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Thelma Witherspoon. (Photo: Thelma Witherspoon).

Atlantic Democrats go to court to get Witherspoon sworn in

By Nikita Biryukov, January 14 2021 8:13 pm

The Atlantic County Democratic Committee filed a brief seeking to force the Atlantic County Board of Commissioners to acknowledge Thelma Witherspoon’s appointment to fill the county’s third-district seat.

Witherspoon defeated Republican Andrew Parker by 286 votes in November, but a judge invalidated her certificate of election, ruling the true result of the election was unknowable because County Clerk Ed McGettigan mailed incorrect ballots to 554 voters. Witherspoon’s party is appealing the decision.

Democrats on Monday 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. Roger Steedle, its legislative counsel, earlier this week told the Press of Atlantic City he was reviewing whether the appointment was proper.

The Democrats suit cites precedent established in over a contested election for a fourth legislative district seat now held by Assemblywoman Gabriela Mosquera (D-Blackwood).

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.

“When our Supreme Court speaks, obedience to its pronouncement is not optional,” the filing said. “Here, the Supreme Court considered a nearly identical matter and determined that when a successful election contest prevents the apparent winner from taking office, the former winner is considered the ‘incumbent,’ the office is ‘vacant,’ and that incumbent’s political party is entitled to appoint an interim officeholder pending a special election.”

Former State Sen. Colin Bell is representing Witherspoon and the Atlantic County Democrats.

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