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.
19:15-2 or R.S.Supreme
19:23-40Court
**1179
for the closing of the
Steven BORTNER
polls, as may be appropriate
on the day of an election."
The polls in *470 Long Beachv.Township remained open
OFbyWOODBRIDGE
al. a generuntil 8 p.m., asTOWN
required
N.J.S.A. 19:15-2etfor
No. 16114.
al election.
Argued June
11, 1999.First, plaintiff
[3][4] Plaintiff's argument
is two-fold.
Decided
Aug. 17,ballot
1999.is postmarked
suggests that as long
as an absentee
before election day, it should be counted. The statute,
Unsuccessful
write-in otherwise,
candidate and
for we
elementary
however,
explicitly provides
rejected
board
of
education
brought
action
against
that argument in DeFlesco v. Mercer Countytown,
Bd. reof
gistrars
of
voters,
and
successful
candidates,
Elections, 43 N.J.Super. 492, 129 A.2d chal38
lenging election
results
based
alleged
voting
ma(App.Div.1957).
There
we held
thatonsuch
a ballot
could
chine
malfunctions.
The
Superior
Court,
Judicial
not be counted. "The preservation of the enfranchiseof New
J., of
ordered
new
ment District
of qualified
votersHaven,
and of Pittman,
the secrecy
the ballot,
election.
Defendants
appealed.
The
Supreme
Court,
the prevention of fraud, and the achievement of a reasBorden,
held that: (1) of
trial
disonably
promptJ.,determination
thecourt
resultabused
of theitseleccretion
in
refusing
to
open
evidence
to
consider
tion have been the vital considerations in the developrecords offered
by defendants,
(2)Mulnew
ment election
of the absentee
voting legislation."
Seeand
also
was
not warranted.
cahy election
v. Bergen
County
Bd. of Elections, 156 N.J.Super.
429, 433- 34, 383 A.2d 1214 (Law Div.1978) (applying
Reversed and remanded with direction.
and quoting DeFlesco, supra, 43 N.J.Super. at 495-96,
129 A.2d
38).J.,Inconcurred
Mulcahy,and
Judge
Berdon,
filed Petrella
opinion.upheld the
board's rejection of absentee ballots received after the
date of the election, despite
evidence that unusual
West some
Headnotes
weather
may have delayed
[1] Elections
8.1 mail delivery on election
day. 144k8.1
"The postmark
dateCases
is not and cannot be conMost Cited
trolling;
the received
date
is andismust
be conclusive
to
Purpose
of election
statutes
to ensure
the true and
avoidmost
fraudaccurate
and provide
finality
to the
of
count some
possible
of votes
for closing
candidates
the polls."
at 434, 383 A.2d 1214. The judge further
in the Id.
election.
emphasized the anti-fraud rationale underlying the stat227(8)
ute: [2] Elections
Most
Cited Cases
The144k227(8)
court has no
authority
or discretion to adjust the
When
individual
ballot
is
questioned,
no voter
time requirement. To do so would
undermine
theisle-to
be
disfranchised
on
a
doubtful
construction,
and
gislative intent and pave the path for future abuses.
statutes
to limit
exercise
ofpostal
ballot system
should in
be
There
havetending
been many
changes
in the
liberally
construed
in
his
or
her
favor.
recent years which the court could well take judicial
notice of, including the private use of postage meters,
[3] Elections
298(1)
a mechanism which could easily subject the absentee
144k298(1) Most Cited Cases
voting procedure to abuse if the postmark date was
Election laws generally vest primary responsibility
determinative.
for ascertaining intent and will of voters on election
[Id. at 435, 383 A.2d 1214 (emphasis added).]
officials, subject to court's appropriate scope of reA clear purpose of strict adherence to the statutory cutoff for counting absentee ballots, as with other rules for
accepting absentee ballots, is to deter fraud and main-
Page 1
Page 6
view when officials' determination is challenged in
a judicial
proceeding.
tain
"the integrity
of the elective process." See Application of Langbaum, 201 N.J.Super. 484, 490, 493 A.2d
[4] Elections
227(1)
580
(App.Div.1985).
Without a cut-off date, the count144k227(1)
Most
Cited
Cases
ing process might go on indefinitely.
No losing candidate is entitled to the electoral equivalent
of ahave
"mulligan,"
which
a free shot
some*471 We
found only
oneisexception
to the
literal
times awarded
a golfer by"
in nontournament
play
application
of theto"received
requirement of N.J.S.A.
when preceding
was poorly
19:57-23.
See Inshot
re Holmes,
346played.
N.J.Super. 372, 788
A.2d 291 (App.Div.2002). There the issue arose in a
[5] Elections
298(3)
truly
exceptional circumstance:
the shutdown of the
144k298(3)
Most
Cited
Hamilton Post Office inCases
Mercer County as a result of
(Formerly
144k227(1))
anthrax
contamination
discovered shortly after the 9/11
To secure
judicial
order
for new
municipal
election, abterrorist
attack
on the
World
Trade
Center. Nineteen
challenger
is
not
required
to
establish
that,
butNovemfor
sentee ballots that were postmarked before the
irregularities
that
he
has
established
as
a
factual
ber 6, 2001 election were not received by the Board of
matter, heuntil
would
have prevailed
election;
Elections
November
7. [FN11]inWe
allowedinthose
stead,
court
must
be
persuaded
that
(1)
there
were
ballots received on November 7 to be counted, noting
substantial
errors in
rulings of election
official
or
the
"extraordinary
circumstance
of national
dimension
officials,
or
substantial
mistakes
in
count
of
votes,
and unforeseen consequence":
and (2) as a result of those errors or mistakes, reliability of
resultThere
of election,
as determined
by elecFN11.
was undisputed
evidence
that the
tion officials,
in of
doubt.
C.G.S.A. Postal
§
closing isandseriously
quarantine
the Hamilton
9-328. facility delayed mail delivery to the Mercer
County Board of Elections by one day.
[6] Elections
305(2)
144k305(2)
Most
Cited Cases
We do not
believe
that the Legislature intended
Although
facts
to be established
by athat
N.J.S.A. underlying
19:57-23 to
beare
applied
in a manner
preponderance
evidence valid
and are
subjectballots
on ap-from
would preventofotherwise
absentee
peal
to the
clearly
erroneous
de- or
being
counted
when,
in the standard,
absence ofultimate
voter fraud
termination
of whether,
based
on underlying
facts, a
malconduct,
it has been
conclusively
demonstrated
new
election
is called
that
is, wheththatmunicipal
such absentee
ballots
wouldfor,
have
been
timely deerlivered
there were
substantial
violations
of
statute
aubut for the extraordinary and unpredictable
thorizing
court to
order new in
election
that render recircumstances
experienced
this case.
liability
result
of election
in (emphasis
doubt, is a ad**1180of[Id.
at 377-78,
788seriously
A.2d 291
mixed
ded).]question of fact and law that is subject to
plenary review
on appeal.the
C.G.S.A.
§ 9-328;
PracNonetheless,
in balancing
competing
policies
undertice Book
1998, § 60-5.
lying
the election
laws--protecting a citizen's right to
vote while deterring fraud and promoting certainty in
[7] Statutes
181(1) disallowed three ballots rethe
electoral process--we
361k181(1)
Most
Cited8Cases
ceived on November
and eleven ballots received
between November 9 and November 21, despite all hav[7] Statutes
188
ing been postmarked before the November 6 election.
361k188 Most Cited Cases
The statute--N.J.S.A. 19:57-23--is clear on its face; its
rationale is plain, and the means adopted to secure its
purpose as reasonable. The fact that other methods,
280
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