CAPE MAY — An Atlantic County judge Wednesday during a hearing challenging ballots for Cape May voters found that the Cape May County Clerk had reason for the design of the ballots and that meant her office had wide discretion in the layout.
The judge declined to block the ballots from being mailed out. They are expected to be in the mail on Thursday.
Following an initial hearing on Tuesday, Atlantic County Civil Judge James Savio had temporarily held the ballots from going in the mail until a more detailed hearing could be held on the issue. Three of the five candidates running for two Cape May City Council seats this year challenged the ballots charging that the names are not listed in the order determined by a random drawing back in September.
The ballot design placed City Council candidate Patricia Gray Hendricks directly under the name of the incumbent mayoral candidate Clarence “Chuck” Lear. Her name was the first listed under City Council candidates, even though candidate Mark DiSanto took the first slot in a random drawing held Sept. 3.
The three other candidates in the nonpartisan race — including DiSanto and rival City Council candidate Christopher Bezaire and Zack Mullock, who is challenging Lear for the mayor’s seat — went to court to block the ballots from being mailed.
Their attorney, David Kurkowski, told Savio at a hearing held via Zoom that the process for deciding ballot positions at random could not have been fairer, with names printed on slips of paper and drawn from a bowl. Kurkowski argued that the change in the ballots was fundamentally unfair.
“I’m outraged that in America this can happen,” Kurkowski told the judge. The facts of the drawing are definitive and incontrovertible, he said, with video of the proceedings posted publicly.
“There are no two ways to look at that. This is not fair,” Kurkowski said.
Frank Corrado, Cape May city attorney, argued that the county clerk has wide discretion in determining ballot design.
Hendricks and Lear are running together. As Corrado explained it, they have the same slogan, “Working with you and for you.” Also, placing DiSanto in the first column would have him underneath Mullock’s name, likely giving the false impression that they were also running together.
“There was no completely satisfactory way to reconfigure that ballot,” Corrado said.
However, according to Kurkowski, Lear and Hendricks did not request to be listed as a bracketed ticket, which should have taken place before the drawing. If they had done so, her name would not have been included in the random draw for ballot position by City Clerk Erin Burke.
As presented at the virtual hearing, the question was not whether the bracketing of the candidates was handled correctly, but rather whether Cape May County Clerk Rita Fulginiti had a reason for her arrangement of the names on the ballot. After about an hour, Savio ruled that she did.
He declined to issue an injunction against the ballots being mailed out.
Before the ruling, Kurkowski said he worked through the weekend to make sure there was no delay in the ballots being mailed to Cape May voters. He said he did not even watch the Eagles play. The judge interjected with humor that he was lucky to have missed it (referring to the game).
Savio suggested that in a town the size of Cape May, most voters will already know who they support before seeing the ballot.
“I suspect that most of the residents in Cape May City know exactly who they’re voting for, and probably know the candidates on a first-name basis,” Savio said.
“I would not agree with that,” said Kurkowski, who maintained that the ballot position absolutely matters.
During the hearing, Kurkowski raised the likelihood that the decision could be reviewed by an appeals court. Savio seemed unconcerned with the prospect.
“I’m a big boy. It’s not the first time, and I’m certain it will not be the last,” the judge said.
After the judge ruled, Kurkowski said he would have to speak with his clients about any next step.
Under an emergency order from Gov. Phil Murphy related to COVID-19, this year’s election will take place primarily by mail. The ballots will include the race for president, U.S. Senate, U.S. Congress and county races, which are all partisan elections. Cape May’s nonpartisan race is set slightly apart, below the partisan races.
Ballots for other municipalities in Cape May County are already in the mail, County Clerk Fulginiti said on Wednesday after the hearing. Without an injunction, she expects to send out the 2,100 Cape May ballots right away.
“I’ve got them in my car,” she said late Wednesday. “I’m planning to put them in the mail (Thursday).”
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