MAYS LANDING — A judge on Monday refused to grant Atlantic City Democratic mayoral candidate Tom Foley an injunction that would have kept the June 8 primary election open for two more weekends.
Atlantic County Superior Court Judge James P. Savio said Foley waited too long to file a legal action and failed to provide “clear and convincing evidence” that voters have been prevented from obtaining messenger ballots on time by policies of the Atlantic County Clerk’s Office.
Savio also said he was concerned any injunction would affect all candidates from both parties, and there was not time to allow those candidates a say.
“Your application is asking me to enter an order keeping election results open for the next three weeks,” Savio said. “I’m concerned because we got the briefs Friday afternoon at 2 p.m. before the election on Tuesday. That doesn’t give anybody a lot of time to respond.”
In a civil action filed Friday afternoon, Foley argued that the County Clerk, by requiring messengers to make appointments to apply for vote-by-mail ballots for other voters, was disenfranchising voters and denying them their rights.
Foley sounded frustrated and angry after the ruling.
“Talk about missing the point,” Foley said in a telephone interview. “How can you require someone to make an appointment to vote? ... This is worse than Georgia.”
Foley is challenging incumbent Democratic Mayor Marty Small Sr. in the June 8 primary, with the support of political organizer Craig Callaway.
“Certainly ... there are very few rights more significant than the right to vote, and that includes via messenger ballot,” Savio said. “But the question is whether or not I ... order the county clerk to involve himself in opening for longer periods of time based upon disputed facts. I’m not going to do that.”
Savio said Deputy County Clerk Michael Sommers has sworn in an affidavit that no one has been turned away who came in to apply as a messenger.
That meant there was a factual dispute about the nature of the case, one of several elements Savio said prevented him from granting such extraordinary relief, based on prior case law.
Foley’s attorney Terrell A. Ratliff, of the Lento Law Group, said he had four affidavits from people who said they were unable to apply for ballots because appointments were required. One was David Callaway, the brother of Craig Callaway.
Ratliff said David Callaway provided a May 4 email from the clerk’s office that he said made it seem that only with an appointment could he come in. But he did not explain why that would have prevented David Callaway from coming in any time in the subsequent month.
Craig Callaway has been set up outside the clerk’s office for days, organizing messengers to apply for ballots on behalf of other voters.
He was there Monday afternoon, sitting at a picnic bench steps from the front door, interacting with messengers going in and out, and said he pays messengers about $10 per hour.
“They are doing everything they can to suppress the vote ... to kill it before it has a chance to be a vote,” Callaway said of the appointment requirement and slow processing of mail-in ballots for messengers, who are allowed to take up to three ballots each to other voters.
Callaway was there with several people acting as messengers he had driven to Mays Landing from Atlantic City, he said. As some messengers came out with ballots, they entered his SUV, and others went in with applications for mail-in ballots.
Under state law, messengers are required to be assigned their role by individual voters, and the messenger is supposed to deliver the ballot to the voter without anyone else touching it.
When asked if he would personally deliver the mail-in ballots he had applied for to the voters, messenger Archie Shiggs, 60, of Atlantic City, said, “If Craig needs me to I would.”
Callaway insisted the voters did pick their messengers and knew them. And he said messengers deliver the ballots back to voters and will only help them fill them out if the voter requests help.
“Atlantic City is a small place,” Callaway said of everyone knowing each other, “especially in our (Black) community.”
Michelle Brunetti Post