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.
along with the Supreme
first two Court
successful
candidates, Palmer
Steven BORTNER
and Gove.
v.
Three additional
absentee
ballots, each ofet which
was
TOWN
OF WOODBRIDGE
al.
postmarked prior to MayNo.
11,16114.
were not received until
May 12. They were rejected and never opened because
Argued
June
11, of
1999.
they were not received
by the
close
the polling place
Decided
Aug. 17,19:57-23;
1999.
on May 11, as required
by N.J.S.A.
19:57-26.
[FN6]
Unsuccessful write-in candidate for elementary
board
of education
brought action
against
town, reFN6.
N.J.S.A. 19:57-23
provides,
in pertinent
gistrars
voters,
and successful
candidates,
part: of"Such
ballot
must be received
by chal[the
lenging
election
based onor
alleged
voting bemacounty]
boardresults
[of elections]
its designee
chine
The Superior
Court, Judicial
foremalfunctions.
the time designated
by R.S. 19:15-2
or R.S.
District
of New
Haven,
Pittman,
J., ordered
19:23-40
for the
closing
of the polls,
as maynew
be
election.
Defendants
appealed.
The
Supreme
Court,
appropriate on the day of an election."
Borden,
J., held
that: (1)
trial court
disN.J.S.A.
19:57-26
provides:
"Allabused
valid its
... abcretion
in ballots
refusingreceived
to openbyevidence
to consider
sentee
the county
boards
election
offered
by defendants,
(2) new
prior records
to the time
designated
for theand
closing
of
election
was for
not each
warranted.
the polls
election shall be counted."
Reversed and remanded
with
**1177
II.direction.
On this appeal from both Law Division orders, plaintiff
Berdon,
concurred and filed opinion.
presents
these J.,
arguments:
POINT ONE:
West Headnotes
THE PLAINTIFF WAS STATUTORILY ENTITLED
[1] Elections
8.1
TO A RECOUNT OF THE VOTES.
144k8.1 Most Cited Cases
POINT TWO:
Purpose of election statutes is to ensure the true and
THE FACT THAT THE ELECTION RESULTS
most accurate count possible of votes for candidates
WERE SUBJECTED TO A "RECHECK" BY THE
in the election.
STATE ATTORNEY GENERAL'S OFFICE DOES
NOT
AFFECT THE227(8)
PLAINTIFF'S RIGHT TO A
[2] Elections
RECOUNT.
144k227(8) Most Cited Cases
POINT
WhenTHREE:
individual ballot is questioned, no voter is to
THE
WRITE-IN VOTE
FOR THE
PLAINTIFF
be disfranchised
on a doubtful
construction,
and
SHOULD
HAVE
BEEN
COUNTED.
statutes tending to limit exercise of ballot should be
POINT
FOUR:
liberally
construed in his or her favor.
*467 THE PLAINTIFF IS ENTITLED TO HAVE
ALL
BALLOTS
COUNTED WHICH
[3] ABSENTEE
Elections
298(1)
WERE
RECEIVED
BY MAIL
144k298(1)
Most Cited
Cases BY THE DATE OF
THE
ELECTION.
Election
laws generally vest primary responsibility
POINT
FIVE:
for ascertaining
intent and will of voters on election
THE
PLAINTIFF
TO DISCOVERY
officials,
subjectISto ENTITLED
court's appropriate
scope of reAND A DETERMINATION AS TO THE PROPRIETY OF THE ACCEPTANCE OF SIX OF THE
SEVEN PROVISIONAL BALLOTS CAST, AND
278
Page 1
Page 4
view when officials' determination is challenged in
a THE
judicial
proceeding.
EJECTION
[sic] OF THE ONE PROVISIONAL
BALLOT.
[4]
Elections
227(1)
POINT
SIX:
144k227(1)
Most Cited
THE PLAINTIFF
IS Cases
ENTITLED TO DISCOVERY
No
losing
candidate
is
entitled to
the electoral equi- OF
PRIOR TO THE COURT'S
CONSIDERATION
valent
of
a
"mulligan,"
which
is
a free
shot someANY MOTION FOR SUMMARY
JUDGMENT.
times
awarded
to a golfer in nontournament play
POINT
SEVEN:
when
preceding
shot was poorly
played. NOT HAVE
SUMMARY JUDGMENT
SHOULD
BEEN GRANTED TO THE DEFENDANTS IN
[5] Elections
298(3)
THIS CASE BECAUSE THE PROCEDURES OF
144k298(3) Most Cited Cases
THE SUMMARY JUDGMENT RULE WERE NOT
(Formerly 144k227(1))
PROPERLY FOLLOWED.
To secure judicial order for new municipal election,
We have thoroughly considered the briefs and arguchallenger is not required to establish that, but for
ments of counsel in light of applicable law, and we afirregularities that he has established as a factual
firm.
matter, he would have prevailed in election; instead, court must be persuaded
that (1) there were
III.
substantial
errors
in
rulings
of
election
or the
In A-5898, plaintiff challenges the orderofficial
granting
officials,
or
substantial
mistakes
in
count
of
votes,
Attorney General's request for a "recheck" of the voting
and (2) asused
a result
of Long
those Beach
errors or
mistakes,
relimachines
in the
Township
municipal
ability
of
result
of
election,
as
determined
by
elecelection. Specifically, plaintiff contends that rechecking
tion officials,
is seriously
in doubt.election
C.G.S.A.
cleared
the results
of the municipal
and§ de9-328. him of his statutory right to a recount under
prived
N.J.S.A. 19:28-1. [FN7] While the recheck ordered by
[6] Elections
305(2)
the court at the Attorney General's request did clear the
144k305(2) Most Cited Cases
machines, literally preventing further confirmation of
Although underlying facts are to be established by a
the municipal clerk's certified tally, that action did not
preponderance of evidence and are subject on apdeprive Murphy of his right to a recount. He had notice
peal to the clearly erroneous standard, ultimate deof the Attorney General's application and failed to *468
termination of whether, based on underlying facts, a
object. He cannot, then, on that ground complain of the
new municipal election is called for, that is, whethconsequences.
er there were substantial violations of statute authorizingFN7.
court N.J.S.A.
to order new
election
19:28-1,
as that
of render
May re2004,
liability provided,
of result of
election
seriously
in
doubt,
is a
in pertinent part:
mixed question
of candidate
fact and at
lawany
that
is subject
When any
election
shalltohave
plenary reason
review to
onbelieve
appeal. that
C.G.S.A.
§ 9-328;
Pracan error
has been
made
tice Book
1998,
§
60-5.
by any district board or any board of canvassers in counting the vote or declaring the vote of
[7] Statutes
181(1)
any election, he may, on or before the second
361k181(1) Most Cited Cases
Saturday following such election, or declaration of any
[7] Statutes
188 board of canvassers, apply to a
judge
of
the
Court ... for a recount of
361k188 Most Cited Superior
Cases
the votes cast at the election....
This statute was recently amended to expand to
fifteen days the time within which a candidate
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