IN THE MATTER OF THE ELECTION FOR ATLANTIC COUNTY FREEHOLDER DISTRICT 3 (L-3929-20, ATLANTIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1205-20
IN THE MATTER OF THE
ELECTION FOR ATLANTIC APPROVED FOR PUBLICATION
COUNTY FREEHOLDER June 29, 2021
DISTRICT 3 2020 GENERAL APPELLATE DIVISION
ELECTION, and ANDREW
PARKER.
__________________________
Submitted June 8, 2021 — Decided June 29, 2021
Before Judges Yannotti, Haas, and Mawla.
On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Docket No. L-3929-
20.
Jardim, Meisner & Susser, PC, and Herman Law
Offices, LLC, attorneys for appellant Thelma
Witherspoon (Scott D. Salmon and Robert D. Herman,
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).
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 Parker 2 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:
1
The position of the Board of Chosen Freeholders has become the Board of
County Commissioners and the position of "Freeholder" has been substituted
by "County Commissioners." See L. 2020, c. 67 (eff. Jan. 1, 2021) (amending
N.J.S.A. 1:1-2; N.J.S.A. 40:20-1).
2
Parker did not participate in this appeal. In the trial court, the Attorney
General appeared on behalf of the Board and the Superintendent of Elections
to address the aspect of this case relating to the utilization of expert testimony.
We granted his motion to appear as amicus curiae in this appeal.
A-1205-20
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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].
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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.
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38. The Atlantic County Board of Elections
vote totals for Atlantic County Commissioner . . . ,
District Three, was:
. . . Witherspoon 15,034
. . . Parker 14,748
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 (App. Div. 2012)], there is
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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 re
Petition of Gray-Sadler, 164 N.J. 486 (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
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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 (2002).
[Parker] relies on Application of Moffat, 142
N.J. Super. 217, 224 [(App. Div. 1976)], certif.
denied, 65 N.J. 577 (1974)[,] 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
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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 voting provisionally on Election Day."
With respect to the legal votes that were
arguably rejected, [Witherspoon] contends that the
court should not use the 335 figure for the number of
3
Parker also raised arguments pursuant to N.J.S.A. 19:29-1(a), challenging the
result of the election based on the "malconduct" of the County Clerk and
asserted the court should invalidate the election result pursuant to N.J.S.A.
19:29-1(e), based on illegal votes cast by those not domiciled in the Third
District. The judge addressed and rejected those arguments, and they are not
part of this appeal.
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votes rejected. Rather, the court should look to the
number of those 335 who actually voted. Witherspoon
indicates that 244 (not 248 as indicated by Parker)
were returned of which [seven] were duplicates
leaving 237 remaining ballots. [Witherspoon] further
notes that [twenty-three] of these voters did ultimately
vote provisionally bringing the number down to 214.
At the hearing, [Witherspoon] indicated that [seven]
corrected ballots were obtained by the voters in this
group of 335 qualified voters. That is a stipulated
fact. Witherspoon further argued that [twenty-three]
voters voted via a corrected provisional ballot. This
. . . figure (of voters who voted by provisional ballot)
is not stipulated by the parties, but is addressed below.
[Witherspoon] submits that the court should not
consider votes of those who did not vote at all because
these were not legal votes that were rejected.[ 4]
The judge rejected Witherspoon's argument that N.J.S.A. 19:63-26
superseded N.J.S.A. 19:29-1. Citing In re Livingston, 83 N.J. Super. 98, 107
(App. Div. 1964), in which we interpreted the predecessor statute to N.J.S.A.
19:63-26, the judge noted we held that our election laws should not be
construed so as to deprive voters of their franchise. The judge noted the issues
raised in this case were not "mere technicalit[ies]" but fundamental errors that
4
The judge also noted Witherspoon asserted the following arguments with
respect to the illegal votes: (1) Parker had not met his burden of proof to
vacate those votes by showing for whom the illegal votes were cast; and (2)
Witherspoon should not "suffer when she complied with the rules of the
election contest . . . and the election was impacted by the Clerk's actions and
not anything that [Witherspoon] did . . . ." As we noted in footnote three,
these arguments are not part of this appeal.
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may have altered the outcome of the election because voters were denied the
right to vote.
Turning to N.J.S.A. 19:29-1(e) and Parker's argument asserting the legal
votes rejected warranted a new election, the judge pointed out our Supreme
Court in Gray-Sadler "defined the term ['rejected'] 'to include any situation in
which qualified voters are denied access to the polls.'" Furthermore, the judge
stated:
[T]he Court further indicated that voters need not be
physically barred from voting to have their votes
rejected, but may instead show that, through no fault
of their own, they were prohibited from voting for a
specific candidate by some irregularity in the voting
procedures. [Gray-Sadler, 164 N.J. at 475 (citing In re
Moffat, 142 N.J. Super. at 223).] The essential
question is whether voters were denied the opportunity
to vote for a candidate of their choice. Ibid.The judge concluded N.J.S.A. 19:63-26 and N.J.S.A. 19:29-1 should be
read in pari materia and harmonized rather than viewed as inapposite. He
concluded "the [335] voters who were sent a defective ballot that did not
include the Third District [County Commissioner] election, through no fault of
their own, were rendered incapable of voting for the candidate of their choice"
and "are properly characterized as 'rejected legal votes.'" The judge reduced
this figure to 328 to account for the seven voters who received corrected
ballots.
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The judge found Parker met his burden to set aside the election because
"there were sufficient legal votes rejected to change the results pursuant to
N.J.S.A. 19:29-1(e) as [Witherspoon's] margin of victory was 286 votes." The
judge stayed the order pending appeal.
Witherspoon raises the following arguments on appeal:
POINT ONE
THE TRIAL COURT ERRED IN FINDING,
PURSUANT TO N.J.S.A. 19:29-1(e), THAT
RESPONDENT PARKER MET THE BURDEN TO
VACATE THE RESULTS OF THE NOVEMBER 3,
2020 GENERAL ELECTION.
A. The Trial Court Erred in Considering
Votes That Were Never Cast as "Legal
Votes Rejected".
POINT TWO
THE TRIAL COURT ERRED IN BARRING THE
TESTIMONY OF APPELLANT'S EXPERT
WITNESS.
POINT THREE
THE TRIAL COURT ERRED IN FAILING TO
APPLY N.J.S.A. 19:63-26, WHICH PROHIBITS
OVERTURNING ELECTIONS DUE TO
IRREGULARITIES OR FAILURES IN THE
PREPARATION/FORWARDING OF MAIL-IN
BALLOTS.
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I.
In Points I and III, Witherspoon argues the judge erred when he
concluded Parker met the burden of proof to vacate the election result. She
challenges the judge's finding that the votes not cast were "legal votes
rejected" under N.J.S.A. 19:29-1(e) because the ballots of voters who voted on
defective ballots were accepted and canvassed. She asserts the actual legal
votes rejected were 230, which is less than her 286-vote margin of victory.
She also asserts twenty-four voters out of the 328 who received defective
ballots came to the polls, and requested and submitted provisional ballots
thereby curing the ballot deficiency, and thus were not denied access to the
polls. She repeats the claim that N.J.S.A. 19:63-26 barred Parker's challenge
because the statute limits the court's ability to overturn an election due to
irregularities and supersedes N.J.S.A. 19:29-1.
The Attorney General urges us to affirm and argues N.J.S.A. 19:63-26
does not supersede 19:29-1. He argues N.J.S.A. 19:63-26 is a rebuttable
presumption against overturning an election unless there are grounds to do so
under N.J.S.A. 19:29-1.
The parties' arguments concern statutory interpretation. Therefore, our
review is de novo. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584
(2012).
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As a general proposition, "election laws are to be liberally construed to
the end that voters are permitted to exercise the franchise and that the will of
the people as expressed through an election is heard." In re Contest of Nov. 8,
2005 Gen. Election for Off. of Mayor of Twp. of Parsippany-Troy Hills, 192
N.J. 546, 559 (2007) (Parsippany II). "A citizen's constitutional right to vote
for the candidate of his or her choice necessarily includes the corollary right to
have that vote counted 'at full value without dilution or discount.'" Gray-
Sadler, 164 N.J. at 474 (quoting Reynolds v. Sims, 377 U.S. 533, 555 n.29
(1964)). "The fundamental purpose of an election contest is 'to ascertain the
true will of the electorate.'" Nordstrom, 424 N.J. Super. at 103 (quoting Kirk
v. French, 324 N.J. Super. 548, 552 (Law Div.1998)).
"Our election laws provide . . . the framework within which our
Legislature has directed an election contest must proceed," including "both the
grounds on which an election may be contested, and the manner in which the
contest may be brought and decided." Parsippany II, 192 N.J. at 559. A judge
hearing a contest petition, following a trial "similar to those in a civil action so
far as practicable . . . under the control and direction of the court," must
"pronounce judgment whether the incumbent or any contestant was duly
elected." N.J.S.A. 19:29-5; N.J.S.A. 19:29-8. "If the judge finds that no
person was duly elected, the judgment shall be that the election be set aside."
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N.J.S.A. 19:29-9. "A judge may not speculate as to the voter's intent in order
to validate a ballot . . . ." In re Mallon, 232 N.J. Super. 249, 262 (App. Div.
1989).
N.J.S.A. 19:29-1 sets forth nine grounds on which to challenge an
election. In relevant part, it states:
The . . . election of any person to any public office . . .
may be contested by the voters of this State or of any
of its political subdivisions affected thereby upon
[one] or more of the following grounds:
....
e. When illegal votes have been received,
or legal votes rejected at the polls
sufficient to change the result . . . .
[N.J.S.A. 19:29-1(e).]
"The origins of this provision are quite ancient, and it has been included as a
ground to challenge a municipal election since 1876." Parsippany II, 192 N.J.
at 561.
The Supreme Court has stated: "Simple deviance from statutory election
procedures, absent fraud or malconduct, will not vitiate an election unless
those contesting it can show that as a result of irregularities 'the free
expression of the popular will in all human likelihood has been thwarted.'"
Gray-Sadler, 164 N.J. at 482 (quoting Wene v. Meyner, 13 N.J. 185, 196
(1953)). "In determining whether certain irregularities rise to a level which
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requires nullifying an election . . . [i]t is only where the irregularities at an
election are such that the court cannot with reasonable certainty determine who
received the majority of the legal vote, that an election will be set aside."
Mallon, 232 N.J. Super. 270.
A petitioner contesting the outcome of an election based on the rejection
of legal votes "need not identify for whom the rejected voter voted or would
have voted, only that the rejected votes were sufficient in number that, if all
were credited to him, the results of the election would change." In re Contest
of Nov. 8, 2005 Gen. Election for Off. of Mayor for Twp. Parsippany-Troy
Hills, 388 N.J. Super. 663, 677 (App. Div. 2006) (Parsippany I), aff'd as
modified on other grounds by Parsippany II, 192 N.J. at 572. We explained
the rationale is that even "[w]hen the wrongfully disenfranchised voter is able
to be identified, he cannot be compelled to disclose for whom he did or would
have voted." Ibid.A vote has been "rejected" under N.J.S.A. 19:29-1(e), in "any situation
in which qualified voters are denied access to the polls," Gray-Sadler, 164 N.J.
at 475 (quoting In re 1984 Maple Shade Gen. Election, 203 N.J. Super. 563,
590 (Law Div. 1985)), or who, "through no fault of their own," have be en
"prohibited from voting for a specific candidate by some irregularity in the
voting procedures." Gray-Sadler, 164 N.J. at 476. "The essential question is
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whether voters were denied the opportunity to vote for a candidate of their
choice." Ibid. A successful election contester "must prove by a preponderance
of the evidence that illegal votes were received or legal votes were rejected
. . . ." In re Nov. 2, 2010 Gen. Election for Off. of Mayor in Borough of S.
Amboy, 423 N.J. Super. 190, 200 (App. Div. 2011).
In Gray-Sadler, the Supreme Court nullified election results where write-
in candidates for mayor and borough council proved that confusing
instructions for submission of a write-in vote resulted in several voters who
submitted write-in votes that the Board of Elections rejected and others not
casting votes at all. 164 N.J. at 484. The Court noted because the votes for
the mayoral write-in-candidate that were rejected when added to the counted
votes exceeded that of the prevailing candidate, the irregularities were "so
serious as to prejudice the election result." Id. at 482. Regarding the borough
council candidates, the Court concluded even though they still trailed by ten
votes after adding the rejected write-in votes, many of the voters who did not
vote for council at all may have been deterred by the confusing instructions.
Id. at 482-83. The Court concluded it was impossible to "determine with
reasonable certainty those candidates who received a majority of the votes
. . . ." Id. at 484.
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Similarly, here, Parker met the burden of proof under N.J.S.A. 19:29-
1(e) because the ballots sent to numerous voters in the Third District were
defective, rendering voters incapable of voting for County Commissioner.
Because 328 voters were prevented from voting and the number exceeded
Witherspoon's 286-vote margin of victory, Parker proved the missing votes
were sufficient to change the result.
We reject Witherspoon's argument the voters who submitted defective
ballots that were missing the Third District race were not rejected legal votes
as defined by N.J.S.A. 19:29-1(e). As in Gray-Sadler, the defective ballots
issued by the Atlantic County Clerk here prevented voters from voting
"through no fault of their own" and "prohibited [them] from voting for a
specific candidate by some irregularity in the voting procedures." 164 N.J. at
476.
We also reject Witherspoon's argument that the sum of rejected votes
calculated by Judge Marczyk was incorrect. As we noted, the issue here is
"whether voters were denied the opportunity to vote for a candidate of their
choice," ibid., not as Witherspoon asserts, whether these voters would have
voted had they not been deprived of the opportunity to do so. The defective
ballots sent to 335 voters provided them no opportunity to vote for any
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candidate in the Third District County Commissioner race. Regardless of their
intent, these voters were disenfranchised.
Moreover, the fact seven voters sought out and submitted cured ballots
does not persuade us there was reversible error here. In Gray-Sadler, 154
voters were able to submit a write-in vote despite the confusing instructions,
yet the Court did not infer from this that the sixty-four voters who did not
adhere to the procedures and submitted defective write-in votes had forfeited
their opportunity to vote in the election. Id. at 473. Therefore, because seven
voters submitted cured ballots here does not persuade us the 328 voters who
did not had forfeited their right to vote.
We are likewise unconvinced by Witherspoon's argument the twenty-
four voters who received defective ballots and then came to the polls and
requested and submitted provisional ballots is grounds for reversal. This
group would only reduce the number of rejected votes to 304, which still
exceeded the 286-vote margin of victory, and Parker still established "the
rejected votes were sufficient in number that, if all were credited to him, the
results of the election would change." Parsippany I, 388 N.J. Super. at 677.
Witherspoon's assertion N.J.S.A. 19:29-1 does not apply to an election
pursuant to the Vote By Mail Law, N.J.S.A. 19:63-1 to -28, which the
Legislature enacted in 2009, is an issue of first impression. She asserts that,
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by omitting "mail-in ballot deficiencies" from the list of enumerated grounds
for voiding an election under N.J.S.A. 19:29-1, the Legislature intended to
"exclud[e]" such deficiencies as potential grounds for invalidating an election,
and then "clarifie[d]" that exclusion by enacting N.J.S.A. 19:63-26. She
argues "mail-in ballots are simply different than regular in-person ballots"
because, unlike in-person voting, mail-in voting allows the voter the recourse
of filling out a provisional ballot on election day. We disagree.
Our paramount goal in interpreting a statute is to
give effect to the Legislature's intent. When that
intent is revealed by a statute's plain language —
ascribing to the words used "their ordinary meaning
and significance" — we need look no further.
However, not every statute is a model of clarity. . . .
An enactment that is part of a larger statutory
framework should not be read in isolation, but in
relation to other constituent parts so that a sensible
meaning may be given to the whole of the legislative
scheme. We also must be guided by the legislative
objectives sought to be achieved by enacting the
statute.
[Wilson ex rel. Manzano v. City of Jersey City, 209
N.J. 558, 572 (2012) (emphasis added) (citations
omitted).]
The Supreme Court has stated:
[L]egislative intent controls because "statutes are to be
read sensibly rather than literally and the controlling
legislative intent is to be presumed as consonant to
reason and good discretion." When "discerning that
[legislative] intent we consider not only the particular
A-1205-20
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statute in question, but also the entire legislative
scheme of which it is a part."
[Haines v. Taft, 237 N.J. 271, 283 (2019) (second
alteration in original) (citations omitted) (superseded
by statute for different reasons).]
Similarly, in the context of election law, we have observed:
Even an election statute that is facially
"straightforward" must be construed "in a common-
sense way that accords with the legislative purpose" of
the election laws to avoid disenfranchising qualified
voters. . . .
"Where there are two contradictory provisions
in a statute, the primary object is to ascertain the
legislative design with reasonable certainty[.]" . . .
The Legislature is presumed to be familiar with its
existing enactments and is presumed to intend that its
newer enactments be harmonized with the existing
ones, in light of the Legislature's purpose.
When attempting "to discover the
legislative intent, the statute must be read
in light of the old law, the mischief sought
to be eliminated and the proposed
remedy." Also, "[a]cts in pari materia as
well as related acts not strictly in pari
materia, should be examined." . . .
In construing election laws, we bear in mind
their fundamental purpose. "Because the right to vote
is the bedrock upon which the entire structure of our
system of government rests, our jurisprudence is
steadfastly committed to the principle that election
laws must be liberally construed to effectuate the
overriding public policy in favor of the
enfranchisement of voters." Afran v. Cty. of
Somerset, 244 N.J. Super. 229, 232 (App. Div. 1990).
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"[O]ur state election laws are designed to deter fraud,
safeguard the secrecy of the ballot, and prevent
disenfranchisement of qualified voters. In furtherance
of those goals, we have held that it is our duty to
construe elections laws liberally." [Gray-Sadler, 164
N.J. at 474-75] (citations omitted).
[Correa v. Grossi, 458 N.J. Super. 571, 579-81 (App.
Div. 2019) (second, fourth, and sixth alterations in
original) (citations omitted).]
By way of background, Governor Murphy issued an executive order,
titled "An Order to Protect Public Health By Mailing Every Active Registered
Voter a VBM [Vote-By-Mail] Ballot Ahead of the General Election." Exec.
Order. No. 177 (Aug. 14, 2020), 52 N.J.R. 1701(b), which required "[t]he
November General Election shall be conducted primarily via vote-by-mail
ballots[.]" On August 28, 2020, the Legislature enacted three separate
election-related laws, namely: a law designed to "modify and establish various
voting procedures," for the 2020 election and beyond, including provisions
relating to the "curing" of mail-in ballots (The Ballot Cure Act), L. 2020, c.
70; and two laws that codified several of the vote-by-mail procedures for the
2020 election directed by Executive Order Number 177, and amended various
other statutory provisions, L. 2020, c. 71; L. 2020, c. 72 (collectively, the 2020
election statutes).
Notably, the 2020 election statutes declared the Legislature's intent not
to disturb the existing scheme for election laws by stating: "The November
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2020 General Election shall be conducted in accordance with Title 19 except
as set forth below." N.J.S.A. 19:63-31(a). Among the new election
procedures implemented were a codification of the directive in Executive
Order 177 that the election would be "conducted primarily via vote-by-mail
ballots," N.J.S.A. 19:63-31(a).
The Vote By Mail Law grants all qualified voters the right to vote using
a mail-in-ballot "in all future elections, including general elections, held in this
State, in which the voter is eligible to vote." N.J.S.A. 19:63-3(a)(1). The
statute requires "[e]ach county clerk" to "print[] sufficient mail-in ballots . . .
for the general election," N.J.S.A. 19:63-7(a), and directs that "[w]hen mail-in
ballots are prepared, the name of any candidate who has been nominated for
any office shall be placed on the ballot to be used in the general election to be
held in the year in each election district in which he is a candidate." N.J.S.A.
19:63-11(b). The law also states: "No election shall be held to be invalid due
to any irregularity or failure in the preparation or forwarding of any mail -in
ballots prepared or forwarded pursuant to the provisions of [the Vote By Mail
Law]." N.J.S.A. 19:63-26 (emphasis added).
"In analyzing legislation, 'the words "must" and "shall" are generally
mandatory.'" State v. Sorensen, 439 N.J. Super. 471, 488 n.6 (App. Div. 2015)
(quoting Harvey v. Bd. of Chosen Freeholders, 30 N.J. 381, 391 (1959)).
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"[T]he word 'any' clearly is synonymous with the word 'all.'" In re Ordinance
04-75, 192 N.J. 446, 461 (2007).
Here, the parties stipulated the ballot defect was "an error by the Office
of the Atlantic County Clerk," not the voters. They further stipulated the error
resulted in "554 voters in Hamilton Township receiv[ing] incorrect vote-by-
mail ballots for the November 3, 2020 General Election," including "335
erroneous ballots sent to Hamilton Township, Election District(s) [Four],
[Seven through Eleven], and [Thirteen] voters," which "failed to contain the
race for Atlantic County Commissioner . . . District Three, a race in which the
voters were entitled to vote." Therefore, the defect here was in "mailing" or
"preparation" of the ballots, and implicated N.J.S.A. 19:63-26.
However, we reject Witherspoon's interpretation of the statute because it
requires us to read N.J.S.A. 19:63-26 in a manner that is inconsistent with the
other provisions of Title 19 and the Legislature's intent to ensure voter
franchise. We are not convinced the Legislature intended to eliminate the
ability to contest an election pursuant to N.J.S.A. 19:29-1 merely because the
vote occurred by mail. Moreover, N.J.S.A. 19:63-26 references "any
irregularity or failure in the preparation or forwarding of any mail-in ballots,"
it does not specifically mention votes rejected due to an irregularity of the
voting procedures through no fault of the voters, as happened here.
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Witherspoon's interpretation of N.J.S.A. 19:63-26 would lead to an absurd
result, construe our election laws in a way to deprive voters of the franchise,
and devitalize N.J.S.A. 19:29-1.
The better interpretation of the law is the one suggested by the Attorney
General. Harmonizing N.J.S.A. 19:63-26 and N.J.S.A. 19:29-1 and reading
the statutes in pari materia with the overall scheme of our election, as we must,
we hold N.J.S.A. 19:63-26 operates as a rebuttable presumption. In other
words, N.J.S.A. 19:63-26 establishes a presumption that an irregularity or
failure in the preparation of forwarding of any mail-in ballot will not invalidate
an election. However, a contestant may rebut the presumption by asserting
one or more of the grounds under N.J.S.A. 19:29-1 as a basis to invalidate the
election. An election shall be set aside if the trial judge concludes the
contestant has proved a basis to do so under N.J.S.A. 19:29-1 by a
preponderance of the evidence and the judge finds that no person was duly
elected, as per N.J.S.A. 19:29-9. For these reasons, Judge Marczyk did not err.
II.
Point II of Witherspoon's brief challenges the exclusion of Dr. Zappile's
testimony and asserts the expert would have established there were insufficient
votes to overcome the margin of victory. The Atlantic County Clerk argues
expert testimony should be permitted in election contest cases and urges us not
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to adopt a bright line rule to the contrary, but takes no position whether Dr.
Zappile's testimony was appropriate in this case. The Attorney General urges
us to affirm the decision to bar the expert because the testimony would have
been speculative.
Expert testimony is admissible "[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or
to determine a fact in issue . . . ." N.J.R.E. 702. Because "[t]he admission or
exclusion of expert testimony is committed to the sound discretion of the trial
court[,] . . . a trial court's grant or denial of a motion to strike expert testimony
is entitled to deference on appellate review." Townsend v. Pierre, 221 N.J. 36,
52 (2015).
Dr. Zappile's testimony was properly barred because it would not have
assisted the judge in deciding the dispute. As Judge Marczyk found, pursuant
to Gray-Sadler, 168 N.J. at 482, the issue in this case was whether the number
of legal votes rejected was enough to change the result of the election. The
Gray-Sadler Court held, because election contestants could not "prove that
votes not cast . . . would have been cast for them," the Court could not "require
them to prove to a certainty how the rejected voters would have voted . . . ."
Id. at 482-83. Six years after Gray-Sadler, we held that a party contesting an
election based on the number of rejected votes need only show "the rejected
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votes were sufficient in number that, if all were credited to him [or her], the
results of the election would change." Parsippany I, 388 N.J. Super. at 677.
Witherspoon cites Mallon, and asserts we held that in deciding whether
election irregularities warrant nullification of an election the court should
consider "the significance of its influence and consequential derivations in
order to determine whether the digression or deviation . . . had in reasonable
probability so imposing and so vital an influence on the election proceedings
as to have repressed or contravened a full and free expression of the popular
will." 232 N.J. Super. at 270. However, Witherspoon has taken our holding
out of context.
The quote emanates from Sharrock v. Borough of Keansburg, 15 N.J.
Super. 11, 17 (App. Div. 1951), and reads as follows:
The processes of public elections in this country
are not of common law origin. Except for the express
requirements of the constitutional security they are the
creatures of statutory law. Therefore the courts refrain
from an indulgence in any judicial action that
refashions legislation regulating and facilitating the
conduct of elections and which is calculated to secure
the right of suffrage and the free expression of the
choice of the voter.
And so, where the statute expressly declares that
a specified irregularity shall nullify an election, the
courts, irrespective of their views of the wisdom or
serviceability of the requirement, uniformly respect
the legislative declaration.
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But where, as here, there is no such legislative
declaration, the courts consider the nature of the
irregularity, its materiality, the significance of its
influence and consequential derivations in order to
determine whether the digression or deviation from
the prescribed statutory requisitions had in reasonable
probability so imposing and so vital an influence on
the election proceedings as to have repressed or
contravened a full and free expression of the popular
will . . . .
[Ibid. (emphasis added).]
The election irregularity at issue here—rejected votes—is one which the
Legislature, in N.J.S.A. 19:29-1(e), expressly declared would constitute
grounds to contest an election, and which our case law has uniformly
interpreted to constitute grounds for nullifying an election. Gray-Sadler, 164
N.J. at 482-83; Parsippany I, 388 N.J. Super. at 677; Mallon, 232 N.J. Super.
at 270. For these reasons, expert testimony was unnecessary in this case and
Judge Marczyk did not abuse his discretion in barring Dr. Zappile's testimony.
Finally, we decline to adopt a bright line rule regarding the admissibi lity of
expert testimony in this case type because Sharrock provides the proper
framework for the consideration of such evidence.
Affirmed.
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