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Morris County Freeholder Primary Goes Into Extra Innings

Each election cycle provides an interesting case.  This primary season was no exception.  One of the two notable cases from the 2011 primary election season comes out of heavily Republican Morris County, where two one hundredths of one percent (0.02 %) separates the two candidates for the Republican nomination for freeholder.

The Morris County Freeholder Board is one hundred per cent Republican.  Democrats do field candidates in the general election, but the real contests tend to happen in the Republican primary. In 2011, Republican voters went to the polls with a choice between a newcomer and a very popular and experienced incumbent.  After a court-ordered recount, the race could not be any closer:  Challenger Hank Lyon is currently ahead of incumbent Margaret Nordstrom by six (6) votes out of 24,550.  The case raises a couple of interesting issues:

1.  How to handle double voting in the context of a recount.
During the recount, the Morris County Board of Elections discovered that four voters voted both by vote-by-mail ballot and by provisional ballot.  Further, the Board discovered that both the Board had counted both the provisional ballots and vote-by-mail ballots.  Since the ballots themselves had already been separated from their identifying envelopes, there was no way to tell during the recount how the voters had voted, and how to adjust the vote totals, if at all.  The Board of Elections has sought an opinion from the Attorney General’s Office.  It appear, however, that the recount is over, and that this issue will not be handled during a recount.

2.  Do the four voters have to declare for whom they voted?
In order to address what effect the double voting would have on the vote total, there would have to be some inquiry into the actual votes of the double voters.  That question is governed by the New Jersey Rules of Evidence.  Rule 513 provides:  “Every person has a privilege to refuse to disclose the tenor of his vote at a political election unless the judge finds that the vote was cast illegally.” There has to be a judge involved in order to make the inquiry.  The Board of Elections can not make the inquiry.  In order for this inquiry to happen, there must be an election contest to bring the issue before a Superior Court judge.  The voters themselves would have to appear and disclose their votes, if and when the court would decide to compel them to do so.

Those are the legal issues on the forefront of the Morris County case.


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