CITY OF PERTH AMBOY, ETC. VS. ELAINE M. FLYNN, ETC. (L-7323-19, MIDDLESEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0926-19T4
CITY OF PERTH AMBOY,
a Municipal Corporation of
the State of New Jersey,
Plaintiff-Appellant,
v.
ELAINE M. FLYNN,
Middlesex County Clerk,
Defendant-Respondent.
_________________________
Submitted May 20, 2020 – Decided June 8, 2020
Before Judges Koblitz, Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-7323-19.
King, Moench, Herniak & Mehta, LLP, attorneys for
appellant (Peter Joseph King, on the briefs).
Thomas F. Kelso, Middlesex County Counsel, attorney
for respondent (Michael Scott Williams, Deputy
County Counsel, on the brief).
PER CURIAM
Plaintiff the City of Perth Amboy appeals from an October 30, 2019 order
dismissing its complaint alleging defendant the Middlesex County Clerk fail ed
to print a public question in Spanish on the City's November 2019 mail-in
election ballot in the same format as the sample and general election ballots in
violation of election law. We affirm.
The dispute arises from the City Council's passage of an ordinance
requiring run-off elections if a candidate for office in the city fails to garner
more than fifty percent of the votes. The mayor vetoed the ordinance and the
Council overrode the veto and passed a resolution to place the issue on the
November 5, 2019 general election ballot as a public question for voter approval.
The Clerk sent out the mail-in ballots prior to the election. According to
the City, it began receiving complaints that the mail-in ballot moved the text of
the public question and ballot instructions from the face of the ballot, and instead
printed the information in English, Spanish and Gujarati on a separate page of
the ballot. The City alleged this format differed from the sample voting machine
ballot, which included the translations and explanation of the public question on
the ballot face.
The City filed a four-count complaint and order to show cause to
invalidate the results of the 2019 election regarding the public question, and to
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place the question on the November 2020 election ballot. It alleged the mail-in
ballot violated: N.J.S.A. 40:45-21(b) because the question only appeared in
English on the face of the mail-in ballot; N.J.S.A. 19:14-22 because the
instructions were not printed in Spanish and Gujarati on the face of the ballot as
it appeared on the sample ballot; N.J.S.A. 19:63-7 because the mail-in ballot
was not as nearly as possible a facsimile of the election ballot; and N.J.S.A.
19:3-6, 19:14-2 and 19:63-14 because the form and contents of the ballot were
not properly printed.
Following oral argument, the motion judge issued a written decision
denying the order to show cause and dismissed the complaint with prejudice.
The judge found the mail-in ballot was "'as nearly as possible [a] facsimile[] of
the election ballot'" in accordance with N.J.S.A. 19:63-7, and differed only due
to physical space constraints uniquely associated with printing the mail-in
ballot. The judge rejected the City's reliance on N.J.S.A. 40:52-21(b), 19:3-6
and 19:14-2, as "without merit" because the statutes did not apply to mail-in
ballots. The judge concluded the mail-in ballot complied with these statutory
provisions because
[o]n the first side of the mail-in ballot, there are clearly
instructions in English, Spanish, and Gujarati that
indicate that there is more information to be found in
the enclosed sheet. While the "Public Question to be
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Voted Upon" section at the bottom right of the mail-in
ballot only contains language in English, the directions
that "Instructions on enclosed sheet" in the three
languages is sufficient to satisfy N.J.S.A. 19:14-21 and
prevent disenfranchisement of Hispanic or Latino
voters.
The City repeats the arguments it raised before the trial judge. Because
those arguments present a question of statutory interpretation , our review is de
novo. Correa v. Grossi, 458 N.J. Super. 571, 577 (App. Div. 2019).
N.J.S.A. 19:63-7 states: "The mail-in ballots shall be printed on paper of
a different color from that used for any primary or general election ballot, but in
all other respects, shall be as nearly as possible facsimiles of the election ballot
to be voted at the election." The county clerk must include with each mail-in
ballot printed direction for the preparation and transmission of the ballots.
N.J.S.A. 19:63-12.
Judicial and executive responsibilities in election
matters stand, as it were, in inverse proportion to one
another. See Quaremba v. Allan, 67 N.J. 1 (1975). Our
primary concern is to assure that the ballot not be
confusing or deceptive. Young v. Byrne, 144 N.J.
Super. 10, 19 (Law Div. 1976). Therefore, unless the
interpretive statement is misleading or biased, it should
not be disturbed by the courts. Cf. Quaremba v. Allan,
67 N.J. at 1; Farrington v. Falcey, 96 N.J. Super. 409(App. Div. 1967); Millman v. Kelly, 171 N.J. Super.
589 (Law Div. 1979); Edelstein v. Ferrell, 120 N.J.
Super. 583 (Law Div. 1972) (all recognizing the broad
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discretion to be accorded election officials in
performing their duties).
[Gormley v. Lan, 88 N.J. 26, 46 (1981) (Handler, J.
dissenting).]
Here, the mail-in ballot was printed with the names of all the candidates
and positions, and clearly demarcated a place to vote on the public question.
Further, the ballot stated—in English, Spanish, and Gujarati—that the
instructions and public question explanation were included on a separate page.
The separate page, then set forth the public question and an explanation of it in
separate sections in each language as it appeared on the voting machine ballots.
The only difference between the mail-in ballots and the voting machine ballots
is that all the information did not fit on one page for the mail-in ballots. We are
satisfied the mail-in ballots were as nearly as possible facsimiles of the voting
machine ballots, complied with N.J.S.A. 19:63-7, and were not misleading.
We also reject the City's argument that voters were disenfranchised
because the public question was not printed on the face of the mail-in ballot.
The differences in the ballots did not affect the integrity of the electoral process.
See In re Application of Langbaum, 201 N.J. Super 484, 490 (App. Div. 1985).
On the contrary, the Clerk asserts that reformatting the mail-in ballot to include
the public question and the translations on the face of the mail-in ballot would
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render the mail-in ballot illegible. Such a result would indeed affect the electoral
process and lead to disenfranchisement.
We disagree that N.J.S.A. 19:14-21 and 19:14-22 apply to the mail-in
ballots. N.J.S.A. 19:14-21 states:
The county clerk shall cause samples of the official
general election ballot to be printed in English, but for
each election district within the county in which the
primary language of 10% or more of the registered
voters is Spanish, shall cause samples of the official
general election ballot to be printed bilingually in
English and Spanish.
N.J.S.A. 19:14-22 states:
The official general election sample ballots shall be as
nearly as possible facsimiles of the official general
election ballot to be voted at such election . . . . Such
sample ballots shall be printed on paper different in
color from the official general election ballot, and have
the following words printed in large type at the top:
"This ballot cannot be voted. It is a sample copy of the
official general election ballot used on election day."
The City contends that because the sample ballot must be printed in
Spanish and English, and because the sample ballot and mail-in ballots must be
as near as possible to the official general election ballot, these provisions also
apply to mail-in ballots. The City cites our decision in Correa, in which we held
that where N.J.S.A. 19:23-22.4 requires a sample primary ballot be printed in
Spanish and English, the official primary ballots, including the mail-in ballots
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also had to be printed in both languages. 458 N.J. Super. at 575-76. We
reasoned "it makes no sense to provide bilingual sample ballots because voters
are not fluent in English, but to expect those same voters to navigate an official
balloting process that is English-only." Id. at 582.
The City's reliance on Correa is misplaced because here the mail-in ballot
and the official ballot were both printed in English, Spanish and Gujarati. The
information on the accompanying page was exactly as it appeared on the official
ballot. Furthermore, N.J.S.A. 19:14-21 and 19:14-22 apply to sample ballots
only. See N.J.S.A. 19:14-1 to -20.
The City also argues the failure to place the public question on the face of
the ballot violated N.J.S.A. 40:52-21(b), 19:3-6 and 19:14-2. N.J.S.A. 40:45-
21(b) states:
Upon adoption by the governing body of an ordinance
conforming with the provisions of this section, the
municipal clerk shall provide for the submission of the
question at the next general election or regular
municipal election occurring in the municipality not
less than 60 days after the date of the adoption of the
ordinance.
N.J.S.A. 19:3-6 states:
Any public question voted upon at an election shall be
presented in simple language that can be easily
understood by the voter. The printed phrasing of said
question on the ballots shall clearly set forth the true
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purpose of the matter being voted upon. . . . In event
that in any statute the public question to be voted upon
is so stated as not clearly to set forth the true purpose
of the matter being voted upon and no provision is made
in said statute for presenting the same in simple
language or printing upon the ballots a brief statement
interpreting the same, there may be added on the ballots
to be used in voting upon the question, a brief statement
interpreting the same and setting forth the true purpose
of the matter being voted upon in addition to the
statement of the public question required by the statute
itself.
And N.J.S.A. 19:14-2 states: "[A]ny public question which is to be submitted to
the people of the . . . municipality at the general election, shall be printed in a
separate space at the foot of the ballot with appropriate instructions to the voter."
As noted, the mail-in ballot contained an instruction in each language
referring voters to an accompanying sheet which contained the public question
and an explanation of it. None of the statutory provisions the City relied upon
require the placement of the explanatory statements and translations of the
public question on the face of the ballot, nor do they prohibit placing it on an
accompanying document. Moreover, as the trial judge noted, these provisions
apply to the official general election ballot, not mail-in ballots whose formatting
is governed by N.J.S.A. 19:63-1 to -30.
Finally, the City argues the mail-in ballots must be rejected because they
did not contain the entire public question. N.J.S.A. 19:57-27(a) requires that a
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mail-in ballot "shall be rejected or declared invalid because it does not contain
. . . all of the public questions to be voted for or upon in the election district in
the election which it is to be counted . . . ." However, "[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 . . . ." N.J.S.A. 19:63-
26.
The record demonstrates the mail-in ballot contained the entirety of the
text of the public question and the instructions explaining the public question to
voters. This argument lacks sufficient merit to warrant further discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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