Dems file suit to overturn Nov. 2 voting 
 
SANDY STUART, The Bernardsville News   Staff Writer 12/22/2004 
 
BEDMINSTER TWP ? Claiming improper voting procedures may have affected the outcome of the Nov. 2 Township Committee election, the Democratic Party is asking the state Superior Court to overturn the election.

In legal papers filed last Thursday, Dec. 15, Democratic candidate Allen Mass and the Democratic Municipal Committee asked the court to nullify the election results, which certify Republican Kurt Joerger as the winner by four votes.

The Democrats requested that a new election be held or, alternatively, that Mass be declared the winner instead of Joerger.

?Based on our rough calculations, there?s at least an eight-vote swing potential, which could change the outcome of the election,? explained Peg Schaffer, the township Democratic chairwoman. ?In that case, I think the court has to declare the election null and void and declare a new one.?

The lawsuit, filed in Somerville by attorney Stephen Edelstein, lists 13 grounds for contesting the election results. Among the allegations are that some legitimate voters were not permitted to cast ballots, some unregistered residents were allowed to vote, and that improper election procedures could have led to vote tampering.

The legal challenge asks the court to act on an expedited basis, within 15 to 30 days. As of this week, a hearing had not been scheduled.

Schaffer said she doesn?t think the court hearing will be held until after Joerger?s swearing-in ceremony. Joerger, who was appointed to the governing body in September, is to be sworn-in to the elected term at the governing body?s annual reorganization meeting on Monday, Jan. 3.

Mass and Joerger were among five candidates seeking two, three-year terms on the governing body.

As of election night, Republican Don E. Cross was the only undisputed winner based on voting machine totals and absentee ballots. A subsequent counting of provisional ballots showed Joerger to be the other winner by a one-vote margin.

The Democrats requested a recount, but it didn?t help their cause. Joerger?s lead over Mass increased to four votes after absentee and provisional votes were hand-counted by Somerset County election officials.

Following the recount, the certified results were: Cross, 2,172 votes; Joerger, 1,797; Mass, 1,793; Democrat Zaheer Jan, 1,782; and write-in candidate Sally Rubin, 615.

?Unfortunate?

The legal challenge names Joerger, County Clerk Brett Radi and the county Board of Elections as defendants.

Joerger called the Democrats? decision ?unfortunate,? saying he believes it would be better for the township if Mass would focus his energy on running again in 2005 instead of trying to overturn the election.

?We?ve had the original election and we?ve gone through the recount,? he said. ?I think that in a township like this, it?s unfortunate that we?re going down this route.?

Joerger said he and his lawyer, Mark Sheridan, will fight the election challenge, but he believes the money would have been better spent on charity.

?I?d rather spend the money where it?s needed,? Joerger said. ?It?s already cost me $10,000 in legal fees, and I?m paying it myself. I don?t want the Republican Party to pay anything, because they already donated money for the candidates to run.?

According to the legal papers, there are 13 separate grounds for nullifying the election results.

Over-Votes Found

First, the suit said, two ?over-votes? were discovered in Election District 3, meaning two residents voted twice. It claims that although 295 tickets, or ?voting authorities,? were issued, the machine registered 297 ballots cast.

Second, the papers claim, three residents who were allowed to vote by provisional ballot under court order were not actually registered voters. Provisional ballots are used when there is a question about a voter?s residency or registration status. Such votes can be validated or discounted after the election.

Third, the suit said, an irregularity with one vote cast in District 5 was discovered. The irregularity consisted of inconsistencies between the voting authority, the ?stub? to which it was originally attached, and the poll book in which voters? signatures are logged.

Fourth, according to the challenge, bags used to carry provisional ballots from the polling places to Somerville were not properly sealed to prevent tampering. Further, it adds, some of the blank provisional ballots placed in the bag before Election Day were not accounted for afterward.

Fifth, the suit said, there is a question about the propriety of an absentee ballot sent from London and mistakenly mixed with federal overseas ballots. County election officials accepted the ballot as valid, over the objections of Democrats.

Mismarked Ballot

Sixth, the Democrats claim, one mismarked absentee ballot was counted for Joerger, even though the oval directly to the right of Joerger?s name was not shaded in.

Seventh, a poll book was not returned to the county election board after Election Day, as required. The suit said a township police officer had to drive to Mahwah on Nov. 5 to retrieve the poll book from the election worker?s car.

Eighth, according to the legal papers, poll workers didn?t permit certain voters to cast machine ballots, even though they presented judge?s orders allowing them to vote. Instead, they were told to cast provisional ballots, which were later rejected by the election board because the judicial orders weren?t attached.

Ninth, the papers claimed, a Republican observer in District 6 alleged that one of the judicially ordered ballots was cast by an individual who did not reside in Bedminster.

Tenth, according to the suit, bags containing provisional ballots were transported by police officers, not election workers as required by law.

Eleventh, the suit said, a legitimate voter who lives in the Timberbrooke townhouse complex had his provisional vote declared invalid, even though his vote ?does appear to be legal.?

Twelfth, the papers claimed, two voters from the same household were treated differently when requesting provisional ballots because they had recently moved from Bernardsville to Bedminster. The man was allowed to vote, the suit said, while the woman wasn?t.

Thirteenth, said the legal papers, the election board failed to keep a phone log on Election Day, thus making it ?virtually impossible to determine whether any voters were improperly denied their vote by virtue of the advice of the board.?

In sum, the suit said, ?the challenged ballots and other allegations are sufficient in number to alter the result of the election.?

Schaffer said that, in light of the election irregularities, she believes it is only fair that the results be nullified.

?Our concern is that the integrity of the ballot box be preserved and every vote that should be counted is counted, and every vote that should not be counted be discounted,? she said.

?If we lose after that, we?ll come back next year,? Schaffer added. ?If we win, we?ll be happy at Allen?s swearing-in.?