Lawsuit alleges candidates were improperly grouped, clear capsules were used in drawing — and school board president seeking reelection works for the very County Clerk’s Office that conducted it
What was already shaping up to be a competitive seven-way race for three seats on the Toms River Regional Board of Education has now landed in Superior Court — and a judge has temporarily stopped election officials from using the ballot order produced by the disputed drawing, FAA News reports.
Seven candidates are seeking three three-year seats on the nine-member Board of Education this November. Among them are current Board President Ashley Lamb, who is seeking a third term, and Board Vice President James Capone, who is seeking a second. Lamb and Capone are running under the slogan “Protect What Matters.”
Also in the race are Laura Picurro, Anthony Colucci and Elizabeth Huber, who have campaigned together under the slogan “Finance, Education, Accountability”; Gerald “Jerry” Nappi, running under “God, Country, Family”; and Kristen Hanson, running under “Educating Students Responsibly.” Picurro serves as Toms River Township’s Director of Human Services; Colucci previously ran for Township Council and serves as president of the Ortley Beach Voters and Taxpayers Association; and Hanson is a retired school administrator who previously worked in the Brick and Ocean Township school districts.
But now the battle over who gets elected has been preceded by a battle over where their names appear on the ballot — and how those positions were chosen.
On August 10, the Ocean County Clerk’s Office conducted the drawing that would determine the candidates’ ballot positions.
Under New Jersey law, candidates can ask to be “bracketed” together for purposes of the drawing. But according to a lawsuit filed by Huber and Picurro, candidates wishing to do so must submit a timely written request and determine the order in which their names will appear.
Huber and Picurro say they did neither.
Nevertheless, their lawsuit alleges Deputy County Clerk John Catalano grouped Huber, Picurro and Colucci together as a single entry in the drawing.
That seemingly technical decision had a significant mathematical consequence.
According to the Complaint, assuming the opposing Lamb-Capone-Nappi grouping was valid, there should have been five separate entries in the drawing. Instead, because Huber, Picurro and Colucci were combined into one entry, there were only three.
The lawsuit calculates that this increased the Lamb group's chance of drawing the coveted first position from 20 percent to approximately 33.3 percent.
And the Lamb group was, in fact, drawn first.
That isn't the only thing Huber and Picurro say was wrong with the drawing.
New Jersey's election statute requires the ballot slips to be placed inside capsules and requires the clerk conducting the drawing to withdraw each capsule “without knowledge” of which one is being selected.
According to the lawsuit, however, the Ocean County Clerk's Office used clear or transparent capsules that did not fully conceal the paper slips inside.
Huber and Picurro contend that a supposedly blind drawing isn't truly blind if the person reaching into the box can potentially see which slip is inside the capsule.
Lamb isn't merely the incumbent School Board President seeking reelection.
She is also a Deputy Ocean County Clerk.
In other words, according to the lawsuit, the ballot-position drawing in an election in which Lamb herself is a candidate was administered by the same County Clerk's Office that employs her.
The Complaint does not allege that Lamb personally reached into the box and selected the capsules. Rather, Huber and Picurro argue that having her own governmental office administer the drawing creates what they call a “structural conflict” and raises questions about the institutional independence of the process.
That concern, they argue, becomes particularly significant because the alleged improper grouping of the other candidates increased the odds of Lamb's group receiving the first position — and Lamb's group ultimately did receive it.
Huber and Picurro, represented by attorney Donald F. Burke, filed suit against the Ocean County Clerk's Office, County Clerk John P. “Jack” Kelly, Catalano and Lamb in their official capacities.
Their lawsuit asks Superior Court to throw out the August 10 drawing and order an entirely new one.
And they don't want the Ocean County Clerk's Office conducting round two.
They are asking the Court to designate a neutral County Clerk's Office outside Ocean County, recognize only candidate groupings supported by valid written requests, use opaque capsules, and conduct a new public drawing.
The lawsuit also invokes the New Jersey Civil Rights Act, alleging that the manner in which the drawing was conducted deprived Huber and Picurro of substantive rights secured by the state's election laws.
Those allegations have not yet been adjudicated, and the County will have an opportunity to respond.
But the candidates have already secured significant interim relief as Ocean County Presiding Judge Robert E. Brenner has just signed an Order to Show Cause imposing temporary restraints. The Order prevents the election officials from approving, finalizing, programming, transmitting for printing, printing, mailing or distributing ballots containing the Toms River school-board race in the order produced by the disputed August 10 drawing.
The restraint is narrowly tailored: other election work can continue, and officials may continue preparatory work that does not lock in the challenged Toms River school-board candidate order. The Court also ordered preservation of evidence connected with the drawing, including the slips, capsules, box, recordings, photographs, bracketing requests, emails, text messages, internal communications, ballot proofs and programming information.
Importantly, the temporary order does not mean Judge Brenner has already ruled that the ballot drawing was illegal or that the plaintiffs will ultimately win. The Judge expressly stated that the temporary restraints were granted to maintain the status quo while the dispute is litigated.
The parties have been directed to appear before Judge Brenner on September 9 at 2:00 p.m. in the Ocean County Courthouse in connection with the temporary restraints. The Order separately sets September 30 at 2:00 p.m. as the return date on the request for final relief.
So before Toms River voters decide which three candidates belong on the Board of Education, a Superior Court judge may first have to decide something much more basic: Did Ocean County properly decide where those candidates belong on the ballot?
FAA News will continue following the case.
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