In re Ocean County Com’r of Registration for a Recheck of the Voting Machines for the May 11, 2004 Municipal Election 736 A.2d 104 879250 A.2dConn. 1174241, 736 A.2d 104, 137 Ed. Law Rep. 1019 379(Cite N.J.Super. 461, 879 241, A.2d736 1174A.2d 104) as: 250 Conn. (Cite as: 379 N.J.Super. 461, 879 A.2d 1174) Supreme Court "beyond of Connecticut. Here there was no problem the voter['s] conSteveninvolving BORTNER trol." Referring to "cases invalidated write-in v. votes," the Court cited a judicial history of "distinTOWN OF WOODBRIDGE et al. guish[ing] errors due to extrinsic problems from errors 16114. Id. at 476, 753 A.2d caused by a voter's ownNo. neglect." 1101. The principle the Court derived from the cases Arguedapplication June 11, 1999. cited was "that rigid of technical rules Decided Aug. 17, 1999. should not prevent otherwise valid write-in votes from being counted." Id. at 477, 753 A.2d 1101 (emphasis adUnsuccessful write-in candidate for elementary ded) (citing Riecker v. Hartmann, 130 N.J.Super. 266, board of education brought action against town, re272, 326 A.2d 101 (Law Div.1974) (write-in votes on gistrars of voters, and successful candidates, chalDemocratic primary ballot for individuals whose names lenging election results based on alleged voting maappeared only on the Republican primary ballot were chine malfunctions. The Superior Court, Judicial properly counted and were effective to secure the District of New Haven, Pittman, J., ordered new Democratic party nomination.)) election. Defendants appealed. The Supreme Court, Borden, J.,too held that:to(1) trial that court abused its dis*476 It is not much expect a voter would nocretion in refusing to open evidence to consider tice that his candidate's name appears as a choice on the election records by defendants, (2)onnew ballot and that thereoffered is a clearly prescribed and place the election was not warranted. ballot for expressing that choice. This is particularly so in light of the sample ballot that demonstrates, in adReversed and remanded with direction. vance, the names of the candidates as they will appear on the votingJ.,machine. Given thoseopinion. facts, and recognizBerdon, concurred and filed ing that we cannot know for certain whether the same voter also cast a proper for Murphy and if so, West vote Headnotes whether it was counted, [1] Elections 8.1[FN14] we see no basis **1183 for 144k8.1 undoing Most the certification Cited Casesof the election results and ordering a run-off election. Purpose of election statutes is to ensure the true and most accurate count possible of votes for candidates Murphy's argument about the write-in in theFN14. election. vote is based on two alternative possibilities: (1) that the voter's [2] Elections 227(8)entire ballot was improperly rejected, instead just the write-in vote (with 144k227(8) Most CitedofCases possibility thatisthe voter alsonocast a is valid Whenthe individual ballot questioned, voter to vote for Murphy) was not counted, orand (2) be disfranchised on awhich doubtful construction, thattending the voter failedexercise to markofMurphy's name be on statutes to limit ballot should the construed printed portion thefavor. ballot which was liberally in his orofher counted. Neither possibility persuades us that [3] Elections 298(1) the write-in voter was deprived of his right to 144k298(1) Most Cited Cases vote, or that Murphy or the township was deElection laws generally vest primary responsibility prived of a fair election. for ascertaining intent and will of voters on election Theofficials, Court insubject Gray-Sadler cited two relevant to court's appropriate scopegrounds of refor contesting an election: "when legal votes have been rejected at the polls sufficient to change the result" or "for any error ... in counting the votes or declaring the Page 1 Page 9 view when officials' determination is challenged in aresult judicial of proceeding. the election, if such error would change the result," 164 N.J. at 474, 753 A.2d 1101 (citing N.J.S.A. [4] Electionsand (f)), 227(1) 19:29-1(e) and identified "[t]he essential ques144k227(1) Most Cited Cases tion whether voters were denied the opportunity to vote No losing candidate is entitled to the for a candidate of their choice." Id.electoral at 476, equi753 A.2d valent of a "mulligan," which is a free shot some1101 (citing In re Moffat, 142 N.J.Super. 217, 223, 361 times awarded to a golfer nontournament play A.2d 74 (App.Div.), certif. indenied sub nom. Princeton when was527, poorly Tp. v.preceding Bleiman, shot 71 N.J. 366played. A.2d 682 (1976)). The same statutory grounds implicitly are invoked by [5] Elections 298(3) Murphy in this case, and the essential question here is 144k298(3) Most Cited Cases the same: whether the voter who improperly wrote in (Formerly 144k227(1)) Murphy's name, when Murphy's name was printed on To secure judicial order for new municipal election, the ballot, was unfairly deprived of the right to cast a challenger is not required to establish that, but for vote for Murphy. We conclude that no such deprivation irregularities that he has established as a factual occurred here. matter, he would have prevailed in election; instead, must be persuaded thatthe(1)unknown there were Unlikecourt the voters in Gray-Sadler, write-in substantial errors in rulings of election voter here was not deprived of the rightofficial to cast or a vote officials, or substantial mistakesballot in count for Murphy. The *477 printed gave of thevotes, voter that and (2) as a result thoseinerrors or mistakes, reli-had a opportunity. Everyofvoter the township election ability of result of election, as determined by elecclear opportunity to vote for Murphy without writing in tion officials, is seriously in doubt.a reasonable C.G.S.A. §voter his name on the ballot. Moreover, 9-328. would understand, without explicit instruction, that it is unnecessary to write in the name of a candidate whose [6] Elections 305(2) name already appears on the ballot, and that a vote for 144k305(2) Most Cited Cases that candidate must be cast by marking the place on the Although underlying facts are to be established by a ballot where that candidate's name appears. Significpreponderance of evidence and are subject on apantly, only one of the 1,134 persons who voted by mapeal to the clearly erroneous standard, ultimate dechine in this election made the mistake of writing in any termination of whether, based on underlying facts, a of the six named candidates on the ballot. new municipal election is called for, that is, whetherDespite there were substantial violations of statute authe Court's charge to protect each "citizen's thorizing court right to order new election that renderofre-his or constitutional to vote for the candidate liability of result of election seriously is a vote her choice" and "the corollary right in to doubt, have that mixed question of fact and law that is subject to A.2d counted," Gray-Sadler, supra, 164 N.J. at 474, 753 plenary review onreliance appeal.upon C.G.S.A. § 9-328;toPrac1101, plaintiff's Gray-Sadler compel a tice Book 1998, § 60-5. new election here is misplaced. [7] 181(1) the validity of write-in votes In Statutes another case involving 361k181(1) Most Cited Cases for a candidate whose name was printed on the ballot, In re General Election Held in the Tp. of Monroe, 245 [7] Statutes 188 N.J.Super. 70, 583 A.2d 1154 (App.Div.1990), certif. 361k188 Most Cited Cases denied, 127 N.J. 325, 604 A.2d 600 (1991), several voters who wrote in the name of the candidate also marked the candidate's name where it appeared on the printed portion of the ballot. The Law Division judge 283 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.