Doherty: Major Changes to Scope of Election Must Be Adopted by Legislature

Says Governor Doesn’t Have the Authority to Unilaterally Alter General Election by Executive Order

Senator Michael Doherty said the New Jersey Constitution doesn’t authorize Governor Phil Murphy to issue an Executive Order that unilaterally changes the manner in which voters will cast their ballots this November.

Doherty pointed to Article II, Section I of the New Jersey Constitution, which says: “General elections shall be held annually on the first Tuesday after the first Monday in November; but the time of holding such elections may be altered by law.”

“While our state constitution makes clear that the scope of elections can be altered by law, there is no provision for a governor to bypass the Legislature through executive order to change the way our elections are held,” said Doherty (R-23). “Yet that is exactly what Governor Murphy has sought to do through Executive Order 177 which directs the general election in November to held almost exclusively by mail. A change as substantive as preventing voters in a presidential election from casting their ballots in person must be approved by the Legislature and accomplished by the enactment of a statute. If the Murphy administration can make the case that closing polling centers is warranted, they should have no problem selling that to a Democrat-controlled Legislature and getting this done the right way.”

Doherty highlighted some examples of concerning language in Executive Order No. 177 that would appear to be outside the governor’s authority:

• The requirements of N.J.S.A. 19:14-25 that sample ballots be sent shall be suspended.
• The Secretary of State may modify the requirements of N.J.S.A. 19:31-21 concerning the use of poll books…
• The time restrictions of N.J.S.A. 19:63-9 shall be modified as follows…
• …the requirements of N.J.S.A. 19:59-15(d) shall be suspended and the ballot-return deadline in N.J.S.A. 19:63-22 shall be suspended.

“I’d like for Governor Murphy to explain how he can unilaterally modify or suspend a host of statutes without legislative approval,” said Doherty. “In my estimation as a legislator who believes in the separation of powers, the governor simply doesn’t have that authority to rewrite or ignore laws as he sees fit, even if his intentions are sincere. Like dozens of other efforts that the legislative and executive branches have collaborated on since March to improve New Jersey’s ability to respond to COVID-19, any changes to our elections that conflict with existing statutory law must be accomplished through the regular legislative process. Anything less would reduce the confidence of many New Jerseyans that our elections are being conducted in a fair manner that protects their vote.”

Further, Doherty questioned how voting in person at a polling center is any different than other regular activities that are undertaken safely by New Jerseyans every day.

“Back in March, the governor’s fear mongering worked to keep everyone home at great cost to our economy and the financial well-being of millions of New Jerseyans,” added Doherty. “People who once were scared to leave their homes under the governor’s dire warnings today have no problem going to Walmart or Target or countless other places where they spend hours in public. Allowing New Jerseyans to spend five minutes casting their votes at their regular polling center is less risky than going to the grocery store. If anyone doesn’t want to take the risk of entering a voting booth, our laws already allow them to request a mail-in ballot. There is no legitimate reason for Governor Murphy to deny people the right to cast their votes in the manner they prefer.”