Opinion
DOCKET NO. A-2099-15T3
06-06-2016
IN RE THE GENERAL ELECTION OF NOVEMBER 3, 2015, FOR SALEM COUNTY.
Michael J. Miles argued the cause for appellant Charles V. Hassler (Brown & Connery, LLP, attorneys; William M. Tambussi, of counsel; Mr. Miles and Michael J. Watson, on the brief). Respondent Melissa DeCastro has not filed a brief. George N. Cohen, Deputy Attorney General, argued the cause for amicus curiae State of New Jersey (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Cohen, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer, Haas and Manahan. On appeal from Superior Court of New Jersey, Law Division, Salem County, Docket No. L-224-15. Michael J. Miles argued the cause for appellant Charles V. Hassler (Brown & Connery, LLP, attorneys; William M. Tambussi, of counsel; Mr. Miles and Michael J. Watson, on the brief). Respondent Melissa DeCastro has not filed a brief. George N. Cohen, Deputy Attorney General, argued the cause for amicus curiae State of New Jersey (Robert Lougy, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Cohen, on the brief). PER CURIAM
In this election contest matter, petitioner Charles V. Hassler appeals from the January 13, 2016 order of the Law Division, rejecting petitioner's contention that six provisional ballots and one mail-in ballot should be declared valid and counted in the November 3, 3015 General Election for a seat on the Salem County Board of Chosen Freeholders (the Board of Freeholders). We affirm the trial court's conclusion that the six provisional ballots should not be counted, but reverse the court's decision on the mail-in ballot, and remand to the trial court with the direction that the Salem County Board of Elections (the Board of Elections) open and count this ballot.
Petitioner also appealed from the trial court's January 14, 2016, and January 19, 2016 orders "to the extent that they [did] not authorize the Salem County Democratic Committee to fill the interim vacancy on [the Board of Freeholders]." In light of our decision permitting the one mail-in vote to be counted, we need not now address the issue of whether the trial court had the authority to order the Salem County Democratic Committee, or any other political party, to fill the open spot on the Freeholder Board in the event the election remained tied. We also note, as did the trial court, that petitioner did not ask for this relief in his petition challenging the election results, and did not name any political party as a party-defendant in this action.
I.
We derive the following facts from the record developed by the parties at the five-day bench trial. Petitioner was a candidate for one of two contested seats on the Board of Freeholders in the November 3, 2015 election. On November 4, 2015, the Salem County Board of Elections (Board of Elections) certified Benjamin Laurie as the top vote-getter, with respondent Melissa DeCastro in second place, seven votes in front of petitioner. During the election count, the Board of Elections rejected eight provisional ballots because the poll workers had not sealed the provisional ballot bags containing the ballots. The Board of Elections also rejected nine mail-in ballots after it found that the voters' signatures on the affirmation statements did not match the signatures contained in the Statewide Voter Registration System (SVRS). The Board of Elections also rejected a mail-in ballot (Exhibit P-19) cast by a voter because her husband, who acted as the bearer of her ballot, did not sign the bearer legend on the outer envelope.
In order to protect the confidentiality of the voter, we will not refer to her or her husband by name.
Petitioner asked for a recount and recheck of the votes, but the result did not change. On December 4, 2015, he filed a petition to contest the election results. Petitioner argued that the provisional ballots should have been counted because there was no evidence of fraud concerning the ballots. Petitioner also alleged that the signatures on the nine mail-in ballots were substantially similar to those maintained in the SVRS. Finally, petitioner asserted that because the voter's husband's name was printed on the outer envelope containing the voter's mail-in ballot, Exhibit P-19 should be counted. During the trial on these claims, DeCastro was sworn in as a member of the Freeholder Board. A. Provisional Ballots
Petitioner also argued that the Board of Elections incorrectly counted a vote that had an identifying mark on it.
Provisional ballots are governed by Title 19, Chapter 53C. N.J.S.A. 19:53C-1 to -21. Before Election Day, each election district receives a provisional ballot packet. N.J.S.A. 19:53-1(a)(1). The packet includes: provisional ballots, envelopes with affirmation statements, written notices for provisional voters, and an inventory form. Ibid. The packet is placed in a provisional ballot bag, which comes with an envelope containing a numbered seal. Ibid.
A provisional voter is required to complete his or her ballot and the affirmation statement attached to the envelope. N.J.S.A. 19:53C-10(a). Once completed, "the voter shall place the voted provisional ballot in the envelope. The voter shall seal the envelope and shall retain custody of the envelope until a member of the board is ready to accept the envelope." Ibid. The board workers are required to place the ballot in the provisional ballot bag. N.J.S.A. 19:53C-10(b). "The security of the provisional ballot bag and its contents while any election occurs shall be the responsibility of the members of the district board." Ibid.
Once the polls close, the poll workers inventory the voted and unused provisional ballots, mark any invalid ballots as "SPOILED[,]" and complete the inventory sheet. N.J.S.A. 19:53C-11. All inventoried provisional ballots "shall be placed in the provisional ballot bag and sealed with the numbered seal taken from the envelope provided with that bag." Ibid. As soon as the bag is sealed, "a member of the district board shall transport the ballot bag and all other election materials" to the board of elections. N.J.S.A. 19:35C-12. "When the office of the commissioner of registration receives a provisional ballot bag that has been found to be in good order, the commissioner thereof shall first break the seal and open the bag." N.J.S.A. 19:53C-13.
In this case, the Board of Elections rejected eight provisional ballots because the provisional ballot bags in which they were contained were not sealed. Nevertheless, the election workers who processed the ballots testified that there was nothing to indicate that anyone had tampered with the ballots. However, the envelopes containing six of the provisional ballots were either completely or partially unsealed. Only two of the provisional ballots were in sealed envelopes.
The trial judge examined all of the provisional ballots and made the following specific findings concerning the envelopes in which they were contained:
Exhibit P-4A: "opens freely, without effort"; unsealed ballot.
Exhibit P-4B: "[o]pens freely"; "[n]ot cohering to seal"; "unsealed ballot."
Exhibit P-4C: "flap is cohering to the opposite page"; "[c]an see fold of the envelope"; "would be difficult to gain entrance to the envelope and hard to remove the ballot"; "closer to sealed than unsealed[.]"
Exhibit P-7B: "open[ed] easily" and was "not cohering"; unsealed ballot.
Exhibit P-7C: had a portion of the ballot protruding from the envelope, "potential" for someone to gain access to the ballot; "sticking at center, [forty-five] percent of the envelope"; unsealed ballot.
Exhibit P-9B: "open[ed] it slowly and it open[ed] without much effort"; did not "see any coherence"; "unsealed ballot."
Exhibit P-9C: "top half-inch is cohering and you can't turn the page fully and lay it on the desk without interrupting or jeopardizing that coherence"; but "for the next three-quarters of an inch, it's not cohering"; "there's potential to be able to gain entrance"; unsealed ballot.
Exhibit P-9D: "some areas not sealed" but it would be difficult to gain access; determined it was a sealed ballot; "fully sealed."
Based upon these findings, the trial judge reasoned that voters should not be disenfranchised solely upon the failure of the election officials to seal the bags containing the provisional ballots. However, if the provisional ballot itself was not properly sealed, the judge determined that the ballot could not be counted. Thus, the judge found that the two provisional ballots that were sealed, Exhibits P-4C and P-9D, should be counted. He disallowed the remaining six ballots because they were opened or partially-opened. B. Mail-In Ballots
Mail-in ballots are governed by the "Vote by Mail Law of New Jersey," N.J.S.A. 19:63-1 to -28. A vote-by-mail ballot is accompanied by an inner envelope and a larger outer envelope. N.J.S.A. 19:63-12. A completed vote-by-mail ballot must be placed in the inner envelope and sealed. N.J.S.A. 19:63-16(a). The voter must also complete the attached certificate and place the inner envelope with the accompanying certificate inside the outer envelope and seal the envelope. Ibid. This is a completed mail-in ballot.
The vote-by-mail statute is a relatively new enactment. Previously, voters could request absentee, not mail-in, ballots. The statutes relating to absentee voting, N.J.S.A. 19:57-1 to -40, were repealed in 2009 and replaced with N.J.S.A. 19:63-1 to -28. L. 2009, C. 79, § 36, eff. July 1, 2009; 2009 N.J. Sess. Law Serv. 449 (West).
The voter can choose to mail in, personally deliver, or have a third-party deliver his or her ballot to the county board of elections. N.J.S.A. 19:63-16(d)(1). The third-party is known as the bearer. If a bearer is used, then the "bearer legend" on the outer envelope must be completed. N.J.S.A. 19:63-12, -16(d)(3). The bearer legend appears as follows:
Ballot mailed or transported by
(signature of bearer)
(print name of bearer)
(address of bearer)
[N. J.S.A. 19:63-12.]
On the outer envelope, the voter is reminded that "[i]f another person will be mailing your ballot or bringing it to the board of elections, MAKE CERTAIN THAT PERSON COMPLETES THE "BEARER PORTION" ON THE ENVELOPE[.]" Ibid. By completing the bearer certification, the bearer "certifies that he or she received a mail-in ballot directly from the voter, and no other person, and is authorized to deliver the ballot to the appropriate board of elections . . . on behalf of the voter." N.J.S.A. 19:63-16(d)(3).
As previously noted, the Board of Elections rejected nine mail-in ballots after determining that the signatures on the affirmation statement on the ballots did not match the signatures the Board had on record in the SVRS. After reviewing these signatures, the trial judge found six of the sets of signatures did match and that these mail-in ballots should be counted. Petitioner does not challenge this ruling on appeal.
The judge then considered Exhibit P-19, a mail-in ballot which the Board of Elections rejected "for an incomplete bearer certification[.]" At the trial, the voter testified that she marked her choice of candidates on her ballot by herself, placed the ballot in the inner envelope, and then sealed that envelope. The voter then placed the inner envelope into the outer envelope and sealed it. The voter printed her husband's name and address on the outside of the outer envelope. The voter left the completed ballot on the dining room table and asked her husband to take it with him when he went to the Board of Elections. She forgot to remind her husband to sign the bearer portion of the outer envelope above his printed signature.
The voter's husband testified that, on election day, he took his wife's ballot to the Board of Elections in its sealed envelope. The election official asked him to provide his driver's license as identification and to sign a bearer log to indicate that he had delivered the ballot. The voter's husband stated that he had previously worked at the post office and at Homeland Security, and did not tamper with his wife's ballot in any way. The registrar of the Board of Elections testified that the voter's husband brought his wife's ballot to the Board of Elections on election day, signed the bearer book, but did not sign the outer envelope above his printed name.
The trial judge found that the voter was "credible, very credible and believable and a quality person." The judge also stated that the voter's husband "also was a credible individual." Nevertheless, the judge ruled that he was compelled to reject Exhibit P-19 because the voter's husband did not sign the bearer legend on the outer envelope of the ballot. The judge stated:
[T]he legislative purpose to guard against possible tampering with the ballot is defeated when the statutory imperatives are ignored.
Voiding of the ballot and disenfranchisement might be too harsh a remedy if the burden of compliance was merely placed on the bearer of the ballot and the county officials.
But where the Legislature, with apparent deliberations, placed the initial duty upon the voter not to permit anyone to take his [or her] ballot without first signing and printing his [or her] name on the outer envelope.
Such [a] requirement, in light of the evils of possible tampering sought to be remedied, is not too much to ask as a . . . [pre]requisite to the exercise of the statutory privilege to vote in absentia.
After the judge's rulings on the contested ballots, the Board of Elections convened on January 13, 2016, and opened the ballots that the judge determined were validly cast. The counted votes resulted in a tie vote between petitioner and DeCastro. On January 14, and 19, 2016, the judge issued orders setting aside the election result and ruling that the second open seat on the Freeholder Board was now vacant. This appeal followed.
As previously noted, the judge rejected petitioner's argument that the Salem County Democratic Party should fill the open seat on the Freeholder Board on an interim basis pending the next general election for this office in November 2016. --------
II.
On appeal, petitioner contends that the judge erred in rejecting the six provisional ballots and Exhibit P-19. The standards governing our review are well-settled.
N.J.S.A. 19:29-1(e) allows "the voters of this State or any of its political subdivisions" affected by an election to contest the results on the ground that "illegal votes have been received, or legal votes rejected at the polls sufficient to change the result" of the election. A successful election contester "must prove by a preponderance of the evidence that illegal votes were received or legal votes were rejected[.]" In re Nov. 2, 2010 Gen. Election, 423 N.J. Super. 190, 200 (App. Div. 2011); see In re Gen. Election of Nov. 5, 1991, 255 N.J. Super. 690, 702 (Law Div. 1992). When a petitioner asserts that legal votes were rejected, the petitioner does not have to show for whom the votes were cast. In re Application of Moffat, 142 N.J. Super. 217, 224 (App. Div.), certif. denied, Twp. of Princeton v. Bleiman, 71 N.J. 527 (1976). Instead, the petitioner only need show "that had the votes been cast for him or her, the result would have been different." Ibid.
It is fundamental that "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 Contest of Nov. 8, 2015 Gen. Election, 192 N.J. 546, 559 (2007). "The statutory framework governing election contests, N.J.S.A. 19:29-1 to -14, fully recognizes that 'our state election laws are designed to deter fraud, safeguard the secrecy of the ballot, and prevent disenfranchisement of qualified voters.'" Nordstrom v. Lyon, 424 N.J. Super. 80, 103 (App. Div. 2012) (quoting In re Petition of Gray-Sadler ("In re Gray-Sadler"), 164 N.J. 468, 474-75 (2000)). "Mere irregularities" are not sufficient to void an election especially when "there is no suggestion of fraud, duplicate voting, or intent by any voter to corrupt the elections." In re Application of Mallon, 232 N.J. Super. 249, 268-69 (App. Div.), certif. denied, 117 N.J. 166 (1989).
Our election contest cases evoke a common theme: balancing the need to ensure compliance with statutory voting requirements to prevent fraud with the concern over disenfranchising voters. See In re Petition of Battle, 190 N.J. Super. 232, 236 (App. Div. 1983), aff'd as modified, 96 N.J. 63 (1984). Even election laws that appear straightforward should be read in a manner that minimizes disenfranchisement of eligible voters. In re Holmes, 346 N.J. Super. 372, 376 (App. Div. 2001). "Voiding [a] ballot and thus disenfranchising [a] voter is too harsh a remedy where the deficiency does not affect the integrity of the electoral process." In re Application of Langbaum, 201 N.J. Super. 484, 490 (App. Div. 1985), certif. denied, 101 N.J. 298 (1985).
Our review of a trial court's fact-finding in a non-jury case is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). We "should not disturb the factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Cesare, supra, 154 N.J. at 412). However, we owe no deference to a trial court's interpretation of the law, and review issues of law de novo. Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 193 (App. Div. 2008), certif. denied, 199 N.J. 129 (2009). A. Provisional Ballots
Applying these standards, we discern no basis for disturbing the trial judge's determination not to count the six provisional ballots. The six ballots were placed and transported in unsealed bags. After examining the ballots, the judge also found that they were placed in envelopes that were either open or not completely sealed.
As petitioner points out, courts have distinguished errors made by election officials from errors made by the voters themselves. See In re Gray-Sadler, supra, 164 N.J. at 478 (important inquiry was "whether the 'rejected' voters had their votes invalidated as a result of their own errors or as a result of election officials' noncompliance with statutory requirements"). Errors committed by election officials are not necessarily sufficient to invalidate votes of qualified voters. Id. at 476-81. Therefore, petitioner argues that the judge should not have placed any weight on the fact that the ballots were transported in unsealed bags because that was a mistake made by the Board of Elections, rather than the six voters.
However, this argument ignores the fact that the judge found that the six provisional ballots were also not properly sealed. Sealing the ballot is the voter's responsibility. See N.J.S.A. 19:53C-10(a) ("The voter shall seal the envelope and shall retain custody of the envelope until a member of the board is ready to accept the envelope.").
In accordance with established case law, the judge inspected each of the ballots to determine whether the integrity, security, and secrecy of the ballot process was "endangered or compromised." Barrett v. Monmouth Cty. Bd. of Elections, 307 N.J. Super. 403, 413 (Law Div.), aff'd, 307 N.J. Super. 191 (App. Div. 1997). The judge made detailed findings concerning the six ballots, which fully supported his conclusion that the envelopes holding the ballots were either completely unsealed or sufficiently open to "endanger or compromise" the integrity of each ballot.
Contrary to petitioner's contention, the judge was not required to find that there was actual fraud associated with a ballot before disallowing it; potential for fraud is sufficient. See Barrett, supra, 307 N.J. Super. at 420. "Fraud, in particular, is difficult to prove. The purpose of [the] statutes is to prevent fraud and preserve secrecy through strict procedural controls. A violation of these procedures, therefore becomes very significant." In re Petition of Byron, 165 N.J. Super. 468, 475 (Law Div. 1978), aff'd 170 N.J. Super. 410 (App. Div.), certif. denied, 82 N.J. 280 (1979). Accordingly, "[i]t is the opportunity to commit fraud, whether or not actually committed or intended, that requires the suppression of ballots improperly delivered." Id. at 475, n.1.
Here, the six disputed provisional ballots were subject to two statutory requirements designed to ensure the security of the electoral process: the sealing of the provisional ballots and the sealing of the provisional ballot bags. With respect to the six disputed ballots, neither security measure was properly employed, thereby threatening the integrity of the process and providing sufficient opportunity to commit fraud. As a result, the judge did not err in rejecting the six provisional ballots. B. Exhibit P-19
We reach a different result with regard to the mail-in ballot identified as Exhibit P-19. The voter of this ballot testified that she completed and sealed her mail-in ballot in the inner envelope and then placed it in the outer envelope, which she then sealed. The voter filled out the bearer information on the outside of the envelope and asked her husband to deliver it to the Board of Elections. The voter's husband took the ballot to the Board of Elections, provided the clerk with his driver's license to prove his identity, and signed his name in the bearer log. The registrar confirmed the husband's testimony at trial. The judge found both the voter and her husband to be credible witnesses.
Thus, the voter and her husband's only mistake was that the husband did not sign the outside envelope above his printed signature. However, the undisputed, credible testimony clearly indicates that the voter's husband delivered the ballot to the Board of Elections and that the ballot was not tampered with in any way.
We addressed a strikingly similar situation concerning absentee ballots in In re Petition of Kriso, 276 N.J. Super. 337 (App. Div. 1994). In Kriso, the four absentee ballots that were contested did not have the bearer information completed on the outer envelope. Id. at 345. Three of the sealed ballots were mailed at the post office by close family members on behalf of disabled voters. Ibid. The fourth voter used a corporate messenger service, which clearly had no interest in the local election, to carry her sealed ballot from Japan to New York where it was placed in the United States mail. Ibid.
As here, the evidence indicated that the failure of the family members on three of the ballots to properly fill out the outer envelopes to reflect themselves as bearers was "purely inadvertent." Ibid. We also concluded that, assuming the overseas voter's corporate messenger service constituted mailing by a third party, the voter's failure to note this form of transmittal on the outer envelope "resulted from an innocent misunderstanding of the election laws." Ibid. Under these circumstances, we concluded that "to invalidate these four ballots simply because the voters did not carefully read and follow the directions for absentee voting would unnecessarily disenfranchise them without promoting the integrity of the electoral process." Id. at 345-46.
A similar result is fully warranted in this matter. The voter completed and sealed her mail-in ballot, which her husband then delivered intact, as confirmed by the registrar of the Board of Elections. Disenfranchising the voter for the inadvertent failure to add her husband's signature to the outer envelope, especially after he identified himself and signed the bearer log at the Board of Elections, would certainly not promote the integrity of the electoral process. Thus, we conclude that Exhibit P-19 should be counted in the election for the Board of Freeholders.
In sum, we affirm the trial judge's decision rejecting the six provisional ballots. We reverse the judge's decision concerning Exhibit P-19, and remand the matter so that this ballot may be opened and counted by the Board of Elections. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION