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 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.