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

Witherspoon asks judge to reinstate county commission win after opponent fails to file reply brief

Democrat’s attorneys argue against state lawyers in bid to end election contest

By Nikita Biryukov, March 31 2021 10:35 am

Attorneys for Democratic Atlantic County Commissioner candidate Thelma Witherspoon asked an appellate panel to reverse a trial judge’s decision to nullify the results of the county’s District 3 commissioner race after Republican Andrew Parker missed the deadline to file a reply brief.

The case was spawned after Atlantic County Clerk Ed McGettigan sent incorrect ballots to 335 voters in the district and to 219 voters who live outside it. Because the 398 erroneous ballots returned exceeded Witherspoon’s 286-vote margin of victory, a Superior Court judge nullified the race and ordered it rerun.

Witherspoon’s attorneys in their latest filing, submitted Monday, argued the judge was wrong to accept an argument naming votes returned by District 3 residents who received erroneous ballots “legal votes rejected.”

None of the parties involved — at this point, they include the two candidates, the county elections board and the New Jersey Office of the Attorney General — have opposed the Democrat’s argument that those votes were never cast, not ones that were rejected.

With incorrect ballots sent to District 3 residents excluded, the Witherspoon’s margin of victory exceeds the number of incorrect ballots returned in the race.

“Andrew Parker is so eager to serve the residents of Atlantic County that he didn’t even bother to file a brief in the election contest he filed. Give me a break,” said Atlantic County Democratic Chairman Michael Suleiman. “Thelma Witherspoon won this race fair and square and we’re optimistic about our chance at the appellate division.”

The Democrat’s attorneys further argued in favor of allowing expert testimony from a statistician. Such testimony was denied in the initial case, but Witherspoon’s team argued they should be allowed because state law governing election contests says those proceedings should resemble other civil cases, only with a judge making decisions in lieu of a jury.

Attorney General Gurbir Grewal’s office, in an amicus brief filed in early March, argued against the use of expert testimony, citing court precedent that cautions against speculating about a voter’s intent when casting a ballot.

“No party here knows how the 335 voters who lacked the opportunity to vote in this race or the 219 voters who should not have had the opportunity to vote in this race would have or already have affected the outcome,” the state attorneys said in their brief.

The state also cautioned against expert witnesses, arguing that relying on them would amount to “replacing the will of the electorate with the speculative guesses of experts hired by candidates and replacing real votes with hypothetical ones.”

Witherspoon’s attorneys also charged the Attorney General’s office was breaking with its own stance on expert witnesses, citing another Atlantic County Commissioner race held last year.

In that case, state attorneys argued a state-mandated vote audit and a limited recount together accounting for about 6% of the votes cast in that race were enough to confirm a result.

“That means that the Attorney General is stating in one case that statistical analysis is appropriate while asserting here that statistical analysis is inappropriate in every case,” Witherspoon’s attorney said.

In separate arguments, Witherspoon charged the Attorney General’s office was misreading statute that says “no election shall be held invalid due to any irregularity or failure in the preparation or forwarding of any mail-in ballots.”

Essentially, the candidate claims mistakes by county clerks or the U.S. Postal Service in the preparation or handling of mail-in ballots aren’t cause to overturn an election.

The Attorney General’s office argued that statute must align with other parts of Title 19, the section of state law governing elections, which allows election contests when illegal votes were received or legal votes were rejected in numbers sufficient to change the result of the race.

The statute the Democrat’s attorneys cited, state lawyers said, was meant to cover “small typographical or technical errors” and stop such “inconsequential errors from overturning valid election results.”

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