In re Election for Atl. Cnty. Freeholder Dist. 3 2020 Gen. Election

468 N.J.Super. 341

258 A.3d 388

In the MATTER OF the ELECTION FOR ATLANTIC COUNTY FREEHOLDER DISTRICT 3 2020 GENERAL ELECTION, and Andrew Parker.

DOCKET NO. A-1205-20

Superior Court of New Jersey, Appellate Division.

Submitted June 8, 2021

Decided June 29, 2021

Jardim, Meisner & Susser, PC, and Herman Law Offices, LLC, attorneys for appellant Thelma Witherspoon (Scott D. Salmon and Robert D. Herman, Linwood, on the briefs).

Law Offices of Madden & Madden, PA, attorneys for respondent Office of the Atlantic County Clerk (Patrick J. Madden, on the brief).

Gurbir S. Grewal, Attorney General, attorney for amicus curiae Attorney General of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief).

Before Judges Yannotti, Haas, and Mawla.

The opinion of the court was delivered by

MAWLA, J.A.D.

Appellant Dr. Thelma Witherspoon appeals from a Law Division order dated January 4, 2021, which revoked her certificate of election for County Commissioner¹ for the Third District in Atlantic County, declared a vacancy, and scheduled a special election for the position. We affirm.

This case arises from the November 3, 2020 election, in which Witherspoon and her opponent Andrew Parker² ran for the Atlantic County Commissioner, District Three position, which comprised portions of Egg Harbor Township and Hamilton Township. Witherspoon won, and Parker filed a contest, asking the court to invalidate the election because a number of voters received defective ballots that did not include the Third District Commissioner election.

Judge Joseph L. Marczyk tried the matter on facts set forth in a six-page stipulation filed by the parties whose relevant portions are as follows:

7. The Atlantic County Commissioner ..., District Five, consists, in part, of Election Districts [One], [Two], [Three], [Five], [Six], and [Twelve] in Hamilton Township.

8. The November 3, 2020 General Election was conducted pursuant to N.J.S.A. 19:63-31.

9. The November 3, 2020 General Election was primarily a "Vote-by-Mail" election.

....

13. Pursuant to N.J.S.A. 19:63-7 and N.J.S.A. 19:63-9, vote-by-mail ballots for the November 3, 2020 General Election were designed, prepared, and printed on behalf of the Atlantic County Clerk.

14. Pursuant to N.J.S.A. 19:63-7 and N.J.S.A. 19:63-9, vote-by-mail ballots for the November 3, 2020 General Election that were designed, prepared, and printed on behalf of the Atlantic County Clerk were to be sent to all active, qualified registered voters in Atlantic County.

....

18. Due to an error by the Office of the Atlantic County Clerk, 554 voters in Hamilton Township received incorrect vote-by-mail ballots for the November 3, 2020 General Election.

....

21. Of the 554 erroneous vote-by-mail ballots[,] ... 219 were sent to voters in Hamilton Township, Election Districts [One], [Two], [Three], [Five], [Six], and [Twelve].

22. Of the 554 erroneous vote-by-mail ballots ... 335 were sent to voters in Hamilton Township, Election Districts [Four], [Seven through Eleven], and [Thirteen].

23. The 219 erroneous ballots sent to Hamilton Township, Election District [One], [Two], [Three], [Five], [Six], and [Twelve] voters, contained the race for Atlantic County Commissioner ..., District Three, a race in which the voters were not entitled to vote.

24. The 335 erroneous ballots sent to Hamilton Township, Election District(s) [Four], [Seven through Eleven], and [Thirteen] voters, failed to contain the race for Atlantic County Commissioner ..., District Three, a race in which the voters were entitled to vote.

....

31. Of the 219 erroneous ballots sent to Hamilton Township, Election District [One], [Two], [Three], [Five], [Six], and [Twelve] voters, 161 erroneous ballots were returned.

32. Of the 335 erroneous ballots sent to Hamilton Township, Election District(s) [Four], [Seven through Eleven], and [Thirteen] voters, 237 erroneous ballots were returned.

33. Of the 554 erroneous vote-by-mail ballots ... [fourteen] voters made application and received a "Corrected Ballot."

....

37. In due course, the Atlantic County Board of Elections canvassed and counted the votes for the Atlantic County Commissioner ..., District Three.

38. The Atlantic County Board of Elections vote totals for Atlantic County Commissioner ..., District Three, was:

?

39.... Witherspoon was certified as the winner of the race for Atlantic County Commissioner ..., District Three.

40.... Witherspoon's margin of victory over ... Parker was 286 votes.

Witherspoon retained a political scientist, Tina M. Zappile, Ph.D., who prepared a report based on a statistical analysis and opined the erroneous ballots would not have changed the outcome of the election. The Attorney General moved to bar Dr. Zappile's testimony and Parker joined in the motion.

The judge granted the motion and made the following oral findings:

Here, [Witherspoon] is seeking to admit expert testimony regarding how rejected voters and illegal votes may have been cast.

The [c]ourt rejects the argument that it is proper in New Jersey to offer expert testimony as to how disenfranchised voters would have voted had they been given or been provided with a proper ballot or how illegal voters may have voted in the context of an election challenge.

There is no authority to allow such an expert in the context of this case. Although there are situations when circumstantial evidence can be admitted to show how illegal votes were cast, if you look at [ Nordstrom v. Lyon, 424 N.J. Super. 80, 35 A.3d 710 (App. Div. 2012) ], there is no controlling legal authority where it's been suggested that expert testimony of this kind would be permitted under the facts of this case.

More importantly, the apparent focus of [Witherspoon's] case in this matter is legal votes that were rejected. Our Supreme Court noted in [ In rePetition of Gray-Sadler, 164 N.J. 468, 753 A.2d 1101 (2000) ], ... courts cannot require candidates contesting the election to prove that the votes not cast due to irregularities such as defective ballots would have voted for the candidate challenging the election.

That is, the [c]ourt cannot speculate as to which candidate the disenfranchised voters may have cast their ballot. Rather, the petition need only show that enough qualified voters were denied the right to cast votes to affect the outcome of the election. ...

....

The ... expert's opinions ... are therefore not relevant in the [c]ourt's view even if the opinions are based on statistical analysis.

....

... The citizen's constitutional right to vote for a candidate of his or her choice necessarily includes the corollary right to have that vote counted at full value without dilution or discount.

To preserve those rights, our state election laws are designed to deter fraud, safeguard the secrecy of the ballot[,] and prevent the disenfranchisement of qualified voters.

Again, as noted above, the voters cannot now cast a ballot. It would not be fair in the [c]ourt's view for an expert to be allowed to offer an opinion as to how those disenfranchised voters would likely have voted.

After the expert was disqualified, the judge issued a written decision adjudicating the relief sought in Parker's petition. The judge outlined Parker's positions as follows:

The primary argument advanced by [Parker] is that the Atlantic County Clerk erroneously provided ballots to 335 voters in the Third ... District without a choice for the Third District [County Commissioner] race and therefore these voters were unable to vote for a candidate of their choice. Because of this error, [Parker] argues the court must invalidate the certificate of election because the number of disenfranchised voters exceeds the vote differences between the candidates. [Parker] relies on N.J.S.A. 19:29-l(e) which provides, in pertinent part, that a party to an election may contest the result of an election when "legal votes are rejected at the polls sufficient to change the results." [Parker] contends the 335 voters who received the wrong ballots had their legal votes rejected and were disenfranchised. [Parker] argues the right to vote freely for a candidate of one's choice is of the essence in a democratic society and other rights are illusory if the right to vote is undermined. N.J. Democratic Party, Inc. v. Samson, 175 N.J. 178, 814 A.2d 1028 (2002).

[Parker] relies on Application of Moffat, 142 N.J. Super. 217, 224, 361 A.2d 74 [(App. Div.)], certif.denied, 71 N.J. 527, 366 A.2d 682 (1976) [,] for the proposition that when legal votes have been rejected, the contestant does not have the burden of showing specifically for whom the votes were cast. Rather, the contestant's burden would be met by a demonstration that had the votes been cast for him, the result would have been different. Petitioner argues that if the results of the election stand, all of the voters in the Third ... District would be disenfranchised in one way or another. Plaintiff notes the 335 qualified voters, who received ballots without a choice for the Third [District County Commissioner] race, were all disenfranchised whether they voted or not because all of the voters never had a chance to vote for a candidate of their choice.^[3]

The judge summarized Witherspoon's arguments as follows:

[Witherspoon] contends that not all irregularities, tragic as they may be, require a judicial response and that there is a tremendous burden and cost on the voters, candidates[,] and taxpayers to hold a new election.

[Witherspoon] contends that comparing ballots affected by the issues in this case to the margin of victory is a flawed methodology. [Witherspoon] contends there is no evidence to suggest that the qualified voters who should have been sent a ballot that contained the race, and did not vote, would have voted if sent the correct ballot and that these voters should not get a "second bite at the apple." In addition, [Witherspoon] argues that voters were "explicitly given the option to cure the ballot deficiencies by

...