EDWARD CORREA VS. ANN GROSSIS. (L-1026-18, MORRIS COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4883-17T4
EDWARD CORREA,
Plaintiff-Appellant,
and
NEW JERSEY DEMOCRATIC
STATE COMMITTEE,
Plaintiff/Intervenor-
Appellant,
v.
ANN GROSSI, JOHN WOJTAZEK
and TARA PETTONI,
Defendants-Respondents.
______________________________
Submitted January 9, 2019 – Decided April 8, 2019
Before Judges Nugent, Reisner and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-1026-18.
Genova Burns, LLC, attorneys for appellant New
Jersey State Democratic Committee; Jardim, Meisner &
Susser, PC, attorneys for appellant Edward Correa
(Rajiv D. Parikh and Scott D. Salmon, of counsel; Rajiv
D. Parikh, Matthew Baker and Paul J. DeMartino, Jr.,
on the joint brief).
Carbone and Faasse, attorneys for respondents Ann
Grossi and John Wojtazek (John M. Carbone, on the
brief).
Antonelli Kantor, PC, attorneys for respondent Tara
Pettoni (Jarrid H. Kantor, of counsel; Jarrid H. Kantor
and Yulieika Tamayo, on the brief).
Pashman Stein Walder Hayden and American Civil
Liberties Union of New Jersey Foundation, attorneys
for amicus curiae American Civil Liberties Union of
New Jersey (CJ Griffin, Jeanne M. LoCicero, and
Alexander R. Shalom, of counsel; CJ Griffin, on the
brief).
PER CURIAM
In this opinion, we address the one novel issue placed before us. Where
N.J.S.A. 19:23-22.4 requires that sample primary ballots be printed in Spanish
as well as English, must the official primary ballots, including mail-in ballots,
also be printed in Spanish and English? Reading N.J.S.A. 19:23-22.4 in pari
materia with related sections of the election laws, and considering the
Legislature's policy to avoid disenfranchising voters whose primary language is
Spanish, we conclude that the answer to the question is yes. To avoid disrupting
the electoral process, our decision is prospective only, and any future challenge
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based on this decision must be filed in sufficient time to permit effectuation of
the relief sought without delaying the election.
I
Before continuing our discussion, we address the procedural posture of
the case. A few days before the June 5, 2018 primary election, plaintiff Edward
Correa filed an order to show cause challenging the machine and mail-in ballots
in Dover, Morris County. At the time, Correa was a "declared candidate" for a
seat on the district committee in Ward 3, District 1 in Dover. Because at least
ten percent of the registered voters in Dover spoke Spanish as their primary
language, N.J.S.A. 19:23-22.4 required that the sample ballots be printed in both
English and Spanish. Relying on N.J.S.A. 19:23-31 and N.J.S.A. N.J.S.A.
19:63-7, Correa argued that the machine and mail-in ballots likewise should
have been bilingual. The New Jersey Democratic State Committee intervened
as a plaintiff in the action. 1
The order to show cause, seeking injunctive relief, was heard on the Friday
before the scheduled Tuesday election. After hearing arguments addressing both
the legal issues and the practical impediments to granting plaintiffs the relief
they sought, the trial court rejected plaintiffs' legal contentions and denied the
1
We will refer to Correa and the intervenor collectively as plaintiffs.
A-4883-17T4
3
application for an injunction. The trial court noted that the Legislature
specifically added the bilingual-printing requirement only as to sample ballots
and not as to official ballots, and reasoned that if the Legislature intended to
change the language requirement for official ballots it would have specifically
so provided.
The application for injunctive relief with respect to the June 5, 2018
primary election is now moot, since the election is long over. However,
plaintiffs also sought an order requiring the County Clerk to provide bilingual
ballots in future elections. The appeal from the denial of that relief is not moot.
However, even if the entire appeal were moot, we would address it because the
State election law issue concerns a matter of significant public importance. 2 See
Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996).
2
We reject plaintiffs' arguments under section 203 of the Federal Voting Rights
Act (FVRA), 52 U.S.C. § 10503(b)(2)(A), for the reasons stated by the trial
court. As the trial court stated, the claim is without merit because the Federal
Director of the Census did not designate Morris County as being subject to
section 203. We will not address plaintiffs' arguments under sections 2(a) and
4(e) of the FVRA. Those issues were not raised in the trial court. See Nieder
v. Royal Indem. Ins. Co., Inc., 62 N.J. 229, 234 (1973). We also decline to
consider census documents that were improperly included in plaintiffs' appendix
although not presented to the trial court. See R. 2:5-4(a). Plaintiffs' argument
concerning alleged improper formatting of the mail-in ballot is moot, and we
decline to address it. We will not address plaintiffs' New Jersey Civil Rights
Act claim because it was raised for the first time on appeal. Nieder, 62 N.J. at
234.
A-4883-17T4
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II
The appeal before us presents a question of statutory interpretation, as to
which our review is de novo. Murray v. Plainfield Rescue Squad, 210 N.J. 581,
584 (2012).
The issue arises from an apparent contradiction between N.J.S.A. 19:23-
31, which requires the official primary sample ballot to be, as closely as
possible, a facsimile of the official primary ballot, and a 1974 amendment to a
separate section of the election law that requires the official sample primary
ballot to be printed in Spanish and English where ten percent of an election
district's registered voters' primary language is Spanish.3 N.J.S.A. 19:23-22.4.
Plaintiffs also rely on N.J.S.A. 19:63-7, which requires that mail-in ballots "shall
be as nearly as possible facsimiles of the election ballot to be voted at the
election."
The general sample ballot statute provides as follows:
The official primary sample ballot shall be, as
nearly as possible, a facsimile of the official primary
ballot to be voted at the primary election and shall be
printed on paper different in color from the official
3
A similar facial contradiction exists between the general statute concerning
sample ballots for the general election, N.J.S.A. 19:14-22, and the statute
requiring bilingual general election sample ballots in certain districts, N.J.S.A.
19:14-21. However, the issue concerning general election ballots is not before
us.
A-4883-17T4
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primary ballot, so that the same may be readily
distinguished from the official primary ballot. The
official primary sample ballot shall have printed at the
top in large type the words: "This official primary
sample ballot is an exact copy of the official primary
ballot to be used on primary election day. This ballot
cannot be voted." The official primary sample ballot
shall also have printed thereon, following the words
which indicate the election district, the following
words: "The polling place for this election district is
(Stating the location of said polling
place)."
[N.J.S.A. 19:23-31 (emphasis added; bold in original).]
Section 31 was adopted in 1930, L. 1930, c. 187, § 293, and has never been
amended.
The primary sample ballot provision requiring bilingual printing reads as
follows:
In all counties the county clerk shall cause to be
printed a sufficient number of official primary ballots
and official primary sample ballots of each political
party, in proper form for the mailing of such sample
ballots at the times and in the manner and number as
required by the provisions of Title 19 of the Revised
Statutes, and shall furnish such official primary sample
ballots to the proper officer or officers on the earliest
possible date preceding the primary election.
In the counties described by this section, for each
election district within the county in which the primary
language of 10% or more of the registered voters is
Spanish, the county clerk shall similarly cause to be
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printed bilingually in English and Spanish a sufficient
number of official primary sample ballots of each
political party, and shall similarly furnish such official
primary sample ballots to the proper officer or officers.
[N.J.S.A. 19:23-22.4 (emphasis added).]
The first paragraph of section 22.4 was adopted in 1965. L. 1965, c. 29, § 2.
The second paragraph, highlighted above, was adopted in 1974. L. 1974, c. 51,
§ 1.
The mail-in ballot provision on which plaintiffs rely reads as follows:
a. Each county clerk shall have printed sufficient
mail-in ballots for each primary election for the general
election, and for the general election. Along with such
ballots the clerk shall also furnish inner and outer
envelopes and printed directions for the preparation and
transmitting of such ballots used in the election in the
county.
b. The mail-in ballots shall be printed on paper of
a different color from that used for any primary or
general election ballot, but in all other respects, shall be
as nearly as possible facsimiles of the election ballot to
be voted at the election.
[N.J.S.A. 19:63-7 (emphasis added).]
A-4883-17T4
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This section, L. 2009, c. 79, § 7, was adopted in 2009, as part of the Vote By
Mail Law, which was designed to simplify the voting process.4 See N.J.S.A.
19:63-1; Senate State Gov't Comm., Statement to Senate Comm. Substitute for
S. 1380 (June 12, 2008).
On this appeal, defendants urge us to adopt the trial court's reasoning and
look to the literal words of the statute, particularly the absence o f a "bilingual
language" requirement in the statutory provisions pertaining to official ballots.
Plaintiffs, joined by amicus curiae American Civil Liberties Union of New
Jersey, contend that once the Legislature amended the sample ballot law, the
"facsimile" provision in N.J.S.A. 19:23-31 would automatically require that the
official ballots follow the required format of the sample ballots. They further
argue that if the official machine ballots must conform to the sample ballots, the
mail-in ballots must likewise conform, because they must be exact duplicates of
the machine ballots. See N.J.S.A. 19:63-7. While plaintiffs concede the law is
ambiguous on those points, they urge that we resolve the ambiguity by
considering the absurd result of defendants' proffered interpretation, and by
4
As part of an omnibus amendment to the election laws, L. 2011, c. 134, the
section was amended in 2011, to eliminate a reference to a separate presidential
primary. L. 2011, c. 134, § 51.
A-4883-17T4
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considering the Legislative purpose of statutory amendments designed to protect
Spanish-speaking voters.
Where the plain language of a statute is clear, we enforce the statute as
written. See DiProspero v. Penn, 183 N.J. 477, 492 (2005). However, our basic
rules of statutory interpretation recognize that not every statute is clear, and in
case of ambiguity, our guiding light is the Legislature's intent.
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. When the statutory
language is sufficiently ambiguous that it may be
susceptible to more than one plausible interpretation,
we may turn to such extrinsic guides as legislative
history, including sponsor statements and committee
reports. We may also turn to extrinsic guides if a literal
reading of the statute would yield an absurd result,
particularly one at odds with the overall statutory
scheme. 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)(citations omitted).]
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As our Supreme Court recently reminded us, when we are faced with
ambiguity in a statute, we should consider the legislative intent animating the
entire statutory scheme of which the specific provision is a part.
[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
statute in question, but also the entire legislative
scheme of which it is a part."
[Haines v. Taft, __ N.J. __, __ (2019) (slip op. at 17)
(citations omitted).]
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. In re Holmes, 346
N.J. Super. 372, 376-77 (App. Div. 2002).
"Where there are two contradictory provisions in a statute, the primary
object is to ascertain the legislative design with reasonable certainty[.]" Brewer
v. Porch, 53 N.J. 167, 174 (1969). 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."
A-4883-17T4
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Also, "[a]cts in pari materia as well as related acts not
strictly in pari materia, should be examined."
[Bd. of Educ. of Sea Isle City v. Kennedy, 196 N.J. 1,
13 (2008) (alteration in original) (citations omitted).]
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). "[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." In
re Gray-Sadler, 164 N.J. 468, 474-75 (2000) (citations omitted).
Considering the statutory scheme as a whole, it is clear that the Legislature
has expressed a strong policy interest in protecting Spanish-speaking voters
from being disenfranchised. The Legislature has adopted a panoply of
protections in voting districts where the primary language of at least ten percent
of registered voters is Spanish. See N.J.S.A. 19:14-21 (bilingual sample ballots
for general elections); N.J.S.A. 19:6-1 (appointment of additional District Board
A-4883-17T4
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of Elections members who are of Hispanic origin and fluent in Spanish);
N.J.S.A. 19:49-4(a)(2), (b) (delivery and display of bilingual sample ballots at
a polling places). In counties where the primary language of at least ten percent
of registered voters is Spanish, notices for challenging voters, instructions and
affidavits to be completed by challenged voters, and complaint forms concerning
the conduct of elections, must all be bilingual. See N.J.S.A. 19:12-9; N.J.S.A.
19:15-18.1; N.J.S.A. 19:32-4.1. Additionally, bilingual voter registration forms
must be available in any county where bilingual sample ballots are required in
at least one of the county's election districts. N.J.S.A. 19:31-6.4(c).
As previously noted, defendants contend that if the Legislature intended
to require bilingual official ballots, it would have included that requirement at
the same time that it amended the statutes to require bilingual sample ballots.
Plaintiffs respond that the Legislature should be deemed to be aware that sample
ballots must be an exact copy, or facsimile, of the official ballot, and we should
infer from the "facsimile" provisions of the election laws that the Legislature
would expect the official ballots to mirror any required changes in the sample
ballots.
Plaintiffs also contend that accepting defendants' argument will lead to an
absurd result which is contrary to the Legislature's intent to protect Spanish -
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speaking voters. They point out that having an official ballot that is only in
English defeats the purpose of issuing bilingual sample ballots. In particular,
they contend that, even if the sample ballot is bilingual, a voter whose primary
language is Spanish will then enter a voting booth and be confronted with a
ballot printed only in English. A voter who is confused or unable to read the
ballot due to a language barrier cannot leave the voting booth to seek an
explanation and then re-enter the booth. N.J.S.A. 19:52-3 (stating that a voter
who leaves the voting booth may not thereafter re-enter the booth "on any
pretext whatever."). Moreover, because the sample ballot advises voters that it
is an exact copy of the official ballot, voters receiving a bilingual sample ballot
can fairly expect that the official ballot will likewise be bilingual. 5
Both sides have colorable arguments to make in this case. However,
bearing in mind that our polestar is the Legislature's intent, that the election laws
are to be construed liberally with an eye to facilitating rather than obstructing
the right to vote, and that absurd results are to be avoided in statutory
5
We note that by statute the county clerks are to begin sending out mail -in
ballots "on or before the 45th day before an election is held." N.J.S.A. 19:63 -
9(a). However, sample ballots need not be mailed to voters until the Wednesday
before the primary day. N.J.S.A. 19:23-34. As a result, if the mail-in ballots
are not bilingual, voters whose primary language is Spanish will first receive an
English-only mail-in ballot several weeks before the primary, but they will not
receive a Spanish translation until a few days before the election.
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construction, we conclude that plaintiffs have the better arguments. As a
practical matter, it makes no sense to provide bilingual sample ballots because
voters are not fluent in English, but to expect those same voters to navigat e an
official balloting process that is English-only. We will not presume that the
Legislature intended that result. Rather, we presume that the Legislature, being
familiar with its own enactments, would have expected that the "facsimile"
language pertaining to sample and official ballots would result in the official
ballots mirroring the sample ballots where the Legislature required the sample
ballots to be printed in both Spanish and English. We acknowledge that if we
have misconstrued the Legislature's purpose, the Legislature is free, as always,
to amend the statutes to clarify its intent.
We reverse the order on appeal insofar as it denied plaintiffs' application
for prospective relief, and we remand this matter to the trial court for the limited
purpose of entering an order conforming to this opinion.
Reversed and remanded. We do not retain jurisdiction.
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