KMC Partner Matthew C. Moench and Associate Alyssa Duffy Zara successfully defended a candidate in the February 15, 2025, election for Commissioner of Toms River Fire District No. 1. In a published opinion, the Appellate Division reversed the trial court’s decision and remanded the matter for entry of an order directing a run-off election to fill the remaining open Commissioner seat.
Following the certification of the initial February 15th election results, the Petitioner and Respondent were tied for the final Commissioner seat. However, the subsequent discovery of a write-in ballot listing only the Respondent’s last name shifted the result to a one-vote margin in favor of the Respondent, ultimately costing the Petitioner the seat.
The Petitioner challenged that outcome, arguing that the write-in vote should have been void under N.J.S.A. 19:49-5 and In re Ocean County Com’r of Registration for a Recheck of the Voting Machines, 379 N.J. Super. 461 (App. Div. 2005), which prohibits counting write-in votes for candidates whose names already appear on the ballot. The Petitioner also contested a mail-in ballot with a blank certificate and three late-received ballots, which the Respondent had argued should have been counted.
In a significant victory for KMC, the Appellate Division reversed the trial court, holding that the plain language of N.J.S.A. 19:49-5 is unambiguous and that In re Ocean County remains binding precedent. The Court reiterated that write-in votes for candidates already listed on the ballot are invalid. It reasoned that a reasonable voter would understand to select a candidate by marking the designated space next to the candidate’s printed name, rather than writing in the candidate’s name elsewhere on the ballot.
The Court also addressed, for the first time, the scope of the Ballot Cure Act under N.J.S.A. 19:63-17. It held that voters may only cure a mail-in ballot if the signature is missing, not when the inner envelope is left completely blank. As a result, the ballot with the blank certificate was properly rejected.
Finally, the Court enforced the statutory deadline in N.J.S.A. 19:63-22, concluding that mail-in ballots received after the deadline could not be counted.
The Court’s decision provides important clarification for future election matters involving mail-in ballots and write-in votes. The matter has been remanded for the entry of an order directing a run-off election to determine the final Commissioner seat in Toms River Fire District No. 1.
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