Celeste Fernandez was one of four candidates in the November 3, 2020 election for two Commissioner at Large (CAL) positions in Atlantic County. Fernandez placed third, 381 votes behind John W. Risley, Jr. Fernandez filed a petition with the Law Division seeking a recount pursuant to N.J.S.A. 19:28-1.
The State had selected the Atlantic County CAL election as one that would be subject to an audit in which two percent of the ballots cast would be recounted. The audit reduced Risley's margin of victory over Fernandez by one vote. However, the State's audit indicated there were errors in the identification of overvotes (where the voter selects more than two candidates for the CAL position and no vote is counted) and undervotes (where the voter selects one or no candidate for the CAL position).
The trial court ordered an audit or recheck of two additional four percent of the votes, using the same procedures that the Board had used in the State-mandated audit. The combined results of the initial audit and court-ordered recheck indicated that 1,297 votes originally tallied as overvotes or undervotes had been recounted, and seventy-four votes were changed to recorded votes for candidates.
The court rejected Fernandez's contention that she was entitled to an automatic right to a recount pursuant to N.J.S.A. 19:28-1. We held that to obtain a recount pursuant to the statute, a candidate must present sufficient credible evidence to show there is reason to believe an error was made in the counting of the votes, and the court should order a recount if the claimed error could affect the outcome of the election.
Here, Fernandez presented sufficient evidence establishing that there is reason to believe an error was made in the counting of the votes for the CAL election, specifically the votes initially recorded as overvotes or undervotes. We therefore conclude the trial court mistakenly exercised its discretion by denying Fernandez's request for a machine re-scanning of all ballots cast in the CAL election, and a hand recount of all votes identified as overvotes or undervotes.