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 104 879 250 A.2dConn. 1174 241, 736 A.2d 104, 137 Ed. Law Rep. 1019 379 (Cite N.J.Super. 461, 879 A.2d 1174A.2d 104) as: 250 Conn. 241, 736 (Cite as: 379 N.J.Super. 461, 879 A.2d 1174) Supreme Court of Connecticut. can challenge the election in the Superior Steven c. BORTNER Court. L. 2005, 150. The timeliness of Murphy's complaint v. is not in issue here. TOWN OF WOODBRIDGE et al. The State sought judicialNo. authority 16114. to clear and recheck the operation of the voting machines before the expiraArgued Junewhen 11, 1999. tion of the fifteen-day period voting machines are Aug. 17,ordered 1999. by the court. to remain locked, Decided unless otherwise See N.J.S.A. 19:52-6. The State sought relief from that Unsuccessful candidate for elementary **1178 fifteen-daywrite-in waiting period in order to have the board of education brought action against town, remachines ready for the statewide June 8, 2004 primary. gistrars of voters, and successful candidates, chalelection results that based on alleged voting ma[1] lenging The record establishes Murphy received written chine malfunctions. The Superior Court, Judicial notice of the Attorney General's application by certified Haven, Pittman, J., 14 ordered mailDistrict on Mayof 12,New two days before the May return new date election. Defendants appealed. The Supreme Court, of the Attorney General's Order to Show Cause. Borden, J., held that: (1) courtobjection abused itsto dis[FN8] Murphy submitted no trial written the cretion in refusing to open evidence to consider State's application, nor did he appear in court on May election offered andF.(2) new 14 to object.records [FN9] On May by 14,defendants, Judge Donald Campwas not permitting warranted. the recheck to take place bell election signed an order on May 17; Murphy, however, did not receive a copy of Reversed and until remanded with direction. the May 14 order May 18. Berdon, filed opinion. FN8.J.,Aconcurred signed, and certified mail return receipt was submitted to the court. West Headnotes [1] Elections 8.1candidates had notice of the AtFN9. All of the 144k8.1 Most Cited Cases torney General's request, and none filed any Purpose of election statutesiniscourt to ensure the true and objection or appeared to object. most accurate count possible of votes for candidates the21, election. On in May Murphy filed a verified complaint, apparently pursuant to N.J.S.A. 19:29-2, along with a pro[2]Order Elections posed to Show 227(8) Cause, seeking a recount and an 144k227(8) Most Cited Cases Judge Marlene Lynch order setting aside the election. When individual ballot is questioned, no voter is to Ford signed the Order to Show Cause, returnable June be disfranchised on a doubtful construction, and 11. Defendants filed summary judgment motions on tending to limit of scheduled ballot should be Junestatutes 7 and June 9, just daysexercise before the return liberally construed in his or her favor. date. Those motions were heard on June 18. [FN10] [3] Elections FN10. While 298(1) that date was well short of the 144k298(1) Most Cited twenty-eight days Cases normally required before Election lawsa generally primary responsibility hearing summary vest judgment motion, N.J.S.A. for ascertaining intent that and trial will of on election 19:29-4 provides on voters a petition contestofficials, subject to court's appropriate scope of reing an election is to be scheduled between fifteen and thirty days after the filing of the petition. N.J.S.A. 19:29-5 allows the court to ad- Page 1 Page 5 view when officials' determination is challenged in a judicialjourn proceeding. the trial up to thirty days. Thus the time periods provided by court rules for other civil [4] Elections litigation 227(1) are clearly foreshortened. Although 144k227(1) Most Cited Murphy raisesCases that alleged procedural irreguNo losinglarity candidate entitled to the electoral equiin hisisbrief, he submitted written opposivalent of tion a "mulligan," which is a free shot someand argued against defendants' motion. times awarded to a discussion golfer in nontournament Additional below in thisplay opinion when preceding shot was poorly played. will demonstrate that the accelerated motion argument did not affect plaintiff's substantive [5] Elections 298(3) rights. 144k298(3) Most Cited Cases (Formerly *469 Plaintiff144k227(1)) disputes the Attorney General's statutory To secure for judicial order forciting new municipal election, authority the recheck, N.J.S.A. 19:28-1, which challenger is not required to establish that, but for explicitly provides for a "recount" either at the request irregularities established as a question, factual on of a candidatethat or, he withhas respect to a public matter, he would have prevailed in election; in-to repetition by ten voters. We do not read that statute stead, must be persuaded thatthat (1)voting there were late tocourt the State's right to confirm machines substantial errors in rulings of election or the are operating properly, much less toofficial prohibit officials, or substantial mistakes in count of votes, "recheck" at the State's request, as occurred here. and (2) as a result of those errors or mistakes, reliability of result of election, as determined by municipal elecAlthough the State's recheck did clear the tion officials, seriously in doubt. C.G.S.A. election resultsisfrom the machines, paper tapes of§ each 9-328. voting machine's results were preserved and available for inspection. Significantly, Murphy does not dispute [6] Electionscontention 305(2)that he never sought to inspect defendants' 144k305(2) Cited Cases those tapes.Most In any event, we are satisfied that plaintiff Although underlying facts are to be established by a has not been prejudiced thereby. preponderance of evidence and are subject on appeal to the clearly erroneous IV.standard, ultimate determination of whether, based on underlying a or [2] A challenger has the burden of provingfacts, that one new election is called for, moremunicipal legal votes were rejected, and that is, thewhethnumber of er there were substantial of statute au- the improperly rejected votes violations was sufficient to change thorizing to orderThe newchallenger election that render re- to result of court the election. is not required liability of the result of election a In prove that rejected votes seriously were castin fordoubt, him oris her. mixed question ofofMoffat, fact and that is subject to 361 re Application 142law N.J.Super. 217, 224, plenary on appeal. § 9-328; A.2d 74review (App.Div.), certif.C.G.S.A. denied sub nom. PracPrinceton tice 1998, §7160-5. Tp. Book v. Bleiman, N.J. 527, 366 A.2d 682 (1976); Kirk v. French, 324 N.J.Super. 548, 736 A.2d 546 (Law [7] Statutes 181(1) Div.1998). 361k181(1) Most Cited Cases Plaintiff argues that three absentee ballots that were not [7] Statutes 18812, but were postmarked before the delivered until May 361k188 Most Cited Cases have been counted. N.J.S.A. May 11 election, should 19:57-23 provides, in pertinent part, that an absentee ballot "must be received by [the county] board [of elections] or its designee before the time designated by R.S. 279 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.