January 8, 2008
IN THE MATTER OF THE PRIMARY ELECTION HELD ON JUNE 6, 2006 FOR THE OFFICE OF COUNCIL PERSON IN THE BOROUGH OF ROSELLE
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2140-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 19, 2007
Before Judges Axelrad, Payne and Messano.
Candidate Rosemarie Bullock appeals from a decision of the Law Division granting the election challenge of Bullock's opponent, Christine Dansereau, in a Democratic primary election conducted on June 6, 2006 for a ballot position as Councilperson for the 5th Ward in Roselle Borough. Dansereau won in the general election in November 2006. We affirm.
On June 12, 2006, the county clerk certified Bullock as the winner of the primary contest with 285 votes (230 by machine, 1 provisional and 54 absentee) against Dansereau with 265 votes (258 by machine and 7 absentee). Dansereau contested the election by filing a verified petition and supplemental petition in the Law Division pursuant to N.J.S.A. 19:29-1, alleging that two voters had moved and that other absentee ballots bore evidence of mishandling by bearers, contrary to statute. The court entered an order dismissing the supplemental petition as untimely filed and the petition as failing to state a cause of action, which by emergent order of August 31, 2006 and supplemental opinion, we reversed, remanding the matter for a hearing on Dansereau's proofs.
Following a six-day trial in September 2006 before another judge, during which thirty-eight witnesses testified, the court invalidated thirty-one absentee ballots, determining twenty-eight of them contained clear "bearer" violations. The court found the absentee voters failed to properly follow the instructions regarding how such voter was to relinquish custody of the absentee ballot to the bearer, primarily in that the absentee ballots were improperly transported by a bearer who did not take the ballot from the voter or who failed to complete the bearer portion of the outer envelope in the voters' presence in violation of N.J.S.A. 19:57-37.1 and N.J.S.A. 19:57-16. The court apparently assumed that because Dansereau only received seven absentee ballot votes, that was the maximum number of invalid absentee ballots that could be attributed to her. It thus deducted the remaining twenty-four invalid absentee ballots from Bullock's total, leaving her with only 261 valid votes, while Dansereau retained 265 valid votes. By order of September 29, 2006, the court declared Dansereau the victor of the Democratic primary.
We granted Bullock's motion for emergent relief and by order and opinion of October 12, 2006, we remanded for clarification or modification of the trial court's decision, including a statement of the basis for how it determined which ballots should be deducted from each candidate and an explanation as to why it subtracted only twenty-four invalid absentee votes.
On October 13, 2006, the trial court issued an oral decision, noting it had "earlier determined that there was a concerted effort on behalf of those acting on behalf of Candidate Bullock to get out to vote[;] [u]nfortunately it appears that those assisting her were untrained in the technical requirements of the Absentee Voter Act," and explaining in detail its additional findings regarding each witness. The court modified its prior mathematical calculations and deducted twenty-eight votes from Bullock's total, citing the case law and concluding the trial testimony supported a finding by the preponderance of the evidence that such absentee ballots be "invalidated as a result of actions taken by persons on behalf of the Bullock campaign." The court found the voters acted "perhaps unwittingly, but nonetheless violated the [A]ct placing their votes in danger of invalidation by their haphazard manner of delivery," which was the "responsibility of the voter as well [as] whoever they handed the ballot to." Concluding there were "improprieties" on behalf of the Bullock campaign warranting invalidation of the ballots and the subtraction of twenty-eight votes from appellant, the court stated:
I've heard the testimony; I've made my findings now where I've concluded that 28 of the 31 absentee votes were invalidated as a result of wrongful actions of the Bullock campaign, wrongful, not fraudulent, wrongful actions and carelessness of the voters in giving their ballots to those associated with the Bullock campaign. The citizens all thought they were doing the right thing, but there is a law. The law is there for a reason [which] is to prevent the possibility of fraud, and thus under the facts of this case I can reasonably determine that those ballots were cast for Bullock.
The court further determined that Dansereau, who had the burden of proof, failed to produce evidence: (1) that the other three invalidated absentee ballots were transported by the Bullock campaign or (2) as to the selection of candidates by each of those voters. Accordingly, the court subtracted those three votes from Dansereau's total number, resulting in a new total of 262 votes for Dansereau (265-3) and 257 votes for Bullock (285-28). By order of October 13, 2006, the court directed the Union County Board of Elections (Board) to annul the certificate of election of Bullock and certify Dansereau as the victorious candidate in the Democratic primary.
The trial court denied Bullock's request for a stay of its order. We denied Bullock's application for emergency relief, as did the Supreme Court. In the general election on November 7, 2006, Dansereau was elected as a 5th Ward Councilperson. This appeal ensued.
Bullock asserts the following arguments on appeal: (1) summary judgment was properly granted in her favor on Dansereau's petition and amended petition based on the pleadings' lack of specificity and failure to set forth a cause of action for an election contest under N.J.S.A. 19:29-1, i.e., failing to assert and establish a sufficient number of illegal votes were cast to change the election result; (2) following the initial remand, the court erred in denying her motion to dismiss Dansereau's complaint on sufficiency grounds; (3) during the September trial, the court erred in denying her motion to strike the testimony of five witnesses whose names were not provided in Dansereau's proffer of witnesses; (4) in its September decision, the court incorrectly calculated the total votes cast for each candidate and should have reduced Dansereau's total by seven votes, the number of absentee ballots she received, which would have given appellant a victory; (5) the court erred when it unnecessarily invalidated the thirty-one absentee ballots on technical grounds and thereby disenfranchised voters; and (6) the court improperly assumed that twenty-eight of thirty-one ballots were cast for appellant without testimony as to how each of the voters voted. Appellant requests we affirm the August 22, 2006 order dismissing Dansereau's complaint, certify appellant as the winner of the 5th Ward primary and remove Dansereau from the Borough Council. In the alternative, appellant requests we vacate the current 5th Ward council seat and direct the scheduling of a special election.
Dansereau argues in response that the appeal should be dismissed as moot since the general election has already been held. She further contends appellant's challenges to the sufficiency of the contestant's pleadings, the court's trial rulings regarding witness testimony, and the court's September 2006 calculation and its invalidation of thirty-one ballots have been waived or resolved against appellant in connection with the prior appeals filed in this case. Both Dansereau and the Board additionally argue that the trial court's decision to invalidate thirty-one absentee ballots and its conclusion that twenty-eight of them were cast for appellant were supported by the credible evidence in the record and consistent with the prevailing statutory and case law.
Alternatively, Dansereau argues that even if we agree with appellant that the trial court should have taken testimony from the thirty-one absentee voters regarding the candidate for whom they cast their ballot, the remedy would be to order a remand to compel such testimony, not to install appellant as the winner of the primary or to order a special general election. According to Dansereau, however, a remand would be unnecessary because additional witness testimony would not change the result based on the contestant's proffered proofs at trial that six of the seven absentee ballots cast for her had not been included among those subject to disqualification. The court had disallowed the testimony of six voters whose votes had not been challenged and who were on Dansereau's witness list, who she proffered had voluntarily come forward and offered to waive their privilege and testify they had voted by absentee ballot for her. See N.J.S.A. 2A:84A-25 and N.J.R.E. 513 and comment (providing a privilege to refuse to disclose the tenor of one's vote at a political election unless the judge finds it was cast illegally, which privilege may be waived). Thus, according to Dansereau, as she had only received seven absentee ballots, and none of those six voters was among the thirty-one invalidated absentee ballots, at best, only one of the invalidated ballots could be allocated to her, not three, as the court assumed. If, however, we order a remand to compel the thirty-one absentee voters whose ballots were invalidated to disclose their candidate selection, Dansereau submits that fundamental fairness requires she be allowed to present the testimony of her proffered six witnesses, particularly in light of the closeness of the election.
We perceive of no basis to revisit appellant's challenges to the sufficiency of Dansereau's pleadings, which we addressed and rejected in our August 31, 2006 opinion granting Dansereau the emergent relief of reversing summary judgment dismissal of her complaint and remanding for a hearing on the merits. Nor do we discern any abuse of discretion or manifest injustice in the court's rulings respecting the admission of witness testimony in response to appellant's objections. See Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). On the second day of trial, the court granted appellant's timely motion to preclude the testimony of R.R. as not having been disclosed as a witness in Dansereau's proffer list or pleadings. However, halfway through trial that day, after twenty-nine witnesses had testified, in response to appellant's counsel statement, "I would like, because we were going over this over lunch, there are three other names that were not on the proffer who have already testified, Your Honor, I would like their testimony stricken," the court denied the motion based on appellant's failure to raise a timely objection.*fn1 That clearly was not error. We do not find error either in the overruling of appellant's objection to admitting the testimony of E.T., whose first name was misspelled in the witness proffer and who was listed as having bearer problems but also testified to other potential illegalities, or to N.T., who was not listed in the proffer but was listed on Dansereau's supplemental petition. The court acted within its discretion in ruling that appellant had adequate notice of these two witnesses and had been provided the relevant voting documents so there could be no claim of surprise. See In re Keogh-Dwyer, 85 N.J. Super. 188, 202 (App. Div. 1964) (holding that a trial court has broad powers in the control and direction of election proceedings), rev'd on other grounds, 45 N.J. 117 (1965).
We turn now to appellant's challenges to the trial court's substantive determination invalidating thirty-one absentee ballots and concluding that twenty-eight of them were cast for appellant. Appellant contends the court unnecessarily invalidated the majority of the ballots solely for the "technical violation" of the bearer not completing the outer envelope, and thereby improperly disenfranchised the voters. She claims that most of the witnesses testified they either gave their ballot to the bearer or gave custody of it to a third person who delivered it to the bearer, expecting to have their ballots delivered to the Board and have their votes count. Appellant urges we apply the same rationale here as we did in In re Petition of Kriso, 276 N.J. Super. 337, 345-46 (App. Div. 1994), contending it is a similar situation, and conclude that the failure to note the form of transmittal on these outer envelopes was "purely inadvertent" and resulted from an "innocent misunderstanding of the election laws" that does not warrant invalidating the ballots.
In Kriso we affirmed the trial court's refusal to invalidate four absentee ballots that did not have the bearer information completed on the outer envelope in conformity with N.J.S.A. 19:57-37.1. Three of the sealed ballots were mailed at the post office by close family members on behalf of disabled voters. The fourth voter used a corporate messenger service, which clearly had no interest in the local election, to carry her sealed ballot from Japan to New York where it was placed in the United States mail. We held the evidence indicated: (1) the failure of the "close family members" to properly fill out the outer envelopes to reflect themselves as bearers was "purely inadvertent"; and (2) assuming the overseas voter's corporate messenger service constituted mailing by a third party, her failure to note this form of transmittal on the outer envelope "resulted from an innocent misunderstanding of the election laws." Id. at 345. We concluded that "to invalidate these four ballots simply because the voters did not carefully read and follow the directions for absentee voting would unnecessarily disenfranchise them without promoting the integrity of the electoral process." Id. at 345-46.
Appellant also argues that N.J.S.A. 19:57-37.1 specifically provides that a third person, other than the voter or the bearer, may possess the absentee ballot, by its use of the phrase "[n]o person shall take an absentee ballot from a voter or other person having custody of it . . ." (emphasis added). According to appellant, the emphasized language clearly contemplates that there may be an intermediary between the voter and the bearer, and the statute is complied with provided the bearer signs the outer envelope, even if it is not in the presence of the voter. We are not persuaded by appellant's arguments.
The trial court did not reach its conclusions in a vacuum. The judge heard four days of testimony from thirty-eight witnesses, which included appellant; Board official Dennis Kobitz; Dansereau campaign worker Fred Anderson; and thirty-five absentee ballot voters and family members involved in the process,*fn2 and reviewed voluminous election records. The court made detailed findings regarding the voters who testified and additional findings regarding other voters who were challenged solely on the documents. The court invalidated thirty-one absentee ballots, twenty-eight for bearer issues and three for non-bearer issues, concluding the voter's failure to require the person who took the ballot to sign and print his or her name on the outer envelope was not simply a technical violation of N.J.S.A. 19:57-37.1, but a violation that went to the integrity of the elective process itself.*fn3
We analyze the court's decision with reference to the record. The testimony of every individual associated with the invalidated absentee ballots reflected they had failed to comply with the absentee ballot laws or the validity of their ballot had been otherwise compromised in one or more of the following ways: (1) they failed to vote their ballots or voted someone else's ballots; (2) there was no acknowledgement of assistance on any of the ballots' certifications in violation of N.J.S.A. 19:57-23; (3) many of the ballots were not sealed in the outer envelope when given to the bearer or intermediary or left for pick-up by an unknown person in violation of N.J.S.A. 19:57-37.1 and N.J.S.A. 19:57-16; and (4) the ballots were improperly transported by a bearer who did not take the ballot from the voter and/or who failed to complete the bearer portion of the outer envelopes in the voter's presence, or there was no acknowledgement of any bearer when, in fact, there was one, in violation of N.J.S.A. 19:57-37.1 and N.J.S.A. 19:57-16.
More specifically, there was testimony that twenty-six absentee voters either gave their ballots to Jamel Holley, a council member who campaigned for appellant, without the bearer portion of the ballot having been signed in their presence or gave their ballots to someone else or left them for pick-up, yet Holley signed the absentee ballot envelope as the bearer; or they gave their ballots to Holley and the envelopes were received by the Board with no bearer information filled out.*fn4
There was also testimony that more than five of those voters did not complete their own absentee ballots. The remaining two ballots with bearer deficiencies were picked up from each of the voters by a woman, but were received by the Board with no acknowledgement of any bearer (G.C. and M.W.).*fn5
The opportunity to vote by absentee ballot is a privilege, not a right, and is subject to proper legislative exception and limitation. In re Petition of Battle, 190 N.J. Super. 232, 236 (App. Div. 1983), aff'd, 96 N.J. 63 (1984). The procedures for absentee ballots are set forth in N.J.S.A. 19:57. For example, N.J.S.A. 19:57-23 precludes an absentee voter from permitting any person, except in specified circumstances "to unseal, mark or inspect his ballot, interfere with the secrecy of his absentee ballot vote, complete or sign the certificate, or seal the inner or outer envelope, nor shall any person do so," and requires an acknowledgement of any assistance. N.J.S.A. 19:57-37.1, which imposes a mandatory duty upon a voter and any person mailing or delivering an absentee ballot on a voter's behalf to properly complete the outer envelope, states:
No person shall take an absentee ballot from a voter or other person having custody of it for the purpose of delivering it to the county board of elections or a postal box or post office, nor shall any voter permit any person to do so, unless the ballot is sealed in the outer envelope and the person who shall transport or deliver it first signs and prints his name on the outer envelope. No other person shall attempt to do any of the foregoing.
N.J.S.A. 19:57-16 sets forth the directions that are written on the outer envelope of the absentee ballots informing the voter, messenger, and any other person involved in the absentee balloting process of the statutory mandates. The voter is clearly directed, for the vote to count, that he or she must vote the ballot and seal it in an inner envelope placed in a larger envelope sealed, stamped and addressed to the board of elections. If another person is mailing or delivering the ballot to the board, the voter is directed to "MAKE CERTAIN THAT PERSON COMPLETES THE 'BEARER PORTION' ON THE ENVELOPE ADDRESSED TO THE BOARD OF ELECTIONS BEFORE THE BALLOT IS TAKEN FROM YOU."
In Battle we invalidated absentee ballots of seventy-four nursing home residents delivered to the board of elections by a messenger who failed to fill out the outer envelopes enclosing the ballots in accordance with N.J.S.A. l9:57-37.1. We traced the history of the statute, noting it was enacted in l981 after the issuance of a State Commission of Investigation report, which found abuses in the use of absentee ballots and recommended revisions in Title l9 to strengthen procedures governing the delivery of such ballots to election boards. Battle, supra, 190 N.J. Super. at 238-42; see also Kriso, supra, 276 N.J. Super. at 343. In response, the Legislature amended N.J.S.A. l9:57-16, -23 and -37.1 to mandate that an absentee ballot delivered or mailed by a person other than the voter be enclosed in a sealed outer envelope which is signed by the messenger before it is delivered or mailed. L. l981, c. 390, §§5, 8, 11.
We commented that "[t]hese changes are of more than passing consequence. They represent a meaningful attempt by the Legislature to effectively guard against one avenue of possible electoral fraud in the process of pick up and delivery, i.e., the casting of absentee ballots." Battle, supra, 190 N.J. Super. at 242. We further stated:
The legislative concern is well founded and strong in purpose, the language employed is mandatory. The statutory right to exercise the absentee voting privilege is legislatively conditioned upon the requirement that the voter "shall" not permit any person to transport the ballot to the county board of elections unless the person is "a bearer designated by him" (N.J.S.A. 19:57-23) and that bearer "shall" not be given the sealed ballot unless the bearer "first signs and prints his name on the outer envelope." N.J.S.A. 19:57-37.1. The final step is that the county "shall" maintain a record "of all absentee ballots personally delivered to it" and the bearer "shall" sign such record. N.J.S.A. 19:57-23. The person who transports the ballot is obviously the person who last had dealings with the absentee voter. The Legislature requires that his identity be made known by having the voter designate him, having him print and sign his name and finally having his identity recorded in the required county record. This latter requirement ensures that the deliverer is the bearer designated by the voter. These mandated procedures may well be the only means of tracing the delivery process and the Legislative purpose to guard against possible tampering with the ballot is defeated when the statutory imperatives are ignored. [Id. at 242-43.]
It is clear the statutory requirements for voting a valid absentee ballot were not followed here, and the deficiencies were more than the technical violations excused in Kriso. The record is rampant as to the statutory violations, which requirements "have deliberate substantive purpose" to uphold the integrity of the election process. Battle, supra, 190 N.J. Super. at 244. There was testimony and evidence of appellant's campaign workers assisting voters in completing their absentee applications and ballots without completing the assistance information box; potentially appearing to have cast the ballot for the voter; and carrying unsealed voter materials outside of the voter's presence. Furthermore, evidence of the haphazard manner of delivery of the absentee ballots pervaded the trial. Only two of the invalidated voters testified they gave their ballots to Holley intending him to be their messenger to the Board and, presumably, he inadvertently failed to sign the bearer information in their presence. Some voters testified they had never met Holley or did not know who he was but his name appeared as the bearer of their absentee ballots. The majority of the voters had no idea how their ballots ultimately got to the Board or how many messengers were involved in the transport; their sealed or unsealed ballots were left at home or in their personal mailbox for pick-up by unknown persons, given to neighbors, campaign workers, or unknown men and women. Somehow their ballots ended up at the Board, twenty-three of them signed by Holley.
Rather than being compared with the technical violations that did not constitute successful challenges to the absentee ballots in Kriso, the situation here is more akin to the three absentee ballots in that case that were simultaneously delivered to the board by the same messenger who failed to complete the outer envelopes in conformity with N.J.S.A. 19:57-37.1, and were rejected by the board and court. Supra, 276 N.J. Super. at 346. We concluded the circumstances of delivery were indistinguishable from those in Battle, noting the challenger: failed to present any evidence regarding the circumstances under which these ballots were transmitted by a messenger, the reasons why the messenger and voters failed to fill out the outer envelopes enclosing the ballots, or the identity of the messenger and his connection with either the voters or the candidates. [Ibid.]
We are satisfied under the circumstances of this case there were sufficient deviations from the statutory requirements for absentee voting that affect the secrecy and security of the balloting process and that the legislative intent is effectuated by discounting the thirty-one challenged absentee ballots. See Battle, supra, 96 N.J. 63, 64 (1984).
We also find legally unpersuasive appellant's argument that the absentee voter's transfer of his or her ballot to a person or, potentially, multiple persons with the ultimate bearer being Holley was not a violation of N.J.S.A. 19:57-37.1 based on the phrase "other person having custody of it." Appellant's interpretation flies in the face of the language of the statute and the statutory interpretation imparted by us and affirmed by the Supreme Court in Battle. It makes sense that phrase was intended to encompass a situation such as in N.J.S.A. 19:57-23, which recognizes that at times an absentee voter may require assistance because of some form of disability preventing the voter from performing the procedures necessary to execute the ballot and/or seal the inner envelope, and the assister may have custody of the ballot for a short period of time. It was most likely an oversight that when the Legislature amended N.J.S.A. 19:57-23 in 2005 and added the further procedural requirement that the bearer certify that he or she "received an absentee ballot directly from the voter and no other person and is authorized to deliver the ballot to the appropriate board of election on behalf of the voter," it did not amend N.J.S.A. 19:57-37.1 and delete the phrase "other person having custody of it." The Legislative intent is clear that there may only be one person who may take the ballot from the absentee voter for the purpose of delivery to the board and that bearer must sign the outer envelope in the voter's presence.
Once the court invalidated the thirty-one absentee votes, it analyzed how the votes were cast and concluded that Dansereau satisfied her burden of proving there were sufficient illegal votes to change the result of the election. N.J.S.A. 19:29-1(e). We are satisfied the connection between appellant's campaign workers, in particular, Holley, and the invalidated ballots was made clear on the record through documentary and oral testimony. Accordingly, there was sufficient basis for the court's conclusion that twenty-eight of the invalidated absentee ballots were cast for Bullock despite not having obtained direct testimony from each voter as to how he or she voted in the primary. There was testimony about Bullock, Holley and other campaign workers recommending and signing up many of these voters for absentee ballots. Moreover, as previously discussed, twenty-three envelopes were signed by Holley as bearer. There was also extensive testimony of the direct involvement of other Bullock campaign workers throughout the voting process of these invalidated absentee ballots.
We also note that some disqualified voters disclosed their selection. One voter testified on behalf of herself and two family members who were also disqualified that, "We all intended to vote in the primary because we asked Ms. Bullock to put a sign on our lawn." When asked about marking the ballot, another voter testified, "I believe it was Rosemary." Another voter testified, "I wanted to vote for Rosemary because . . ." Yet another voter testified "Bullock came to my home and I . . . accepted her candidacy," and that he "approved [of] Bullock." As to two voters, it would have been futile to directly ask them the question because one responded that she "probably [didn't] even remember" for whom she voted and the other stated he "didn't know who [he] voted for."
Thus, on this record, we cannot find error in the court's reliance on circumstantial evidence to determine for whom the illegal votes were cast. See Application of Murphy, 101 N.J. Super. 163, 170 (App. Div.) (party affiliation and relations between the voter and the candidate and others actively interested in advancing the cause of certain candidate are examples of circumstantial evidence proving for whom the vote was cast), certif. denied, 52 N.J. 172 (1968); Battle, supra, 96 N.J. at 65 (directing that the Special Master may inquire for whom the deponent voted); N.J.S.A. 19:29-7 (a judge who is satisfied that a voter called as a witness is not a qualified voter in the election district where he or she voted may compel the voter to disclose for whom he or she voted); N.J.R.E. 513 ("every person has a privilege to refuse to disclose the tenor of his vote at a political election unless the judge finds that the vote was cast illegally"); see also In re Nov. 8, 2005 Gen. Election, 388 N.J. Super. 663, 678 (App. Div. 2006), aff'd in part and modified in part, 189 N.J. 430 (2007). The circumstantial evidence was overwhelming that the twenty-eight absentee voters whose ballots were invalidated by the court cast ballots for appellant. Given the evidence of the vigorous pursuit of absentee voters by the Bullock campaign and the skewed numbers in the overall absentee count in favor of Bullock, that most likely was a valid conclusion.