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In re Contest of the General Election of May 9

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 26, 2007

IN THE MATTER OF THE CONTEST OF THE GENERAL ELECTION OF MAY 9, 2006 FOR THE OFFICE OF MAYOR AND COUNCIL

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-1689-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 17, 2007

Before Judges S.L. Reisner and Gilroy.

Tony Mack lost the 2006 Trenton mayoral election by about 3700 votes. He appeals from a trial court decision rejecting his challenge to the election results.*fn1 We affirm.

I.

Following a re-check and recount of the votes, Douglas Palmer was declared the winner of the Trenton mayoral election with 6435 votes out of a total of 12,217 votes cast for mayor.

Plaintiff Tony Mack received 2761 votes.

To avoid a run-off election, Palmer needed a majority of the votes cast plus one, or a total of 6110 votes. He received 325 votes more than the minimum needed. Of the votes cast for Palmer, 246 were cast by absentee ballot, an insufficient number to affect the outcome of the election even if they were all invalidated.

Mack filed a verified complaint contesting the election results, alleging improper use of messengers to deliver absentee ballots, illegal assistance with absentee ballots, missing provisional ballots, mishandling of provisional ballots, problems with voting machines, and other improprieties including fraud, misconduct and corruption.

After a nine-day bench trial, Judge Linda Feinberg issued a 103-page written opinion rejecting Mack's challenge to the election. Her opinion included detailed factual findings and credibility determinations based on the testimony of thirty-five witnesses. While she found that a few votes should be invalidated for irregularities, "the number is insufficient to require a run-off election." She concluded that "there is no evidence of fraud and no evidence to establish the illegal votes would have altered the results of this election." Consequently, she determined that the challenge should be dismissed.

II.

On this appeal, Mack submits the following points for our consideration:

POINT I:

PLAINTIFF'S APPEAL SHOULD BE GRANTED AND THE TRIAL COURT DECISION OVERTURNED REGARDING THE MAY 9, 2006 ELECTION DUE TO THE COURT'S FAILURE TO RECOGNIZE THE SUPERINTENDENT OF ELECTIONS OFFICE VIOLATION OF ELECTION LAW AND THEREFORE COMPROMISING THE MAY 9, 2006 ELECTION.

POINT II:

PLAINTIFF'S APPEAL SHOULD BE GRANTED AND THE TRIAL COURT'S DECISION REVERSED DUE TO THE COURT'S FAILURE TO PROPERLY CONSIDER THE ILLEGAL REVIEW OF VOTING LOGS BY THE DEFENDANT'S CAMPAIGN WORKERS WITH THE APPROVAL OF THE SUPERINTENDENT OF ELECTIONS AMOUNTED TO [MIS]CONDUCT WHICH WOULD CLEARLY REVERSE THE TRIAL COURT'S DECISION AND ORDER A NEW ELECTION OR IN THE ALTERNATIVE APPOINT THE PETITIONER MAYOR OF TRENTON.

POINT III:

PLAINTIFF'S APPEAL SHOULD BE GRANTED IN THAT THE TRIAL COURT ERRED IN NOT CONSIDERING THE EVIDENCE PRESENTED WHICH SUBSTANTIATED WRONGFUL AND ILLEGAL ASSISTANCE WITH REGARD TO ABSENTEE BALLOTS TOGETHER WITH THE FACT THAT THE ABSENTEE BALLOTS WERE MESSENGERED IN AN INAPPROPRIATE FASHION THEREFORE SUBSTANTIATING PLAINTIFF'S COMPLAINT FOR APPEAL AND REVERSAL OF THE TRIAL COURT'S DECISION.

POINT IV:

PLAINTIFF'S APPEAL SHOULD BE GRANTED DUE TO THE TRIAL COURT'S REVERSIBLE ERROR IN NOT PROPERLY CONSIDERING THE DEFENDANT'S VIOLATION OF THE ABSENTEE MESSENGER BALLOT LAWS.

POINT V:

THE PLAINTIFF'S POSITION FOR APPEAL SHOULD BE GRANTED DUE TO THE JUDICIAL ERROR OF THE COURT IN NOT RECOGNIZING THE [MIS]CONDUCT COMMITTED BY THE SUPERINTENDENT, COUNTY CLERK AND BOARD OF ELECTIONS ALLOWING THE DEFENDANT, MAYOR PALMER TO USE THE ABSENTEE SYSTEM TO INCUR[R] VOTES.

POINT VI:

THE TRIAL COURT COMMITTED SEVERE REVERSIBLE ERROR WHEN IT FAILED TO CONSIDER THE EVIDENCE OF THE PALMER HEADQUARTER HAVING BALLOTS AT HEADQUARTERS THUS THIS FACT IN ITSELF IS GROUNDS FOR A NEW TRIAL SUBSTANTIATING PLAINTIFF'S PETITION FOR APPEAL.

POINT VII:

PLAINTIFF'S APPEAL SHOULD BE GRANTED IN THAT THE TRIAL COURT ERRED IN NOT ADEQUATELY CONSIDERING THE FACT THAT THE DEFENDANT'S CAMPAIGN MANAGER, BENDELE MCQUEEN, SHREDDED BALLOTS DURING THE MAY 9, 2006 MAYORAL ELECTION.

POINT VIII:

THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE SEVERITY OF THE REQUIREMENT OF THE DEFENDANT'S CAMPAIGN WORKERS TO SIGN ABSENTEE BALLOTS TO GET PAID AND THUS COMMITTED JUDICIAL ERROR, WHICH IS REVERSIBLE.

POINT IX:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT ADEQUATELY CONSIDERING THE SUPERINTENDENT'S ILLEGAL ACTS OF SHREDDING BALLOTS AND, THEREFORE, THE MAY 9, 2006 ELECTION SHOULD HAVE BEEN INVALIDATED, AS SUCH PLAINTIFF'S APPEAL SHOULD BE GRANTED.

POINT X:

THE TRIAL COURT ERRED IN NOT CONSIDERING THE FACT THAT THE ELECTION WAS NOT OPEN TO THE PUBLIC, THEREFORE, THIS VIOLATION OF LAW WAS GROUNDS FOR ORDERING A NEW ELECTION AND THUS GROUNDS FOR GRANTING PLAINTIFF'S APPEAL.

Having reviewed the entire record, including the nine volumes of trial transcript, we conclude that Judge Feinberg's decision is supported by substantial credible evidence and she reached the correct result as a matter of law. See R. 2:11- 3(e)(1)(A); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Except to the extent discussed below, none of plaintiff's appellate contentions have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Mack argues that the election law prohibits campaign workers, and not just candidates, from assisting voters with absentee ballots and from acting as bearers or messengers for absentee ballots. The statute, N.J.S.A. 19:57-23, provides in relevant part:

An absentee voter shall be entitled to assistance from a family member in performing any of the actions above. An incapacitated absentee voter shall also be entitled to assistance from a person other than a family member in performing any of such actions. The family member or other person providing such assistance shall certify that he did assist the voter and will maintain the secrecy of the vote by both printing and signing his name in the space provided on the certificate. In no event may a candidate for election provide such assistance, nor may any person, at the time of providing such assistance, campaign or electioneer on behalf of any candidate.

[Ibid. (emphasis added).]

The statute further provides that "[n]o person who is a candidate in the election for which the voter requests an absentee ballot shall be permitted to serve as an authorized messenger or bearer." Ibid. (emphasis added). Judge Feinberg construed the statute as applying only to candidates and not to campaign workers. We need not address the issue in this appeal, however, because the factual record clearly establishes that even if the challenged absentee ballots cast for Palmer were invalidated, it would not change the outcome of the election.

See N.J.S.A. 19:29-1e.

Affirmed.


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