The 2010 General Election for Mayor of South Amboy pitted a Middlesex County Democrat against an Independent. The results could not have been closer. After a recount, the parties were separated by one (1) vote out of two thousand two hundred and fifty five votes (2,255), a margin of about 1/25 of one per cent of the votes case. After a very unusual second recount, Democrat Fred Henry saw his lead balloon to three votes. The Independent Mary O’Connor filed an election contest in the Superior Court.
During the election contest, ACLU-NJ sought and was granted permission from the court to participate as a Friend of the Court. ACLU-NJ raised two of its pet issues:
1. Non-compliance with the Motor Voter Laws. The Motor Voter Laws were passed to enable people to register to vote through the Motor Vehicle Agency. ACLU-NJ argues that motorists must be advised of their right to register, or to change their address for voting purposes while doing business with the MVC. In the South Amboy case, a voter testified that she attempted to register at the MVC, but that she did not show up on the voter rolls in Middlesex County. The poll workers allowed her to vote by provisional ballot. The Board of Elections did not count the vote. ACLU-NJ and Ms. O’Connor both argue that the vote should count. The case is now in the Appellate Division for determination.
2. Procedural Due Process. Another of ACLU-NJ’s pet issues is procedural due process, which it describes as follows: “In general, procedural due process requires that before government strips a person of a fundamental right - like the right to vote - they must be given adequate notice and a full and fair opportunity to be heard.” In the South Amboy case, ACLU-NJ argues that the same motor voter should have been notified that her provisional ballot had been rejected, and given an opportunity to be heard on why it should be accepted. It is not clear that the Appellate Division is going to rule on the procedural due process argument.
The attorneys in the South Amboy case are in the middle of the briefing schedule. Once the briefs are completed, they will be submitted to the judges. The issues raised by ACLU-NJ are not the only issues being raised in the case. Through her attorney, Ms. O’Connor has raised a number of issues in the Appellate Division. Howes & Howes will keep an eye on this interesting case as it continues to develop.
