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In re Contest of November 6

Superior Court of New Jersey, Appellate Division

September 11, 2013

IN RE CONTEST OF THE NOVEMBER 6, 2012 ELECTION RESULTS FOR THE CITY OF HOBOKEN, PUBLIC QUESTION NO. 2 CHERYL FALLICK, Intervenor-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 10, 2013

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5773-12.

Renée Steinhagen argued the cause for appellant Cheryl Fallick (New Jersey Appleseed Public Interest Law Center, Inc., and Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys; Ms. Steinhagen and Flavio L. Komuves, on the brief).

Charles X. Gormally argued the cause for respondents (Brach Eichler, L.L.C., attorneys; Mr. Gormally, of counsel and on the brief; Sean A. Smith and Autumn M. Simpson, on the brief).

Before Judges Reisner, Alvarez and Carroll.

PER CURIAM

Cheryl Fallick appeals from a January 11, 2013 trial court order denying her motion to intervene in an election contest, and from a March 5, 2013 trial court order deciding the merits. We permitted her to file an appeal as an intervenor. We now affirm, for the reasons stated by the trial judge in her written opinion dated February 13, 2013, and for the additional reasons stated below.

The facts and procedural history are set forth at length in the trial judge's opinion and will not be repeated here in the same level of detail. To summarize, the March 5, 2013 order revoked the certification of election issued for Hoboken Public Question No. 2 (the Public Question) at the November 6, 2012 general election, based on the court's finding that a sufficient number of legal votes were rejected to justify invalidating the election results. See N.J.S.A. 19:29-1e. The Public Question, which if approved would have modified the local rent control ordinance in a manner favoring landlords, was defeated by 52 votes out of approximately 16, 000 votes cast. In challenging the election results, petitioners alleged a plethora of irregularities, any one of which, they contended, would justify invalidating the election results with respect to the Public Question. However, the trial judge only addressed one of those issues.

In her February 13, 2013 opinion, the trial judge found that, as a result of emergency directives which the Secretary of State issued to accommodate voters displaced by Superstorm Sandy, 114 Hoboken voters cast provisional ballots that did not include the Public Question.[1] Those voters were also not given notice that provisional ballots cast outside Hoboken would not include local public questions. The trial court treated these incomplete ballots as constituting the "rejection" of legal votes on the Public Question, because legal voters, casting legal votes, were deprived of the opportunity to vote on the Public Question.

We begin by reviewing some basic legal principles. Election laws should be liberally construed so that voters can exercise their right to vote. See In re Contest of the November 8, 2005 General Election for Office of Mayor of Twp. of Parsippany-Troy Hills, 192 N.J. 546, 559 (2007). Voters may challenge election results "[w]hen . . . legal votes [have been] rejected at the polls sufficient to change the result." N.J.S.A. 19:29-1e. The statutory standards set forth in N.J.S.A. 19:29-1 apply to both candidates for office and "the approval or disapproval of any public proposition." Ibid.

"Voters need not be physically barred from voting to have their votes rejected, but may instead show that, through no fault of their own, they were prohibited from voting for a specific candidate by some irregularity in the voting procedures." In re Gray-Sadler, 164 N.J. 468, 476 (2000). "Rejection" may occur when voting machines malfunction or where voters are unable to effectively cast their votes because of misleading instructions concerning the procedures they must follow to cast a vote. Ibid.; In re Moffat, 142 N.J.Super. 217, 223 (App. Div.), certif. denied, 71 N.J. 527 (1976). In applying the election laws we construe the statutes "in light of the broad purpose of the election laws to prevent disenfranchisement of qualified voters." Gray-Sadler, supra, 164 N.J. at 476.

Generally, a trial court should order a revote on a public question where eligible voters have been denied access to vote on that question, provided the number of voters was sufficient to change the result of the election. See N.J.S.A. 19:29-1e; Moffat, supra, 142 N.J.Super. at 223-24. Where legal voters have been precluded from voting for a candidate or a public question, the petitioner need not prove how they would have voted. Moffat, supra, 142 N.J.Super. at 224. Rather, "the contestant's burden would be met by a demonstration that had the votes been cast for [the ballot question], the result would have been different." Ibid.

In essence, the Court must decide, under the totality of the circumstances, whether the election irregularities were so ...

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