Still deciding if he will grant a controversial recount request in Monmouth County after a software failure caused votes in four municipalities to be double-counted, Superior Court Judge David Bauman aggressively interrogated Deputy Attorney General Dominic Giova on the legalities of new vote counts 85 days after the election.
Bauman questioned why Giova submitted a hearsay statement attributed to the vice president of Election Systems & Software (ES&S), Monmouth County’s election machine supplier, without obtaining a certification of the statement.
According to Giova, the programming error that caused the election tally mishap was acknowledged by an ES&S official to the Monmouth County Board of Elections chairman.
“That’s classic hearsay. And you’re offering that as a reason to believe in the court of law. If this were a trial and you offered that statement that admitted that statement into evidence, somebody would stand up and object on hearsay grounds. And that objection, hypothetically, would probably be sustained,” Bauman said. “It has to be competent and credibly competent.”
Bauman chastised Giova for not citing the legal authority of county election officials to seek a recount – something that the attorney general’s office had initially declined to do, and then being overruled by their client.
“I appreciate our colloquy on the record, but why wasn’t any of this submitted to the court in written submissions? I gave you every opportunity to do that,” the judge stated. “It’s frankly a somewhat novel question. It entails analysis under several principles of statutory interpretation and construction, doesn’t it?”
“ It does, Your Honor, yes,” Giova replied.
“You don’t cite a single case to support your proposition that your clients are candidates and must have standing to request a recount of votes,” Bauman said. “You’ve submitted no case law in support of your petition of authorizing and rechecking the machines because the statute clearly says only any defeated candidates with any specific time frame can make that request, and that wasn’t done here, and there was no authority that the court could even begin to analyze whether these provisions should be disregarded.”
At the start of the hearing, several local candidates told Bauman that they want a recount, although none of them entered any formal filings with the court.
“If I were to hypothetically grant the petition for a recount of votes in the recheck of the machines, how if, if at all, would that impede or interfere with the ongoing investigation commissioned by the attorney general into the very situation that we’re talking about here,” Bauman asked.
Bauman sounded incredulous when Giova said that he didn’t know anything about Matt Platkin’s probe beyond reading a press release.
“Nobody in your office has conferred with you about the attorney general’s decision to launch an independent investigation into the circumstances surrounding this error?” the judge inquired. “Nobody talked to you about that?”
Later, Giova said that his lack of information came from a wall to set up to obviate any apperarance of a conflict.
Asked why the ES&S official didn’t personally certify the facts that led to the miscount, Giova admitted that he didn’t reach out directly.
What Bauman must now weigh is whether he will liberally interpret a statute that he suggested was clearly written by the legislature setting a deadline for a candidate to seek a recount and if the Board of Elections and Superintendent of Elections have the authority to initiate that recount.
Giova said conceded that the deadline for a recount had passed, but noted that the request for a recount now came as a result of new information: the discovery of a human error by ES&S that caused the voting machines to produce incorrect election results.
“The most equitable way that they were able to come up with, which is a way that is open and transparent,” Giova said. “It preserves the rights of the candidates, and it ensures that the true will of the electorate will be heard.”
Both candidates for a seat on the Ocean Township Board of Education were present in the virtual court hearing today. Steve Clayton defeated incumbent Jeff Weinstein by 20 votes and was sworn in last month, but an informal tally that deletes the double counting shows Weinstein now ahead by just one vote.
Clayton took no position on the recount, but his attorney suggested that Monmouth election officials lacked the legal authority to seek a recount.
“ We want primarily wanted a public airing, a hearing of what had happened, what the issue was, because we truly do not do not understand the extent of it,” Salmon said.
Bauman asked if denting a recount “really advances the people’s interest or rights in ensuring that elections are done properly and counted properly.”
Salmon said it would, because losing candidates have the option of filing an election contest, an entirely different matter.
That’s something Bauman appeared to agree with.
“It’s interesting you bring the election contest section, and just to be clear, for the benefit of those who may be listening into this colloquy, election recounts are different than election contests. They are governed by two separate statutory provisions,” Bauman said.
Jason Sena, an attorney for the county clerk, also supported the recount.
“ We, as election officials are in a tough spot here because we have to come to court and ask for relief, to essentially do our jobs as election official now that the vendor, ES&S, publicly admitted (their mistake), the Court can take judicial notice of the fact that they’ve admitted there was a mistake made,” Sena said. “So what are the election officials to do? There are there are no facts that we have in our possession that if once examined in the appropriate manner, may lead to a change in the outcome of the race.”
But that caused Bauman to wonder what would happen if information about the integrity of voting machine software was discovered much later, like a year or two into an elected official’s term – something that could open the door to winners of 2020 and 2021 elections, if the attorney general’s probe of ES&S were to find other software irregularities in the past that could change the outcome of previously decided elections.
Bauman said he will issue his decision “in very short order.”