ASSEMBLY, No. 455

STATE OF NEW JERSEY

210th LEGISLATURE

PRE-FILED FOR INTRODUCTION IN THE 2002 SESSION

Sponsored by:

Assemblyman ROBERT J. SMITH

District 4 (Camden and Gloucester)

SYNOPSIS

    Requires automatic recount of vote in certain elections.

CURRENT VERSION OF TEXT

    Introduced Pending Technical Review by Legislative Counsel.

An Act requiring an automatic recount of the vote in certain elections and amending and supplementing Title 19 of the Revised Statutes.

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

    1. R.S.19:52-6 is amended to read as follows:

    R.S.19:52-6. The district election officers shall, as soon as the count is completed and fully ascertained, as by this subtitle required, lock the counter compartment and it shall so remain for a period of 15 days, except it be opened by order of a judge of the Superior Court assigned to the county or the board of county canvassers or the board of State canvassers for a recheck ordered pursuant to section 5 of P.L.     , c.    (C.       )(now pending before the Legislature as this bill). Within such period and upon written request of any defeated candidate, or in the case where a public question is involved upon petition of any 10 qualified voters of a county or municipality using machines who voted in the election in question, the judge shall, at a cost of $2.00 per district to the candidate or petitioners, order the machines in question opened and the registering counters rechecked against the election officers' returns. Any candidate or petitioners requesting such recheck, shall deposit with the county clerk, the amount necessary for all the districts requested. The county clerk, if it appears that an error or errors have occurred as a result of which the election is changed or the difference between the negative and affirmative of any public question is altered so as to change the results of the election, shall upon the warrant of such judge of the Superior Court, pay to such candidate or petitioners the cost of such recheck. In the event it shall appear after such recheck that the results of the election remain unchanged, the county clerk shall, upon the warrant of such judge, pay the funds so deposited into the county treasury. Such recheck shall be made under the supervision of the county election officials and in co-operation with the parties at interest or their representatives. When irregular ballots of whatever description have been voted, the district election officers shall return all such ballots in a properly secured package indorsed "irregular ballots" and return and file such package with the municipal clerk at the same time the original statement of the results of the election made by them is filed. Such package shall be preserved for 6 months next succeeding such election, and it shall not be opened or its contents examined during that time except by the order of a judge of a court lawfully empowered to direct the same to be opened and examined. At the end of the 6 months, such packages may be opened and the ballots disposed of at the discretion of the official having charge thereof.

(cf: P.L.1955, c.260, s.1)

    2. Section 2 of P.L.1955, c.260 (C19:52-6.1) is amended to read as follows:

    2. Whenever a judge of the Superior Court assigned to a county enters an order for the recheck of any voting machines or the board of county canvassers or the board of State canvassers orders a recheck pursuant to section 5 of P.L. , c. (C. )(now pending before the Legislature as this bill), the county board of elections of such county shall conduct such recheck in co-operation with the county clerk, the commissioner of registration and in counties having a superintendent of election in co-operation with him, which recheck shall be commenced within 5 days of the entry of such order unless otherwise ordered by the judge and conducted in the following manner:

    (1) The county board shall ascertain from the defeated candidate or from the petitioners, as the case may be, which districts shall be rechecked and the order in which they shall be rechecked, and upon receiving such information shall conduct the recheck in conformity thereto. If more than one candidate or set of petitioners has requested a recheck and are unable to agree upon the order in which the districts are to be rechecked, such order shall be determined by the judge.

    (2) The superintendent of elections in counties having superintendents of election and the county board in all other counties shall remove the padded cover, remove the impounding seal, if any, and unlock the padlock on the metal cover and where necessary raise all voting machines which are to be rechecked before the recheck is actually commenced.

    (3) The superintendent of elections in counties having a superintendent of elections and the county board in all other counties shall then proceed to open the counter compartment of each voting machine as the same is rechecked, but in no event shall the counter compartment of more than 1 voting machine be opened at the same time unless it shall be agreed to do so by the county board of elections and a majority of the candidates whose nomination or election may be affected by the outcome of the recheck, and who are present or represented at the recheck, or in the case that the votes cast for or against a public question are to be rechecked then, by agreement between the county board of elections and a representative of the proponents and opponents of the public question.

    (4) The county board of elections shall then check the number of votes cast for each candidate, or in the event a public question is involved for or against such public question and announce the number of votes cast for each candidate named in the order or for or against a public question as found on the registering counters and record the same on tally sheets prepared for that purpose.

    (5) Whenever a recheck is to be held, the county clerk or the municipal clerk, as the case may be, shall, upon demand by the county board of elections or any candidate whose interests may be affected by the recheck, produce at the time and place of the recheck the official statements containing the results of the election as certified by the various district boards and filed with such officers. The county board of elections shall then recheck the registering counters on the machines with the official statements as returned by the various district boards.

    (6) After the recheck is completed the county board in co-operation with the county check or municipal clerk, as the case may be, shall make a comparison of the tally sheets of the county clerk or municipal clerk showing the results of his official canvass with the tally sheets prepared by the county board in making the recheck.

    (7) Whenever any discrepancies shall appear as the same are set forth on such tally sheets such discrepancies shall be noted and upon completion of the comparison a report and certification shall be filed with the court wherein the order for the recheck originated, which report shall set forth in full just what discrepancies have been found in the county clerk's or municipal clerk's official canvass.

    (8) Nothing in this chapter shall be construed to mean that a defeated candidate or in the case of a public question the petitioners cannot abandon the recheck at any time during the progress thereof and receive back the deposit made with the county clerk for the districts which remain unchecked.

    (9) In the event it should appear during the course of the recheck that there has been a sufficient change in the tally of votes cast which would affect the result of the election, any candidate who appears then to be defeated, or in the event of a public question the parties in interest whose interest may be affected adversely may, within 7 days, apply to a judge of the Superior Court assigned to the county and receive an order to continue the recheck in his behalf upon the same terms and conditions under which the original recheck was held.

(cf: P.L.1955, c.260, s.2)

    3. Section 8 of P.L.1973, c.82 (C.19:53A-8) is amended to read as follows:

    8. a. Prior to the start of the count of the ballots, each county board of elections shall have the automatic tabulating equipment tested to ascertain that it will accurately count the votes cast for all offices and on all measures. Public notice of the time and place of the test shall be given at least 48 hours prior thereto by publication once in three or more daily or weekly newspapers published in the county or jurisdiction where such equipment is used, if a newspaper is published therein, otherwise in a newspaper of general circulation therein; said newspapers shall be selected so as to give the widest possible notice to the voters of said county and one of said newspapers shall be the newspaper or one of the newspapers in which legal notices of the county are required to be published. The test shall be conducted by processing a preaudited group of ballot cards so punched as to record a predetermined number of valid votes for each candidate and on each measure, and shall include for each office one or more ballots which have votes in excess of the number allowed by law in order to test the ability of the automatic tabulating equipment to reject such votes. In such test a different number of valid votes shall be assigned to each candidate for an office, and for and against each measure. If any error is detected, the cause therefor shall be ascertained and corrected and an errorless count shall be made and certified to by the county board of elections before the count is started. The tabulating equipment shall pass the same test at the conclusion of the count before the election returns are approved as official. On completion of the count, the programs, test materials, and ballot cards arranged by districts shall be sealed and retained as provided for paper ballots.

    b. All proceedings at the counting center shall be under the direction of the county board of elections or persons designated by it; there shall always be two persons in charge who shall not be members of the same political party; and all proceedings shall be conducted under the observation of the public, but no persons except those authorized for the purpose shall touch any ballot card or return. All persons who are engaged in processing and counting of the ballots shall be deputized and take an oath that they will faithfully perform their assigned duties. If any ballot card is damaged or defective so that it cannot properly be counted by the automatic tabulating equipment, a true duplicate copy shall be made and substituted for the damaged ballot card. All duplicate ballot cards shall be clearly labeled "duplicate," and shall bear a serial number which shall be recorded on the damaged or defective ballot card. The damaged or defective ballot card as well as the "duplicate" shall be preserved with the other ballot cards. During the count the election officer or board in charge may from time to time release unofficial returns. Upon completion of the count the official returns shall be open to the public.

    c. The return of the automatic tabulating equipment, to which have been added the write-in and absentee votes, shall, after being duly certified by the county board of elections, constitute the official return of each election district.

    d. Prior to the start of a recount of the ballots ordered by a judge of the Superior Court, or by the board of county canvassers or the board of State canvassers pursuant to section 5 of P.L. , c. (C. )(now pending before the Legislature as this bill), the county board of elections shall have the automatic tabulating equipment tested to ascertain that it will accurately count the votes cast for the office or public question in dispute or in question, as the case may be. The test shall be open to public inspection and shall be conducted by processing a preaudited group of ballot cards so punched as to record a predetermined number of valid votes for each candidate or for or against a public question, and shall include one or more ballots which have votes in excess of the number allowed by law in order to test the ability of the automatic tabulating equipment to reject such votes. If any error is detected, the cause therefor shall be ascertained and corrected and an errorless count shall be made and certified to by the county board of elections before the recount is started. The tabulating equipment shall pass the same test at the conclusion of the recount before the election returns for the office or public question in dispute or in question are approved as official. On completion of the recount, the programs, test materials, and ballot cards arranged by districts shall be sealed and retained as provided for paper ballots.

    e. If for any reason it becomes impracticable to count or recount all or a part of the ballot cards with tabulating equipment, the county board of elections may direct that they be counted manually, following as far as practicable the provisions governing the counting of paper ballots contained in Title 19 of the Revised Statutes.

(cf: P.L.1996, c.120, s.10)

    4. Section 20 of P.L.1999, c.232 (C.19:53C-14) is amended to read as follows:

    20. In counting the provisional ballots, the board shall deem void all provisional ballots which are wholly blank, or on which more names have been marked or designated for every office than there are persons to be elected to the office, and on which both "Yes" and "No" have been marked or designated upon every public question.

    No provisional ballot which shall have, either on its face or back, any mark, sign, erasure, designation or device whatsoever, other than that which is permitted by P.L.1999, c.232 (C.19:53C-1 et al.), by which the provisional ballot shall be distinguished from another provisional ballot shall be declared void unless the county board canvassing those provisional ballots or the judge of the Superior Court, board of county canvassers, board of State canvassers, or other judge or officer conducting the recount thereof shall be satisfied that the placing of the mark, sign, erasure, designation or device upon the provisional ballot was not intended to identify or distinguish that ballot.

    No provisional ballot shall be declared invalid by reason of the fact that the mark made with ink or the mark made with lead pencil appears other than black.

    No provisional ballot cast for any candidate shall be invalid by reason of the fact that the name of that candidate may be misprinted, or the given name or the initials of the candidate may be omitted.

    No provisional ballot cast for any candidate shall be invalid by reason of the use of any label permitted by P.L.1999, c.232 (C.19:53C-1 et al.) on which the title of office may be printed or the name of the candidate may be misprinted or part of the given name or surname or the initials of the candidate may be omitted, or because the voter in writing the name of the candidate may misspell the name or omit part of the given name or surname or the initials of the candidate.

    No provisional ballot shall be declared "REJECTED" or invalid by reason of having a cross x, plus + or check appearing in a square provided for a blank space or a space wherein no name is printed.

(cf: P.L.1999, c.232, s.20)

    5. (New section) a. When the returns of any election indicate that a candidate was defeated for election by one-half of a percent or less of the votes cast for such office or that a public question appearing on the ballot was approved or rejected by one-half of a percent or less of the votes cast for and against the public question, the board of canvassers responsible for certifying the results of the election for such office or public question shall order a recount or recheck, as appropriate, of all the votes cast for each candidate for such office or for or against the public question before certifying the results. The board of county canvassers or the board of State canvassers, as appropriate, shall not order a recount or recheck of the votes cast for an office if the candidate or candidates defeated by one-half of a percent or less of the votes cast for such office request in writing to the county or State board that a recount or recheck not be conducted.

    b. The board of county canvassers shall direct the recount or recheck of votes cast in the relevant election districts, following as far as practicable the provisions contained in this Title governing the counting of ballots or the checking of voting machines, as appropriate.

    c. If a recount or recheck made pursuant to this section reveals an error in the original canvassing of votes sufficient to change the result of an election, the board of county canvassers or the board of State canvassers, as appropriate, shall correct the result of such election.

    6. This act shall take effect immediately.

STATEMENT

    This bill provides for an automatic recount of votes when the returns of any election indicate that a candidate was defeated, or a public question approved or rejected, by one-half of a percent or less of the votes cast for such office or public question. The bill provides that a recount will not be conducted if the candidate or candidates defeated by one-half of a percent or less of the votes cast for such office request in writing that a recount not be made.