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