Salmon: New Jersey’s Recount Process Has Become a Pay-to-Play Barrier to Democracy

OPINION

I used to charge clients just $500 to handle a recount. File a simple petition, pay the appropriate deposit, and show up to observe at the Board of Elections. If the election was close, sometimes the deposit would be waived. The process took a matter of days. It was fast, cheap, and accessible. That was how the Legislature designed it in 1880, and that is how it worked for well over a century.

That $500 recount no longer exists. Today, a candidate who loses an election by three votes must retain counsel, brief the legal issues, sometimes attend multiple conferences, prepare for an adversarial evidentiary hearing, and potentially engage expert witnesses, all within 72 hours, without any right to discovery, against a standard never authorized by statute. It can cost thousands of dollars. For candidates in small local races who raised nothing and spent nothing (or almost nothing) on their campaigns, it isn’t a hurdle: it’s a wall.

This transformation was not enacted by the Legislature, but by a single decision from the Appellate Division. Democracy in New Jersey demands that it be undone.

What the Legislature Actually Built

New Jersey’s recount statute has been on the books since 1880. For 140 years, the proceeding was administrative, not judicial. The substantive threshold evolved: before 1953, a candidate had to show the error actually changed the result. In 1953, the Legislature removed that requirement. Since then, a reason to believe a counting error occurred is enough. But across both eras, the process was the same: petition, post a deposit, get a recount. That was it. The judge’s role was ministerial, and courts said so repeatedly. Mathis v. Voorhees, 81 N.J.L. 26, 32 (1911). In 1952, the Appellate Division confirmed that the judge acts “solely in the capacity of a legislative agent exercising a delegated authority.” Petition for Recheck of Voting Machines & Irregular Ballots, 19 N.J. Super. 187, 189-90 (App. Div. 1952). Judges had “no right to take evidence,” or do anything but “merely… count the ballots.” State ex rel. Ruh v. Frambach, 47 N.J.L. 85, 87 (1885). While judges still wore the robe and held the gavel, they were not actually acting as a judge. And the message was consistent across a century of decisions: count the ballots, don’t hold a trial.

That 1953 amendment was deliberate and significant. The Legislature removed the requirement that a candidate show the error actually changed the election result. Candidates needed only a reason to believe a counting error occurred. The Legislature’s chosen filter against frivolous petitions was the deposit mechanism, not a judge. If the recount revealed a significant error, the deposit came back. If not, the candidate paid. That is still the law. The statute has not materially changed since.

Fernandez: Bad Facts Made Worse Law

In re Fernandez, 468 N.J. Super. 377 (App. Div. 2021), arose from a 2020 COVID-19 election. New Jersey’s first all vote-by-mail election, a county-wide commissioner race, 132,000 ballots, a state-mandated post-election audit already completed, statistical error-rate data in hand, and partial recount data on the record. It was, to put it plainly, a case that almost certainly cannot ever happen again. The factual record available to the Fernandez Court will not exist in any ordinary recount petition filed by any ordinary candidate in any ordinary election otherwise.

From those unique facts, the Fernandez Court extracted a universal rule: there is no automatic right to a recount, the Appellate Division held. Candidates must now: (1) present “sufficient competent, credible evidence” that a counting error occurred, and (2) show that the error “has the capacity to affect the outcome of the election.”

Neither requirement is found in the statute, N.J.S.A. 19:28-1. The first has no support in 140 years of New Jersey recount law. Just a reason to believe an error occurred was always enough. You didn’t need to even say what it was, and you certainly didn’t need to prove it. The second was deliberately removed by the Legislature in 1953. The Fernandez Court reimposed a threshold the Legislature expressly abolished and called it “statutory interpretation.” It was not. Courts “may not rewrite a plainly-written enactment of the Legislature.” In re Proposed Constr. of Compress Station (CS327), 258 N.J. 312, 325 (2024). Fernandez rewrote it anyway.

Worse still, Fernandez created something more insidious than a new rule. It created no rule at all, just a standard vague enough that every judge applies it differently.

The Same Standard, Incompatible Results

Here is what post-Fernandez New Jersey election law actually looks like in practice:

In 2021, a Morris County court granted a recount where the margin was one vote.

In 2022, a Somerset County judge denied a recount with a 0.30% margin in Hillsborough, then granted a functionally identical one in Raritan that had a 0.28% margin. Same judge. Same election cycle. Different outcomes.

In 2023, courts granted recounts in Oakland (56-vote margin) and Bogota (7-vote margin), while denying a recount petition in Caldwell (4-vote margin) despite evidence of documented counting anomalies.

In 2025, an Ocean County court granted a recount in Ship Bottom with a 2.6% margin and comparable evidence to one in Union County in Roselle (with only a 0.01% margin, just three votes) in the same week. Judges are demanding briefing and hearings on whether to grant recounts in tied elections. It’s a tied election, what else do you need to know before you make sure the totals are accurate?

No principle explains these results. No standard exists that a candidate can rely on or a lawyer can advise a client to meet. What exists instead is a lottery, and the price of a ticket has gone from $500 to thousands of dollars.

For small campaigns—the school board candidate, the fire district challenger, the ward council hopeful who knocked doors and spent nothing—that price is prohibitive. The right to a recount now belongs, as a practical matter, to candidates who can afford to litigate for it. That is a pay-to-play system, not a recount system.

The Constitutional Problem Nobody Wants to Name

The Supreme Court said it plainly in Bush v. Gore: “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” 531 U.S. 98, 104-05 (2000). When one judge grants a recount at 0.28% and denies it at 0.30%, when the determining factor is not the margin or the evidence but which courtroom you land in and whether you can afford to file a brief in 72 hours—that is arbitrary and disparate treatment. The Equal Protection problem is not theoretical. It is documented, recurring, and getting worse.

The Fix Is Simple

I am proposing revisions to N.J.S.A. 19:28-1 that restores the straightforward, accessible right intended by the Legislature, before the courts turned it into a gauntlet.

My proposal is simple: any candidate or group of ten voters is automatically entitled to a recount upon filing a timely petition. If the margin is less than 0.5% of total votes cast—or fewer than 10 votes in smaller elections—the recount is automatic and free. Above those thresholds, the recount still proceeds automatically, but the petitioner posts a deposit based on the number of districts to be recounted, which is refundable if the outcome changes. Multi-county petitions go to Mercer County, same as any other multi-county litigation, eliminating parallel filings and forum shopping.

No evidentiary hearings. No “sufficient competent credible evidence” standard. No judicial weighing of whether the error could affect the outcome. The judge’s job returns to what it has always been: confirm the petition is timely, set the deposit if appropriate, and direct the Board of Elections to count the ballots.

The deposit mechanism, updated from its 1953 level for the first time in over 70 years, handles frivolous petitions exactly as the Legislature intended. Right about the error? You get your money back. Wrong? You pay for the recount.

Restore What Was There

The Legislature created the recount right in 1880 for one purpose: making sure close elections reflect who voters actually chose. For 140 years, the process was fast, cheap, and predictable. Any candidate with a legitimate concern could get one without going through the wringer.

Fernandez replaced that system with an adversarial judicial proceeding the statute never authorized, the Legislature never intended, and the courts cannot administer consistently. The results speak for themselves through arbitrary outcomes, prohibitive costs, and a recount right that exists on paper but is practically unavailable to many candidates who need it most.

The Legislature’s task here is straightforward: codify the automatic recount standard. Remove the judge from the threshold question entirely so your rights are not dependent upon a subjective process. Democracy does not need a gatekeeping hearing to decide whether votes should be counted accurately, it simply needs a recount.

Scott Salmon is a shareholder with Jardim Meisner Salmon Sprague & Susser, P.C., where he is the chair of the Firm’s election law practice group. He has extensive experience in New Jersey recount and election contest proceedings.