The wrong vote-by-mail ballots were sent to 554 voters in Hamilton Township, affecting only the District 3 county freeholder race, now the race for county commissioner. That is a fact agreed to by Democrats and Republicans alike.
But the two sides disagree strongly over whether the mistake by Atlantic County Clerk Ed McGettigan requires the results of the election to be thrown out and a new election held.
A hearing to settle the matter will be held Monday before Superior Court Judge Joseph Marczyk.
District 3 covers most of Egg Harbor Township and some of Hamilton Township.
GOP candidate Andrew Parker, of Egg Harbor Township, is seeking a new election after losing to Democrat Thelma Witherspoon, of Hamilton Township, 15,034 to 14,748. That’s a difference of 286 votes, well under the number of wrong ballots sent.
He is also asking the judge to prevent Witherspoon from taking her oath of office at the reorganization of the Atlantic County Board of County Commissioners on Tuesday. As of Jan. 1, county freeholders in New Jersey are called county commissioners, after a change in the law last year.
“There were legal votes rejected and illegal votes accepted sufficient to change the result of the election,” Parker’s petition for a new election said. Of the 554 incorrect ballots sent, 418 were returned and counted.
In his Dec. 28 brief, Parker’s attorney W. Timothy Howes said 335 voters erroneously received ballots without a choice for District 3 freeholder, and 248 of those were voted without having the chance to vote for their freeholder. Howes said those voters were disenfranchised.
Another 219 ballots were sent out that included the District 3 race but should not have. Howes said 170 of those voters cast votes in the election.
“They did not intend to cast illegal votes and are not themselves guilty of any wrongdoing,” Howes wrote. “They cast the ballots that the Clerk provided to them. Despite their innocence in the matter, their votes for District Three Freeholder are illegal.”
But Witherspoon and her attorney Robert D. Herman argue that, since all of the affected ballots went to voters in Witherspoon’s hometown of Hamilton Township, the results would have been the same had the ballots gone to the correct voters.
Each candidates won his or her own township handily.
Witherspoon is seeking to have expert testimony admitted in the case, providing a statistical report purporting to show she would have won regardless of who in her town was voting.
Deputy Attorney General Beau C. Wilson, who represents the Atlantic County Board of Elections, argued in a Dec. 30 brief that the expert testimony should not be admitted. He said that the “expert makes assumptions based upon registered voters’ party affiliations and how these townships voted in other races for the 2020 General Election.”
Wilson said Witherspoon wants to have an expert “admitted to speculate how voters may have voted, if the Clerk had not sent 554 ballots in error. ... However, this runs contrary to our jurisprudence, which cautions against allowing speculative judgements as to a voter’s intent.”
The attorney representing the Atlantic County Clerk’s office, however, holds a different opinion.
“Contrary to the Board, the Clerk takes the position that expert testimony is certainly admissible in an election contest,” wrote attorney Patrick J. Madden in his Dec. 30 brief, saying it would not amount to improper speculation but would be useful analysis.
Assistant County Clerk Michael Sommers testified in a November hearing about the mistake that the State Voter Registration System, a computer system used by all clerks in the state, generated incorrect ballot forms for those 554 voters, out of 40,655 registered voters in Freeholder District 3.
Separate recount sought, too
There is a separate legal issue regarding the race for At-Large County Commissioner. In that race for two open seats, the third-place finisher Celeste Fernandez, a Democrat from Egg Harbor Township, is seeking a complete recount of about 143,000 paper vote-by-mail and provisional ballots due to the closeness of the results.
Fernandez is 381 votes behind incumbent Republican John Risley in the certified results. With about 132,400 votes cast in the freeholder race, that’s a difference of about 0.3%.
Assignment Judge Julio Mendez ruled that an audit of 2% of votes and a partial recount of another 4% — for a total of 6% of ballots cast — was sufficient. It resulted in her gaining just one vote.
Fernandez has appealed Mendez’s decision.