NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2536-24
MICHAEL HOPSON,
Plaintiff-Appellant/ Cross-Respondent,
v.
ANTHONY CIRZ,
Defendant-Respondent/ Cross-Appellant, APPROVED FOR PUBLICATION and July 1, 2025 APPELLATE DIVISION FIRE DISTRICT NO. 1 OF TOMS RIVER TOWNSHIP, DANIEL ROMAN, in his individual and official capacity, ROBERT KROHN, in his individual and official capacity, MONICA BISCEGLIE, in her individual and official capacity, DAWN HALLIWELL, in her individual and official capacity, OCEAN COUNTY BOARD OF ELECTIONS, OCEAN COUNTY CLERK, JAMES GOLDEN, as an interested party, and RICHARD TUTELA, as an interested party,
Defendants-Respondents. ____________________________ Argued June 3, 2025 – Decided July 1, 2025
Before Judges Gilson, Firko, and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0679-25.
Matthew C. Moench argued the cause for appellant/cross-respondent (King, Moench & Collins, LLP, attorneys; Matthew C. Moench, of counsel and on the briefs; Alyssa D. Zara, on the briefs).
Scott D. Salmon argued the cause for respondent/cross-appellant (Jardim Meisner Salmon Sprague & Susser, PC, attorneys; Scott D. Salmon, of counsel and on the brief; Julia Burzynski, on the brief).
Mark A. Gulbranson, Jr. argued the cause for respondent Ocean County Board of Elections (Matthew J. Platkin, Attorney General, attorney; Sookie Bae-Park, Assistant Attorney General, of counsel; Mark A. Gulbranson, Jr., Deputy Attorney General, on the brief).
The opinion of the court was delivered by
FIRKO, J.A.D.
Petitioner Michael Hopson was an unsuccessful candidate in the
February 15, 2025 election for a position as Commissioner of Toms River Fire
District No. 1 (Fire District). Hopson filed a petition challenging the
amendment of the election certification by defendant Fire District Clerk Robert
Krohn to count a write-in vote for defendant candidates Anthony Cirz and
A-2536-24 2 James Golden, which changed the election results from a tie between Cirz and
Hopson to Cirz winning by one vote.
Cirz cross-appeals from the dismissal of his cross-petition rejecting the
mail-in ballot of V.G.,1 because she submitted a deficient ballot. Cirz also
cross-appeals from the order rejecting the mail-in ballots of M.B., P.B., and
J.D., and denying his motion for leave to file an amended cross-petition
challenging the rejection of an additional mail-in ballot from an unidentified
voter.
Following a two-day bench trial on April 14 and 15, 2025, the trial court
determined that the write-in votes for Cirz and Golden cast on the voting
machine were to be counted in their favor. The trial court ruled the mail-in
ballots submitted by V.G., M.B., P.B., M.D., J.D., J.R., P.Ba., and S.B. were
not to be counted. The trial court also ruled the mail-in ballot submitted by
Z.G. would remain counted. The trial court then declared Cirz the winner of
the election, and dismissed Hopson's petition challenging the election results.
Hopson now appeals from that dismissal.
We affirm the trial court's decision not to count the mail-in ballot
submitted by V.G. However, we reverse the trial court's decision permitting
the write-in votes to be counted because the candidates were listed on the
1 We use initials to protect the confidentiality of the voters.
A-2536-24 3 ballot. We remand the matter for entry of an order for a run-off election
between Hopson and Cirz for the one open seat. We affirm the trial court's
decision barring Cirz from filing a belated third amended answer and cross-
petition.
I.
These are the relevant facts apparent from the record. Four candidates
for the two open seats on the Board of Fire Commissioners were listed on the
ballot: Hopson, Cirz, Golden, and defendant Richard Tutela. Voters were
instructed to "Vote for TWO" of the candidates.
Defendant Dawn Halliwell, the Fire District Financial Clerk, testified
that she was responsible for the "operations" at the close of the election,
receiving the totals from each polling place, and creating an Excel spreadsheet
of the results. The spreadsheet was entitled, "RESULTS OF ANNUAL
ELECTION OF FIRE COMMISSIONER CANDIDATES AND
APPROPRIATIONS FOR FIRE DISTRICT NO. 1 OF TOMS RIVER
TOWNSHIP, OCEAN COUNTY, NEW JERSEY HELD ON FEBRUARY 15,
2025."
Halliwell maintained the spreadsheet on her computer until Monday,
February 24, 2025, when she received from defendant Board of Elections (the
Board) the "certified absentee ballot results" from all of the mail-in votes that
A-2536-24 4 the Board had processed. After updating the spreadsheet, on February 25,
2025, at 10:36 a.m., Halliwell emailed defendant Monica Bisceglie, the Fire
District's Human Resources Coordinator, stating that Halliwell had left "two
copies of election results on [her] chair to [be] signed by the [C]lerk tomorrow
night then post on our website and put in [the] minute book." Bisceglie replied
to Halliwell by email on February 26, 2025, at 7:40 a.m., that she noticed the
spreadsheet did not list any write-in votes.
Bisceglie updated the spreadsheet to reflect that there were five write-in
votes, resulting in the following vote totals listed on the spreadsheet:
Cirz 615
Golden 614
Hopson 615
Tutela 690
Write-Ins 5
Krohn, as Fire District Clerk, signed the spreadsheet certifying the
election results. Krohn testified that he accepted Halliwell's numbers without
doing any of his own review because Halliwell "worked there longer than I've
been alive and has no reason to lie to me." The certified spreadsheet reflecting
a tie between Cirz and Hopson for one of the two open commissioner seats was
uploaded to the Fire District's website.
A-2536-24 5 After Krohn certified the election results, Halliwell reviewed the "tapes"
from each voting machine and discovered the "third printout . . . where the
write-ins are." Halliwell then noticed that one of the five write-in votes was
for "Cirz" and one was for "Golden." Both of those write-in votes had been
made by a single voter who voted by machine, typing in the names. As the
parties stipulated, "Cirz" was typed next to candidate Cirz's name and
"Golden" was typed next to candidate Golden's name.
On March 3, 2025, at 2:15 p.m., Bisceglie emailed Jason Varano from
the Board posing questions regarding the consequences of a tie in the election.
Halliwell separately called the Board and asked if a voter could vote for named
candidates and also submit write-in votes for the same candidates. According
to her testimony, Halliwell was told "once they write[-in] the two write-ins,
they're locked out from picking a candidate. So they couldn't write[-]in the
two names and then also vote for the two names."
Halliwell inquired about the Board's policy and was told the Board
"would not count" the write-in votes for the named candidates. Halliwell
testified she then made the "unilateral decision on [her] own without talking to
anybody else that these ballots should be counted." Halliwell explained that,
notwithstanding the Board's policy, the Fire District "d[id]n't have a policy and
it's our election."
A-2536-24 6 On Tuesday, March 4, 2025, Halliwell and Bisceglie conferred and
reviewed reorganization materials for the upcoming Fire District meeting.
Halliwell testified that she then realized the spreadsheet certifying the election
results was wrong because it did not include one of the write-in votes in Cirz's
vote tally and one in Golden's vote tally. Halliwell updated the spreadsheet to
show the following vote totals:
Cirz 616
Golden 615
Halliwell explained she left the number of write-in votes on the
spreadsheet as five "[b]ecause there's still five write-ins" although she
acknowledged there were only three write-in votes that were not included in
the tally for the named candidates.
Also on March 4, 2025, Bisceglie emailed the Board to "disregard" her
March 3, 2025 email as "[w]e were informed it is out of the . . . [B]oard[']s
hands." Bisceglie testified that she sent this email based on the information
Halliwell had received when she called the Board.
That same day, Halliwell notified Krohn and Brian Kubiel, the Fire
A-2536-24 7 District administrator, by email of the presumed error in the first certification
spreadsheet. Defendant Daniel Roman, the Fire District treasurer, was also
notified of the issue by email. Roman went to the Fire District 's office and
reviewed the voting machine tapes himself. Roman consulted with an attorney
friend, who was not the Fire District's attorney, and told Bisceglie to post the
revised votes tally.
Krohn testified that he received an email about the "discrepancy in the
results" and was asked if he would sign the revised spreadsheet. Krohn
authorized his electronic signature being affixed to the revised spreadsheet
certifying the election results the day before the reorganization meeting.
Krohn explained that he revised the spreadsheet based solely on Halliwell's
representation, and he did not consult with an attorney, the Fire District
administrator, or the other Fire District commissioners. The revised certified
spreadsheet was thereafter posted on the Fire District's website. Roman swore
in Cirz as a Fire District commissioner. Tutela, whose election was never in
question, was also sworn in.
The next Fire District meeting was held on March 5, 2025. The meeting
was not recorded because Bisceglie, whose job it was to record the meetings,
was suspended. During the meeting, the Fire District's attorney made a
statement regarding the updated election results, and Cirz took his seat on the
A-2536-24 8 dais.
On March 7, 2025, Hopson filed his verified petition and complaint in
the Law Division against defendants seeking a declaratory judgment that Cirz
was not the winner of the election (count one); contesting the election results
under N.J.S.A. 19:29-1 due to malconduct, fraud, and corruption (count two);
contesting illegal votes received (count three); alleging error by the Board
(count four); and asserting he was deprived of his rights under the New Jersey
Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2 (count five). Hopson sought
to either be declared the lawful winner of one of the two commissioner seats in
the Fire District election, or alternatively, sought a declaratory judgment that
the election for one of the seats had resulted in a tie, thereby requiring a
special election.
The trial court issued an order to show cause directing the parties to
respond to Hopson's verified petition and complaint. Cirz filed an answer and
cross-petition seeking to have the mail-in ballots of V.G., M.B., P.B., and
J.D.—as well as others—counted. Thereafter, Cirz filed a first and second
amended answer and cross-petition alleging additional ballot challenges.
Three days before the trial commenced, Cirz moved for leave to file a
third amended answer and cross-petition challenging the rejection of an
additional mail-in ballot from an unidentified voter as an overvote. At the end
A-2536-24 9 of the first day of testimony, the trial court denied Cirz's motion for leave to
file a third amended answer and cross-petition.
V.G. testified that she was registered to vote in Toms River and she
attempted to vote in the February 15, 2025 Fire District election by mail-in
ballot, but her vote was not counted. V.G. explained she mailed her ballot on
February 10, 2025, but had filled out the ballot incorrectly. V.G. wrote her
name and address on the outer envelope of the mail-in ballot. However, on the
inner envelope, V.G. left the "Certificate of Mail-In Voter," which asked for
the voter's name, address, and signature attestation, blank. As V.G. testified,
"[t]here was a part [she] was supposed to sign but [she] didn't see it." She was
supposed to "sign[] the bottom portion," which states, "Certificate of Mail-In
Voter," but did not.
At some point during the week after the election, V.G. went to the Board
to try to cure the defect but was told "there was nothing else that could be
done." She never received a letter offering the opportunity to cure her ballot.
M.B. testified that she attempted to vote in the February 15, 2025, Fire
District election by mail-in ballot but her vote was not counted. She mailed
her ballot on Saturday, February 15, 2025, by placing it into her personal
mailbox at the street end of her driveway between 8:20 a.m. and 8:30 a.m.
M.B.'s ballot was thereafter postmarked February 18, 2025.
A-2536-24 10 P.B. attempted to testify at trial, but there were technical difficulties
with the Zoom connection. The parties stipulated he filled out his mail-in
ballot for the February 15, 2025 Fire District election and that it was placed in
his home mailbox on the morning of February 15, 2025. P.B.'s mail-in ballot
was postmarked February 18, 2025.
J.D. testified that he is fully disabled and votes by mail-in ballot. He
filled out his ballot for the February 15, 2025 Fire District election on
February 7 or 8, 2025, and put the ballot in his personal mailbox by his curb.
J.D.'s ballot was thereafter postmarked February 18, 2025.
The trial court found all of the witnesses "credible." The trial court
determined the two write-in votes for Cirz and Golden should be counted and
dismissed counts one through four of Hopson's verified petition and complaint
with prejudice and count five under the NJCRA without prejudice. The trial
court acknowledged N.J.S.A. 19:49-5, which provides that "[n]o irregular
ballot shall be voted for any person for any office whose name appears on the
machine as a nominated candidate for that office . . . ; any irregular ballot so
voted shall not be counted." However, the trial court determined that the
"intent of [the] statute is to prevent a voter from casting two votes for the same
candidate." The trial court noted voters have the right to have their votes
"counted at full value without dissolution or discount."
A-2536-24 11 The trial court noted that the two certifications issued by the Fire
District and the changes to "the tallies . . . without the write-in votes changing"
were "questionable" and caused "consternation among the voters of Toms
River." However, the trial court determined that the process was "faithful" and
"abided by certain [principles] of law."
The trial court found that the voter who wrote in "Cirz" intended to vote
for candidate Cirz. The trial court noted that "nothing" in the ballot
instructions "indicates that if a person's name is printed you cannot write it in ."
The trial court reasoned that it had an "obligation" to "make sure that under
these circumstances, the clear intent of the voter is carried out" when there is
"no confusion and no fraud." Thus, the trial court held that the write-in votes
should be counted.
With respect to the votes that were not counted, the trial court found
V.G.'s testimony to be "credible." However, since V.G. failed to sign the
Certificate of Mail-in Voter, the trial court held her ballot could not be
counted.
With respect to the votes that were not postmarked until February 18,
2025, the trial court found that the Legislature had set "strict timelines" to
"ensure the integrity of the process." Because those ballots were postmarked
more than forty-eight hours after the date of the election, those ballots were
A-2536-24 12 "outside the statutory framework." The trial court drew "a distinction between
errors that were caused by the election process versus the voter themselves ."
The trial court ruled the final vote totals were as follows:
The trial court stayed its order declaring Cirz the winner of the February
15, 2025 election, and we continued the stay based on Hopson's application for
leave to file an emergent application, which we granted. Cirz filed a notice of
cross-appeal. We also accelerated the appeals.
On this appeal, the following five issues are presented for our
consideration:
(1) whether the Fire District Clerk had legal authority to amend the election certificate to count the two write-in votes for Cirz and Golden;
(2) whether the trial court erred in counting the two write-in votes;
(3) whether the trial court erred in not counting the mail-in ballot submitted by V.G.;
(4) whether the trial court correctly refused to count the three mail-in ballots submitted by M.B., P.B., and J.D.; and
A-2536-24 13 (5) whether the trial court erred in denying Cirz's motion to file a third amended answer and cross-petition.
II.
N.J.S.A. 40A:14-70(a) authorizes any municipality to create a Fire
District to be governed by a board of five commissioners who are residents of
the municipality. The "commissioners of a [F]ire [D]istrict shall have the
powers, duties and functions within said district to the same extent as in the
case of municipalities, relating to the prevention and extinguishment of fires
and the regulation of fire hazards." N.J.S.A. 40A:14-81.
Elections for commissioners shall be held "annually either on the third
Saturday in February or at the time of the general election" in November.
N.J.S.A. 40A:14-72(a). Pursuant to N.J.S.A. 40A:14-72.1(a), if the Fire
District election is held at the time of the November general election, the
election procedures "shall be in accordance with the procedures provided for
the general election under" under N.J.S.A. Title 19, including N.J.S.A. 19:20 -
1, which provides that the "board of county canvassers . . . shall proceed to
determine what officers have been elected, and the result of the vote cast upon
any public question setting forth that it was approved or rejected."
However, for Fire District elections held on the third Saturday in
February, as in Toms River, N.J.S.A. 40A:14-77 provides that, "[i]mmediately
A-2536-24 14 after the close of the polls the [Fire District] clerk and tellers shall forthwith
canvass the vote and certify the results" and the Fire District "Clerk shall
publicly announce the results."
III.
A challenger has the burden of proving one or more legal votes were
rejected, and that the number of improperly rejected votes were sufficient to
change the result of the election. The challenger is not required to prove that
the rejected votes were cast for him or her. In re Ocean Cnty. Comm'r of
Registration for a Recheck of the Voting Machines for the May 11, 2004 Mun .
Elections, 379 N.J. Super. 461, 469 (App. Div. 2005) (citing In re Application
of Moffat, 142 N.J. Super. 217, 224 (App. Div. 1976); Kirk v. French, 324 N.J.
Super. 548, 553 (Law Div. 1998)).
First, we address Hopson's argument that the Fire District Clerk had no
legal authority to amend the election certificate to count the two write -in votes
for Cirz and Golden. Hopson contends that N.J.S.A. 40A:14-77 precludes the
Fire District Clerk from acting alone. According to Hopson, the Board should
have determined the election results under the framework set forth for
municipal and school board elections under Title 19. Even if the Fire District
Clerk had the power to act, Hopson alleges Krohn's second certification of the
election results was beyond the time allowed for a change.
A-2536-24 15 We are unpersuaded by Hopson's argument that the Fire District Clerk
had no legal authority to amend the election certification as "ultra vires and
void." Although N.J.S.A. 40A:14-77 refers to the "clerk and tellers," 2 the
statute clearly gives to the clerk the authority to "publicly announce the
results" of the election.
Further, nothing in the applicable statutes sets forth a date by which Fire
District election results must be certified. Hopson relies on a timeline
document purportedly issued by the Secretary of State that lists February 24,
2025, as the deadline for "Fire District Certification of Election Results ," and
states that it is "to comply with N.J.S.A. 19:63-22." However, that statute does
not provide any specific deadlines for certifying election results. Hopson also
asserts that N.J.A.C. 5:31-2.4 requires Fire Districts "to upload the results of
the election to the FAST 3 system with the Department of Community Affairs
within [ten] days of the election," but that regulation relates only to election
results relating to budget referenda, not candidates for Fire District
2 There is no evidence in the record as to who the "tellers" were in this election. We also note the word "teller" is not mentioned in the trial transcripts. 3 FAST stands for "Financial Automation Submission Tracking." See Financial Automation Submission Tracking ("FAST") System Updates, New Jersey Department of Community Affairs, https://www.nj.gov/dca/dlgs/Fast.shtml (last visited June 25, 2025).
A-2536-24 16 commissioner.
Hopson's argument that the Fire District Clerk was without authority to
change the certified election results after first certifying a tie was not
addressed by the trial court. In support of his argument, Hopson relies on
three cases that pre-date the current election statutes, and the 1947 New Jersey
Constitution, citing State v. Governor, 25 N.J.L. 331 (Sup. Ct. 1856), Darling
v. Murphy, 70 N.J.L. 435 (Sup. Ct. 1904), and Reed v. Bd. of Cnty.
Canvassers, 119 N.J.L. 115 (E. & A. 1937).
As the trial court found, the issuance of two different election
certifications by the Fire District Clerk was "questionable" and caused
"consternation among the voters of Toms River." This clearly undermined
"public confidence in the integrity of the electoral process," which "has
independent significance, because it encourages citizen participation in the
democratic process." Crawford v. Marion Cnty. Election Bd., 553 U.S. 181,
197 (2008); see also In re Malinowski, 481 N.J. Super. 128, 151 (App. Div.
2025). Moreover, the record makes clear the results would have been different
if the election had been overseen by the Board because the Board informed
Halliwell that its policy was not to count a write-in vote for a named candidate.
A difference in outcome based solely on the administrator of the election —in
February or November—does not serve the public interest.
A-2536-24 17 We do not hold that the Fire District's issuance of a corrected
certification was in and of itself unlawful. Based upon our review of the
record, we conclude that Hopson has not demonstrated a "degree of gross
negligence or inattention to duty tantamount to purposeful conduct such as
fraud or corruption" sufficient to overturn the election on these grounds. In re
Mallon, 232 N.J. Super. 249, 272 (App. Div. 1989) (citing N.J.S.A. 19:29-
1(a)).
IV.
Next, Hopson contends the trial court erred in allowing the write-in
votes for two candidates who were also listed on the regular ballot to be
counted. In his cross-appeal, Cirz argues the trial court erred in refusing to
count the mail-in ballots of V.G., M.B., P.B., and J.D. The Board counters
that New Jersey election law does not permit any of these votes to be counted.
The plain language of the governing statute supports the Board's position .
N.J.S.A. 19:29-1 provides, in pertinent part, that the election "of any
person to any public office" may be contested on one or more of several
grounds, including "[m]alconduct, fraud or corruption on the part of the
members of any [D]istrict [B]oard, or of any members of the board of county
canvassers, sufficient to challenge the result;" "[w]hen illegal votes have been
received, or legal votes rejected at the polls sufficient to change the result;"
A-2536-24 18 "[f]or any error by any board of canvassers in counting the votes or declaring
the result of the election, if such error would change the result;" or "[f]or any
other cause which shows that another was the person legally elected . . . ."
N.J.S.A. 19:29-1(a), (e), (f), (g). To be successful in an election contest, a
petitioner must prove at least one of these grounds by a preponderance of the
evidence. In re Election for Atl. Cnty. Freeholder Dist. 3 2020 Gen. Election,
468 N.J. Super. 341, 355 (App. Div. 2021).
When we review a trial court's rulings in an election contest, its factual
findings are entitled to deference. Horne v. Edwards, 477 N.J. Super. 302,
312-13 (App. Div. 2023). Thus, we do not "review the record from the point
of view of how [it] would have decided the matter if we were the court of first
instance" but we consider the trial court's factual findings "binding on appeal
when supported by adequate, substantial and credible evidence." Id. at 312
(quoting Sebring Assocs. v. Coyle, 347 N.J. Super. 414, 424 (App. Div. 2002);
Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
However, the trial court's legal conclusions are reviewed de novo. D'Agostino
v. Maldonado, 216 N.J. 168, 182 (2013); see also Manalapan Realty, LP v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's
interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference.").
A-2536-24 19 Both Hopson's and Cirz's challenges to the trial court's decision require
us to interpret various provisions of New Jersey's election laws. In
interpreting a statute, we must "aim[] to effectuate the Legislature's intent" and
the "'best indicator' of legislative intent 'is the statutory language.'" W.S. v.
Hildreth, 252 N.J. 506, 518 (2023) (quoting State v. Lane, 251 N.J. 84, 94
(2022)). "As a general proposition, 'election laws are to be liberally construed
to the end that voters are permitted to exercise the franchise and that the will
of the people as expressed through an election is heard.'" In re Election for
Atl. Cnty. Freeholder Dist. 3, 468 N.J. Super. at 353 (quoting In re Contest of
Nov. 8, 2005 Gen. Election for Off. of Mayor of Twp. of Parsippany -Troy
Hills, 192 N.J. 546, 559 (2007)).
"[O]ur state election laws are designed to deter fraud, safeguard the
secrecy of the ballot, and prevent disenfranchisement of qualified voters." In
re Gray-Sadler, 164 N.J. 468, 474-75 (2000); see also Langbaum, 201 N.J.
Super. 484, 490 (App. Div. 1985) ("deterrence of fraud—maintenance of the
integrity of the elective process is one of the primary legislative concerns").
"A citizen's constitutional right to vote for the candidate of his or her choice
necessarily includes the corollary right to have that vote counted 'at full value
without dilution or discount.'" Gray-Sadler, 164 N.J. at 474 (quoting Reynolds
v. Sims, 377 U.S. 533, 555 n.29 (1964)).
A-2536-24 20 Courts should "apply to the statutory terms the generally accepted
meaning of the words used by the Legislature," Patel v. N.J. Motor Vehicle
Comm'n, 200 N.J. 413, 418 (2009), "read . . . in context with related provisions
so as to give sense to the legislation as a whole." DiProspero v. Penn, 183 N.J.
477, 492 (2005). However, even a "straightforward" statute "must be read in
light of the broad purpose of the election laws to prevent disenfranchisement
of qualified voters." Gray-Sadler, 164 N.J. at 476. "Thus, absent an express
legislative directive that a violation of an election law requires invalidation of
a ballot, the court must determine whether 'under the circumstances' a ballot
should be invalidated to 'effectuate the legislative intent' in establishing a
particular voting requirement." In re Petition of Kriso, 276 N.J. Super. 337,
345 (App. Div. 1994).
To that end, courts have cautioned that "[v]oiding the ballot and thus
disenfranchising the voter is too harsh a remedy where the deficiency does not
affect the integrity of the electoral process." Langbaum, 201 N.J. Super. at
490. A reviewing court "however, may not 'rewrite a plainly-written
enactment of the Legislature [or] presume that the Legislature intended
something other than that expressed by way of the plain language.'" In re
Proposed Constr. of Compressor Station (CS327), 258 N.J. 312, 325 (2024)
(quoting O'Connell v. State, 171 N.J. 484, 488 (2002)).
A-2536-24 21 A. Write-In Votes for Cirz and Golden
Hopson argues that N.J.S.A. 19:49-5 does not permit the write-in votes
for Cirz and Golden to be counted, because they were candidates listed on the
ballot. The Board supports Hopson's interpretation of N.J.S.A. 19:49-5, which
prohibits the counting of a write-in vote for any person who is a candidate
listed on the ballot.
N.J.S.A. 19:49-5 states:
Ballots voted for any person whose name does not appear on the machine as a nominated candidate for office are herein referred to as irregular ballots. Such irregular ballot shall be written or affixed in or upon the receptacle or device provided on the machine for that purpose. No irregular ballot shall be voted for any person for any office whose name appears on the machine as a nominated candidate for that office or for a delegate or alternate to a national party convention; any irregular ballot so voted shall not be counted. An irregular ballot must be cast in its appropriate place on the machine, or it shall be void and not counted.
[Emphasis added.]
Hopson argues that the "statutory framework governing write-in votes is
clear and leaves no room for ambiguity or judicial modification." According
to Hopson, under the plain language of that statute, the write-in votes for Cirz
and Golden constituted an "irregular ballot," and because both Cirz and
Golden's names were also on the ballot as nominated candidates for the office
of Fire District commissioner, those irregular ballots "shall not be counted."
A-2536-24 22 N.J.S.A. 19:49-5.
Both Hopson and the Board rely on Ocean County, which applied
N.J.S.A. 19:49-5 to preclude the counting of a write-in vote. 379 N.J. Super.
at 476. In that case, Peter Murphy, an unsuccessful candidate for one of three
open seats on the Board of Commissioners of Long Beach Township, contested
the election result that he had received one fewer vote than Ralph Bayard, the
candidate who had received the third-highest number of votes. Id. at 465-66.
Among other issues, Murphy challenged the rejection of a single write -in vote
for him "on the basis of N.J.S.A. 19:49-5 because his name appeared as a
candidate on the printed machine ballot." Id. at 464, 472-73.
We held the "statutory direction" in N.J.S.A. 19:49-5 to be
"unambiguous" and rejected Murphy's claim that the voters were not
sufficiently warned about the consequences of writing in a name of a listed
candidate. Id. at 473. We noted "the strong public policy in favor of
protecting every citizen's right to vote, and to have his or her vote counted" as
"[l]ittle is more basic to the concept of a democracy." Id. at 474. We also
recognized the "duty to construe elections laws liberally." Ibid. (quoting Gray-
Sadler, 164 N.J. at 475). We further held that "the obvious purpose of
N.J.S.A. 19:49-5 is to prevent a voter from casting two votes for the same
candidate—once by marking the printed name and a second time by writing in
A-2536-24 23 the same name." Id. at 473.
Nevertheless, based on the record in Ocean County, "we [could not]
know for certain whether the same voter also cast a proper vote for Murphy
and if so, whether it was counted." Id. at 476. Thus, we held, "the unknown
write-in voter here was not deprived of the right to cast a vote for Murphy ,"
but was required to do so using the printed ballot. Id. at 476-77. Accordingly,
considering those facts, and the fact "[i]t is not too much to expect that a voter
would notice . . . his [or her] candidate's name appears as a choice on the ballot
and . . . there is a clearly prescribed place on the ballot for expressing that
choice," we discerned no basis to undo the certification of election results. Id.
at 476.
Cirz argues although the purpose of N.J.S.A. 19:49-5 is to prevent
double voting, "that concern is no longer relevant" because of the "widespread
and mandatory adoption of optical scan voting machines," which "generate
individual printouts of each ballot cast on the machine, including a breakdown
of all votes cast" and, thus, "election officials can disqualify true double
votes."
Although there is no evidence in the record regarding the voting
technology used in the Fire District election, Cirz cites to N.J.S.A. 19:53A -
3(i)(1), which mandates that "[b]y January 1, 2009, each voting machine shall
A-2536-24 24 produce an individual permanent paper record for each vote cast, which shall
be made available for inspection and verification by the voter at the time the
vote is cast, and preserved for later use in any manual audit." We are not
persuaded by Cirz's argument.
Regardless of the voting technology utilized, as stated in Ocean County,
the language in N.J.S.A. 19:49-5 is unambiguous: write-in votes for a
candidate already on the ballot shall not be counted. 379 N.J. Super. at 472.
The Court has recently emphasized the need to follow the plain language of a
statute in the absence of any ambiguity. See In re Proposed Constr. of
Compressor Station, 258 N.J. at 325. Whether the statute as written continues
to serve its purpose is a question for the New Jersey Legislature, not the
courts.
Relying on Gray-Sadler, 164 N.J. at 468, Cirz further argues the ballot as
written did not give voters sufficient warning that their votes would not count
if they wrote in the names of candidates already on the ballot, and therefore ,
the write-in votes should be counted. As the Court explained, voters were
informed to
"[v]ote for any person whose name is not printed on the ballot, go to the personal choice column, darken the oval and words write-in and the office in which you want to write in, write in the name of the person for which you wish to vote on for in the blank."
A-2536-24 25 In Gray-Sadler, the Court reviewed sixty-four write-in votes for
municipal offices in Chesilhurst that had not been counted by election officials
because they had been placed in the wrong space on the voting machine. Id. at
473-74. None of the write-in candidates were officially on the ballot, but the
votes were rejected on the basis of the language in N.J.S.A. 19:49-5 that "[a]n
irregular ballot must be cast in its appropriate place on the machine, or it shall
be void and not counted." Id. at 472-73, 476.
The Court held although "straightforward," the statutory language "must
be read in light of the broad purpose of the election laws to prevent
disenfranchisement of qualified voters" and noted that, "[i]n cases involving
invalidated write-in votes, our courts have distinguished errors due to extrinsic
problems from errors caused by a voter's own neglect." Id. at 476. And, the
Court ruled the Legislature did not intend N.J.S.A. 19:49-5 "to be applied in a
manner that would frustrate the free expression of the voters' will when the
incorrect placement of the write-in vote is the result of mistakes or problems
beyond the voters' control." Id. at 477.
Recognizing that the voters clearly intended to vote for the write-in
candidates, the Court "ask[ed] why write-in votes were placed on the wrong
lines or not cast in the first place," which "should help us to determine whether
the 'rejected' voters had their votes invalidated as a result of their own errors or
A-2536-24 26 as a result of election officials' noncompliance with statutory requirements."
Id. at 478. The Court found that "no information was provided outside the
voting booths explaining how properly to cast write-in votes" and information
inside the booths contained "conflicting and incomplete instructions," which
caused confusion "attributable to defects outside of [voters'] control." Id. at
478-79. Most egregiously, the instructions directed "voters to seek assistance
from an official outside the booth" but "[a]nyone who followed that direction
would be barred from re-entering the voting machine after having been given
instructions," such as one voter who testified as a witness. Id. at 479.
Thus, the Court found these circumstances "readily distinguishable from
other cases in which voters' failure to comply with specific procedural
instructions invalidated their votes." Id. at 481 (citing In re Mun. Election
Held on May 10, 1994, 139 N.J. 553, 558 (1995); In re Keogh-Dwyer, 45 N.J.
117, 120 (1965)). Rather, "Chesilhurst voters . . . were given patently
inadequate instructions or none at all." Ibid. Because the write-in voters were
effectively disenfranchised, and this affected the election's outcome, the Court
ordered that a new election be held. Id. at 484-85. The Court mandated:
[f]or the new election, and for all future elections throughout the state, explicit instructions on how to cast a write-in vote must be provided with the sample ballots sent to registered voters. The instructions must offer clear, step-by-step directions that describe the mechanics of the voting machine, explain how to
A-2536-24 27 operate the windows and levers, and emphasize the need to cast write-in votes on the appropriate lines. Voters must be warned that an improperly cast vote will be deemed void.
[Id. at 484.]
In this matter, Cirz is correct the instructions did not explicitly warn
voters that a write-in vote for a candidate already on the ballot would not be
counted. However, the instructions for this election did not have the same
deficiencies as those in Gray-Sadler. Voters here were instructed that if they
wanted to "[v]ote for any person whose name is not printed on the ballot," they
should use the write-in procedure. All voters but one complied with that clear
instruction.
In similar circumstances presented in Ocean County, we held a write-in
vote for a candidate already on the ballot was plainly not a mistake "beyond
the voter['s] control." 379 N.J. Super. at 475.
It is not too much to expect that a voter would notice that his candidate's name appears as a choice on the ballot and that there is a clearly prescribed place on the ballot for expressing that choice. This is particularly so in light of the sample ballot that demonstrates, in advance, the names of the candidates as they will appear on the voting machine.
[Id. at 476.]
In Ocean County, we also found significant that only one voter, as here,
made the mistake of writing in a candidate who was already on the ballot,
A-2536-24 28 noting that "a reasonable voter would understand, without explicit instruction,
that it is unnecessary to write in the name of a candidate whose name already
appears on the ballot, and that a vote for that candidate must be cast by
marking the place on the ballot where that candidate's name appears." Id. at
477. Applying these principles to the matter before us, we reject Cirz's
objections to the write-in voting instructions.
B. V.G.'s Mail-In Vote
Cirz argues in his cross-appeal that the trial court erred in failing to
count V.G.'s mail-in ballot after the Board denied her the opportunity to cure
the deficiency. Both the Board and Hopson argue that V.G.'s ballot was
properly rejected. We hold that V.G.'s ballot was correctly rejected.
Pursuant to N.J.S.A. 19:63-13, the inner envelope of all mail-in ballots
contains a Certificate of Mail-In Voter in the following form:
I, ___________________________________, whose (print your name clearly)
home address is ______________________________ (street address or R.D. number) (municipality)
DO HEREBY CERTIFY, subject to the penalties for fraudulent voting, that I am the person who applied for the enclosed ballot. I MARKED AND SEALED THIS BALLOT AND CERTIFICATE IN SECRET. However, a family member may assist me in doing so.
_________________________________________ (signature of voter)
A-2536-24 29 There is no dispute V.G. failed to complete this Certificate of Mail-In Voter,
and thus, failed to comply with the requirements of N.J.S.A. 19:63-16(a) that
all mail-in voters must "fill in the form of certificate attached to the inner
envelope, at the end of which the voter shall sign and print the voter's name."
The record shows V.G. left the entire Certificate blank.
As amended by L. 2020, c. 70, N.J.S.A. 19:63-17 permits mail-in voters
to cure their incorrect ballots in limited circumstances involving "a missing
signature or discrepant signature." In that regard, N.J.S.A. 19:63-17(b)
provides that:
[t]he county board of elections shall, promptly after receiving each mail-in ballot, undertake the following procedures and requirements concerning the acceptance or rejection of each mail-in ballot:
(1) within [twenty-four] hours after the decision has been made to reject a voter's mail-in or provisional ballot on the basis of a missing signature or discrepant signature, issue a "Cure Letter" by mail or email to the voter whose ballot was rejected, which shall inform the voter of that fact and provide the reasoning for rejection, and attempt to contact the voter by telephone, if a telephone number is available. The cure letter shall include a "Cure Form" and the form shall include the voter's name and instruct the voter on how to cure the alleged or actual deficiency. Cure forms shall not be referred to as affidavits or certifications and shall not be required to be sworn;
(2) when the alleged or actual deficiency involves the signature of the voter, instruct the voter that they may cure the deficiency by completing the cure form and
A-2536-24 30 returning it to the county board of elections in person, by fax, or by email, not later than [forty-eight] hours prior to the final certification of the results of the election other than the general election, or in the case of a general election within [eleven] days after the general election, or by returning it to the county board of elections by mail, and that the completed cure form must be received by the county board of elections not later than [forty-eight] hours prior to the final certification of the results of the election other than the general election, or in the case of a general election within [eleven] days after the general election;
(3) include, with the cure letter, when sent by mail, a pre-printed cure form and a postage-paid return envelope addressed to the county board of elections which the voter may use to return the cure form; and
(4) inform voters that they shall not be required to submit any form of hard-copy identification document or copy thereof in order to cure a signature deficiency, but may do so by declaring that they submitted their provisional ballot or mail-in ballot, and verifying their identity by either: (a) providing a valid New Jersey driver's license number or Motor Vehicle Commission non-driver identification number; or (b) if the voter does not have a valid New Jersey driver's license number or Motor Vehicle Commission non-driver identification number, then by providing the last four digits of their Social Security Number; or (c) if the voter does not have the identification in (a) or (b), then attaching a legible copy of a New Jersey State- accepted form of identification, including either a sample ballot which lists the voter's name and address, an official federal, State, county, or municipal document which lists the voter's name and address, or a utility bill, telephone bill, or tax or rent receipt which lists the voter's name and address; and (d) signing and dating the cure form prior to returning it.
A-2536-24 31 If the voter "returns a completed cure form in a timely manner and the
information provided verifies the voter's identity, pursuant to this section, their
otherwise valid mail-in or provisional ballot shall be counted in the final
election results irrespective of any signature deficiency previously identified
. . . ." N.J.S.A. 19:63-17(c).
Cirz maintains that because V.G.'s ballot rejection involved a missing
signature, N.J.S.A. 19:63-17(b) required the Board to offer her the opportunity
to cure the ballot errors. As V.G. testified, she went to the Board within the
time set forth in N.J.S.A. 19:63-17(b)(2) to cure her ballot errors, but the
Board refused to allow her to do so.
The Board counters that because the deficiency in V.G.'s ballot involved
more than just her signature and was an entirely blank Certificate of Mail-In
Voter, the Board had no statutory right to offer her the opportunity to cure. In
support of its argument, the Board claims that "[n]either N.J.S.A. 19:63-17 nor
any other part of Title 19 allows" the Board to allow any voter "to cure [a]
mail-in ballot when the [C]ertificate is left completely blank."
We affirm the trial court's decision not to count the mail-in ballot
submitted by V.G. The evidence shows that V.G.'s inner envelope was not
filled out. Thus, V.G. did not print her name, her street address, or sign the
inner envelope as required by N.J.S.A. 19:63-16(a). As just discussed,
A-2536-24 32 N.J.S.A. 19:63-17 permits mail-in voters to cure ballots only if the signature is
missing. We do not construe the statute as allowing the cure of a ballot
submitted with an inner envelope that was left completely blank.
C. Mail-In Ballots Postmarked February 18, 2025
Cirz also argues that the trial court erred in disqualifying the three mail-
in ballots because those ballots were postmarked February 18, 2025. The
Board and Hopson assert that the ballots were properly disqualified. We agree
that the ballots were correctly rejected.
N.J.S.A. 19:63-22(a) sets clear, explicit deadlines for the receipt of mail-
in ballots, stating:
Every mail-in ballot that bears a postmark date before or of the day of the election and that is received by the county board within 144 hours after the time of the closing of the polls for the election that the ballot was prepared shall be considered valid and shall be canvassed. Every mail-in ballot that does not bear a postmark date but that is received by the county board by delivery of the United States Postal Service before, or within [forty-eight] hours after, the time of the closing of the polls for the election for which the ballot was prepared shall be considered valid and shall be canvassed.
There is no dispute that the three ballots mailed by M.B., P.B., and J.D.
did not comply with either of these requirements. Each of the three ballots
was postmarked on February 18, 2025, three days after the date of the Fire
District election.
A-2536-24 33 Cirz urges us to allow these ballots to be counted because, as the trial
court found, the voters credibly testified that they placed their ballots in their
mail boxes on the day of the election, but the envelopes containing the ballots
were postmarked three days later, after the weekend, three days after the
Saturday election, and after the President's Day holiday. Cirz also argues we
should apply the time standards set forth in Rule 1:3-1,4 so that the time period
does not start running until the next business day.
The statutory construction urged by Cirz would alter the meaning of the
statute's plain language. The ballots at issue neither lacked a postmark, nor
were they postmarked on or before the date of the election. Moreover, as the
Board points out, the Toms River Post Office is open on Saturdays. Cirz
offers no legal support for his argument that the clear terms of N.J.S.A. 19:63 -
22 should be ignored in the circumstances here. And, Cirz does not offer any
4 Rule 1:3-1 provides:
In computing any period of time fixed by rule or court order, the day of the act or event from which the designated period begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday[,] or legal holiday, in which event the period runs until the end of the next day with is neither a Saturday, Sunday[,] nor legal holiday. In computing a period of time of less than [seven] days, Saturday, Sunday[,] and legal holidays shall be excluded.
A-2536-24 34 support for the application of the time standards under Rule 1:3-1. Therefore,
we reject Cirz's argument and conclude the clear terms of N.J.S.A. 19:63-22
preclude the mail-in ballots postmarked on February 18, 2025, from being
Next, Cirz argues the trial court erred in denying his motion for leave to
file a third amended answer and cross-petition to include an additional
challenge to a single mail-in ballot that was rejected by the Board as an
overvote. Hopson argues that the trial court properly denied Cirz's motion,
which was filed one business day before trial, on April 11, 2025, as it was
prejudicial to Hopson. The ballot Cirz challenged was a mail-in vote by an
unidentified voter that had been rejected by the Board because the voter
blacked in the circles next to both Cirz's and Golden's names and also blacked
in one circle in the "Personal Choice—Write-In" column, but did not write in
any name.
At the close of the first day of trial, the trial court addressed Cirz's
motion for leave to amend. Counsel for Cirz argued that it had taken a
significant amount of time to review the "more than 1,300 ballots that we had
to go through," which was the reason the motion was filed just before the trial
date. Counsel for Hopson countered that all of the parties possessed all of the
A-2536-24 35 ballots at issue since March 25, 2025, and there was no new information
justifying Cirz's delay. Hopson further argued that granting Cirz's motion
would be prejudicial to Hopson since he had based his "case strategy" on the
ballot challenges Cirz had previously made.
In denying Cirz's motion to amend, the trial court found no
"extraordinary circumstance," and that to allow the amendment would be an
"unfair surprise" to Hopson. The trial court also found that "the prejudice
outweighs any probative value that would be offered to this dispute."
Under Rule 4:9-1, once a responsive pleading has been served, a
complaint may be amended "only by written consent of the adverse party or by
leave of court which shall be freely given in the interest of justice." This Rule
"'requires that motions for leave to amend be granted liberally' and that 'the
granting of a motion to file an amended complaint always rests in the court's
sound discretion.'" Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006)
(quoting Kernan v. One Wash. Park Urb. Renewal Assocs., 154 N.J. 437, 456-
57 (1998)).
This "exercise of discretion requires a two-step process: whether the
non-moving party will be prejudiced, and whether granting the amendment
would nonetheless be futile"; "that is, whether the amended claim will
nonetheless fail and, hence, allowing the amendment would be a useless
A-2536-24 36 endeavor." Ibid. "[T]he factual situation in each case must guide the court's
discretion, particularly where the motion is to add new claims or new parties
late in the litigation." Bonczek v. Carter Wallace, Inc., 304 N.J. Super. 593,
602 (App. Div. 1997).
"One of the factual situations to be considered by the trial court is the
reason for the late filing." Verni ex rel. Burstein v. Harry M. Stevens, Inc.,
387 N.J. Super. 160, 196 (App. Div. 2006) (citing Bonczek, 304 N.J. Super. at
602). We "review a trial court's decision to grant or deny a motion to amend
the complaint for abuse of discretion." Grillo v. State, 469 N.J. Super. 267,
275 (App. Div. 2021) (quoting Port Liberte II Condo. Ass'n v. New Liberty
Residential Urb. Renewal Co., 435 N.J. Super. 51, 62 (App. Div. 2014)).
Before us, Cirz challenges Hopson's assertions of prejudice. A factual
finding by the trial court is entitled to deference, and it is based on competent,
credible evidence in the record. See Horne, 477 N.J. Super. at 312-13. As
Hopson points out, prior to Cirz's proposed amendment, he had challenged two
ballots, and Cirz challenged six ballots. Based on those numbers, the record
supports Hopson's position that he "made calculated decisions, including
forgoing challenges to other questionable ballots uncovered during discovery ."
Therefore, we discern no abuse of discretion in the trial court's finding of
prejudice to Hopson.
A-2536-24 37 Moreover, Cirz makes no showing that his challenge to this purported
"overvote" ballot had any likelihood of success on the merits. N.J.S.A. 19:16 -
3(a) provides that
If proper marks are made in the squares to the left of the names of any candidates in any column and the total number voted for, for each office, does not exceed the number of candidates to be elected to each office, a vote shall be counted for each candidate so marked.
Further, N.J.S.A. 19:16-3(f) provides:
If a voter marks more names than there are persons to be elected to an office, or writes or pastes the name of any person in the column designated personal choice, whose name is printed upon the ballot as a candidate under the same title of office, or his choice cannot be determined, his ballot shall not be counted for that office, but shall be counted for such other offices as are plainly marked.
Here, the voter in question made three separate, clear marks on a ballot
where he or she was permitted to only vote for two individuals. Thus, the
marks "exceed[ed] the number of candidates to be elected to each office" under
N.J.S.A. 19:16-3(a) and further made it impossible for a reviewer to determine
the voter's choice under N.J.S.A. 19:16-3(f). Therefore, "allowing the
amendment would" have been "a useless endeavor." Notte, 185 N.J. at 501.
A-2536-24 38 VI.
In summary, we affirm the trial court's decision not to count the mail-in
ballot submitted by V.G., we reverse the trial court's decision permitting the
three write-in votes to be counted, and we affirm the trial court's decision
barring Cirz from filing a belated third amended answer and cross-petition.
We, therefore, remand the matter for entry of an order directing a run-off
election between Hopson and Cirz for the remaining open Commissioner seat.
The stay of Cirz assuming the position as one of the Fire District
Commissioners is continued until the completion and certification of the run-
off election.
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with our opinion. We do not retain jurisdiction.
A-2536-24 39