More than a year after an election for South Toms River Borough Council ended in a tie, a state appellate court today ordered a special election to fill a seat that’s been vacant since April.
The 2020 election initially resulted in a 772 to 772 tie between Democrat George Rutzler and incumbent Sandford Ross, a Republican.
But a challenge by Democrats led to the Ocean County Board of Elections invalidating ballots cast in the vote-by-mail election by two elderly voters who apparently misunderstood the instructions and signed both the outer ballot envelope and the actual ballot.
That led to Rutzler being certified as the winner and sworn into office.
In April, Superior Court Judge Arnold Goldman removed Rutzler from office and ordered a June special election.
Matthew Moench, Ross’s attorney, said those votes should be reinstated, arguing the statute, which bars any markings that can be used to distinguish a ballot, was meant to preserve ballot secrecy. Because the voters made the markings themselves, he said, they shouldn’t be disqualified.
Identified in court records as F.D., a man in his 90s and a World War II veteran, and D.C., a man in his 80s who assists F.D. and have lived together since 2004, “both men testified they had not voted by mail before the November 2020 general election.”
“Both also testified that they signed their ballots because they believed they needed to do so for the ballots to be counted,” the appellate court ruling stated.
Goldman had found the testimony of both men to be “credible” and that their signatures on the ballot were not for any “nefarious” purposes.
By a 3-1 vote, the Ocean County Board of Elections challenged Goldman’s order. Frank Holman, the GOP county chairman, voted against the appeal, but the two Democrats – including Matthew Sage, whose job as South Toms River municipal attorney was on the line – were joined by Republican Israel Schenkolewski, a Lakewood rabbi who has served on the board for decades.
In their appeal, the deputy state attorney general Dominic Giova argued that Goldman erred by reinstating the ballots cast by F.D. and D.C., saying the signed ballots ought to have nullified them.
The appellate panel – Judges Robert Gilson, Greta Gooden Brown and Katie Gummer – who heard the case in October and then released their opinion today, disagreed with Giova.
“We construe the statute to direct that ballots with markings or signatures are to be counted, ‘unless’ the Board or a court finds the voter ‘intended’ to mark or sign the ballot ‘to identify or distinguish’ the ballot,” the judges wrote. “The factual question is what the two voters intended by signing their ballot.”
“We interpret that statute to create a presumption in favor of counting the ballot unless a fact finder determines that the marking or signature on the ballot was intended to identify or distinguish the ballot.,” the judges said. The trial court’s findings concerning the intent of F.D. and D.C. are supported by credible evidence in the record.”
It’s not clear when the new election will be held – or if the attorney general will appeal the ruling to the New Jersey Supreme Court. Typically, it takes until March or April for election officials to gear up for a special election.
In the case of Toms River, this will be a runoff between Rutzler and Ross with no opportunity for new candidates to join the race.
Edward F. Murray, a Republican, was the top vote-getter in the 2020 election and was re-elected.
As the sixth seat on the borough council remained vacant, Republicans easily picked up one seats in last month’s general election. Democratic councilman Robert Taylor finished fourth with 298 votes, and his running mate, Robert Hailey received 303 votes. Councilman Sam Fennell (483) was re-elected and Republican Oscar Cradle (502) will take his seat in January.
That will give Republicans five council seats.