IN RE CONTEST OF THE NOVEMBER 6, 2012 ELECTION RESULTS FOR THE CITY OF HOBOKEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN RE CONTEST OF THE

NOVEMBER 6, 2012 ELECTION

RESULTS FOR THE CITY OF

HOBOKEN, PUBLIC QUESTION

NO. 2

__________________________

CHERYL FALLICK,

Intervenor-Appellant.

___________________________

September 11, 2013

Argued September 10, 2013 Decided

Before Judges Reisner, Alvarez and Carroll.

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

Ren e 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).

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 significant as to warrant a new election.

. . . At the heart of the inquiry is the need to safeguard the franchise of not only the voters who cast valid votes at the election, but also those whose votes were rejected.

[Gray-Sadler, supra, 164 N.J. at 481-82 (citations omitted).]

Here, as in Gray-Sadler, a relatively small number of votes separated the winning side from the losing side. Had an additional 114 votes been cast in favor of the Public Question, it would have passed. Those 114 voters were not permitted to vote on the Public Question. The Secretary of State's emergency directives provided displaced voters with a range of alternatives to permit them to vote. But the directives, however well-intentioned, failed to advise voters that there was a significant difference between being given a provisional ballot at a polling place outside Hoboken, and taking advantage of the several other means which the emergency directives made available to them for voting. The difference was their inability to vote on any of the Public Questions on the Hoboken ballot.

Given the importance of this Public Question to both landlords and tenants in Hoboken, and the extreme closeness of the vote on the issue, we conclude that the trial judge's resolution of the election contest was consistent with the underlying purpose of the election laws.

We find Fallick's appellate contentions without merit and, except as addressed herein, they do not warrant discussion. See R. 2:11-3(e)(1)(E). Fallick argues that the emergency directive should be construed as allowing displaced voters to be provided with the provisional ballots that happened to be available in the district where they cast their votes. Otherwise, for example, a displaced Hoboken voter who voted by provisional ballot in Newark would have had to be provided with a ballot that had the Hoboken local questions on it. She argues that would be impracticable and an absurd construction of the emergency order. Petitioners respond that it was certainly practicable to provide displaced voters with copies of the Hoboken ballot by email. They point out that another one of the directives (Directive # 4) authorized voters to apply to the County Clerk by email for a mail-in ballot and for the Clerk to email the ballot back to the voter for completion. They contend that if a ballot could be emailed in that circumstance, it could just as well be emailed to any polling place at which a displaced voter appeared, and could be printed out and supplied to the displaced voter for completion.

The record provided to us does not allow us to decide the practicability issue, because no legally competent evidence was introduced at the trial level concerning this issue. However, we perceive no theoretical reason why a copy of a Hoboken ballot could not have been emailed to any polling place in the state, and there printed out and given to a displaced Hoboken voter for completion. We have no way of knowing whether that was what the directive intended, or whether the State's election authorities simply failed to anticipate all of the practical details, as they tried in good faith to deal with the horrendous impact of a natural disaster. However, regardless of how the directive is to be interpreted, there is no dispute on this record that 114 displaced Hoboken voters were given provisional ballots that did not include the local public questions, and, perhaps more importantly, they were not informed that the ballots did not contain the public questions.

We find unpersuasive Fallick's argument that the voters would have known they were being denied the opportunity to vote on public questions as soon as the provisional ballots were placed in their hands. Her argument assumes that all Hoboken voters knew in advance that there were public questions on the Hoboken ballot. While it is of course desirable that voters educate themselves in advance as to all issues at stake in an election, that is not a prerequisite for their right to vote on all questions presented on the ballot. Hoboken voters had a right to vote on the Public Questions even if they read and considered them for the first time when they arrived at the polling place. To that end, the Hoboken ballots not only contained the Public Questions, but interpretive explanations of the questions. Further, we perceive a significant potential for manipulation of the vote if, in a year where there are contentious local election issues, voters can be directed by emergency directive to remote polling places where they will be provided with ballots that do not include the local questions or candidates.

Fallick also argues that there was no legally competent evidence that 114 voters from Hoboken actually cast provisional ballots outside of Hoboken. However, the evidence on that point was undisputed. In fact, the 114 number was conceded by the Attorney General, who vigorously defended the election results. Even if Fallick had been permitted to intervene in the trial court, she would not have been entitled to delay the trial by asking that discovery be reopened. We denied her motion to supplement the record on this appeal and, as an intervenor, she is bound by the record made in the trial court.

Fallick concedes that the intervention issue is moot, because we permitted her to intervene in this appeal. However, she urges us to address the issue because it may recur in other cases. We disagree with petitioners' argument that election contests are "nonadversarial" - a position we find both disingenuous and unsupported by the cases cited in their brief. We also cannot agree with their blanket contention that individual voters should never be permitted to intervene in election contests concerning public questions. However, in the circumstances of this case we find no abuse of the trial judge's discretion in denying the intervention motion, because it was untimely2 and other parties, including the Attorney General and the County Clerk, were vigorously defending the election results. See R. 4:33-1; R. 4:33-2.

To summarize, we affirm the January 11, 2013 order and the March 5, 2013 order. A prior trial court stay prevented the Public Question from being placed on the October 16, 2013 special election ballot. As a result of our decision, the Public Question may be placed on the November 5, 2013 ballot, and no further stay is in effect.

Affirmed.

1 Although the election laws, by their literal terms, only permit voters to cast provisional ballots in certain limited circumstances, as when a voter moves within a county without reporting the change of address to the County Clerk, the Secretary of State issued an emergency directive allowing displaced voters to vote by provisional ballot at any polling place in the State. See N.J.S.A. 19:53C-1; N.J.S.A. 19:53C-3. Another emergency directive authorized displaced voters to request ballots by sending an email to the County Clerk and to vote by returning the completed ballots by email a procedure normally available to United States voters living abroad. We do not address the validity of any of the Secretary of State's emergency directives, because neither party appealed from any of them, and the parties did not brief the issue of their validity. Solely for purposes of this opinion, we will assume without deciding that the directives were valid.

2 Petitioners filed their complaint on December 12, 2012. By law, the trial court was required to hear the challenge within thirty days. N.J.S.A. 19:29-4. On December 18, the trial court issued an order scheduling the matter for trial on January 22, 2013, and ordering expedited discovery. In a motion dated December 18, 2012, Fallick applied to intervene in the election contest. Perhaps because she was pro se, she simply filed the motion in the ordinary course, without also filing a motion to have her application heard on short notice. By the time the motion was heard on January 11, 2013, discovery was complete and the trial was due to commence on January 22.