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In the Matter of the November 2

November 23, 2011

IN THE MATTER OF THE NOVEMBER 2, 2010 GENERAL ELECTION FOR THE OFFICE OF MAYOR IN THE BOROUGH OF SOUTH AMBOY, MIDDLESEX COUNTY, NEW JERSEY.


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8310-10.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 4, 2011 -

Before Judges Messano, Espinosa and Kennedy.

The opinion of the court was delivered by KENNEDY, J.S.C. (temporarily assigned)

Candidate Mary O'Connor (O'Connor), who placed second in the November 2, 2010 general election for the office of the mayor of the Borough of South Amboy (South Amboy), appeals from a decision of the Law Division denying her petition challenging the election. Fred Henry (Henry), the winning mayoral candidate, cross-appeals challenging the trial court's order disallowing the vote of Carol McGloan (McGloan). We affirm.

Four candidates ran for office of mayor of South Amboy in the general election held on November 2, 2010. The voting yielded the following results:

Fred Henry-1,128; Mary O'Connor-1,127; Vince Mackiel-196; John Dragotta-100.

O'Connor, having been defeated by one vote, filed a petition seeking a recount. On November 19, 2010, a recount of all mail-in ballots, provisional ballots, and voting machine totals resulted in no change.

On November 29, 2010, O'Connor filed a petition for election contest pursuant to N.J.S.A. 19:29-1, asserting that the votes of three registered voters were not counted; that two people voted who were not residents of South Amboy; and that five provisional ballots were cast by voters who had changed address within twenty-one days of the election and who failed to advise the Board of Election as required by statute. She also alleged other improprieties not at issue here.

On December 14, 2010, the trial judge ordered a further recount after the Middlesex County Board of Elections discovered six previously uncounted provisional ballots. On the same day, the recount was completed and one vote for Henry was disqualified because the Board determined the voter was not entitled to vote in the election. With respect to the six previously uncounted provisional ballots, three were cast for Henry and three were cast for candidate Mackiel. Accordingly, the Middlesex County Board of Elections certified the election results as follows:

Henry-1,130;

O'Connor-1,127;

Mackiel-199;

Dragotta-100.

On December 22, 2010, Henry filed a cross-petition for election contest asserting that five persons had been permitted to vote in violation of law; and that four voters were impermissibly denied the right to vote. Henry demanded relief "[s]hould the petition for an election contest by petitioner Mary O'Connor be successful."

The trial judge, after granting an application permitting the American Civil Liberties Union of New Jersey (ACLU) to appear as amicus curiae, conducted a hearing on January 10 and 11, 2011. Eleven witnesses testified and on January 11, 2011, the trial court rendered an opinion upholding the election of Fred Henry as mayor of South Amboy by two votes.

On appeal, O'Connor claims that the trial court erred in not permitting Eric Cheng and Alexa Hess to vote in the election and in allowing Grace Hoffman's vote to be counted. O'Connor also claims that the trial court erred in not allowing her to amend her petition on the first day of the hearing to challenge three additional voters and in not declaring a new election based upon the handling of provisional ballots by the Middlesex County Board of Elections and the Middlesex County Clerk. Henry cross-appeals from the court's determination to disallow the vote of Carol McGloan.

We first review the testimony and findings of the trial court respecting the four citizens whose votes or attempts to vote are in controversy and thereafter we consider the determination of the trial court respecting the attempt to amend the petition and the handling of the provisional ballots.

I. FACTUAL BACKGROUND

A. CHALLENGES TO INDIVIDUAL VOTERS

1. Eric Cheng

Eric Cheng is married and has three children who attend the South Amboy public schools. He resides in South Amboy and has lived there for over ten years. After moving to South Amboy, Cheng attempted to vote there but was told that he had to vote in Sayreville. Cheng thereafter registered as a voter in Sayreville and voted in Sayreville elections three or four times over the years. Cheng contacted the Middlesex County Board of Elections prior to the November 2, 2010 general election in South Amboy and again was told that he could not vote in South Amboy and would have to vote in Sayreville. Accordingly, Cheng did not attempt to vote in South Amboy on November 2, 2010, but, instead, voted in Sayreville. The trial court decided not to allow Cheng to vote anew in South Amboy, explaining, "[h]e voted in Sayreville. That would give him a double franchise."

2. Grace Hoffman

Grace Hoffman voted in South Amboy in the November 2, 2010 general election although her home at that time was in Sayreville, New Jersey. Her driver's license listed the Sayreville address as her residence and her bills were all sent to the Sayreville address. Hoffman had previously lived in South Amboy but moved to Sayreville in 2003. When she moved, she never advised the Middlesex County Board of Elections to change her address because she was living half the time with her ill mother in South Amboy. When Hoffman's mother became too ill to maintain her home in South Amboy, Hoffman in 2009 returned to her own home in Sayreville where she lived "100 percent of the time" up to and after the election in 2010. She listed her Sayreville house for sale on December 6, 2010, and was planning to move back to South Amboy in February 2011. She voted in South Amboy during the November 2, 2010 general election because "I grew up in South Amboy, I voted there all my life."

The trial court allowed Hoffman's vote to count in the South Amboy election despite finding that she owned a home in Sayreville and lived there exclusively on the date of the election. The court found that she lived half the time in South Amboy with her ill mother between 2003 and 2008 and [s]he has just contracted for a home in South Amboy and she is moving back to South Amboy and the testimony was she loved South Amboy. The test of domicile is whether or not a person has the intent to make a particular location his or her permanent home. [I] [a]m [s]atisfied that the evidence presented by Hoffman is that she intended to make South Amboy her permanent home and therefore I believe that Hoffman's vote should count in this proceeding.

3. Alexa Hess

Alexa Hess was nineteen years of age on the date of the election and lived in South Amboy. She first received her driver's license in 2008 and "renewed it" on May 6, 2010, at the "Hazlet DMV." When she renewed her license, "they asked if I was registered to vote and I said no and they said do you want to be and I said yes and they said okay and marked it on the piece of paper and I went and got my new license and that's all I had gotten." She signed her driver's license and received the signed license back after it had been laminated.

When she went to the poll location with her mother on the day of the election, Hess was told that she was not "on the roster." She was then given a provisional ballot upon which she cast her vote. Her vote was later disallowed by the Middlesex County Board of Elections.

The trial judge upheld the rejection of Hess's provisional ballot explaining, "[h]ad she signed something at the DMV, had she signed a document beside her driver's license, I might have a different view. I understand that a voter cannot be misled by a government official at ...


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