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, 879 A.2d (Cite as: 250 Conn. 241, 1174 736 A.2d 104) (Cite as: 379 N.J.Super. 461, 879 A.2d 1174) Supreme Court of Connecticut. held that the entire ballot of each such voter was invalBORTNER id. We reversed, and Steven held that those voters were entitled v. is, their votes on the to have their votes counted--that TOWN OF WOODBRIDGE et al. printed portion of the ballots. Id. at 73, 583 A.2d 1154. No. 16114. 85 N.J.Super. 188, See also Petition of Keogh-Dwyer, 203, 204 A.2d 351 (App.Div.1964), rev'd on other Argued June 778 11, 1999. grounds, 45 N.J. 117, 211 A.2d (1965), in which we Decided Aug. 17, 1999. officials from held that N.J.S.A. 19:16-3f barred election counting a write-in vote for a candidate whose name apUnsuccessful write-in candidate for elementary peared on the ballot. board of education brought action against town, revoters, and successful candidates, chalThe gistrars electionoflaws unambiguously instruct the election lengingon election results based on maauthorities the proper counting ofalleged votes invoting this situchine malfunctions. The Superior Court, Judicial ation. N.J.S.A. 19:53A-7f provides, in pertinent part: District of New Pittman, ordered new "Before write-in votesHaven, are counted theyJ.,shall be comelection. Defendants appealed. The Supreme Court, pared with votes cast on the ballot card for the same ofBorden, held trial courtcandidates abused its*478 disfice.... Votes J., cast forthat: duly(1) nominated cretion in refusing to open evidence to consider on the ballot card will not be voided because of an inoffered by defendants, andbe (2)counnew validelection write-inrecords vote, but if otherwise valid shall was**1184 not warranted. ted."election Further, N.J.S.A. 19:53A-10 provides: "Any overvote or misvote for one or more offices shall Reversed and remanded with direction. not invalidate the entire ballot." Murphy has provided nothing that evidences a reasonable possibility that the Berdon, J., concurred and filed opinion. statutory instructions for counting the votes were not followed here. West Headnotes [1] Elections 8.1 We are satisfied that the election of Ralph Bayard as the 144k8.1 Most Cited Cases thirdPurpose Commissioner in Long Beach of election statutes is toTownship ensure thewas truepropand erly most certified, and that the Board was correct in refusing accurate count possible of votes for candidates to count single write-in vote for candidate Peter L. in thethe election. Murphy. Nonetheless, this case suggests that a more complete instruction on227(8) the ballot with respect to the ex[2] Elections ecution of write-in votes would 144k227(8) Most Cited Casesbe salutary. While not constitutionally required, required byno current law, When individual ballotnor is questioned, voter is to an explicit instruction on would impose no significant burbe disfranchised a doubtful construction, and den statutes upon thetending election The might into authorities. limit exercise of ballot should be clude, for example, language the following: liberally construed in his such or herasfavor. The write-in portion of the ballot is provided only for Elections the[3]purpose of voting298(1) for a person whose name does 144k298(1) Most Cited not appear on the printed Cases ballot. A write-in vote for a Electionwhose laws generally primary responsibility candidate name doesvest appear on the printed balascertaining intent and will of voters on election lotfor will not be counted. subject to court's appropriate scope of reWe officials, recommend that the Legislature consider requiring such a modification to all New Jersey election ballots. VII. Page 1 Page 10 view when officials' determination is challenged in a[6] judicial proceeding. Plaintiff argues that he was entitled to discovery before his complaint was dismissed. There is no question [4] 227(1)pursuant to Rule 4:46 normally thatElections summary judgment 144k227(1) Most Cited is not appropriate beforeCases the party resisting such a moNo losing candidate is entitledtotocomplete the electoral equition has had an opportunity the discovery valent of a "mulligan," which is a free shot somerelevant and material to defense of the motion. times awarded to a golfer in nontournament play189, Velantzas v. Colgate-Palmolive Co., Inc., 109 N.J. when preceding shot was poorly played. 193, 536 A.2d 237 (1988). Here, as defendants argue, plaintiff brought his complaint under the authority of [5] Elections 298(3) N.J.S.A. 19:29-2, which provides for a fast track pro144k298(3) Most Cited Cases ceeding, [FN15] and by Order to *479 Show Cause, im(Formerly 144k227(1)) plicitly initiating a summary proceeding pursuant to To secure judicial order for new municipal election, Rule 4:67. The nature of such an action does not norchallenger is not required to establish that, but for mally warrant the full-scale discovery permitted in other irregularities that he has established as a factual civil lawsuits. Moreover, objection to a summary judgmatter, he would have prevailed in election; inment motion on the basis that it is premature requires stead, court must be persuaded that (1) there were the resisting party to demonstrate with some specificity substantial errors in rulings of election official or the discovery sought, and its materiality. Auster v. Kinofficials, or substantial mistakes in count of votes, oian, 153 N.J.Super. 52, 56, 378 A.2d 1171 and (2) as a result of those errors or mistakes, reli(App.Div.1977). ability of result of election, as determined by election officials, seriously in doubt. FN15. isN.J.S.A. 19:29-6 does C.G.S.A. grant the §court 9-328. power, however, to compel production of witnesses, voting records and equipment where [6] Elections 305(2) warranted on a recount application. 144k305(2) Most Cited Cases Although underlying factsargument are to be respecting establishedthe by rejeca [7] Murphy's discovery preponderance of evidence and are subject on apted write-in vote appears aimed at learning whether the peal the marked clearly Murphy's erroneous name standard, ultimate votertoalso on the ballot,deand if termination of whether, based on underlying facts, a so, whether that vote was counted. If such information new municipal election is called for, that is, whethwas potentially available before the machines were er there itwere substantial statute au- arcleared, was not availableviolations thereafter,ofand Murphy's thorizing to orderisnew election that[FN16] render regument incourt that respect therefore moot. liability of result of election seriously in doubt, is a mixed question of factlegislation and law that is subjectN.J.S.A. to FN16. Recent has amended plenary review appeal. C.G.S.A. § 9-328; 19:48-1onand N.J.S.A. 19:53A-3 to addPracthe foltice Booklowing 1998, §requirement 60-5. for all voting machines, mechanical or electronic, beginning in 2008 (or [7] Statutes later). L. 181(1) 2005, c. 137: 361k181(1) Cited Cases each voting machine shall By Most January 1, 2008, produce an individual permanent paper record [7] Statutes 188 for each vote cast, which shall be made avail361k188 Most Cited Cases able for inspection and verification by the voter at the time the vote is cast, and preserved for later use in any manual audit. In the event of a recount of the results of an election, the voter- 284 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.