On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1541-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2010
Before Judges Axelrad, Fisher and Espinosa.
Petitioner-Appellants, Olivia Caldwell, Ethel Seymore and Jerome Page (collectively, petitioners), were unsuccessful candidates in the Pleasantville Board of Education election held on April 21, 2009. They appeal the dismissal of the challenge they filed to the results of the election pursuant to N.J.S.A. 19:29-1(e) and (f). We reverse and remand for further proceedings.
Petitioners filed a timely petition challenging the election of respondents, Melanie Griffin, Doris Graves and Johnnie McClellan. In their prayer for relief, petitioners asked the court to (a) modify the election results to revoke the certificates of election issued to the three successful candidates, and issue certificates of election to the petitioners; (b) direct respondents to preserve and produce documents and for a plenary hearing regarding absentee votes; and (c) in the alternative, order a new election. It is undisputed that the certified election results showed that the petitioners were the winning candidates based upon votes cast at the polls. However, 90% of the absentee ballots were cast for respondents Melanie Griffin, Doris Graves and Johnnie McClellan, and, when all the votes were tallied, that resulted in a victory for Griffin, Graves and McClellan. Petitioners submitted that this proportional irregularity was contrary to the customary result in which votes cast at the polls generally mirror those in absentee ballots.
In support of their application to overturn the election results, petitioners contended that the results were tainted by abuse and misuse of absentee ballots, particularly messenger ballots, i.e. absentee ballots cast through an "authorized messenger" pursuant to N.J.S.A. 19:57-4. In this election, David Callaway and Floyd Tally collectively served as messengers for more than two hundred voters. Petitioners focused upon their involvement as evidence that the messenger ballots were mishandled. They identified the following factors as warranting the relief sought: (1) Callaway and Tally had been charged with tampering with votes in a primary election; (2) the Atlantic County Superintendent of Elections testified that the number of messenger ballot applications in that primary election and in the instant election was "shocking"; (3) there was a significant imbalance in the results between poll votes and absentee votes; (4) petitioner's attempt to depose Callaway and Tally was unsuccessful; (5) they received congratulatory letters from two assemblymen and the Atlantic County Executive prior to the certification of election results by the Clerk; and (6) election results in 2006 school board elections in Pleasantville and Atlantic City had been challenged, albeit unsuccessfully.
During the course of discovery, John Piatt, a management specialist in the Atlantic County Clerk's office, was deposed. Piatt's testimony supported petitioners' contention that absentee ballots generally reflect an outcome similar to that in votes cast at the polls. He summarized the procedure followed by the Clerk's office in processing applications for messenger ballots and stated that the statutory requirements for reviewing and issuing messenger ballot applications were followed. In the instant election, Callaway and Tally were the only messengers. However, Piatt testified that there was no evidence that any of the absentee ballots, including messenger ballots, were illegal or improper.
John Mooney, the Atlantic County Superintendent of Elections, was also deposed. Mooney stated that he would have conducted an investigation if his office had received a complaint from a person or group of persons that messenger ballot applications were submitted for voters who were not sick or confined. However, his office did not receive any complaint from any Atlantic County resident alleging that Callaway or Tally abused the messenger ballot process in this election.
The record does not reflect any motions by petitioners to compel the deposition of any party or any voter whose ballot was cast with the use of a messenger.
On August 24, 2009, the court heard argument on petitioners' motion to order a new election or, alternatively, that the court revoke the certificates of election to the respondents and issue certificates of election to the petitioners. Although respondents did not file a motion to dismiss the petition, counsel orally asked the court to dismiss the petition with prejudice during the course of oral argument.
In a written opinion dated September 4, 2009, the court set forth its findings of fact and conclusions of law. Observing that liberal and substantial discovery had been granted to petitioners, the court distinguished between the "suspicions, speculation and surmise [that] abound on the part of the petitioners" and the proofs presented. The court stated, "If, in fact, illegal votes were cast in this Election or legal votes were diverted by the messengers, sufficient to change results due to misuse of absentee and/or messenger ballots, the petitioners have failed utterly to carry their burden of proof."
The judge noted that the number of messenger ballots did not constitute a basis for overturning the election because the applicable statute, N.J.S.A. 19-29:1(e), did not limit the number of messenger ballot applications any messenger could submit for an election.*fn1 She found no evidence of the following: that election officials failed to follow statutory messenger ballot procedures; of any voting "irregularities"; of fraud or malconduct; or that either the County Board of Elections or the Superintendent of Elections failed to discharge their statutory responsibilities. The court found it significant that the Superintendent did not receive any complaint regarding any abuse of the messenger ballot process and ...