Judicial supremacy reached new heights -- or depths -- in September when a New Jersey trial court changed the outcome of an election for reasons other than a recount. The Court allowed the loser to become the winner based on a review of the substance of a campaign communication and a few alleged violations of state election law. Nordstrom v. Lyon, No. MRS-L-1796-11 (N.J. Superior Ct. Sept. 13, 2011) http://www.themorristownteaparty.org/uploads/ 20110913155227735.pdf

In the past, courts have changed election outcomes based on a recount of ballots, a process that seems to favor Democrats more than Republicans. In 2000, the U.S. Supreme Court had to intervene and halt an additional recount in Florida to prevent courts from possibly declaring Al Gore to be the winner against George W. Bush.

No amount of recounts, however, was able to take the election away from young conservative "Hank" Lyon in his primary challenge to the entrenched liberal Republican Margaret Nordstrom, in a race for Morris County Freeholder. (The New Jersey Freeholder position is equivalent to county commissioner in the rest of the country.) The Morris County Freeholders are responsible for a budget that exceeds $300 million annually.

Hank Lyon, who received the pro-life endorsement, worked tirelessly in going door-to-door throughout the large county. A recent college graduate, he was a big underdog and barely taken seriously by the media.

The election was held on June 7, 2011, and the initial results showed a stunning upset by Lyon with a margin of ten votes: 12,271 for Lyon compared with 12,261 votes for Nordstrom. After tallying additional provisional ballots, Lyon's margin of victory was still ten votes. Nordstrom demanded a recount, which resulted in new totals but still a victory (by six votes) for Lyon: 12,270 for Lyon and only 12,264 for Nordstrom.

Nordstrom then sued to overturn the election results. The Court began focusing on mail-in ballots, which totaled 1,249, roughly 5% of the total votes cast. (In some parts of the country, mail-in ballots are more than 50% of the votes cast.)

Most of the mail-in ballots came suspiciously from one town, Parsippany, and some of those voters were called to testify. The testimony of the voters was that three of them actually did not vote this year, one of them has never voted, another has never voted in a Republican primary, and yet another is a Democrat.

The Court concluded that many of the mail-in ballots were illegal, but found no way to determine which candidate benefited. There was no basis for concluding that the votes had been for Lyon. The Court did, however, add two votes to Nordstrom's tally for other reasons, making the final result 12,270 for Lyon to 12,266 for Nordstrom.

Unable to overturn the election based on a recount, the Court then looked to possible election law violations, even though New Jersey has a separate election commission with jurisdiction over that issue. The Court scrutinized a last-minute mailer by Lyon's campaign, and declared it to have been "factually baseless." The Court next held there were election law violations that included an inadvertent failure to file a report about last-minute contributions, and so it overturned the election result.

The Court ordered the Morris County Republican Committee to pick the winner, and by a margin of only 5 votes it predictably chose the incumbent Nordstrom. Meanwhile, Lyon is appealing the court ruling.

This precedent could have disastrous results, and even the New Jersey Election Law Enforcement Commission is trying to overturn it on appeal. Doubly troubling is how illegal mail-in voting might be used to cast doubt on an election outcome to take it away from a conservative.