Such drawings happen all over the state around this time and usually generate little hubbub.
But this time, the Republicans won the coveted Line A in Essex County — for the first time in 17 years and on the same day a Republican state Senate candidate sued County Clerk Chris J. Durkin for “nefarious conduct” the candidate said ensured Democrats’ statistically improbable 17-year winning streak.
Such a win might delight other Republicans. But Michael D. Byrne, the GOP candidate vying for retiring Democratic Sen. Dick Codey’s seat, remained just as suspicious after Monday’s drawing as he was when he filed his lawsuit in Superior Court earlier in the day.
Friday, he filed a statement with the court to renew his concerns, saying he believes the ballot drawing was manipulated and that the drawing “lacked transparency, fairness, and honesty just as the previous 18 drawings did.”
Byrne and his attorney Giancarlo Ghione told the New Jersey Monitor Friday afternoon that their civil rights lawsuit will proceed because Byrne remains concerned that Durkin, a Democrat who has been county clerk since 2006, hasn’t taken steps to ensure the equal treatment of all parties and public confidence in the election process.
“The odds are ludicrous,” Ghione said. “Instead of being 0 out of the last 18 drawings, we’re now at 1 out of 19, when it’s supposed to be a 50-50 chance of drawing Line A.”
Byrne called the Democrats’ dominance in the drawings “an ongoing issue in Essex County,” where Republicans hadn’t won Line A since 1999. Republicans for years consequently speculated that clerks have dented, refrigerated, or otherwise manipulated capsules in the bingo-style drawing so they’d know by feel which contained their preferred party, Byrne said.
If he’s elected as senator, Byrne said, he’ll introduce legislation to ban the capsules and require clerks to adopt practices to ensure a truly random drawing.
“We need a permanent solution for transparency in this process,” Byrne said.
Byrne, who’s the longtime chairman of the Montclair Republican County Committee, on Monday had asked a judge to stop the drawing scheduled for that afternoon and order changes to ensure transparency.
“In his tenure, Durkin has never drawn Line A for the Republican Party or for Republican candidates — a statistical impossibility and absurdity,” Byrne said in the lawsuit. “There is a statutory right to have a fair and honest chance at drawing the preferential position on the ballot, and it should be protected by the courts.”
Judge Robert H. Gardner denied Byrne’s request for an injunction, clearing the way for Monday’s drawing to take place.
Before the drawing, Byrne wrote in his Friday filing, Durkin told Byrne and another political candidate in attendance: “I think you’ll be happy with the process.” Ten seconds after he began rummaging for the winning capsule, Byrne wrote, Durkin presented “the capsule that would make us ‘happy with the process.'”
Byrne insisted his fight is not a partisan one, writing in his Friday filing that Democrats were “disadvantaged by the lack of transparency and fairness” in Monday’s drawing.
In response to the New Jersey Monitor’s request for comment Friday, Durkin sent a written statement through his office.
“Each ballot drawing is conducted in a fair and open process where the public is invited to attend,” the statement said. “Each ballot drawing for the general election is conducted once a year and is conducted completely separate from the previous year. There was a lawsuit filed to delay the ballot drawing, but the judge found no basis to delay the ballot drawing. The Republican Party has been awarded Line A for the Nov. 7, 2023, general election.”
The controversy comes almost 40 years after a near-identical complaint in Essex County.
In that case, Mary Mochary, then the GOP candidate for U.S. Senate in New Jersey, sued Nicholas Caputo, then the Essex County clerk, and Raymond Durkin, who was then chairman of the county Democratic party. Chris Durkin, the current county clerk, is the late Raymond Durkin’s son.
Mochary raised similar concerns about fairness and statistical improbabilities after Caputo in August 1984 drew the Democrats for the preferential first line on the ballot — the 40th time Democrats won the draw in the previous 41 draws, according to that lawsuit.
The case made it to the state Supreme Court, where justices declared the controversy moot because the general election had already occurred by the time they issued their decision in July 1985. Mochary lost to incumbent Bill Bradley, a Democrat.
But the court still found the facts disturbing, with one justice noting that circumstances documented in the case “must shock even the most cynical observer of the public scene.”
The court recommended changes the clerk could take to improve voter trust, including allowing witnesses unimpeded, close views of the drawing; using a nonpartisan monitor; issuing a detailed, written explanation of the process; and implementing further unspecified “procedures likely to assure the integrity of an impartial draw subject only to the laws of chance.”
It’s unclear how much the process changed after that ruling.
By Byrne’s account, it didn’t.
“It would appear that Durkin is on his way to following in the ignominious footsteps of his Democratic predecessor,” he said in his lawsuit.
Byrne wants a judge to order many of the changes the Supreme Court recommended almost four decades ago by requiring Durkin to use a nonpartisan monitor; give witnesses “reasonable time” to inspect drawing materials visually and physically; give witnesses a close, unimpeded view of the drawing; conduct the drawing at full face, without his back turned to witnesses; and use tools that ensure the drawing materials have “no distinguishing features or temperatures.”
Byrne proposed the League of Women Voters as a nonpartisan monitor, according to his complaint.
Without such safeguards, Durkin will fail in his duty to ensure transparent, fair, and honest elections, Byrne’s lawsuit states.
“The public rightfully cannot have confidence in the way the Essex County clerk conducts its drawing for ballot position,” the lawsuit states.
Ballot placement has long been a sore subject for good-government advocates in New Jersey, who say political parties rig the ballot to control who has access to political power.
But the overwhelmingly Democratic 27th Legislative District, where Byrne is running for a Senate seat, shows political rigging goes beyond the ballot. The district has been beset with controversy in recent months, with Democrats bypassing voters to jockey for control.
Redistricting forced longtime Sen. Nia Gill into a primary race with Codey, with Codey winning in June. Earlier this week, Codey announced he would not seek reelection, leaving Gill supporters grousing and accusing Democratic leaders of orchestrating a scenario where they could hand-pick Codey’s successor.
They did that this week, picking Assemblyman John McKeon to replace Codey and Essex County Commissioner Brendan Gill to replace his wife Alixon Collazos-Gill, who won her primary bid for an Assembly seat but is dropping out so her husband can have it, the New Jersey Globe reported.
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