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KING MOENCH & COLLINS, LLP
Matthew C. Moench, Esq. (031462007)
225 Highway 35, Suite 202
Red Bank, New Jersey 07701
732-546-3670
Mmoench@kingmoench.com
Attorneys for James Murphy and Ellen O’Dwyer-Woods
I/M/O ELECTION CONTEST OF THE SUPERIOR COURT OF NEW JERSEY
NOVEMBER 7, 2023 GENERAL LAW DIVISION: MONMOUTH COUNTY
ELECTION FOR ATLANTIC HIGHLANDS
MAYOR AND COUNCIL Docket No.: MON-4035-23
---------------------------------
PETITIONER JAMES MURPHY’S
JAMES MURPHY PROPOSED FINDINGS OF FACT AND
CONCLUSIONS OF LAW
Petitioner,
v.
MONMOUTH COUNTY BOARD OF
ELECTIONS; CHRISTINE HANLON, in her
capacity as MONMOUTH COUNTY
CLERK, LORI HOHENLEITNER, ALYSON
FORBES, JON CROWLEY, ARTHUR
WHITEHEAD and ELLEN O’DWYER-
WOODS,
Respondents/Parties of Interest
Petitioner, Councilman James Murphy (“Petitioner” or “Councilman Murphy” or “Mr.
Murphy), respectfully submits the following proposed Arguments, Findings of Fact and
Conclusions of Law in accordance with the Court’s direction at the conclusion of the non-jury trial
on February 29, 2024.
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PRELIMINARY STATEMENT
Our democracy rests upon elections, which must represent the will of the electorate. While
courts are not “roving commissions” seeking to root out all possible violations of the election
process, courts are charged with ensuring that the public can be confident that the winners of a
given election were chosen by the lawful electorate and that election laws are enforced to as to
bring trust and confidence in the integrity of the election as established by our Legislature. While
Courts have held that election laws should be liberally construed to advance the goals of
democracy, courts have at the same time recognized that elections are statutorily created and in
order for citizens to have faith in the election process, election laws must be upheld. Doing so
provides uniformity, certainty, and legitimacy to all elections.
Candidates or citizens may challenge election results by setting forth one or more specifically
enumerated reasons as provided in the statute. That is a right provided by the Legislature and a
key part of the democratic process. It is a check and balance on the election process, election
officials, voters, and candidates, which further assists in the election process.
Here, after three days of testimony, the election contest process has revealed significant issues
with several voters and ballots cast, the results of which cast a shadow of this election, so much so
that the November 2023 General Election results should be overturned and either Councilman
Murphy declared the winner, or a new election ordered. While Councilman Murphy may have
been attacked in the public and the press for pursuing those rights provided to him by statute, the
election contest process ensures that the results are consistent with the laws, and accurately reflect
the will of the voters.
It is Councilman Murphy’s burden to show that the results of the election are not consistent
with the law and do not reflect the will of the electorate. Through the testimony elicited at trial
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and the evidence provided, Councilman Murphy has demonstrated that several voters cast ballots
in Atlantic Highlands who do not live in Atlantic Highlands, that voters cast ballots without being
properly registered as required by law to vote, that vote-by-mail ballots were improperly rejected
by the Board of Elections, and that a voter was denied the right to vote in the correct election as a
result of an error with the Monmouth County Board of Elections. The election is sullied through
improper voters, the disenfranchisement of lawful voters, and the dilution of the vote of lawful
voters by the inclusion of those improper ballots.
The interests of the public warrant the Court to remove improper ballots, re-enfranchise the
disenfranchised, and invalidate the current election results. After doing so, Councilman Murphy
should be declared the winner, or in the alternative, order a new election.
PROCEDURAL HISTORY
Councilman Murphy ran for Mayor of Atlantic Highlands on the Republican ticket against Lori
Hohenleitner (hereinafter “Ms. Hohenleitner), who ran as the Democratic candidate. Following
the November 7, 2023 General Election, Ms. Hohenleitner was declared the winner by four votes.
Councilman Murphy filed a recount, which increased Ms. Hohenleitner’s lead to five votes.
Thereafter, Councilman Murphy brought a timely election challenge pursuant to N.J.S.A. 19:29-1
seeking to overturn the results of the November 7, 2023 Election (the “Election”).1
On February 2, 2024, Councilman Murphy filed an Amended Petition as of right, which added
additional voters who were being challenged as to their residency, and eliminated other causes of
action. Ms. Hohenleitner filed an Answer and Counter-Petition on February 7, 2024.
1 The Election Contest which was filed also included council candidate – Ellen O’Dwyer-Woods. Ms. O’Dwyer-Woods was
dismissed from this case following a motion by Ms. Hohenleitner and Ms. Forbes, wherein the Court found that Ms. O’Dwyer-
Woods was out-of-time for filing an election contest. See Order dated February 1, 2024. This summation and closing arguments
will only focus on Mr. Murphy, as the only remaining Petitioner, however, that is not intended to waive any rights on appeal as to
Ms. O’Dwyer-Woods.
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Trial began on February 20, 2024, where the Court heard testimony from the following
witnesses:
1. Allyson Denzler
2. Steve Smith
3. Rachael Moffett
4. Alina Carr
5. Ryan Huff
6. Abigail Hofman
7. George Zaidan
8. Katie Edwards
9. Mary Heinz
10. Melody Kunkler
11. Michael Edelman
12. Michelle Moon
Trial resumed on February 28, 2024. The Court heard testimony from the following
witnesses:
13. Michael Lucas
14. Derek Lucas
15. Lindsay Helmus
16. Linda Lucas
17. Herbert Voelckers
18. Carol Zuzio
Trial was adjourned until February 29, 2024. On the morning before trial, the Court heard
argument and granted Petitioner’s Motion to Amend his Complaint to add claims related to two
additional voters.2
Trial resumed in the afternoon on February 29, 2024 and the Court heard from Meghan
O’Connor and reviewed video tape related to voter Henry Meahan. At the conclusion, the Court
closed the record and set a briefing schedule for written summations.
2
Note that an Order has not been entered onto eCourts to this effect.
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ISSUES FOR THE COURT TO DECIDE
The following is a brief summary of the issues for the Court to decide:
Legal Votes Rejected
1. Should Carol Zuzio’s VBM ballot be counted where it was timely submitted, signed by
the voter, but where the voter failed to complete the address portion of the certification?
2. Should Allyson Denzler’s VBM ballot be counted where she signed the “bearer” portion
of the envelope but inadvertently did not sign the Certification, and where she testified that she
filed out the ballot herself and never received a cure letter as required by law so as to complete the
missing signature?
3. Was Meghan O’Connor improperly disenfranchised and prohibited from voting in the
Atlantic Highlands election when she was improperly assigned to vote in Middletown?
4. Should a ballot be counted where the voter attempted to cast a ballot for James Murphy for
Mayor by “personal choice” rather than pushing the button where Mr. Murphy’s name appeared
on the ballot.
Illegal Votes Accepted
5. Did Abigail Hofman improperly cast a ballot in the election where she failed to timely
update her voter registration in violation of applicable statutes, and therefore, was not a properly
registered voter entitled to cast a ballot?
6. Did Michelle Moon and Stephen Johnson improperly cast ballots in the election when
Michelle testified that as of October 31, 2024, they no longer considered Atlantic Highlands their
home and were residing in Port Monmouth, yet cast a ballot in Atlantic Highlands rather than their
new address as required by law?
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7. Did Rachael Moffet, a thirty-seven year-old doctor, improperly cast a ballot in the Atlantic
Highlands election when she has lived in Highlands for more than six years, and therefore, is no
longer properly domiciled in Atlantic Highlands?
8. Did Lindsay Helmus improperly cast a ballot in the election when she testified that she
moved out of Atlantic Highlands prior to the election, yet still cast a ballot in Atlantic Highlands
rather than at her new address as required by law.
9. Did Derek Lucas, a twenty-six year-old adult, abandon his old domicile and establish a
new domicile barring him from voting in New Jersey when he has not yet established a permanent
home and maintains ties to New Jersey?
10. Did Ryan Huff, a thirty-year-old adult, abandon his old domicile and establish a new
domicile barring him from voting in New Jersey when he has not yet established a permanent
home and maintains ties to New Jersey?
11. Did Melody Kunkler and Michael Edelman improperly cast ballots in the election where
they have not yet established a domicile in New Jersey, remain registered voters in Pennsylvania
and evaded questions regarding their registration?
12. Did Henry Meahan improperly cast a ballot in the election where he spends no more than
ten days a month in Atlantic Highlands, is not in New Jersey for months at a time, and cannot be
served because he will not be back in New Jersey from Florida until at least April?
13. Did Michael Lucas, a thirty-year-old adult, improperly cast a ballot in the election where
he testified that he considers Cleveland to be his home?
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PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
LEGAL VOTES REJECTED
LAW APPLICABLE TO VBM BALLOTS
1. N.J.S.A. 19:63-13 sets forth the form of the “Certificate of Mail-In Voter” to be contained on
the inner envelope as directed in N.J.S.A. 19:63-12.
2. The Certificate, as set forth in N.J.S.A. 19:63-13(a), contains a blank line for the voter’s
name, a blank line for the voter’s address, and then the language certifying, under penalty of
perjury, that the voter was the person who requested that ballot and who filled out the ballot and
certificate. The Certificate then contains a place for the voter’s signature, and if the voter was
receiving assistance, information for the person assisting the voter.
3. Paragraph (c) also permits a clerk of each county to utilize an alternate form of the
certification where the voter certifies to the correctness of their name and address as it appears on
the label, rather than filing in the name and address themselves.
4. Paragraph (d) indicates that the certificate should also include spaces for a voter’s telephone
number and email address to be utilized to contact the voter to cure defects with their mail-in
ballot.
5. While N.J.S.A. 19:63-13 contains the form of the Certificate of Mail-In Vote to accompany
mail-in ballots, nothing within that provision mandates that the failure to fill out a portion of the
certificate automatically invalidates the ballot or requires rejection of the ballot.
6. N.J.S.A. 19:63-16 governs the marking and delivery of mail-in ballots. In its entirety, this
statute governs who is permitted to mark and deliver ballots, and the method for doing so.
Paragraph (a) requires that the voter is the one who marks the ballot, places it in the inner envelope,
fills out the certificate, and then places the inner envelope into the outer envelope.
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7. Paragraph (a) is specifically related to “who” performs those functions and contains no
mandates or directives as to how a ballot should be treated if the voter improperly or incompletely
performs those functions.
8. N.J.S.A. 19:63-16(b) reiterates that only the voter, and no other person, shall handle or
interfere in a mail-in ballot. Paragraph (c) clarifies that a voter can receive certain assistance from
a family member or other person (other than a candidate) provided that the person assisting fills
out the “assistor” portion of the ballot. Finally, paragraph (d) discusses the various methods for
delivering the ballot to the Board of Elections.
9. Evaluation of mail-in ballots is governed by N.J.S.A. 19:63-17 which states that the board of
elections shall compare the signatures on the ballots with the signatures on file in the voter
registration system. Paragraph (a) does not contain any language that mandates a ballot be rejected
if a certificate is incompletely filled out (such as missing an address), but states that the county
board shall reject the ballot if they are not satisfied that the voter is entitled to vote and the ballot
is valid.
10. The only mandatory disqualification contained within N.J.S.A. 19:63-17 that does not have
a “cure” function is for a ballot returned where the inner envelope containing the ballot is unsealed.
11. In 2020, the Legislature specifically passed the “Ballot Cure Act” to ensure that ballots were
not rejected because of deficiencies in the vote-by-mail process, and specifically that the ballot
was not rejected due to issues with missing or mismatched signatures without giving the voter an
opportunity to correct the deficiency. The Statement accompanying A4276 states that “In the 2019
general election, over 2100 voters simply did not sign their Certificate of Mail-In Voter, thereby
resulting in their votes not counting. Over 1500 voters were denied their votes due to signature
mismatch. Even when voters who have familiarity with voting by mail, such as voters living in
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primarily vote by mail states such as Washington and Colorado, mistakes still happen…The
purpose of this bill is to make voting more accessible, minimize the likelihood of
disenfranchisement, and protect a constitutional right from abridgement for what may be a purely
administrative oversight.”3
12. The Cure Act provisions are incorporated into N.J.S.A. 19:63-17, which provides that if a
voter’s mail-in ballot has been rejected due to a missing signature or discrepant signature, the voter
shall be issued a “Cure Letter” and given an opportunity to cure the defect in their ballot. The
Cure Act also required the Secretary of State to publish guidelines to assist voters, candidates, and
election officials on processing vote-by-mail ballots and implementing the Cure Act.
13. The “Guide to Signature Verification of Mail-In and Provisional Ballots and Cure of
Discrepant or Missing Signatures, updated October 27, 2022,” (“Guide to Signature
Verification”),4 states “Signature verification, the process of confirming each voter’s identity by
comparing the signature on the mail-in ballot certificate envelope …to signature captured in the
voter’s registration record, greatly enhances the security and integrity of the ballot process.” Guide
to Signature Verification at 3.
14. The Guide also states that “Some voters will forget to sign their return envelope altogether.
Such scenarios underling the importance of giving voters a path to “cure” or remedy the
discrepancy, so every legally cast ballot may be counted.” Guide to Signature Verification at 3.
15. The Vote-by-Mail Ballot Review Guide, updated October 27, 2022, provides that “Any
Vote-by-Mail ballot where the inner envelope certificate is signed by the voter, or where an assistor
portion has been signed, but is missing other required information, shall be referred to the board
for its review.” See Ballot Review Guide, at 4.
3
https://pub.njleg.state.nj.us/Bills/2020/A4500/4276_I1.PDF
4
https://www.nj.gov/state/elections/assets/pdf/guidelines/guide-nj-signature-verification-and-cure-10-27-22.pdf
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16. The same Guide also provides that “[i]f an inner envelope certificate is not signed …the
voter must be afforded the opportunity to cure the signature deficiency…” Ballot Review Guide
at 4 (emphasis added). Under the statute and the Guide, the Board of Elections must also attempt
to contact the voter by telephone. Ballot Review Guide at 5.
17. N.J.S.A. 19:63-17.1(a) states that a failure of a voter to cure an alleged deficiency “shall not
recreate a presumption that the vote is improper or invalid, nor shall it be considered evidence that
the vote is improper or invalid.”
18. N.J.S.A. 19:63-17.1(b) provides that following a final determination about whether a mail-
in ballot shall be counted, “disputes about the qualifications of a voter to vote, or about whether or
not or how any mail-in ballot shall be counted in that election, shall be referred to the Superior
Court for determination.”
19. There are no decisions which post-date the Ballot Cure Act discussing the handling of
Certifications of Mail-In Voter or the ballot cure process. Existing decisions deal with the law
prior to the express ability to cure defects.
CAROL ZUZIO
PROPOSED FINDINGS OF FACT RELATED TO CAROL ZUZIO
20. Carol Zuzio is a properly registered voter in Atlantic Highlands.
21. Ms. Zuzio attempted to vote in the election by way of a VBM ballot.
22. Ms. Zuzio’s ballot was rejected by the Board of Elections because the address portion of the
Certification was not completed.
23. Ms. Zuzio did print her name and sign the certification. She also signed the bearer portion
of the envelope, although she was not required to do so.
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24. Ms. Zuzio testified that she did not believe it was necessary to fill out the address portion for
her ballot to count as the address appears in another location on the envelope.
25. Ms. Zuzio also testified that she had eye surgery prior to the election and that may have
contributed to her failing to fill out the ballot properly.
26. Ms. Zuzio testified that she has voted by mail in the past but does not recall whether she
previously filled out the address portion of the certification.
27. Ms. Zuzio testified that it was in fact her ballot, it was her signature on the ballot, and that
she intended for her ballot to be cast in this election.
28. There is no evidence of fraud with regard to Ms. Zuzio’s ballot.
29. The inner envelope and certification does not contain any place for a voter to print their
phone number or email to be contacted by the Board of Elections as required by N.J.S.A. 19:63-
13(d).
PROPOSED CONCLUSION OF LAW RELATED TO CAROL ZUZIO
Carol Zuzio’s Ballot Should Be Counted: Rejecting the Ballot for Missing the
Address on the Certificate of Mail-in Voter is not Mandated by Statute, Does Not
Impact the Ability to Verify the Validity of the Ballot, and Is Inconsistent with the
Ballot Cure Act and Overall Legislative Scheme Designed to Ensure Vote-By Mail
Ballots Are Counted
30. By enacting the Ballot Cure Act in 2020, the New Jersey Legislature set a clear policy
statement that vote-by mail ballots should not be rejected because of failures by the voter to
properly complete a Certificate of Mail-in Voter.
31. Nothing within the Ballot Cure Act, as codified in N.J.S.A. 19:63-17, nor N.J.S.A. 19:63-13,
setting forth the form of the Certificate of Mail-In Voter, mandates that a ballot should be rejected
because the voter did not fill in their own address in the Certification.
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32. Signature comparison is the main form of voter identification for mail-in ballots, as set forth
in N.J.S.A. 19:63-17, which specifically requires a comparison of signatures.
33. The Secretary of State has issued guides regarding comparison of signatures as the primary
method for verifying a voter’s identity on a mail-in ballot.
34. Here, Carol Zuzio’s Certification contained her signature, which has not been challenged as
valid.
35. Ms. Zuzio further testified that it was in fact her signature, that she filled out her own ballot,
and that she did not believe that the address was necessary because it was already printed on the
envelope.
36. The validity of Ms. Zuzio’s ballot is not questioned, and her ballot should not have been
rejected solely because of the missing address where her signature was present to validate her vote.
The ballot was sent to the address on record in the SVRS system, and disqualification is not
required.
37. Rejecting Ms. Zuzio’s ballot is contrary to the overall statutory scheme intended to
enfranchise voters.
38. Respondent argues that the ballot should be rejected because the statutory scheme does not
provide for the ability to “cure” missing addresses and therefore the defect is fatal.
39. Respondent cites no authority to support the idea that this was a conscious policy decision
by the Legislature. In fact, such a position is contrary to the entire legislative framework, which
intends to provide opportunities to correct defects in mail-in ballots.
40. Respondent’s argument further fails given that signatures, and not addresses, are the main
verification point, and if signatures can be cured, there is no policy basis, consistent with the
legislative framework, which would support rejecting the ballot for a missing address.
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41. In light of the law, the ballot, and the testimony of Carol Zuzio, this ballot should be counted
and the Board of Elections should be ordered to open the ballot.
ALYSON DENZLER
PROPOSED FINDINGS OF FACT RELATED TO ALYSON DENZLER
42. Ms. Denzler is a properly registered voter, who was legally entitled to vote in the November
7, 2023 general election for Atlantic Highlands.
43. Ms. Denzler attempted to vote by mail and returned a vote by mail ballot.
44. She testified that she filled out the ballot herself, sealed the ballot and sent it in to the Board
of Elections.
45. Ms. Denzler further testified that she signed the “bearer” portion of the envelope because she
thought she was required to do so.
46. Ms. Denzler did not fill out the Certificate of Mail-In Voter contained on the inner envelope
of the vote-by mail ballot.
47. Ms. Denzler testified that she does not know why she failed to fill it out and that it was a
mistake on her part.
48. Ms. Denzler did not receive a cure letter indicating that her ballot had been rejected or that
she could cure her ballot.
PROPOSED CONCLUSION OF LAW RELATED TO ALYSON DENZLER
Alyson Denzler’s Ballot Should be Counted: The Ballot Should Not Be Rejected
Where She Signed the Bearer Portion, Where the Legislature Intended to Provide
an Opportunity to Cure, Where She Was Not Provided Such an Opportunity, and
Where Her Testimony Can Verify Her Ballot Effectively Curing Any Deficiencies.
49. The Ballot Cure Act set forth a clear policy that is intended to provide voters an opportunity
to cure defects in their mail-in ballots, specifically missing or rejected signatures.
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50. Contrary to Respondent’s position, a voter who fails to sign a certificate may still be
permitted to cure the ballot. This is clearly set forth in the Secretary of State’s “Guide to Signature
Verification of Mail-In and Provisional Ballots and Cure of Discrepant or Missing Signatures.”
(emphasis added).
51. That policy states that pursuant to the Ballot Cure Act and N.J.S.A. 19:63-17, voters are to
“receive a pre-deprivation notice that the Board of Elections has determined that their mail-in or
provisional ballot is either missing a signature or the signature does not match the signature in the
voter’s voting record.” Guide to Signature Verification at 2.
52. The Board of Elections Vote-by-Mail Ballot Review Guide states that “If an inner envelope
certificate is not signed or the board of elections determines that the signature on the ballot does
not match that in the voter’s voting record, the voter must be afforded the opportunity to cure the
signature deficiency as set forth in detail in the New Jersey Guide to Signature Verification of
Vote-by-Mail and Provisional Ballots and Cure of Discrepant or Missing Signatures. N.J.S.A.
19:63-17(b)(1).” Ballot Review Guide at 4-5.
53. N.J.S.A. 19:63-17(b)(1) similarly explicitly states that a voter may cure their ballot on the
“basis of a missing signature…”
54. Ms. Denzler was not provided such an opportunity to cure as required by law.
55. The Board of Elections did have a signature accompanying Ms. Denzler’s ballot as the
“bearer,” although it was for her own ballot and not required. Therefore, there was a signature,
which matches that on file.
56. Furthermore, her testimony confirms that she cast her ballot, that she filled it out, that she
inadvertently did not fill out the Certificate, and that she was never contacted regarding an
opportunity to cure.
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57. The certificates issued to voters do not contain any place for voters to provide their telephone
number or email to be contacted in case of a rejected ballot, as required by N.J.S.A. 19:63-13(d).
58. The statement to the Ballot Cure Act recognizes that even experienced vote-by-mail voters
will make mistakes on returning vote-by-mail ballots, and as such, need an opportunity to cure.
59. Ms. Denzler’s prior use of vote-by-mail has no bearing on whether her ballot should be
disqualified now.
60. N.J.S.A. 19:63-17 codifies the public policy in New Jersey through the Ballot Cure Act that
voters should not be disenfranchised through defects in the Certificate of Mail-in Voter, including
the failure to sign it altogether. Ms. Denzler provided a signature, but not in the correct location.
Based upon her testimony under oath certifying to the fact that she filled out her ballot and returned
it, her attempt to sign the ballot, albeit in an improper location, the failure of Ms. Denzler
previously having been provided an opportunity to cure, and the Legislative policy to enfranchise
voters such as Ms. Denzler, her ballot should be counted.
LEGAL VOTES REJECTED – DENIAL OF BALLOT ACCESS
LAW APPLICABLE TO ELECTION OFFICIALS’ MISTAKE IMPACTING BALLOT
ACCESS
61. N.J.S.A. 19:29-1(e) permits a Petitioner to contest an election “[w]hen illegal votes have
been received, or legal voters rejected at the polls …”
62. “A vote has been ‘rejected’ under N.J.S.A. 19:29-1(e), in ‘any situation in which qualified
voters are denied access to the polls,’ or who, ‘through no fault of their own,’ have been ‘prohibited
from voting for a specific candidate by some irregularity in the voting procedures.’ ‘The essential
question is whether voters were denied the opportunity to vote for a candidate of their choice.’”
Matter of Election for Atlantic County Freeholder Dist. 3 2020 General Election, 468 N.J. Super.
341 (App. Div. 2021) (quoting Gray-Sadler, 164 N.J. 468, 475-76 (2000)).
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63. In Atlantic County, voters in the Third District in Atlantic County were sent VBM ballots
which did not include the ability to vote for the County Commissioner candidates for the Third
Ward. Some of those voters did not return their ballot at all, some returned their ballot, and some
voters either cured the deficiency or voted provisionally at the polls. The trial court overturned
the election because the number of defective ballots exceeded the margin of victory and the
Appellate Court upheld the invalidation of the election.
64. In that case, the parties recognized that the mistake was made by the election officials in
sending the incorrect ballots, and the court did not impose a burden on the voters for recognizing
and correcting the error on their own (although some did). The court held that “the defective
ballots issued by the Atlantic County Clerk prevented voters from voting “through no fault of their
own” and “prohibited [them] from voting for a specific candidate by some irregularity in the voting
procedures.” Id. at 356 (citing Gray-Sadler, 164 N.J. at 476).
65. “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. at 476 (citing
In re Moffat, 142 N.J. Super. 217, 223 (App. Div.), certif. denied., 71 N.J. 527 (1976)).
66. “The essential question is whether voters were denied the opportunity to vote for a candidate
of their choice.” Id. at 476.
67. In In re Contest of the November 6, 2012 Election Results for the City of Hoboken, Public
Question No. 2, 2013 N.J. Super. Unpub. LEXIS 2250 (App. Div. Sept. 11, 2013), voters displaced
because of Superstorm Sandy who voted provisionally outside of Hoboken did not have an
opportunity to vote on the public question. The trial court invalidated the passage of the public
question because voters were barred from voting because they were not told that the provisional
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ballots used would not include the ability to vote on public questions. A proponent for the question
argued that the voters should have been aware of the absence of the questions upon receiving the
ballot without the questions on it, and presumably should have taken action to correct the issue.
The court rejected such a burden on the voters. The court followed Gray-Sadler and In re Moffat
for the proposition that voters need not be physically barred from voting, but that “rejection” may
occur because of malfunctioning machines, improper instructions, or, as in that case, the use of
provisional ballots which did not include the questions upon which to vote.
68. A petitioner need not show how a rejected voter would have voted, but instead, must simply
show that they were improperly precluded from the ballot. In re Moffat, 142 N.J. Super at 224.
MEGAN O’CONNOR
PROPOSED FINDINGS OF FACT RELATED TO MEGAN O’CONNOR
69. Meghan O’Connor resides in Atlantic Highlands and has done so for approximately one
year prior to the election.
70. She previously resided in Montclair and has never lived in Middletown.
71. Ms. O’Connor updated her voter registration sometime on or around November 7, 2022.
72. The 2023 General Election was the first election Ms. O’Connor voted in since moving to
Atlantic Highlands.
73. Ms. O’Connor should have been assigned to vote in Atlantic Highlands.
74. However, through some irregularity in the registration process, Ms. O’Connor was
registered to vote in Middletown District 2.
75. The polling location for Middletown District 2 is Navesink School, which has an Atlantic
Highlands address.
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76. On Election Day, Ms. O’Connor went to vote at the voting location assigned to her by the
Monmouth County Board of Elections. In doing so, she cast a vote in the Middletown election,
rather than the election in Atlantic Highlands.
77. That ballot did not include an opportunity to vote for mayor of Atlantic Highlands.
78. Ms. O’Connor was confused when she did not see Mr. Murphy’s name on the ballot, but
did not know why. Later that day when discussing the election with a neighbor, she became aware
that she voted in a location different than her neighbor and that there may be an issue.
79. Sometime following Election Day, Ms. O’Connor went to speak with the local municipal
clerk’s office, who informed her she would have to rectify the issue with the County.
80. Ms. O’Connor was not able to vote in Atlantic Highlands because she was assigned to
Middletown, however, she wanted to vote in Atlantic Highlands.
PROPOSED CONCLUSIONS OF LAW RELATED TO MEGHAN O’CONNOR
Meghan O’Connor Was a Disenfranchised Voter Who Should Have Been Permitted to Vote
Meghan O’Connor was a Legal Voter of Atlantic Highlands who Was Denied
Access to the Ballot Because She Was Improperly Assigned to An Incorrect Voting
District in a Different Municipality, Which Did Not Afford Her the Opportunity to
Vote for the Candidate of Her Choice; Applicable Case Law Does Not Place the
Burden on O’Connor to Have Identified and Corrected the Issue Where the Mistake
Was Made by Election Officials
81. Under N.J.S.A. 19:29-1(e), O’Connor’s vote was effectively “rejected” by her
misassignment to Middletown rather than Atlantic Highlands. Similar to Atlantic County and
Gray-Sadler, when the actions of election officials prohibit a voter from voting for a specific
candidate by some irregularity in the voting procedures, they are a “rejected voted” under N.J.S.A.
19:29-1.
82. O’Connor should have been, but was not, permitted to vote in Atlantic Highlands. While she
may have received a sample ballot, O’Connor testified that she does not recall whether she opened
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them, but instead simply looked at the polling location. That polling location has an Atlantic
Highlands mailing address.
83. During the trial, Respondent’s counsel appeared to focus on whether O’Connor should have
taken action on Election Day to correct the mistake in her registration. O’Connor testified that
while she was not sure why she did not see Mr. Murphy’s name on the ballot, she did not
understand the mistake until speaking with a neighbor and then speaking with the municipal clerk’s
office.
84. Moreover, there is no caselaw which places the burden on the voter for correcting mistakes
of election officials on ballot access. This argument was rejected in the Atlantic County case,
where the court did not place the burden on the voters who received ballots without the proper
county commissioner candidate to vote provisionally or cure the ballot (although some did).
Similarly, the court in the Hoboken case rejected the argument that Hoboken voters should have
been made aware of the inability to vote on local questions when receiving their ballots. And
finally cases involving malfunctioning machines did not place the burden on voters to vote
provisionally or come back later to ensure their ballots were cast.
85. In this instance, O’Connor was prohibited from voting in the mayoral election. Petitioner is
not required to demonstrate for whom Ms. O’Connor would have voted, however, if the election
result is within one vote, then O’Connor’s vote would have impacted the election and the election
must be overturned.
LEGAL VOTES REJECTED – REJECTED PERSONAL CHOICE
LAW APPLICABLE TO REJECTED PERSONAL CHOICE BALLOT
86. N.J.S.A. 19:49-5, provides that “No irregular ballot shall be voted for any person for any
office whose name appears on the machine as a nominated candidate for that office…any irregular
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ballot so voted shall not be counted. An irregular ballot must be cast in its appropriate place on the
machine, or it shall be void and not counted.”
87. N.J.S.A. 19:53A-7(f) states: “If the voter has cast more votes for an office than he is entitled
to vote for, the vote for that office shall be declared null and void and that vote shall not be counted
for that office. Votes cast for duly nominated candidates on the ballot card will not be voided
because of an invalid write-in vote, but if otherwise valid shall be counted”
88. N.J.S.A. 19:16-3(f) states that “if a voter …writes or pastes the name of any person in the
column designated personal choice, whose name is printed upon the ballot as a candidate under
the same title of office, or his choice cannot be determined, his ballot shall not be counted for that
office, but shall be counted for such other offices as are plainly marked.”
89. Cases that have interpreted ballots which contain write-in names which do not conform to
specific statutory provisions have been extremely fact-based and inconsistent in their holdings.
90. In In re Gray-Sadler, 164 N.J. 468 (2000), the court recognized that “A citizen’s
constitutional right to vote for the candidate of his or her choice necessarily includes the corollary
right to have that vote counted at full value without dilution or discount.” Id. at 474 (internal
quotations omitted). “That principle also encompasses ‘the right of all qualified electors to vote
for [a write-in candidate] by such means.’” Id. at 474-75 (citing Sadloch v. Allan, 25 N.J. 118, 128
(1957)). “To preserve those rights, our state election laws are designed to deter fraud, safeguard
the secrecy of the ballot, and prevent disenfranchisement of qualified voters. In furtherance of
those goals, we have held that it is our duty to construe elections laws liberally.” Id. at 475 (internal
citations omitted); see also Wene v. Meyner, 13 N.J. 185, 197 (1953); Kilmurray v. Gilfert, 10 N.J.
435, 440 (1952).
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91. In Gray-Sadler, despite the fact that the statute stating that a write-in vote on a machine
“must” be cast in its appropriate place, and if not it “shall” be voided and not counted, the Court
held that a strict application of the statute would invalidate otherwise valid votes where voters
attempted to bring in stickers to place next to the names on the machines, but in doing so, the
names did not always appear in the correct locations.5 The Court found that there was clear voter
intent, and that not counting those ballots would be improper.
92. The court in Gray-Sadler noted that there were no instructions to warn a voter that if they
did not properly cast their write-in ballot consistent with the specific instructions, that the ballot
could be rejected. The Gray-Sadler court found that N.J.S.A. 19:50-3 requires the Board of
Elections to provide instructions to voters and where no instructions are provided, or the
instructions are unclear, the voter should not have his or her ballot voided. “The instructions
should have been ‘carefully drawn so as to fully advise the voter as to the proper procedure he [or
she] is to follow.’” Id. at 478 (quoting In re Sweetwood, 91 N.J. Super. 496, 500 (App. Div. 1966)).
The court distinguished that case from cases where specific instructions were provided, but the
voter did not follow them. As a result, the Court in Gray-Sadler counted the write-in votes because
the board of elections had not complied with the requirement in N.J.S.A. 19:50-3 to provide proper
instructions. Therefore, despite the fact that under the text of N.J.S.A. 19:49-5 the votes should
have been voided, the failure to give voters proper instructions trumped the voters failure to comply
with a law to which they had no knowledge.
93. In In Matter of General Election Held in Tp. of Monroe, Gloucester County, N.J. on
Tuesday, Nov. 6, 1990, 245 N.J. Super. 70 (App. Div. 1990), several voters voted for the candidate
on the ballot by selecting his name on the ballot, and then also writing in the same candidates’
5At that time, when a personal choice button was selected, a paper portion would permit a voter to physically write-in the choice
or use a “sticker” as used there, as opposed to machine now where everything is electronic.
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name in the personal choice column. The court upheld the votes, despite the language in N.J.S.A.
19:16-3f stating that a ballot shall not be counted if a voter “writes or pastes the name of any person
in the column designated personal choice whose name is printed upon the ballot as a candidate
under the same title of office…”
94. The Monroe court held that disqualification would only be necessary if the ballot contained
two different names for the same office. “A contrary ruling would result in disenfranchising voters
who clearly demonstrated an intent to vote for one particular person for one particular office.” Id.
at 73. The court “decline[d] to dilute the right to vote granted by our State Constitution.” Id. The
court held that “not every improper mark on a ballot renders the vote invalid…The purpose of
these statutes is to avoid marking or defacing a ballot in a manner which will either destroy the
anonymity of the voter or will cause speculation as to the voter’s intent. Permitting these votes to
be counted will generate neither speculation nor destruction of anonymity.” Id. at 73-74 (internal
citations omitted).
95. It is submitted that reasoning in Gray-Sadler and Monroe is more compelling and consistent
with the overall state policy of not disenfranchising legal voters from having their ballots counted
than that adopted in In re Ocean County Com’r of Registration for a Recheck of the Voting
Machines, 379 N.J. Super. 461 (App. Div. 2005).
96. In Ocean County, the court took a different approach and attempted to distinguish In re
Gray-Sadler and Monroe, however, the reasoning places form over substance in a way that does
not further any policy goals and is inconsistent with other Appellate decisions.
97. In Ocean County, the petitioner (also named Murphy but unrelated to the current
Petitioner), challenged the rejection of a write-in vote for himself. The write-in was not counted
because his name also appeared on the ballot as a candidate for the same office. Id. at 472. Unlike
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In re Gray-Sadler, the court in Ocean County took a strict reading of the statute and did not
recognize an exception.
98. The Ocean County court held that the language in the statute was unambiguous and
mandatory. The court noted that the purpose of N.J.S.A. 19:49-5, “is to prevent a voter from
casting two votes for the same candidate—once by marking the printed name and a second time
by writing in the same name.” Id. at 473.
99. The court recognized the general principles against disenfranchising voters, however, the
court distinguished Gray-Sadler by finding that in Gray-Sadler the court was not dealing with votes
cast for candidates who also appeared on the ballot. Id. at 474-477. The court found that “because
the write-in candidates’ names were not on the ballot in that case, there was no risk that counting
a write-in vote would result in double-counting any one voter’s vote. And that is the precise risk
implicitly addressed by N.J.S.A. 19:49-5 and explicitly addressed by N.J.S.A. 19:53A-3(f), which
provides that the statutory requirements for [e]very electronic voting system, consisting of a voting
device in combination with automatic tabulating equipment, …shall [be designed to] …[p]revent
the voter from voting for the same person more than once for the same office.” Id. at 475
(modifications in original).
100. The court finally held that in Gray-Sadler the situation was beyond the voters’ control,
whereas in Ocean County, the voter could have voted for the candidate by pushing the button, and
therefore, the mistake was solely the result of the voter’s own making, therefore warranting
voiding the ballot.
101. The Ocean County court distinguished In re General Election Held in the Tp. of Monroe,
supra, by finding that because the voter both wrote-in the candidate and selected the candidate on
the ballot, only the write-in ballots would be discounted. Id. at 477. Because N.J.S.A. 19:53A-7f
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explicitly states that voters cast for duly nominated candidates on the ballot card will not be voided
because of an invalid write-in vote, but if otherwise valid shall be counted” the double vote should
count. Id. at 477-78.
102. The court in Ocean County did recommend that clearer instructions be provided and that
the legislature consider updating the law. Id. at 478.
PROPOSED FINDINGS OF FACT RELATED TO WRITE-IN-BALLOT
103. A write-in ballot was cast on a machine for all Republican candidates.
104. While the voter only used last names, in the context of having written in every other
Republican candidate, it is clear that the voter intended to vote for James Murphy for mayor.
105. There were no instructions provided to alert the voter that a write-in vote would be voided
or that a voter should check to determine laws regarding write-in votes. See Sample Ballot attached
to Certification of Tiffany Tagarelli.
PROPOSED CONCLUSIONS OF LAW RELATED TO WRITE-IN-BALLOT
The Write-In-Ballot Should Be Counted for James Murphy
Where the Voter’s intent is clear, and the voter was not provided any instructions
to the contrary advising the voter not to write-in a candidate who appeared on the
ballot or advising the candidate to check the laws pertaining to write-in ballots, the
vote should be counted.
106. The rationale in Ocean County is inconsistent and should not be followed. First, the court’s
application of the strict reading of the statute would result in the disenfranchisement of a ballot
where the voter has expressed a desire to vote for a candidate and is being prohibited from doing
so for technical reasons. This does not fulfill the policy provisions which caution against
invalidating ballots in such instances.
107. The Ocean County court’s strict application of the statute also fails to consider that other
Appellate panels have recognized exceptions, even if the facts were not identical.
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108. Third, the court states that the policy behind N.J.S.A. 19:49-5 is to prevent a voter from
casting two ballots. However, that policy is not implicated here where (a) the ballot at issue
indicates that the voter did not cast two ballots, (b) the Monroe case accepted ballots where the
voters attempted to do exactly what the Ocean County court complains of – casting two ballots,
and (c) N.J.S.A. 19:53A-3(f) already prohibits voters from being able to cast votes twice for the
same candidate.
109. Here, In re Gray-Sadler and In re Monroe Twp. are more applicable in their reasoning.
110. In Gray-Sadler the court recognized that ballots should not be disqualified where election
officials failed to provide proper instructions to voters.
Preview
MON-L-004035-23 03/12/2024 12:05:45 AM Pg 1 of 48 Trans ID: LCV2024644093 KING MOENCH & COLLINS, LLP Matthew C. Moench, Esq. (031462007) 225 Highway 35, Suite 202 Red Bank, New Jersey 07701 732-546-3670 Mmoench@kingmoench.com Attorneys for James Murphy and Ellen O’Dwyer-Woods I/M/O ELECTION CONTEST OF THE SUPERIOR COURT OF NEW JERSEY NOVEMBER 7, 2023 GENERAL LAW DIVISION: MONMOUTH COUNTY ELECTION FOR ATLANTIC HIGHLANDS MAYOR AND COUNCIL Docket No.: MON-4035-23 --------------------------------- PETITIONER JAMES MURPHY’S JAMES MURPHY PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Petitioner, v. MONMOUTH COUNTY BOARD OF ELECTIONS; CHRISTINE HANLON, in her capacity as MONMOUTH COUNTY CLERK, LORI HOHENLEITNER, ALYSON FORBES, JON CROWLEY, ARTHUR WHITEHEAD and ELLEN O’DWYER- WOODS, Respondents/Parties of Interest Petitioner, Councilman James Murphy (“Petitioner” or “Councilman Murphy” or “Mr. Murphy), respectfully submits the following proposed Arguments, Findings of Fact and Conclusions of Law in accordance with the Court’s direction at the conclusion of the non-jury trial on February 29, 2024. 1 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 2 of 48 Trans ID: LCV2024644093 PRELIMINARY STATEMENT Our democracy rests upon elections, which must represent the will of the electorate. While courts are not “roving commissions” seeking to root out all possible violations of the election process, courts are charged with ensuring that the public can be confident that the winners of a given election were chosen by the lawful electorate and that election laws are enforced to as to bring trust and confidence in the integrity of the election as established by our Legislature. While Courts have held that election laws should be liberally construed to advance the goals of democracy, courts have at the same time recognized that elections are statutorily created and in order for citizens to have faith in the election process, election laws must be upheld. Doing so provides uniformity, certainty, and legitimacy to all elections. Candidates or citizens may challenge election results by setting forth one or more specifically enumerated reasons as provided in the statute. That is a right provided by the Legislature and a key part of the democratic process. It is a check and balance on the election process, election officials, voters, and candidates, which further assists in the election process. Here, after three days of testimony, the election contest process has revealed significant issues with several voters and ballots cast, the results of which cast a shadow of this election, so much so that the November 2023 General Election results should be overturned and either Councilman Murphy declared the winner, or a new election ordered. While Councilman Murphy may have been attacked in the public and the press for pursuing those rights provided to him by statute, the election contest process ensures that the results are consistent with the laws, and accurately reflect the will of the voters. It is Councilman Murphy’s burden to show that the results of the election are not consistent with the law and do not reflect the will of the electorate. Through the testimony elicited at trial 2 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 3 of 48 Trans ID: LCV2024644093 and the evidence provided, Councilman Murphy has demonstrated that several voters cast ballots in Atlantic Highlands who do not live in Atlantic Highlands, that voters cast ballots without being properly registered as required by law to vote, that vote-by-mail ballots were improperly rejected by the Board of Elections, and that a voter was denied the right to vote in the correct election as a result of an error with the Monmouth County Board of Elections. The election is sullied through improper voters, the disenfranchisement of lawful voters, and the dilution of the vote of lawful voters by the inclusion of those improper ballots. The interests of the public warrant the Court to remove improper ballots, re-enfranchise the disenfranchised, and invalidate the current election results. After doing so, Councilman Murphy should be declared the winner, or in the alternative, order a new election. PROCEDURAL HISTORY Councilman Murphy ran for Mayor of Atlantic Highlands on the Republican ticket against Lori Hohenleitner (hereinafter “Ms. Hohenleitner), who ran as the Democratic candidate. Following the November 7, 2023 General Election, Ms. Hohenleitner was declared the winner by four votes. Councilman Murphy filed a recount, which increased Ms. Hohenleitner’s lead to five votes. Thereafter, Councilman Murphy brought a timely election challenge pursuant to N.J.S.A. 19:29-1 seeking to overturn the results of the November 7, 2023 Election (the “Election”).1 On February 2, 2024, Councilman Murphy filed an Amended Petition as of right, which added additional voters who were being challenged as to their residency, and eliminated other causes of action. Ms. Hohenleitner filed an Answer and Counter-Petition on February 7, 2024. 1 The Election Contest which was filed also included council candidate – Ellen O’Dwyer-Woods. Ms. O’Dwyer-Woods was dismissed from this case following a motion by Ms. Hohenleitner and Ms. Forbes, wherein the Court found that Ms. O’Dwyer- Woods was out-of-time for filing an election contest. See Order dated February 1, 2024. This summation and closing arguments will only focus on Mr. Murphy, as the only remaining Petitioner, however, that is not intended to waive any rights on appeal as to Ms. O’Dwyer-Woods. 3 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 4 of 48 Trans ID: LCV2024644093 Trial began on February 20, 2024, where the Court heard testimony from the following witnesses: 1. Allyson Denzler 2. Steve Smith 3. Rachael Moffett 4. Alina Carr 5. Ryan Huff 6. Abigail Hofman 7. George Zaidan 8. Katie Edwards 9. Mary Heinz 10. Melody Kunkler 11. Michael Edelman 12. Michelle Moon Trial resumed on February 28, 2024. The Court heard testimony from the following witnesses: 13. Michael Lucas 14. Derek Lucas 15. Lindsay Helmus 16. Linda Lucas 17. Herbert Voelckers 18. Carol Zuzio Trial was adjourned until February 29, 2024. On the morning before trial, the Court heard argument and granted Petitioner’s Motion to Amend his Complaint to add claims related to two additional voters.2 Trial resumed in the afternoon on February 29, 2024 and the Court heard from Meghan O’Connor and reviewed video tape related to voter Henry Meahan. At the conclusion, the Court closed the record and set a briefing schedule for written summations. 2 Note that an Order has not been entered onto eCourts to this effect. 4 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 5 of 48 Trans ID: LCV2024644093 ISSUES FOR THE COURT TO DECIDE The following is a brief summary of the issues for the Court to decide: Legal Votes Rejected 1. Should Carol Zuzio’s VBM ballot be counted where it was timely submitted, signed by the voter, but where the voter failed to complete the address portion of the certification? 2. Should Allyson Denzler’s VBM ballot be counted where she signed the “bearer” portion of the envelope but inadvertently did not sign the Certification, and where she testified that she filed out the ballot herself and never received a cure letter as required by law so as to complete the missing signature? 3. Was Meghan O’Connor improperly disenfranchised and prohibited from voting in the Atlantic Highlands election when she was improperly assigned to vote in Middletown? 4. Should a ballot be counted where the voter attempted to cast a ballot for James Murphy for Mayor by “personal choice” rather than pushing the button where Mr. Murphy’s name appeared on the ballot. Illegal Votes Accepted 5. Did Abigail Hofman improperly cast a ballot in the election where she failed to timely update her voter registration in violation of applicable statutes, and therefore, was not a properly registered voter entitled to cast a ballot? 6. Did Michelle Moon and Stephen Johnson improperly cast ballots in the election when Michelle testified that as of October 31, 2024, they no longer considered Atlantic Highlands their home and were residing in Port Monmouth, yet cast a ballot in Atlantic Highlands rather than their new address as required by law? 5 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 6 of 48 Trans ID: LCV2024644093 7. Did Rachael Moffet, a thirty-seven year-old doctor, improperly cast a ballot in the Atlantic Highlands election when she has lived in Highlands for more than six years, and therefore, is no longer properly domiciled in Atlantic Highlands? 8. Did Lindsay Helmus improperly cast a ballot in the election when she testified that she moved out of Atlantic Highlands prior to the election, yet still cast a ballot in Atlantic Highlands rather than at her new address as required by law. 9. Did Derek Lucas, a twenty-six year-old adult, abandon his old domicile and establish a new domicile barring him from voting in New Jersey when he has not yet established a permanent home and maintains ties to New Jersey? 10. Did Ryan Huff, a thirty-year-old adult, abandon his old domicile and establish a new domicile barring him from voting in New Jersey when he has not yet established a permanent home and maintains ties to New Jersey? 11. Did Melody Kunkler and Michael Edelman improperly cast ballots in the election where they have not yet established a domicile in New Jersey, remain registered voters in Pennsylvania and evaded questions regarding their registration? 12. Did Henry Meahan improperly cast a ballot in the election where he spends no more than ten days a month in Atlantic Highlands, is not in New Jersey for months at a time, and cannot be served because he will not be back in New Jersey from Florida until at least April? 13. Did Michael Lucas, a thirty-year-old adult, improperly cast a ballot in the election where he testified that he considers Cleveland to be his home? 6 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 7 of 48 Trans ID: LCV2024644093 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW LEGAL VOTES REJECTED LAW APPLICABLE TO VBM BALLOTS 1. N.J.S.A. 19:63-13 sets forth the form of the “Certificate of Mail-In Voter” to be contained on the inner envelope as directed in N.J.S.A. 19:63-12. 2. The Certificate, as set forth in N.J.S.A. 19:63-13(a), contains a blank line for the voter’s name, a blank line for the voter’s address, and then the language certifying, under penalty of perjury, that the voter was the person who requested that ballot and who filled out the ballot and certificate. The Certificate then contains a place for the voter’s signature, and if the voter was receiving assistance, information for the person assisting the voter. 3. Paragraph (c) also permits a clerk of each county to utilize an alternate form of the certification where the voter certifies to the correctness of their name and address as it appears on the label, rather than filing in the name and address themselves. 4. Paragraph (d) indicates that the certificate should also include spaces for a voter’s telephone number and email address to be utilized to contact the voter to cure defects with their mail-in ballot. 5. While N.J.S.A. 19:63-13 contains the form of the Certificate of Mail-In Vote to accompany mail-in ballots, nothing within that provision mandates that the failure to fill out a portion of the certificate automatically invalidates the ballot or requires rejection of the ballot. 6. N.J.S.A. 19:63-16 governs the marking and delivery of mail-in ballots. In its entirety, this statute governs who is permitted to mark and deliver ballots, and the method for doing so. Paragraph (a) requires that the voter is the one who marks the ballot, places it in the inner envelope, fills out the certificate, and then places the inner envelope into the outer envelope. 7 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 8 of 48 Trans ID: LCV2024644093 7. Paragraph (a) is specifically related to “who” performs those functions and contains no mandates or directives as to how a ballot should be treated if the voter improperly or incompletely performs those functions. 8. N.J.S.A. 19:63-16(b) reiterates that only the voter, and no other person, shall handle or interfere in a mail-in ballot. Paragraph (c) clarifies that a voter can receive certain assistance from a family member or other person (other than a candidate) provided that the person assisting fills out the “assistor” portion of the ballot. Finally, paragraph (d) discusses the various methods for delivering the ballot to the Board of Elections. 9. Evaluation of mail-in ballots is governed by N.J.S.A. 19:63-17 which states that the board of elections shall compare the signatures on the ballots with the signatures on file in the voter registration system. Paragraph (a) does not contain any language that mandates a ballot be rejected if a certificate is incompletely filled out (such as missing an address), but states that the county board shall reject the ballot if they are not satisfied that the voter is entitled to vote and the ballot is valid. 10. The only mandatory disqualification contained within N.J.S.A. 19:63-17 that does not have a “cure” function is for a ballot returned where the inner envelope containing the ballot is unsealed. 11. In 2020, the Legislature specifically passed the “Ballot Cure Act” to ensure that ballots were not rejected because of deficiencies in the vote-by-mail process, and specifically that the ballot was not rejected due to issues with missing or mismatched signatures without giving the voter an opportunity to correct the deficiency. The Statement accompanying A4276 states that “In the 2019 general election, over 2100 voters simply did not sign their Certificate of Mail-In Voter, thereby resulting in their votes not counting. Over 1500 voters were denied their votes due to signature mismatch. Even when voters who have familiarity with voting by mail, such as voters living in 8 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 9 of 48 Trans ID: LCV2024644093 primarily vote by mail states such as Washington and Colorado, mistakes still happen…The purpose of this bill is to make voting more accessible, minimize the likelihood of disenfranchisement, and protect a constitutional right from abridgement for what may be a purely administrative oversight.”3 12. The Cure Act provisions are incorporated into N.J.S.A. 19:63-17, which provides that if a voter’s mail-in ballot has been rejected due to a missing signature or discrepant signature, the voter shall be issued a “Cure Letter” and given an opportunity to cure the defect in their ballot. The Cure Act also required the Secretary of State to publish guidelines to assist voters, candidates, and election officials on processing vote-by-mail ballots and implementing the Cure Act. 13. The “Guide to Signature Verification of Mail-In and Provisional Ballots and Cure of Discrepant or Missing Signatures, updated October 27, 2022,” (“Guide to Signature Verification”),4 states “Signature verification, the process of confirming each voter’s identity by comparing the signature on the mail-in ballot certificate envelope …to signature captured in the voter’s registration record, greatly enhances the security and integrity of the ballot process.” Guide to Signature Verification at 3. 14. The Guide also states that “Some voters will forget to sign their return envelope altogether. Such scenarios underling the importance of giving voters a path to “cure” or remedy the discrepancy, so every legally cast ballot may be counted.” Guide to Signature Verification at 3. 15. The Vote-by-Mail Ballot Review Guide, updated October 27, 2022, provides that “Any Vote-by-Mail ballot where the inner envelope certificate is signed by the voter, or where an assistor portion has been signed, but is missing other required information, shall be referred to the board for its review.” See Ballot Review Guide, at 4. 3 https://pub.njleg.state.nj.us/Bills/2020/A4500/4276_I1.PDF 4 https://www.nj.gov/state/elections/assets/pdf/guidelines/guide-nj-signature-verification-and-cure-10-27-22.pdf 9 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 10 of 48 Trans ID: LCV2024644093 16. The same Guide also provides that “[i]f an inner envelope certificate is not signed …the voter must be afforded the opportunity to cure the signature deficiency…” Ballot Review Guide at 4 (emphasis added). Under the statute and the Guide, the Board of Elections must also attempt to contact the voter by telephone. Ballot Review Guide at 5. 17. N.J.S.A. 19:63-17.1(a) states that a failure of a voter to cure an alleged deficiency “shall not recreate a presumption that the vote is improper or invalid, nor shall it be considered evidence that the vote is improper or invalid.” 18. N.J.S.A. 19:63-17.1(b) provides that following a final determination about whether a mail- in ballot shall be counted, “disputes about the qualifications of a voter to vote, or about whether or not or how any mail-in ballot shall be counted in that election, shall be referred to the Superior Court for determination.” 19. There are no decisions which post-date the Ballot Cure Act discussing the handling of Certifications of Mail-In Voter or the ballot cure process. Existing decisions deal with the law prior to the express ability to cure defects. CAROL ZUZIO PROPOSED FINDINGS OF FACT RELATED TO CAROL ZUZIO 20. Carol Zuzio is a properly registered voter in Atlantic Highlands. 21. Ms. Zuzio attempted to vote in the election by way of a VBM ballot. 22. Ms. Zuzio’s ballot was rejected by the Board of Elections because the address portion of the Certification was not completed. 23. Ms. Zuzio did print her name and sign the certification. She also signed the bearer portion of the envelope, although she was not required to do so. 10 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 11 of 48 Trans ID: LCV2024644093 24. Ms. Zuzio testified that she did not believe it was necessary to fill out the address portion for her ballot to count as the address appears in another location on the envelope. 25. Ms. Zuzio also testified that she had eye surgery prior to the election and that may have contributed to her failing to fill out the ballot properly. 26. Ms. Zuzio testified that she has voted by mail in the past but does not recall whether she previously filled out the address portion of the certification. 27. Ms. Zuzio testified that it was in fact her ballot, it was her signature on the ballot, and that she intended for her ballot to be cast in this election. 28. There is no evidence of fraud with regard to Ms. Zuzio’s ballot. 29. The inner envelope and certification does not contain any place for a voter to print their phone number or email to be contacted by the Board of Elections as required by N.J.S.A. 19:63- 13(d). PROPOSED CONCLUSION OF LAW RELATED TO CAROL ZUZIO Carol Zuzio’s Ballot Should Be Counted: Rejecting the Ballot for Missing the Address on the Certificate of Mail-in Voter is not Mandated by Statute, Does Not Impact the Ability to Verify the Validity of the Ballot, and Is Inconsistent with the Ballot Cure Act and Overall Legislative Scheme Designed to Ensure Vote-By Mail Ballots Are Counted 30. By enacting the Ballot Cure Act in 2020, the New Jersey Legislature set a clear policy statement that vote-by mail ballots should not be rejected because of failures by the voter to properly complete a Certificate of Mail-in Voter. 31. Nothing within the Ballot Cure Act, as codified in N.J.S.A. 19:63-17, nor N.J.S.A. 19:63-13, setting forth the form of the Certificate of Mail-In Voter, mandates that a ballot should be rejected because the voter did not fill in their own address in the Certification. 11 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 12 of 48 Trans ID: LCV2024644093 32. Signature comparison is the main form of voter identification for mail-in ballots, as set forth in N.J.S.A. 19:63-17, which specifically requires a comparison of signatures. 33. The Secretary of State has issued guides regarding comparison of signatures as the primary method for verifying a voter’s identity on a mail-in ballot. 34. Here, Carol Zuzio’s Certification contained her signature, which has not been challenged as valid. 35. Ms. Zuzio further testified that it was in fact her signature, that she filled out her own ballot, and that she did not believe that the address was necessary because it was already printed on the envelope. 36. The validity of Ms. Zuzio’s ballot is not questioned, and her ballot should not have been rejected solely because of the missing address where her signature was present to validate her vote. The ballot was sent to the address on record in the SVRS system, and disqualification is not required. 37. Rejecting Ms. Zuzio’s ballot is contrary to the overall statutory scheme intended to enfranchise voters. 38. Respondent argues that the ballot should be rejected because the statutory scheme does not provide for the ability to “cure” missing addresses and therefore the defect is fatal. 39. Respondent cites no authority to support the idea that this was a conscious policy decision by the Legislature. In fact, such a position is contrary to the entire legislative framework, which intends to provide opportunities to correct defects in mail-in ballots. 40. Respondent’s argument further fails given that signatures, and not addresses, are the main verification point, and if signatures can be cured, there is no policy basis, consistent with the legislative framework, which would support rejecting the ballot for a missing address. 12 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 13 of 48 Trans ID: LCV2024644093 41. In light of the law, the ballot, and the testimony of Carol Zuzio, this ballot should be counted and the Board of Elections should be ordered to open the ballot. ALYSON DENZLER PROPOSED FINDINGS OF FACT RELATED TO ALYSON DENZLER 42. Ms. Denzler is a properly registered voter, who was legally entitled to vote in the November 7, 2023 general election for Atlantic Highlands. 43. Ms. Denzler attempted to vote by mail and returned a vote by mail ballot. 44. She testified that she filled out the ballot herself, sealed the ballot and sent it in to the Board of Elections. 45. Ms. Denzler further testified that she signed the “bearer” portion of the envelope because she thought she was required to do so. 46. Ms. Denzler did not fill out the Certificate of Mail-In Voter contained on the inner envelope of the vote-by mail ballot. 47. Ms. Denzler testified that she does not know why she failed to fill it out and that it was a mistake on her part. 48. Ms. Denzler did not receive a cure letter indicating that her ballot had been rejected or that she could cure her ballot. PROPOSED CONCLUSION OF LAW RELATED TO ALYSON DENZLER Alyson Denzler’s Ballot Should be Counted: The Ballot Should Not Be Rejected Where She Signed the Bearer Portion, Where the Legislature Intended to Provide an Opportunity to Cure, Where She Was Not Provided Such an Opportunity, and Where Her Testimony Can Verify Her Ballot Effectively Curing Any Deficiencies. 49. The Ballot Cure Act set forth a clear policy that is intended to provide voters an opportunity to cure defects in their mail-in ballots, specifically missing or rejected signatures. 13 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 14 of 48 Trans ID: LCV2024644093 50. Contrary to Respondent’s position, a voter who fails to sign a certificate may still be permitted to cure the ballot. This is clearly set forth in the Secretary of State’s “Guide to Signature Verification of Mail-In and Provisional Ballots and Cure of Discrepant or Missing Signatures.” (emphasis added). 51. That policy states that pursuant to the Ballot Cure Act and N.J.S.A. 19:63-17, voters are to “receive a pre-deprivation notice that the Board of Elections has determined that their mail-in or provisional ballot is either missing a signature or the signature does not match the signature in the voter’s voting record.” Guide to Signature Verification at 2. 52. The Board of Elections Vote-by-Mail Ballot Review Guide states that “If an inner envelope certificate is not signed or the board of elections determines that the signature on the ballot does not match that in the voter’s voting record, the voter must be afforded the opportunity to cure the signature deficiency as set forth in detail in the New Jersey Guide to Signature Verification of Vote-by-Mail and Provisional Ballots and Cure of Discrepant or Missing Signatures. N.J.S.A. 19:63-17(b)(1).” Ballot Review Guide at 4-5. 53. N.J.S.A. 19:63-17(b)(1) similarly explicitly states that a voter may cure their ballot on the “basis of a missing signature…” 54. Ms. Denzler was not provided such an opportunity to cure as required by law. 55. The Board of Elections did have a signature accompanying Ms. Denzler’s ballot as the “bearer,” although it was for her own ballot and not required. Therefore, there was a signature, which matches that on file. 56. Furthermore, her testimony confirms that she cast her ballot, that she filled it out, that she inadvertently did not fill out the Certificate, and that she was never contacted regarding an opportunity to cure. 14 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 15 of 48 Trans ID: LCV2024644093 57. The certificates issued to voters do not contain any place for voters to provide their telephone number or email to be contacted in case of a rejected ballot, as required by N.J.S.A. 19:63-13(d). 58. The statement to the Ballot Cure Act recognizes that even experienced vote-by-mail voters will make mistakes on returning vote-by-mail ballots, and as such, need an opportunity to cure. 59. Ms. Denzler’s prior use of vote-by-mail has no bearing on whether her ballot should be disqualified now. 60. N.J.S.A. 19:63-17 codifies the public policy in New Jersey through the Ballot Cure Act that voters should not be disenfranchised through defects in the Certificate of Mail-in Voter, including the failure to sign it altogether. Ms. Denzler provided a signature, but not in the correct location. Based upon her testimony under oath certifying to the fact that she filled out her ballot and returned it, her attempt to sign the ballot, albeit in an improper location, the failure of Ms. Denzler previously having been provided an opportunity to cure, and the Legislative policy to enfranchise voters such as Ms. Denzler, her ballot should be counted. LEGAL VOTES REJECTED – DENIAL OF BALLOT ACCESS LAW APPLICABLE TO ELECTION OFFICIALS’ MISTAKE IMPACTING BALLOT ACCESS 61. N.J.S.A. 19:29-1(e) permits a Petitioner to contest an election “[w]hen illegal votes have been received, or legal voters rejected at the polls …” 62. “A vote has been ‘rejected’ under N.J.S.A. 19:29-1(e), in ‘any situation in which qualified voters are denied access to the polls,’ or who, ‘through no fault of their own,’ have been ‘prohibited from voting for a specific candidate by some irregularity in the voting procedures.’ ‘The essential question is whether voters were denied the opportunity to vote for a candidate of their choice.’” Matter of Election for Atlantic County Freeholder Dist. 3 2020 General Election, 468 N.J. Super. 341 (App. Div. 2021) (quoting Gray-Sadler, 164 N.J. 468, 475-76 (2000)). 15 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 16 of 48 Trans ID: LCV2024644093 63. In Atlantic County, voters in the Third District in Atlantic County were sent VBM ballots which did not include the ability to vote for the County Commissioner candidates for the Third Ward. Some of those voters did not return their ballot at all, some returned their ballot, and some voters either cured the deficiency or voted provisionally at the polls. The trial court overturned the election because the number of defective ballots exceeded the margin of victory and the Appellate Court upheld the invalidation of the election. 64. In that case, the parties recognized that the mistake was made by the election officials in sending the incorrect ballots, and the court did not impose a burden on the voters for recognizing and correcting the error on their own (although some did). The court held that “the defective ballots issued by the Atlantic County Clerk prevented voters from voting “through no fault of their own” and “prohibited [them] from voting for a specific candidate by some irregularity in the voting procedures.” Id. at 356 (citing Gray-Sadler, 164 N.J. at 476). 65. “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. at 476 (citing In re Moffat, 142 N.J. Super. 217, 223 (App. Div.), certif. denied., 71 N.J. 527 (1976)). 66. “The essential question is whether voters were denied the opportunity to vote for a candidate of their choice.” Id. at 476. 67. In In re Contest of the November 6, 2012 Election Results for the City of Hoboken, Public Question No. 2, 2013 N.J. Super. Unpub. LEXIS 2250 (App. Div. Sept. 11, 2013), voters displaced because of Superstorm Sandy who voted provisionally outside of Hoboken did not have an opportunity to vote on the public question. The trial court invalidated the passage of the public question because voters were barred from voting because they were not told that the provisional 16 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 17 of 48 Trans ID: LCV2024644093 ballots used would not include the ability to vote on public questions. A proponent for the question argued that the voters should have been aware of the absence of the questions upon receiving the ballot without the questions on it, and presumably should have taken action to correct the issue. The court rejected such a burden on the voters. The court followed Gray-Sadler and In re Moffat for the proposition that voters need not be physically barred from voting, but that “rejection” may occur because of malfunctioning machines, improper instructions, or, as in that case, the use of provisional ballots which did not include the questions upon which to vote. 68. A petitioner need not show how a rejected voter would have voted, but instead, must simply show that they were improperly precluded from the ballot. In re Moffat, 142 N.J. Super at 224. MEGAN O’CONNOR PROPOSED FINDINGS OF FACT RELATED TO MEGAN O’CONNOR 69. Meghan O’Connor resides in Atlantic Highlands and has done so for approximately one year prior to the election. 70. She previously resided in Montclair and has never lived in Middletown. 71. Ms. O’Connor updated her voter registration sometime on or around November 7, 2022. 72. The 2023 General Election was the first election Ms. O’Connor voted in since moving to Atlantic Highlands. 73. Ms. O’Connor should have been assigned to vote in Atlantic Highlands. 74. However, through some irregularity in the registration process, Ms. O’Connor was registered to vote in Middletown District 2. 75. The polling location for Middletown District 2 is Navesink School, which has an Atlantic Highlands address. 17 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 18 of 48 Trans ID: LCV2024644093 76. On Election Day, Ms. O’Connor went to vote at the voting location assigned to her by the Monmouth County Board of Elections. In doing so, she cast a vote in the Middletown election, rather than the election in Atlantic Highlands. 77. That ballot did not include an opportunity to vote for mayor of Atlantic Highlands. 78. Ms. O’Connor was confused when she did not see Mr. Murphy’s name on the ballot, but did not know why. Later that day when discussing the election with a neighbor, she became aware that she voted in a location different than her neighbor and that there may be an issue. 79. Sometime following Election Day, Ms. O’Connor went to speak with the local municipal clerk’s office, who informed her she would have to rectify the issue with the County. 80. Ms. O’Connor was not able to vote in Atlantic Highlands because she was assigned to Middletown, however, she wanted to vote in Atlantic Highlands. PROPOSED CONCLUSIONS OF LAW RELATED TO MEGHAN O’CONNOR Meghan O’Connor Was a Disenfranchised Voter Who Should Have Been Permitted to Vote Meghan O’Connor was a Legal Voter of Atlantic Highlands who Was Denied Access to the Ballot Because She Was Improperly Assigned to An Incorrect Voting District in a Different Municipality, Which Did Not Afford Her the Opportunity to Vote for the Candidate of Her Choice; Applicable Case Law Does Not Place the Burden on O’Connor to Have Identified and Corrected the Issue Where the Mistake Was Made by Election Officials 81. Under N.J.S.A. 19:29-1(e), O’Connor’s vote was effectively “rejected” by her misassignment to Middletown rather than Atlantic Highlands. Similar to Atlantic County and Gray-Sadler, when the actions of election officials prohibit a voter from voting for a specific candidate by some irregularity in the voting procedures, they are a “rejected voted” under N.J.S.A. 19:29-1. 82. O’Connor should have been, but was not, permitted to vote in Atlantic Highlands. While she may have received a sample ballot, O’Connor testified that she does not recall whether she opened 18 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 19 of 48 Trans ID: LCV2024644093 them, but instead simply looked at the polling location. That polling location has an Atlantic Highlands mailing address. 83. During the trial, Respondent’s counsel appeared to focus on whether O’Connor should have taken action on Election Day to correct the mistake in her registration. O’Connor testified that while she was not sure why she did not see Mr. Murphy’s name on the ballot, she did not understand the mistake until speaking with a neighbor and then speaking with the municipal clerk’s office. 84. Moreover, there is no caselaw which places the burden on the voter for correcting mistakes of election officials on ballot access. This argument was rejected in the Atlantic County case, where the court did not place the burden on the voters who received ballots without the proper county commissioner candidate to vote provisionally or cure the ballot (although some did). Similarly, the court in the Hoboken case rejected the argument that Hoboken voters should have been made aware of the inability to vote on local questions when receiving their ballots. And finally cases involving malfunctioning machines did not place the burden on voters to vote provisionally or come back later to ensure their ballots were cast. 85. In this instance, O’Connor was prohibited from voting in the mayoral election. Petitioner is not required to demonstrate for whom Ms. O’Connor would have voted, however, if the election result is within one vote, then O’Connor’s vote would have impacted the election and the election must be overturned. LEGAL VOTES REJECTED – REJECTED PERSONAL CHOICE LAW APPLICABLE TO REJECTED PERSONAL CHOICE BALLOT 86. N.J.S.A. 19:49-5, provides that “No irregular ballot shall be voted for any person for any office whose name appears on the machine as a nominated candidate for that office…any irregular 19 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 20 of 48 Trans ID: LCV2024644093 ballot so voted shall not be counted. An irregular ballot must be cast in its appropriate place on the machine, or it shall be void and not counted.” 87. N.J.S.A. 19:53A-7(f) states: “If the voter has cast more votes for an office than he is entitled to vote for, the vote for that office shall be declared null and void and that vote shall not be counted for that office. Votes cast for duly nominated candidates on the ballot card will not be voided because of an invalid write-in vote, but if otherwise valid shall be counted” 88. N.J.S.A. 19:16-3(f) states that “if a voter …writes or pastes the name of any person in the column designated personal choice, whose name is printed upon the ballot as a candidate under the same title of office, or his choice cannot be determined, his ballot shall not be counted for that office, but shall be counted for such other offices as are plainly marked.” 89. Cases that have interpreted ballots which contain write-in names which do not conform to specific statutory provisions have been extremely fact-based and inconsistent in their holdings. 90. In In re Gray-Sadler, 164 N.J. 468 (2000), the court recognized that “A citizen’s constitutional right to vote for the candidate of his or her choice necessarily includes the corollary right to have that vote counted at full value without dilution or discount.” Id. at 474 (internal quotations omitted). “That principle also encompasses ‘the right of all qualified electors to vote for [a write-in candidate] by such means.’” Id. at 474-75 (citing Sadloch v. Allan, 25 N.J. 118, 128 (1957)). “To preserve those rights, our state election laws are designed to deter fraud, safeguard the secrecy of the ballot, and prevent disenfranchisement of qualified voters. In furtherance of those goals, we have held that it is our duty to construe elections laws liberally.” Id. at 475 (internal citations omitted); see also Wene v. Meyner, 13 N.J. 185, 197 (1953); Kilmurray v. Gilfert, 10 N.J. 435, 440 (1952). 20 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 21 of 48 Trans ID: LCV2024644093 91. In Gray-Sadler, despite the fact that the statute stating that a write-in vote on a machine “must” be cast in its appropriate place, and if not it “shall” be voided and not counted, the Court held that a strict application of the statute would invalidate otherwise valid votes where voters attempted to bring in stickers to place next to the names on the machines, but in doing so, the names did not always appear in the correct locations.5 The Court found that there was clear voter intent, and that not counting those ballots would be improper. 92. The court in Gray-Sadler noted that there were no instructions to warn a voter that if they did not properly cast their write-in ballot consistent with the specific instructions, that the ballot could be rejected. The Gray-Sadler court found that N.J.S.A. 19:50-3 requires the Board of Elections to provide instructions to voters and where no instructions are provided, or the instructions are unclear, the voter should not have his or her ballot voided. “The instructions should have been ‘carefully drawn so as to fully advise the voter as to the proper procedure he [or she] is to follow.’” Id. at 478 (quoting In re Sweetwood, 91 N.J. Super. 496, 500 (App. Div. 1966)). The court distinguished that case from cases where specific instructions were provided, but the voter did not follow them. As a result, the Court in Gray-Sadler counted the write-in votes because the board of elections had not complied with the requirement in N.J.S.A. 19:50-3 to provide proper instructions. Therefore, despite the fact that under the text of N.J.S.A. 19:49-5 the votes should have been voided, the failure to give voters proper instructions trumped the voters failure to comply with a law to which they had no knowledge. 93. In In Matter of General Election Held in Tp. of Monroe, Gloucester County, N.J. on Tuesday, Nov. 6, 1990, 245 N.J. Super. 70 (App. Div. 1990), several voters voted for the candidate on the ballot by selecting his name on the ballot, and then also writing in the same candidates’ 5At that time, when a personal choice button was selected, a paper portion would permit a voter to physically write-in the choice or use a “sticker” as used there, as opposed to machine now where everything is electronic. 21 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 22 of 48 Trans ID: LCV2024644093 name in the personal choice column. The court upheld the votes, despite the language in N.J.S.A. 19:16-3f stating that a ballot shall not be counted if a voter “writes or pastes the name of any person in the column designated personal choice whose name is printed upon the ballot as a candidate under the same title of office…” 94. The Monroe court held that disqualification would only be necessary if the ballot contained two different names for the same office. “A contrary ruling would result in disenfranchising voters who clearly demonstrated an intent to vote for one particular person for one particular office.” Id. at 73. The court “decline[d] to dilute the right to vote granted by our State Constitution.” Id. The court held that “not every improper mark on a ballot renders the vote invalid…The purpose of these statutes is to avoid marking or defacing a ballot in a manner which will either destroy the anonymity of the voter or will cause speculation as to the voter’s intent. Permitting these votes to be counted will generate neither speculation nor destruction of anonymity.” Id. at 73-74 (internal citations omitted). 95. It is submitted that reasoning in Gray-Sadler and Monroe is more compelling and consistent with the overall state policy of not disenfranchising legal voters from having their ballots counted than that adopted in In re Ocean County Com’r of Registration for a Recheck of the Voting Machines, 379 N.J. Super. 461 (App. Div. 2005). 96. In Ocean County, the court took a different approach and attempted to distinguish In re Gray-Sadler and Monroe, however, the reasoning places form over substance in a way that does not further any policy goals and is inconsistent with other Appellate decisions. 97. In Ocean County, the petitioner (also named Murphy but unrelated to the current Petitioner), challenged the rejection of a write-in vote for himself. The write-in was not counted because his name also appeared on the ballot as a candidate for the same office. Id. at 472. Unlike 22 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 23 of 48 Trans ID: LCV2024644093 In re Gray-Sadler, the court in Ocean County took a strict reading of the statute and did not recognize an exception. 98. The Ocean County court held that the language in the statute was unambiguous and mandatory. The court noted that the purpose of N.J.S.A. 19:49-5, “is to prevent a voter from casting two votes for the same candidate—once by marking the printed name and a second time by writing in the same name.” Id. at 473. 99. The court recognized the general principles against disenfranchising voters, however, the court distinguished Gray-Sadler by finding that in Gray-Sadler the court was not dealing with votes cast for candidates who also appeared on the ballot. Id. at 474-477. The court found that “because the write-in candidates’ names were not on the ballot in that case, there was no risk that counting a write-in vote would result in double-counting any one voter’s vote. And that is the precise risk implicitly addressed by N.J.S.A. 19:49-5 and explicitly addressed by N.J.S.A. 19:53A-3(f), which provides that the statutory requirements for [e]very electronic voting system, consisting of a voting device in combination with automatic tabulating equipment, …shall [be designed to] …[p]revent the voter from voting for the same person more than once for the same office.” Id. at 475 (modifications in original). 100. The court finally held that in Gray-Sadler the situation was beyond the voters’ control, whereas in Ocean County, the voter could have voted for the candidate by pushing the button, and therefore, the mistake was solely the result of the voter’s own making, therefore warranting voiding the ballot. 101. The Ocean County court distinguished In re General Election Held in the Tp. of Monroe, supra, by finding that because the voter both wrote-in the candidate and selected the candidate on the ballot, only the write-in ballots would be discounted. Id. at 477. Because N.J.S.A. 19:53A-7f 23 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 24 of 48 Trans ID: LCV2024644093 explicitly states that voters cast for duly nominated candidates on the ballot card will not be voided because of an invalid write-in vote, but if otherwise valid shall be counted” the double vote should count. Id. at 477-78. 102. The court in Ocean County did recommend that clearer instructions be provided and that the legislature consider updating the law. Id. at 478. PROPOSED FINDINGS OF FACT RELATED TO WRITE-IN-BALLOT 103. A write-in ballot was cast on a machine for all Republican candidates. 104. While the voter only used last names, in the context of having written in every other Republican candidate, it is clear that the voter intended to vote for James Murphy for mayor. 105. There were no instructions provided to alert the voter that a write-in vote would be voided or that a voter should check to determine laws regarding write-in votes. See Sample Ballot attached to Certification of Tiffany Tagarelli. PROPOSED CONCLUSIONS OF LAW RELATED TO WRITE-IN-BALLOT The Write-In-Ballot Should Be Counted for James Murphy Where the Voter’s intent is clear, and the voter was not provided any instructions to the contrary advising the voter not to write-in a candidate who appeared on the ballot or advising the candidate to check the laws pertaining to write-in ballots, the vote should be counted. 106. The rationale in Ocean County is inconsistent and should not be followed. First, the court’s application of the strict reading of the statute would result in the disenfranchisement of a ballot where the voter has expressed a desire to vote for a candidate and is being prohibited from doing so for technical reasons. This does not fulfill the policy provisions which caution against invalidating ballots in such instances. 107. The Ocean County court’s strict application of the statute also fails to consider that other Appellate panels have recognized exceptions, even if the facts were not identical. 24 MON-L-004035-23 03/12/2024 12:05:45 AM Pg 25 of 48 Trans ID: LCV2024644093 108. Third, the court states that the policy behind N.J.S.A. 19:49-5 is to prevent a voter from casting two ballots. However, that policy is not implicated here where (a) the ballot at issue indicates that the voter did not cast two ballots, (b) the Monroe case accepted ballots where the voters attempted to do exactly what the Ocean County court complains of – casting two ballots, and (c) N.J.S.A. 19:53A-3(f) already prohibits voters from being able to cast votes twice for the same candidate. 109. Here, In re Gray-Sadler and In re Monroe Twp. are more applicable in their reasoning. 110. In Gray-Sadler the court recognized that ballots should not be disqualified where election officials failed to provide proper instructions to voters.