

, 832 (1995) that

the Framers intended the Elections Clause to grant states the authority to create

procedural regulations for such federal elections.



7
   Respondents do not dispute that the Elections Clause and federal power
potentially extend to state primary elections for federal offices. See Foster v.
Love, 

522 U.S. 67

, 71 n.2 (1997) ("Congressional authority extends not only to
general elections, but also to any 'primary election which involves a necessary
step in the choice of candidates for election as representatives in Congress. '")
(citing United States v. Classic, 

313 U.S. 299

, 320 (1941)).
                                                                           A-0323-20T4
                                       19
      Recent Supreme Court precedent has established that the reference to the

"Legislature" in the Elections Clause encompasses more than just legislative

lawmaking bodies. In Arizona State Legislature v. Arizona Indep. Redistricting

Comm'n, 

576 U.S. 787

, 806-09 (2015), the Court upheld the validity of an

independent congressional redistricting commission created by a voter ballot

initiative rather than through a statute enacted by the Arizona Legislature. The

Court rejected the challengers' argument that only the Arizona Legislature could

specify the district boundaries and electoral processes. Tracing the history of

Article I, Section 4, Justice Ginsburg's majority opinion for the Court observed

that "[t]he dominant purpose of the Elections Clause, the historical record bears

out, was to empower Congress to override state election rules, not to restrict the

way States enact legislation."

Id. at 814-15.

      The Supreme Court has made clear that the term "Legislature" as used in

the Elections Clause does "not mean the representative body alone."

Id. at 805.

Instead, the term more broadly refers to a state's legislative power, "performed

in accordance with the State's prescriptions for lawmaking."

Id. at 808;

see also

Smiley v. Holm, 

285 U.S. 355

, 367-68 (1932) (holding that the Elections Clause

allows a state's governor to exercise veto powers under state law to override




                                                                          A-0323-20T4
                                       20
decisions made by the legislature concerning the time, place, and manner of

elections).

      In our own state, constitutional powers are distributed among the three

classic branches of democratic government: the Governor, the Legislature, and

the Judiciary. See N.J. Const. art. III. Lawmaking power is shared by the

Legislature and the Governor in numerous ways, including the Governor's power

to veto legislation, N.J. Const. art. V, § 1, and the Legislature's reciprocal power

to invalidate certain administrative regulations, which otherwise have the force

of law, issued by the Executive Branch, N.J. Const. art. V, § 4. Our case law

has long recognized that the branches of state government are not "water-tight

compartments," but rather that the "aim of the separation-of-powers doctrine is

not to prevent such cooperative action, but to guarantee a system in which one

branch cannot" usurp the powers of another. Commc'ns Workers of Am., AFL-

CIO v. Florio, 

130 N.J. 439

, 449-50 (1992).8

      The State convincingly argues that in issuing Executive Order 144 while

the public health crisis caused by COVID-19 escalated, the Governor lawfully


8
  Plaintiff's appellate brief states that "no challenge is made under the provisions
of the New Jersey Constitution," although he has referred to its provisions at
times for purposes of context. An issue not briefed on appeal is deemed waived.
See Midland Funding LLC v. Thiel, 

446 N.J. Super. 537

, 542 n.1 (App. Div.
2016).
                                                                            A-0323-20T4
                                        21
acted pursuant to his legislatively-assigned responsibilities vested in him by two

statutes: The Emergency Health Powers Act, N.J.S.A. 26:13-1 to -31 (EHPA),

and the Civilian Defense and Disaster Control Act, N.J.S.A. App. A:9-30 to -63

(Disaster Control Act).     These statutes, duly adopted by the Legislature,

respectively define emergencies to include "an occurrence or imminent threat of

an occurrence" of disease that "poses a high probability of," among other things,

"a large number of deaths, illness, or injury in the affected population," N.J.S.A.

26:13-2, and "any unusual incident resulting from natural or unnatural causes

which endangers the health, safety or resources of the residents of one or more

municipalities of the State," N.J.S.A. App. A:9-33.1.

      The Disaster Control Act, the older and more invoked provision, is

especially on point. Enacted in 1941, the statute bestows on the Governor broad

authority "to utilize and employ all the available resources of the State

Government and of each and every political subdivision of this State, whether

of men, properties or instrumentalities, and to commandeer and utilize any

personal services and any privately owned property necessary to avoid or protect

against any emergency." N.J.S.A. App. A:9-34.

      The purpose of the statute is to "protect the public by centralizing control

over local government resources in situations whose remedies were beyond the


                                                                           A-0323-20T4
                                       22
authority and power of local government." Worthington v. Fauver, 

88 N.J. 183

,

195 (1982). For this reason, the Governor is not required to "wait for a serious

disruption to occur" before invoking the powers granted under the Act.

Ibid. The Governor’s broad

delegated authority to issue emergency orders

encompasses "any matter that may be necessary to protect the health, safety and

welfare of the people," N.J.S.A. App. A:9-45(i), even where such action alters

the rules that would govern in non-emergency periods. Cnty. of Gloucester v.

State, 

132 N.J. 141

, 145 (1993).

      Our courts on multiple occasions have sustained executive orders that

"flow[ ] out of the Governor's legislatively-delegated emergency powers to act

on behalf of the safety and welfare of the people of New Jersey under the

Disaster Control Act." See Commc'ns Workers of Am., AFL-CIO v. 

Christie, 413 N.J. Super. at 259

(listing such cases in which the Governor invoked his or

her emergency powers).

      "Where the executive acts pursuant to an express or implied authorization

from the Legislature . . . he exercises not only his own powers but those of the

Legislature." 

Worthington, 88 N.J. at 208

(emphasis added). Hence, as a matter

of established New Jersey law, the Governor may exercise powers that have

been delegated to him by the Legislature in order to address emergency


                                                                        A-0323-20T4
                                      23
situations. Such emergency action does not offend legislative hegemony in its

delegated sphere.

      Nor do the emergency statutes repose in the Governor, as plaintiff argues,

unbridled “dictatorial” power. If the Legislature disagrees with a Governor’s

emergency action it can respond by passing legislation, subject to veto, that

repeals or amends the Disaster Control Act or EHPA with language disallowing

a particular exercise of authority.

      Judicial review of the exercise of delegated powers is limited. "In such

circumstances the executive action should be 'supported by the strongest of

presumptions and the widest latitude of judicial interpretation, and the burden

of persuasion would rest heavily upon any who might attack it.'"

Ibid. (quoting Youngstown Sheet

& Tube Co. v. Sawyer, 

343 U.S. 579

, 637 (1952) (Jackson,

J., concurring)) (concerning analogous concepts of federal separation of

powers). "In such a case [the executive's] actions pursuant to that delegated

authority are constitutionally valid as long as he has not exceeded his statutory

authority and the government as a whole has the power to act." 

Worthington, 88 N.J. at 208

.

      Executive Order 144 was issued and implemented consistent with this

legislative delegation of emergency authority. Plaintiff has not demonstrated


                                                                         A-0323-20T4
                                      24
any basis on which to conclude that the Governor's issuance of Executive Order

144 to conduct the primary election in a way designed to canvass votes while

minimizing person-to-person contact due to the COVID-19 emergency exceeded

his broad authority "to utilize and employ all the available resources of the State

Government and of each and every political subdivision of this State . . . to avoid

or protect against any emergency." N.J.S.A. App. A:9-34.

      Plaintiff's brief asserts that the Disaster Control Act does not support the

Executive Order because the modifications of the election process "have nothing

to do with property damage or destruction." But that argument overlooks the

other language within the Act empowering the Governor to protect the "health,

safety and welfare of the people." N.J.S.A. App. A:9-33. It is plain that the

measures undertaken to reduce in-person contact at the polls are aimed at

promoting the health and safety of voters and poll workers in the midst of a

deadly pandemic that still has yet to be contained. 9


9
  The Attorney General has drawn our attention to a recent opinion of the federal
district court in Montana involving parallel issues. In that case, the Montana
Governor, under emergency powers delegated to him by the Legislature to
suspend enforcement of regulatory statutes, issued a directive that the ordinary
statutory prohibition on the use of mail-in ballots in the general election in
Montana was going to be lifted for the 2020 general election due to concerns
caused by COVID-19. Against a challenge that, among other things, the
Governor's suspension of the regulatory prohibition on mail-in balloting
                                                                     (continued)
                                                                           A-0323-20T4
                                       25
      Plaintiff argues that the Executive Order itself represents an improper

delegation of authority to other executive agencies, such as the State DOH and

the county departments of health, as well as the CDC. The Executive Order

merely recites in this regard that vote-by-mail ballots shall be processed and

canvassed "in accordance with guidelines provided" by such health agencies.

The reference to health guidelines is not a misuse or transfer of the emergency

powers delegated to the Governor. Rather, it bespeaks a commitment that those

powers will be implemented in accordance with public health standards. If

anything, the reference to such guidelines helps assure that the emergency

powers are not implemented recklessly or arbitrarily.

      Plaintiff has pointed out that on April 14, six days after Governor Murphy

issued Executive Order 120, which postponed the primary election, the

Legislature ratified the postponement of the primary date. L. 2020, c. 21, titled




violated the Elections Clause, the District Court held that by invoking his
emergency powers under state law in enacting the regulatory suspension, the
Governor acted within the scope of the delegated powers of the Legislature in
affecting the time, place, and manner of Montana's federal elections. The
Attorney General contends this result and reasoning, although not binding
precedent, happens to be consistent with the similar delegation of emergency
powers exercised by Governor Murphy in his Executive Orders under the EHPA
and the Disaster Control Act. Because the opinion apparently has not been
published, we do not cite to it or rely on it as precedential authority, see Rule
1:36-3, and mention it only for comparative and historical purposes.
                                                                         A-0323-20T4
                                      26
"An Act Concerning the Date of the Primary Election." The complete text of

that April 14 legislation reads:

            1.    a. Notwithstanding the provisions of [N.J.S.A.
            19:2-1], [N.J.S.A. 19:23-40], any provision of Title 19
            of the Revised Statutes, or any other law, rule, or
            regulation to the contrary, the 2020 primary election
            shall not be held on the Tuesday next after the first
            Monday in June, falling on June 2, 2020, and shall be
            held instead on the Tuesday next after the first Monday
            in July, falling on July 7, 2020. Any other election
            scheduled to occur between May 13, 2020 and July 6,
            2020, inclusive, shall be rescheduled to be held on July
            7, 2020.

                   b. Nothing in this act shall be interpreted to affect
            the deadlines prescribed under the provisions of Title
            19 of the Revised Statutes for the nomination of
            candidates, filing of petitions, acceptance of
            nominations, certification of nominations, and any
            other deadline required to be met preceding the primary
            election, when that deadline occurs before April 11,
            2020, including, but not limited to, the deadline for
            filing nominating petitions under [N.J.S.A. 19:23-14],
            for amending defective petitions under [N.J.S.A.
            19:23-20], for the filing of objections to nominating
            petitions under [N.J.S.A. 19:13-10], for determining
            the validity of objections to nominating petitions under
            [N.J.S.A. 19:13-11], and for drawing for ballot
            positions under [N.J.S.A. 19:23-24], which dates shall
            continue to be determined by reference to June 2, 2020.
            All other deadlines prescribed under the provisions of
            Title 19 of the Revised Statutes for meeting statutory
            requirements for a primary election shall be calculated
            using the July 7, 2020 primary election date.



                                                                           A-0323-20T4
                                       27
                   c. Notwithstanding the provisions of subsection
            b. of this section, or any other law, rule, or regulation
            to the contrary, the party affiliation deadline
            established under [N.J.S.A. 19:23-45] shall be
            calculated based on the July 7, 2020 primary election
            date.

                   d. Notwithstanding the provisions of Title 19 of
            the Revised Statutes, or any other law, rule, or
            regulation to the contrary, petitions for direct
            nomination for the general election required to be filed
            under [N.J.S.A. 19:13-3] through [N.J.S.A. 19:13-9]
            shall be due by 4:00 p.m. on July 7, 2020.

            2.    This act shall take effect immediately.

            [Ibid.]

      To be sure, the Legislature did not pass similar legislation ratifying the

universal vote-by-mail procedures effectuated by Executive Order 144 between

its issuance on May 15, and the primary election on July 7. As we have already

shown, the passage of such cognate legislation was not vital, because the

Governor already possessed the delegated authority to take emergency action to

safeguard public health and safety.

      Moreover, although it is not essential to our analysis, subsequent events

are indicative of an arguable legislative ratification of, or acquiescence to, the

health and safety measures undertaken in Executive Order 144. Such ratification

or acquiescence is intimated by the statute that established the vote-by-mail


                                                                          A-0323-20T4
                                       28
procedures for the 2020 general election, enacted on August 28, 2020. L. 2020,

c. 71 (Chapter 71).

      Chapter 71 states that "[n]otwithstanding any other law to the contrary, to

allow enough time for the county clerks to print and mail the ballots to voters,

the following deadlines are modified as follows . . . the last day a vacancy may

occur for primary election nominees for the November 2020 General Election

. . . shall be August 28, 2020," the date that the law went into effect. N.J.S.A.

19:63-31(k)(2). The statute further states that "the deadline to fill a vacancy in

the primary election nominees for the November 2020 General Election . . . shall

be August 31, 2020." N.J.S.A. 19:63-31(k)(3). By thereby foreclosing the

possibility of a special election to fill any vacancy for primary election nominees

for the 2020 general election, the Legislature appears to have implicitly ratified

the outcomes of the July 7 primary election and, also by implication, the validity

of the modified election procedures that were used in that election.

      Additionally, the legislative fiscal estimate prepared by the non-partisan

Office of Legislative Services for the 2020 general election legislation expressly

references Executive Order 144, stating that "many of the requirements of [L.

2020, c. 71] coincide with those of Executive Order 144 requiring the

procurement of secure ballot drop boxes for the July 7, 2020 primary elections.


                                                                           A-0323-20T4
                                       29
This bill expands that requirement to any subsequent election in the State."

Office of Legis. Servs., Fiscal Note to Assembly Bill No. 4475 (Aug. 26, 2020)

(emphasis added).

      Courts "may refer to [a] bill's fiscal note to ascertain legislative intent if

necessary." Matter of 1997 Assessments, 

311 N.J. Super. 600

, 606 (App. Div.

1998).   Here, the August 26 Fiscal Note's express declarations that the

provisions of N.J.S.A. 19:63-31 "coincide with" and "expand" election

procedures and "requirements" implemented by Executive Order 144 provide

further indicia that the Legislature intended to ratify those emergency

procedures. See In re Plan for Abolition of Council on Affordable Hous., 

424 N.J. Super. 410

, 419-20 n.3 (App. Div. 2012) (holding that legislative history

referencing a reorganization plan enacted by the Governor through legislatively

delegated powers constituted a ratification of executive action), aff'd as

modified, 

214 N.J. 444

(2013).

      As we have said, we need not and do not rely on an inference of

ratification to uphold the constitutional validity of Executive Order 144. We

mention it simply as an indication that the Legislature itself evidently has not

concluded that its institutional lawmaking powers were usurped.            For that

matter, the Legislature has not brought suit or moved to intervene in this


                                                                            A-0323-20T4
                                       30
litigation, as contrasted with the lawsuit pursued by the Arizona Legislature in

the redistricting commission case seeking to nullify the commission's authority

under the Elections Clause. Arizona State 

Legislature, 576 U.S. at 787

.

      In sum, plaintiff's argument that Executive Order 144 was facially invalid

and violated the Elections Clause of the United States Constitution is

unpersuasive. Through the exercise of the emergency powers delegated to him

by the Legislature, the Governor took authorized action to address a mounting

pandemic and protect the public health, safety, and welfare.

      Due Process and Equal Protection Clauses

      Plaintiff's facial challenge to the Governor's actions under the Due Process

Clause of the Federal Constitution is also unavailing. Plaintiff alleges he was

deprived by Executive Order 144 of his due process right to cast ballots in an

election created by the Legislature in accordance with the Constitution .

      The Due Process Clause of the Fourteenth Amendment to the United

States Constitution provides that no state may "deprive any person of life,

liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1.

"[A] statute is invalid on substantive due process grounds if it 'seeks to promote

[a] state interest by impermissible means.'" Caviglia v. Royal Tours of Am.,

178 N.J. 460

, 472 (2004) (alterations in original). "[A] state statute does not


                                                                            A-0323-20T4
                                       31
violate substantive due process if the statute reasonably relates to a legitimate

legislative purpose and is not arbitrary or discriminatory."        Greenberg v.

Kimmelman, 

99 N.J. 552

, 563 (1985).

      Plaintiff offers no controlling legal authority for a claimed Due Process

right to cast a vote by a particular method. Nor has he convincingly argued that

by changing the primary rules to limit person-to-person contact and the spread

of infection from COVID-19, Executive Order 144 was enacted with an

illegitimate, arbitrary, or discriminatory purpose.

      Although plaintiff has made factual contentions that the vote-by-mail

processes for the primary election were incorrectly administered in certain

locations and resulted in irregularities in the counting of ballots, those claims

are beyond the scope of a facial challenge to the Executive Orders properly

before this court.    Any remaining as-applied factual contentions must be

litigated in the trial court. R. 2:2-3(a)(2) (noting the appellate court's function

as a reviewing court, and not as a fact-finder that can hear witnesses and make

factual findings); see also State v. S.S., 

229 N.J. 360

, 365 (2017) ("the customary

role of an appellate court is not to make factual findings but rather to decide

whether those made by the trial court are supported by sufficient credible

evidence in the record"); In re Contest of Democratic Primary Election of June


                                                                           A-0323-20T4
                                       32
3, 2003 for Off. of Assembly of Thirty-First Legis. Dist., 

367 N.J. Super. 261

,

265 (App. Div. 2004) (reviewing a Law Division adjudication of an election

contest petition brought under N.J.S.A. 19:29-1).

      We similarly discern no basis for relief as to plaintiff's facial arguments

under the Equal Protection Clause. U.S. Const. amend. XIV, § 1. He asserts

that if the court nullifies the results of the Republican Primary Election, then it

must likewise nullify the results of the Democratic Primary Election, or else that

would give the other major political party an unfair campaigning advantage. We

need not adjudicate that hypothetical situation, because, as noted above, plaintiff

has failed to demonstrate that the Executive Order regulating the primary

election as a whole was facially unconstitutional.

      The Freedom of Information Act

      Plaintiff alleges that the procedures implemented by Executive Order 144

violate the FOIA by creating an "opaque process," alleging he has no means of

obtaining information regarding certain procedures followed by the county

canvassing boards. In particular, plaintiff alleges that the United States Postal

Service has failed to produce records relating to the election that he has requested,

which also violates the FOIA. Plaintiff has not, however, made the United States

Postal Service, or any federal entity, a party in this case.


                                                                             A-0323-20T4
                                          33
      The FOIA states that, absent certain exceptions, "each agency, upon any

request for records which (i) reasonably describes such records and (ii) is made in

accordance with published rules stating the time, place, fees (if any), and procedures

to be followed, shall make the records promptly available to any person." 5 U.S.C.

§ 552(a)(3)(A).

      State courts do not have jurisdiction over a FOIA claim. Jurisdiction for FOIA

claims lies in "the district court of the United States in the district in which the

complainant resides," not in state court. 5 U.S.C. § 552(a)(4)(B). Plaintiff has not

pointed to any authority in which a state court has entertained such a claim in the

context of an election contest, or in any other context. His FOIA claims against the

United States Postal Service or any other federal agency must be brought in federal

court, should he choose to pursue them.

      Free Speech Claims

      Plaintiff contends that a cease-and-desist letter he received from a Deputy

Attorney General on June 25 directing him to stop asking voters to submit duplicate

ballots and change their votes was a violation of his free speech rights under the First

Amendment to the United States Constitution. U.S. Const. amend. I. The letter was

apparently founded upon 52 U.S.C. § 10307(e), which makes it illegal for voters to

vote twice in federal elections, subject to certain exceptions.


                                                                               A-0323-20T4
                                          34
         The factual, as-applied issue as to whether plaintiff's speech was

unconstitutionally chilled by the Attorney General's letter is outside the narrow

appropriate scope of this court's review of a final administrative decision under Rule

2:2-3(a)(2). The claim does not assert facial invalidity of the Governor's Executive

Orders, which were the only claims properly transferred here pursuant to the

appellate rules. Consequently, that particular claim must be adjudicated in the trial

court.

         Claims Concerning the General Election and for Injunctive Relief

         Apart from his arguments concerning the primary election, plaintiff

contends the administration of the present general election is likewise invalid

under the federal constitution. He argues the inclusion of prevailing nominees

for federal office from the primary election on the ballot for the general election

violates the Due Process Clause, because the primary election itself was

unconstitutional. The premise of that argument is incorrect, for the reasons this

opinion has already noted.

         Plaintiff specifically requests the court to "[d]eclare the entire system of

mail-in ballots except as provided by previously defined procedures for the

absentee ballots to be issued to members of the Armed Forces" to be invalid. He




                                                                              A-0323-20T4
                                         35
further asks this court to "[i]ssue an injunction forbidding the use of the mail-in

ballot system for the general election."

      These and other requests for injunctive relief asserted by plaintiff

implicate well settled principles under New Jersey civil law. In Crowe v. De

Gioia, 90 N.J. at 126

, the Court identified several factors to guide whether

injunctive relief is appropriate.

      First, a preliminary injunction should not be granted except to prevent

irreparable harm, which the Court defined as harm that "cannot be redressed

adequately by monetary damages," "severe personal inconvenience," or where

the "nature of the injury or of the right affected" make it appropriate.

Id. at 132- 33.

The second principle is that "temporary relief should be withheld when the

legal right underlying the plaintiff's claim is unsettled."

Ibid. Third, a preliminary

injunction should not issue unless the plaintiff makes a preliminary

showing of "a reasonable probability of success on the merits."

Ibid. Fourth, a court

must evaluate "the relative hardship to the parties in granting or denying

relief."

Id. at 134.

      In addition, and germane here, a case that "'presents an issue of significant

public importance' requires the court to 'consider the public interest in addition

to the traditional Crowe factors.'" N.J. Election Law Enf't Comm'n v.


                                                                            A-0323-20T4
                                        36
DiVincenzo, 

445 N.J. Super. 187

, 195-96 (App. Div. 2016) (quoting Garden

State Equal. v. Dow, 

216 N.J. 314

, 321 (2013)) (emphasis added).

      These traditional Crowe factors likewise bear upon requests for permanent

injunctive relief. See, e.g., Murray v. Lawson, 

136 N.J. 32

, 50-51 (1994), cert.

granted, judgment vacated on other grounds, 

513 U.S. 802

(1994); Horizon

Health Center v. Felicissimo, 

135 N.J. 126

, 139 (1994).

      The Crowe analysis has been applied in the context of injunctive relief

sought concerning an election. See, e.g., Finkel v. Twp. Comm., 

434 N.J. Super. 303

, 310 (App. Div. 2013); McKenzie v. Corzine, 

396 N.J. Super. 405

, 416

(App. Div. 2007) (citing N.J. Democratic Party, Inc. v. Samson, 

175 N.J. 178

,

190 (2002)).

      Applying those factors here, plaintiff has not demonstrated that injunctive

relief of any kind should be ordered.

      First, for simplicity, we will assume purely for sake of discussion that

plaintiff has alleged that his rights as both a political candidate and voter will be

irreparably harmed if the court does not compel an immediate halt to the

processes being used in the general election. Even if that assumption were true,

the other Crowe factors overwhelmingly tip against his requests for the

extraordinary and massive injunctive measures he has sought.


                                                                             A-0323-20T4
                                        37
      On the second prong, plaintiff has not shown his legal theories of

invalidity are supported by "settled law." Nor, on the related third prong, has

he made a sufficient showing of a probability of success on the merits to justify

enjoining the ongoing general election.

      To the contrary, we have already dispelled above plaintiff's arguments of

unconstitutionality under the Elections Clause. And, to the extent that plaintiff

argues the mail-in voting procedures now being used for the general election

violate "settled" federal law, the recent published opinion of the United States

District Court in Trump v. Way shows otherwise.

      The District Court in Trump v. Way declined to enter an injunction

regarding the 2020 general election and rejected the plaintiffs' "broad

construction" of the federal election laws, noting that states had historically been

given wide discretion in permitting various forms of absentee voting and early

voting. Way, slip op. at 16. As to the late-received ballots, the court held there

was "no direct conflict" between New Jersey's law and the federal election day

statutes.

Id. at 24.

The court also found, in balancing the harms, that entering

an injunction against the universal vote-by-mail procedures "would frustrate

. . . ongoing efforts to educate voters about the new by-mail election . . . at the

risk of time and expense for the State and confusion for the voters."

Id. at 29.

                                                                            A-0323-20T4
                                        38
The court held, for the same reason, that enjoining a state's election procedures

on the eve of an election would not be in the public interest and would risk voter

disenfranchisement.

Id. at 30.

      "[I]t is well-established that under principles of comity, and in the

interests of uniformity, federal interpretations of federal enactments" by federal

courts in published cases, though not controlling on state courts, are nevertheless

"entitled to our respect." Ryan v. American Honda Motor Co., Inc., 

186 N.J. 431

, 436 (2006). The District Court's precedential opinion in Trump v. Way

appears to be soundly reasoned, and, at the very least, reflects that plaintiff's

requests for injunctive relief are not supported by "settled" law and that they

lack rather than possess a probability of success. 10

      The fourth and fifth Crowe factors—concerning the relative interests of

the parties and the interests of the public at large—manifestly tip against

granting the extraordinary measures plaintiff seeks. 

McKenzie, 396 N.J. Super. at 416

(including the consideration of the public interest in the Crowe analysis

in the context of an election). The general election utilizing the mail-in voting


10
   Since plaintiff’s facial challenges lack merit, we need not ponder the legal
and voter confusion that would ensue if a federal court ruled under federal law
that an election may continue to proceed as planned and a state court separately
ruled under federal law that it may not.


                                                                           A-0323-20T4
                                       39
procedures has been underway for many weeks. According to the representation

of the Deputy Attorney General made to us at oral argument, it is estimated that

over a million New Jersey voters have already marked and mailed in their

ballots.   Disrupting that process now would inevitably cause widespread

upheaval and potential voter disenfranchisement. Similarly, an order nullifying

the primary election at this juncture and invaliding nominees on the general

election ballot would produce comparable harm.

      It must also be underscored that the entire state, including political

candidates such as plaintiff, were on notice as of May 15 when Executive Order

144 was issued, that the procedures for the primary election would be modified

to allow mail-in voting due to the COVID-19 pandemic. Apparently no one,

including plaintiff, filed suit to enjoin that process before the primary election

took place.

      The voters and other candidates who participated in that primary election

had a right to expect that the votes would be counted and that the results would

be certified and used in the general election. Although we need not reach or rest

upon defendants' argument that plaintiff is "equitably estopped" from bringing

his claims, his inaction before the primary took place surely affects the




                                                                          A-0323-20T4
                                       40
comparative equities. 11 Plaintiff took advantage of the extended opportunity to

campaign and attract voters for the primary election and did not attempt to halt

the process. It was only after he was not victorious in the primary that he went

to court and argued that Executive Order 144 is unconstitutional. Meanwhile,

other candidates for the Senate and the House of Representatives, as well as

other offices, had their status as nominees (or, as the case may be, defeated

candidates) determined.

      In addition to the Crowe factors under state law, there is a wealth of

federal precedent that weighs heavily against entertaining on-the-brink

challenges to the voting procedures of upcoming elections. See, e.g., Purcell v.

Gonzalez, 

549 U.S. 1

, 5-6 (2006) ("Court orders affecting elections, especially



11
   We recognize that plaintiff filed his election contest petition on September 1
apparently in compliance with the twelve-day deadline for such petitions under
N.J.S.A. 19:29-3, as the last Senate recount from Sussex County was announced
on August 20. Nevertheless, mere compliance with the statutory deadline for an
election contest does not mean the equities and the public interest support the
extraordinary injunctive relief he seeks. Plaintiff knew weeks before the July
primary what Executive Order 144 said, and that it was allowing citizens to vote
by mail without an advance request for a ballot. The change from usual voting
processes was clear. There was no need to wait for the election to occur in order
to bring a challenge to the procedures. Ideally, “[t]he time to protest [to the
process] is before the election, and not, as here, after the event.” Two Guys from
Harrison, Inc. v. Furman, 

32 N.J. 199

, 233 (1960). Even if plaintiff’s complaint
is not time barred or estopped, its timing bears upon the balancing of Crowe
factors for obtaining injunctive relief.
                                                                          A-0323-20T4
                                       41
conflicting orders, can themselves result in voter confusion and consequent

incentive to remain away from the polls. As an election draws closer, that risk

will increase."); Nader v. Keith, 

385 F.3d 729

, 736 (7th Cir. 2004) (disallowing

third-party presidential candidate's suit challenging constitutionality of state

election code that was not filed until June of an election year, which was four

months after his candidacy was announced, and "created a situation in which

any remedial order would throw the state's preparations for the election into

turmoil"); Kay v. Austin, 

621 F.2d 809

, 813 (6th Cir. 1980) ("As time passes,

the state's interest in proceeding with the election increases in importance as

resources are committed and irrevocable decisions are made, and the candidate's

claim to be a serious candidate who has received a serious injury becomes less

credible by his having slept on his rights.").

      To the extent we have not discussed them, any other arguments made by

plaintiff that bear upon facial validity lack sufficient merit to warrant discussion.

R. 2:11-3(e)(1)(E).

                                        III.

      For these abundant reasons, plaintiff's facial challenges to Executive

Order 144 and any other pertinent Executive Orders are denied, and his requests

for injunctive relief and summary judgment/decision are likewise denied.


                                                                             A-0323-20T4
                                        42
Jurisdiction in this appellate court is concluded, and the matter is remanded to

the trial court to adjudicate in due course plaintiff's as-applied and other claims,

including any necessary determinations of material fact.

      Affirmed in part, remanded in part.




                                                                            A-0323-20T4
                                        43
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