In re Gray-Sadler
736 A.2d 104
753Conn.
A.2d 241,
1101736 A.2d 104, 137 Ed. Law Rep. 1019
250
164
N.J.
468,
753 A.2d
(Cite as: 250 Conn.
241,1101
736 A.2d 104)
(Cite as: 164 N.J. 468, 753 A.2d 1101)
Courtbox
of Connecticut.
ballot in Supreme
a designated
next to the candidate's
Steven
BORTNER
name and warned
that if
the marking was not made,
the ballot would not be v.
counted. Similarly clear inTOWN
OF
WOODBRIDGE
et al. Chesilstructions were not provided to the **1109
16114.
hurst voters; rather,No.
they
were given patently inadequate instructions or none at all. More analogous
Junethe
11,provision
1999.
are the cases Argued
that discuss
of defective
Decided
Aug.
17,
1999.
voting machines. Cf. In re Maple Shade, supra,
203 N.J.Super. at 585, 497 A.2d 577 (finding error
Unsuccessful write-in candidate for elementary
when voting machines broke down and officials
board of education brought action against town, refailed to offer all voters paper ballots); In re Moffat,
gistrars of voters, and successful candidates, chalsupra, 142 N.J.Super. at 222, 361 A.2d 74 (noting
lenging election results based on alleged voting mathat voting machine counter became disengaged
chine malfunctions. The Superior Court, Judicial
during election); Magura, supra, 131 N.J.Super. at
District of New Haven, Pittman, J., ordered new
397, 330 A.2d 52 (noting mechanical breakdown of
election. Defendants appealed. The Supreme Court,
voting machines). There, voters, through no fault
Borden, J., held that: (1) trial court abused its disof their own, are rendered incapable of recording
cretion in refusing to open evidence to consider
their preferences for candidates on the voting maelection records offered by defendants, and (2) new
chines. Whether the barrier is created by a defectelection was not warranted.
ive machine, or the failure of election officials to
provide adequate
personal
instructions, is of
Reversed
and remanded
withchoice
direction.
little importance. In the end, qualified voters have
been disenfranchised.
Berdon,
J., concurred and filed opinion.
B.
West Headnotes
Whether 8.1
petitioners may prevail on their
[1][6][7]
Elections
N.J.S.A.Most
19:29-1(e)
claim depends on whether the
144k8.1
Cited Cases
"rejected"
votes were
sufficient
to change
theand
resPurpose
of election
statutes
is to ensure
the true
ult. In
essence,
the possible
Court must
decide,
the tomost
accurate
count
of votes
forunder
candidates
of the circumstances, whether the election
intality
the election.
*482 irregularities were so significant as to warrant
[2]
Elections
a new
election. 227(8)
Simple deviance from statutory
144k227(8)
Most Citedabsent
Cases fraud or malconduct,
election procedures,
When
individual
ballot
is
nocontesting
voter is toit
will not vitiate an electionquestioned,
unless those
becandisfranchised
on
a
doubtful
construction,
show that as a result of irregularities "theand
free
statutes
tending
to limit
exercise
of ballot
should
be
expression
of the
popular
will in
all human
likeliliberally
construed
in
his
or
her
favor.
hood has been thwarted." Wene, supra, 13 N.J. at
196, 98 A.2d 573; see also In re Hackensack Recall
[3] Elections
298(1)
Election, 31 N.J. 592, 595, 158 A.2d 505 (1960)
144k298(1) Most Cited Cases
(holding that if election results unaffected by alElection laws generally vest primary responsibility
leged error, election should not be overturned).
for ascertaining intent and will of voters on election
Only when those irregularities "are such that the
officials, subject to court's appropriate scope of recourt cannot with reasonable certainty determine
who received the majority of the legal vote," can a
court set aside an election. In re Mallon, supra,
Page 1
Page 8
view when officials' determination is challenged in
a 232
judicial
proceeding.
N.J.Super.
at 270, 556 A.2d 1271; In re
Bonsanto's Application, 171 N.J.Super. 356, 360,
[4]
Elections
227(1)
409
A.2d 290 (App.Div.1979).
144k227(1) Most Cited Cases
No[8]losing
candidate this
is entitled
to our
the electoral equiIn undertaking
analysis
valent
of a [have]
"mulligan,"
which isthe
a free
shot
"courts
consider[ed]
nature
of somethe irtimes
awardeditsto materiality,
a golfer in the
nontournament
regularity,
significance play
of its
when
preceding
was poorly played.
influence
andshot
consequential
derivations in order
to determine whether the digression or deviation
[5] from
Elections
298(3)statutory requisitions had in
the prescribed
144k298(3)
Most
Cited
Cases
reasonable probability
so imposing and so vital
(Formerly
144k227(1))
an influence on the election proceeding as to have
To repressed
secure judicial
order for new
municipal
election,
or contravened
a full
and free
expreschallenger
is
not
required
to
establish
that,
but
for
sion of the popular will...."
irregularities
that
he
has
established
as
a
factual
[In re Mallon, supra, 232 N.J.Super. at 270, 556
matter,
would
have prevailed
A.2d he1271
(quoting
Sharrock inv. election;
Boroughin-of
stead,
court must
persuaded 11,
that17,
(1) 83
there
were
Keansburg,
15beN.J.Super.
A.2d
11
substantial
errors
in
rulings
of
election
official
or
(App.Div.1951)).]
officials,
or substantial
mistakes
count
votes,
At the heart
of the inquiry
is theinneed
to of
safeguard
and
as a result
of those
errors
or mistakes,
the (2)
franchise
of not
only the
voters
who cast relivalid
ability
of
result
of
election,
as
determined
by elecvotes at the election, but also those whose
votes
tion
seriously
in supra,
doubt. 15
C.G.S.A.
§
wereofficials,
rejected. is See
Sharrock,
N.J.Super.
9-328.
at 19, 83 A.2d 11. If the irregularities are found to
have been so serious as to prejudice the election
[6] Elections
305(2)
result, N.J.S.A. 19:29-9 requires the election to be
144k305(2) Most Cited Cases
set aside, the results declared null and void, and a
Although underlying facts are to be established by a
special election held.
preponderance of evidence and are subject on appeal
to theGray-Sadler
clearly erroneous
standard,
[9][10]
satisfies
this testultimate
becausedethe
termination
of
whether,
based
on
underlying
facts,
a
total votes cast for her, on both the correct and innew
municipal
election
is
called
for,
that
is,
whethcorrect lines, exceeds the total cast votes for Poinerdexter.
there were
of statute
auThe substantial
inquiry is violations
more difficult
for Sturgis
thorizing
courthowever,
to order new
election
renderprove
reand Geiger,
because
theythat
cannot
liability
of
result
of
election
seriously
in
doubt,
is
a
that votes not cast due to the problematic personal
mixed
question
of
fact
and
law
that
is
subject
to
choice instructions would have been cast for them.
plenary
on appeal.
9-328;
PracBecausereview
we cannot
requireC.G.S.A.
them to §*483
prove
to a
tice
Book
1998,
§
60-5.
certainty how the rejected voters would have voted,
they need only show that enough qualified voters
[7] Statutes
181(1)
were denied the right to cast write-in votes to affect
361k181(1) Most Cited Cases
the outcome of the election.
See In re
Maple
Shade,
supra,
203
N.J.Super.
at
589, 497
[7] Statutes
188
A.2d
577;
In
re
Moffat,
supra,
142
N.J.Super.
at
361k188 Most Cited Cases
225, 361 A.2d 74. Petitioners' burden may be met
"by a demonstration that **1110 had the votes been
cast for [them], the result would have been differ261
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