Appellant won the November 2020 election for the Atlantic County Third District County Commissioner race defeating her opponent by 286 votes. The election was primarily a vote-by-mail election pursuant to Executive Order and subsequently enacted legislation.
Appellant's opponent contested the election results because the Atlantic County Clerk sent incorrect ballots that failed to list the Third District County Commissioner race to a segment of voters, which totaled more than the margin of victory. Among other grounds, the opponent contested the election pursuant to N.J.S.A. 19:29-1(e), which permits a challenge "[w]hen illegal votes have been received, or legal votes rejected at the polls sufficient to change the result . . . ." Appellant argued the court could not overturn the election because pursuant to N.J.S.A. 19:63-26, "[n]o election shall be held to be invalid due to any irregularity or failure in the preparation or forwarding of any mail-in ballots prepared or forwarded pursuant to the provisions of [the Vote By Mail Law]." The Law Division Judge granted the relief sought by the opponent, revoked appellant's certificate of election, declared a vacancy, and scheduled a special election for the position.
On appeal, the court affirmed the Law Division's decision, and in a case of first impression held, N.J.S.A. 19:63-26 establishes a rebuttable presumption that limits the ability to invalidate an election due to any irregularity or failure in the preparation or forwarding of any mail-in ballots. However, a contestant may rebut the presumption by asserting one or more of the grounds under N.J.S.A. 19:29-1 as a basis to invalidate the election. An election shall be set aside if the trial judge concludes the contestant has proved a basis to do so under N.J.S.A. 19:29-1 by a preponderance of the evidence and the judge finds that no person was duly elected, as per N.J.S.A. 19:29-9.