In re the Contest of the November 8, 2005 General Election

934 A.2d 607, 192 N.J. 546, 2007 N.J. LEXIS 1255
CourtSupreme Court of New Jersey
DecidedNovember 8, 2007
StatusPublished
Cited by8 cases

This text of 934 A.2d 607 (In re the Contest of the November 8, 2005 General Election) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Contest of the November 8, 2005 General Election, 934 A.2d 607, 192 N.J. 546, 2007 N.J. LEXIS 1255 (N.J. 2007).

Opinions

Justice HOENS

delivered the opinion of the Court.

Free and fair elections are the foundation on which our democracy rests. The right to vote, and to have one’s vote counted, is both cherished and fundamental to our way of life. We rely on our election laws and on the fair conduct of elections to ensure that the people may be heard through the ballot and that their will, as expressed through their votes, may be effectuated. At the same time, we can only be certain that the true will of the people has been expressed if we can be confident in the election process [550]*550itself. The right of a defeated candidate to contest the outcome of an election, while carefully circumscribed, is an important means to ensure that the true will of the people is indeed heard through the ballot box.

The dispute now before this Court requires us to interpret the meaning of a portion of our election laws governing a challenge to a municipal election by a losing candidate. Although there are ancient precedents that bear on our analysis, they are not in keeping with the changes that our Legislature has made to the election contest statute over the past century and a half. We therefore consider the meaning of our election law in an effort to discern what the statute requires the election contest petition to contain and to determine the appropriate test for legal sufficiency to be applied to an election contest petition in the face of a motion to dismiss.

I.

The November 8, 2005, election in the Township of ParsippanyTroy Hills offered the voters a choice from among several candidates for the post of mayor. After the results were tallied, Michael Luther was credited with a total of 7,110 votes, Rosemarie Agostini had a total of 7,069 votes, Roy Messmer had 320 votes, and Michael Spector had 199 votes. Luther, therefore, had forty-one votes more than Agostini, a difference of less than three-tenths of one percent of all of the votes that had been cast. Luther’s total was based on 6,866 machine ballots, 239 absentee ballots, and 5 provisional ballots. Agostini’s total was based on 6,818 machine ballots, 239 absentee ballots, and 12 provisional ballots.1

A.

Based on that initial count of the votes, on November 16, 2005, Agostini sought both a recount, N.J.S.A 19:28-1, and a recheck, [551]*551N.J.S.A 19:52-6, of the votes that supported those reported results. When the ballots were recounted, the tally of the absentee ballots had changed, with the result that Luther had received only 233 of those votes and Agostini had received 234, giving her a net gain of one vote and leaving Luther with a margin of victory of forty votes. The election result declaring Luther to be the winner of the mayoral contest was certified by the Morris County Clerk on November 22,2005.

Faced with this outcome, on December 8, 2005, Agostini filed a verified petition to challenge the election. The body of that petition set forth several bases for her challenge as allowed by statute. See N.J.SA 19:29-1. In particular, Agostini asserted that there were persons who were entitled to vote whose ballots had been rejected. See N.J.S.A. 19:29-l(e). She contended that illegal votes had been permitted and counted, ibid., including votes by persons who were not residents of the township or were unqualified to vote. She alleged that in certain polling places, the numbers of persons who entered and voted exceeded the number of voting authorities that had been issued. See N.J.SA 19:29-1(f).

Agostini also asserted that there were two kinds of irregularities among the absentee ballots, including allegations on information and belief that some voters had wrongful assistance or were subjected to intimidation and that there were absentee ballots that were “not applied for, handled, messengered, returned, marked or processed in accordance with the statute.” See also ibid. Specifically, as it pertained to the absentee ballots, Agostini pointed out that although 501 absentee ballots had been approved for counting by the Board of Elections, a greater number, 507, had actually been counted on election night, and a different number, 506, had been tallied during the recount. Finally, Agostini asserted in general that the “election process and workers failed to follow, implement, and/or disregarded the statutory requirements and protections to ensure a fair election.” See also N.J.S.A. 19:29-1(a). Her petition was accompanied by an attachment that speci[552]*552fled a number of individual voters whom she alleged fell into one of the challenged categories that were set forth in the verified petition.

Within days of the filing of the petition, the Assignment Judge conducted a telephone conference with counsel for Agostini and Luther. He noted that the petition lacked specific information that would support the general allegations of fraud and corruption, and expressed concerns about whether the information in the petition sufficiently identified that there were votes cast for Luther that, if excluded, would give Agostini a victory. Having voiced those concerns, the court decided to give Agostini an opportunity to address what he perceived to be the petition’s shortcomings. He therefore directed that an amended petition be filed. His December 13, 2005, order specified that: “[t]he amendment shall set forth the facts, circumstances and statutory basis regarding the deficiencies as alleged in the Petition, as amended, and attached exhibits[.]”

On December 20, 2005, Agostini filed her First Amended Verified 2 Petition. The substance of the allegations set forth in the amended petition itself was not different from her initial petition. However, the attachment to the petition was expanded to include a coded key that cross-referenced the ground for challenging the vote of each voter who had been identified and whose vote Agostini contended either had been counted illegally or had been improperly rejected. In addition, the attachments set forth further information concerning the improprieties that had been discovered among the absentee ballots.

In the attachment to the amended petition, Agostini identified a total of ten voters whose votes had been improperly rejected, forty-one votes that had been illegally received and counted, and four votes cast at machines in excess of the number of voting authorities issued. In addition, Agostini raised challenges to seventy-four of the absentee ballots that had been counted. [553]*553Among the absentee ballots, she identified ballots issued to individuals who were not residents of the district, improprieties in the completion of the certifications by the voter, irregularities in delivery of the ballots, missing certification flaps on the inner ballot envelopes, and absentee ballots with signatures of the voter that did not match the signature in the official register of voters.

B.

Luther moved to dismiss the amended petition, asserting3 that it failed to state a claim, because the pleading lacked specificity and “present[ed] nothing more than suspicion or conjecture to support its allegations.” More particularly, Luther argued that in an election contest, the petition was required to serve the functions of not only identifying the basis for the challenge, but also of providing the putative winner of the election with enough information to permit him or her to prepare a defense.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

City of Orange Twp. Bd. of Educ. v. City of Orange Twp.
166 A.3d 1197 (New Jersey Superior Court App Division, 2017)
Nordstrom v. Lyon
35 A.3d 710 (New Jersey Superior Court App Division, 2012)
In re the November 2, 2010 General Election
31 A.3d 945 (New Jersey Superior Court App Division, 2011)
Henry v. New Jersey Department of Human Services
9 A.3d 882 (Supreme Court of New Jersey, 2010)
COMM. TO RECALL MENENDEZ v. Wells
995 A.2d 1109 (New Jersey Superior Court App Division, 2010)
In THE MATTER OF MICHELETTI v. State Health Benefits Commission
934 A.2d 633 (Supreme Court of New Jersey, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
934 A.2d 607, 192 N.J. 546, 2007 N.J. LEXIS 1255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-contest-of-the-november-8-2005-general-election-nj-2007.