The courts would be making new law if they approve a recount of ballots in the Ocean Township school board election where a human error by the voting machine manufacturer, Election Services and Software (ES&S), led to the double counting of some votes from the last election, a lawyer for one of the candidates said in a court filing.
Steve Clayton was certified as the winner of the November 2022 general election by 20 votes and took office early this month. Now it appears that the incumbent he unseated, Jeffrey Weinstein, might have won by just one vote.
His attorney, Scott Salmon, said that Clayton is not taking any position on whether a recount and recheck should be ordered, but he told Superior Court Judge David Bauman that state election law doesn’t permit the Monmouth County Board of Elections to initiate the request for a recount
“We understand that this is an unprecedented situation. However, to grant the request for a recount and recheck would seem to require the Court to ignore the clear statutory language contained in Title 19 and, essentially, make new law governing this specific scenario,” Salmon said. “While Mr. Clayton does not specifically oppose the request given the public interest in transparency and confidence in election results, we want to make it clear that the petitioners’ standing to seek a recount at this point, as well as potentially annul a certificate of election, is on shaky legal ground.”
According to Salmon, recounts can only be requested by a candidate or a group of ten voter from that election; rechecks, Salmon said, must originate from a defeated candidate.
“Obviously, this matter appears to be a unique situation. However, that does not mean this Court is entitled to effectively write new law,” said Salmon. “It is well-established that the court’s role in interpreting a statute ‘is to determine and effectuate the Legislature’s intent.’”
The statute requires recount requests to be filed within 17 days of the election, and a contest but be initiated no later than 32 days after Election Day, Salmon argues.
“Presumably, if the Legislature wanted to create a discovery rule for recounts, as exists for election contests, they would have done so,” stated Salmon. “That the Legislature has not been done, and the plain language of the statute indicates that a recount cannot be ordered more than three months after an election, indicates that the Legislature did not intend for a discovery rule to be invoked for recounts.”
Attorney General Matt Platkin announced yesterday that his office would investigate how fail-safe measures in the tabulation of votes on ES&S machines failed.
ES&S, the largest U.S. manufacturer of voting machines, admitted last week that a fail-safe system failed after a “human procedural error” during a July software installation missed a step set up to prevent flash drives that transfers election results from voting machines to tabulation systems from being loaded more than once.
“Because the database was not optimized, the user was not notified when the USB flash media were loaded twice into the results reporting module,” Katina Granger, a spokeswoman for ES&S, said last week. “USB flash media were loaded twice during post-election results compilation.”
Clayton doesn’t specifically oppose the recount request and has voiced support in the public interest in transparency and confidence in election results.
Bauman has scheduled a hearing on the recount for next week.