The Resolution of Election Disputes: Legal Principles that Control Election Challenges 736 A.2d 104 879 A.2d 1174 241, 736 A.2d 104, 137 Ed. Law Rep. 1019 250 Conn. 379 N.J.Super. 461,Conn. 879 A.2d (Cite as: 250 241,1174 736 A.2d 104) (Cite as: 379 N.J.Super. 461, 879 A.2d 1174) of Connecticut. along with the Supreme first two Court successful candidates, Palmer Steven BORTNER and Gove. v. Three additional absentee ballots, each ofet which was TOWN OF WOODBRIDGE al. postmarked prior to MayNo. 11,16114. were not received until May 12. They were rejected and never opened because Argued June 11, of 1999. they were not received by the close the polling place Decided Aug. 17,19:57-23; 1999. on May 11, as required by N.J.S.A. 19:57-26. [FN6] Unsuccessful write-in candidate for elementary board of education brought action against town, reFN6. N.J.S.A. 19:57-23 provides, in pertinent gistrars voters, and successful candidates, part: of"Such ballot must be received by chal[the lenging election based onor alleged voting bemacounty] boardresults [of elections] its designee chine The Superior Court, Judicial foremalfunctions. the time designated by R.S. 19:15-2 or R.S. District of New Haven, Pittman, J., ordered 19:23-40 for the closing of the polls, as maynew be election. Defendants appealed. The Supreme Court, appropriate on the day of an election." Borden, J., held that: (1) trial court disN.J.S.A. 19:57-26 provides: "Allabused valid its ... abcretion in ballots refusingreceived to openbyevidence to consider sentee the county boards election offered by defendants, (2) new prior records to the time designated for theand closing of election was for not each warranted. the polls election shall be counted." Reversed and remanded with **1177 II.direction. On this appeal from both Law Division orders, plaintiff Berdon, concurred and filed opinion. presents these J., arguments: POINT ONE: West Headnotes THE PLAINTIFF WAS STATUTORILY ENTITLED [1] Elections 8.1 TO A RECOUNT OF THE VOTES. 144k8.1 Most Cited Cases POINT TWO: Purpose of election statutes is to ensure the true and THE FACT THAT THE ELECTION RESULTS most accurate count possible of votes for candidates WERE SUBJECTED TO A "RECHECK" BY THE in the election. STATE ATTORNEY GENERAL'S OFFICE DOES NOT AFFECT THE227(8) PLAINTIFF'S RIGHT TO A [2] Elections RECOUNT. 144k227(8) Most Cited Cases POINT WhenTHREE: individual ballot is questioned, no voter is to THE WRITE-IN VOTE FOR THE PLAINTIFF be disfranchised on a doubtful construction, and SHOULD HAVE BEEN COUNTED. statutes tending to limit exercise of ballot should be POINT FOUR: liberally construed in his or her favor. *467 THE PLAINTIFF IS ENTITLED TO HAVE ALL BALLOTS COUNTED WHICH [3] ABSENTEE Elections 298(1) WERE RECEIVED BY MAIL 144k298(1) Most Cited Cases BY THE DATE OF THE ELECTION. Election laws generally vest primary responsibility POINT FIVE: for ascertaining intent and will of voters on election THE PLAINTIFF TO DISCOVERY officials, subjectISto ENTITLED court's appropriate scope of reAND A DETERMINATION AS TO THE PROPRIETY OF THE ACCEPTANCE OF SIX OF THE SEVEN PROVISIONAL BALLOTS CAST, AND 278 Page 1 Page 4 view when officials' determination is challenged in a THE judicial proceeding. EJECTION [sic] OF THE ONE PROVISIONAL BALLOT. [4] Elections 227(1) POINT SIX: 144k227(1) Most Cited THE PLAINTIFF IS Cases ENTITLED TO DISCOVERY No losing candidate is entitled to the electoral equi- OF PRIOR TO THE COURT'S CONSIDERATION valent of a "mulligan," which is a free shot someANY MOTION FOR SUMMARY JUDGMENT. times awarded to a golfer in nontournament play POINT SEVEN: when preceding shot was poorly played. NOT HAVE SUMMARY JUDGMENT SHOULD BEEN GRANTED TO THE DEFENDANTS IN [5] Elections 298(3) THIS CASE BECAUSE THE PROCEDURES OF 144k298(3) Most Cited Cases THE SUMMARY JUDGMENT RULE WERE NOT (Formerly 144k227(1)) PROPERLY FOLLOWED. To secure judicial order for new municipal election, We have thoroughly considered the briefs and arguchallenger is not required to establish that, but for ments of counsel in light of applicable law, and we afirregularities that he has established as a factual firm. matter, he would have prevailed in election; instead, court must be persuaded that (1) there were III. substantial errors in rulings of election or the In A-5898, plaintiff challenges the orderofficial granting officials, or substantial mistakes in count of votes, Attorney General's request for a "recheck" of the voting and (2) asused a result of Long those Beach errors or mistakes, relimachines in the Township municipal ability of result of election, as determined by elecelection. Specifically, plaintiff contends that rechecking tion officials, is seriously in doubt.election C.G.S.A. cleared the results of the municipal and§ de9-328. him of his statutory right to a recount under prived N.J.S.A. 19:28-1. [FN7] While the recheck ordered by [6] Elections 305(2) the court at the Attorney General's request did clear the 144k305(2) Most Cited Cases machines, literally preventing further confirmation of Although underlying facts are to be established by a the municipal clerk's certified tally, that action did not preponderance of evidence and are subject on apdeprive Murphy of his right to a recount. He had notice peal to the clearly erroneous standard, ultimate deof the Attorney General's application and failed to *468 termination of whether, based on underlying facts, a object. He cannot, then, on that ground complain of the new municipal election is called for, that is, whethconsequences. er there were substantial violations of statute authorizingFN7. court N.J.S.A. to order new election 19:28-1, as that of render May re2004, liability provided, of result of election seriously in doubt, is a in pertinent part: mixed question of candidate fact and at lawany that is subject When any election shalltohave plenary reason review to onbelieve appeal. that C.G.S.A. § 9-328; Pracan error has been made tice Book 1998, § 60-5. by any district board or any board of canvassers in counting the vote or declaring the vote of [7] Statutes 181(1) any election, he may, on or before the second 361k181(1) Most Cited Cases Saturday following such election, or declaration of any [7] Statutes 188 board of canvassers, apply to a judge of the Court ... for a recount of 361k188 Most Cited Superior Cases the votes cast at the election.... This statute was recently amended to expand to fifteen days the time within which a candidate © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.