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
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