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Atlantic County District 3 Freeholder candidates Thelma Witherspoon and Andrew Parker.

Atlantic judge stays do-over county commissioner election

By David Wildstein, January 27 2021 3:06 pm

A do-over election for Atlantic County Commissioner initially set for April 20 has been stayed pending an appeal by Democratic candidate Thelma Witherspoon.

Superior Court Judge Joseph Marczyk had voided the results of the November 2020 election after County Clerk Ed McGettigan mailed incorrect ballots to 554 voters in a race where Witherspoon defeated Republican Andrew Parker by 286 votes in November.

Republicans had argued that the election should be run again.

The election could still occur in April, if the appellate court moves quickly enough to give election officials time to print and mail ballots, but the timing appears extraordinarily close.

Democrats appointed Witherspoon to fill the vacant seat until an April 20 special election could be held, but the Republican-controlled County Commissioner Board hasn’t recognized Witherspoon’s appointment.

Democrats, citing a precedent established in over a contested election for a fourth legislative district seat now held by Assemblywoman Gabriela Mosquera (D-Blackwood), have asked a judge to order Witherspoon to be sworn in.

In 2011, Mosquera faced Republican Shelley Lovett for the seat. The contest wasn’t close. Mosquera defeated her opponent by 6,355 votes but saw her election challenged on grounds that she fell short 45 days short of the one-year residency requirement needed to run for Assembly.

The New Jersey Supreme Court stopped her from taking the seat, but it also ordered the party that previously held the seat could keep it until a special election could be held. In this case, that meant Democrats because Mosquera, by winning the election, was considered the incumbent regardless of the fact that she was never sworn in.

Democratic county committee members appointed her to the seat in February 2012. By that point, Mosquera met the one-year residency requirement.

There was a similar case in the seventh legislative district 14 years earlier. There, Republican Ken Faulkner finished 67 votes behind Democrat Jack Conners, but the matter was a complicated after Republicans discovered a voting machine in Willingboro failed to count 160 votes.

Superior Court Judge Harold Wells ruled, without actually knowing, that Faulkner could not have picked up enough votes in heavily Democratic Willingboro to put him ahead of Conners.

An appellate panel disagreed, ordered Conners removed from his seat and scheduled a special election, allowing Republicans, who had previously held the seat, to appoint an interim legislator.

The Democrats suit doesn’t cite the latter precedent, though it argues the former should apply because the rules for filling vacancies on a County Commissioner Board are near identical to those for filling one in the legislature.

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