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A Superior Court judge on Monday revoked the election of Democrat Thelma Witherspoon as District 3 Atlantic County Commissioner and ordered a new election be held to fill the position because the county clerk sent 554 voters the wrong vote-by-mail ballots — affecting only the District 3 race.
Superior Court Judge Joseph Marczyk held a hearing Monday morning and issued the decision about 5 p.m.
It was important to the judge to make a decision quickly, as the Atlantic County Board of Commissioners holds it reorganization meeting at 4 p.m. Tuesday.
Now there will be an empty seat on the commission until after the new election.
“In short, there were sufficient legal votes rejected to change the results pursuant to (New Jersey law),” Marczyk wrote in explaining his decision.
Atlantic County Democratic Chairman Michael Suleiman said he has directed the attorneys to file an appeal.
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“We will not let the voters be disenfranchised, and let taxpayers spend up to $100,000 for a new election, just because the Republicans are unhappy about the voters’ choice,” Suleiman said.
Republicans celebrated the decision.
“This decision ... corrects (County Clerk Ed) McGettigan’s mistake,” said Atlantic County GOP Chairman Keith Davis. “We look forward to a fair contest in a special election where ballots are mailed correctly and everyone’s vote is counted.”
McGettigan is a Democrat.
Witherspoon, of Hamilton Township, defeated Republican Andrew Parker, of Egg Harbor Township, 15,034 to 14,748.
That’s a margin of just 286 votes, fewer than the number of people denied their right to vote in the race, the judge said.
Marczyk said 335 ballots without the District 3 county commissioner race were sent to voters who lived in District 3, and only seven of them were replaced with corrected ballots.
The mistake came to light right before the election, which didn’t give people much time to get replacement ballots.
So 328 voters effectively had their legal vote in the race rejected, he said.
District 3 covers most of Egg Harbor Township and some of Hamilton Township.
“My campaign for freeholder — now commissioner — has never stopped,” said Parker, a third-grade teacher at Pennsylvania Avenue School in Atlantic City, after the decision.
Witherspoon could not be reached for comment Monday, but Democratic Commissioner Ernest Coursey, of Atlantic City, said he spoke to her.
“She is upbeat, hurt and disappointed,” Coursey said, “but she is ready to fight on.”
All of the ballots with mistakes went to Hamilton Township voters. Some (335) did not include the District 3 race but should have. Others (219) included the race but shouldn’t have.
The clerk’s office blamed the mistake on bad data from the computerized State Voter Registration System.
The judge said the 219 that may have resulted in illegal votes would not be considered in his decision because Parker’s attorney did not provide enough information about them.
Marczyk also decided to bar testimony from an expert witness Witherspoon’s attorney wanted to admit, which used statistical analysis of voters in Hamilton Township to argue that Witherspoon would also have won had the correct ballots gone to voters, based in part on party registration there.
The judge agreed with the attorney for the Board of Elections, who said it was not appropriate to consider speculation about how people might have voted.
“We have a mess … a mess of an election,” said Parker’s attorney W. Timothy Howes during the hearing.
He said the mistakes made by the clerk were unprecedented in the state, not only because they happened, but they were not discovered or corrected in a timely manner.
Witherspoon’s attorneys argued in the hearing that, under a 2009 state law, mistakes in vote-by-mail ballots cannot be used to justify an election challenge or decertification.
“The statute says, ‘No election shall be held to be invalid due to any irregularity or failure in the preparation or forwarding of any mail-in ballots,” attorney Scott Salmon said.
The judge disagreed, saying the statute “was never intended to do away with the fundamental protections afforded (under New Jersey law) when there is fraud, corruption, an ineligible candidate or, as in this case currently before the court, the alleged improper counting of illegal votes and/or rejection of legal votes.”
