The ballots will be counted 10 a.m. Friday.
An appellate court today ruled that 19 absentee ballots originally thrown out by a lower court shall be counted in the Township Council election.
The ballots will be counted 10 a.m. Friday at the Mercer County Board of Elections office in Trenton.
The ruling by the Appellate Division of the state Superior Court in Trenton stated that 19 ballots that had been postmarked prior to Nov. 6 and received by the Board of Elections by Nov. 7 are to be counted.
This overrules state Superior Court Judge Linda Feinberg’s Dec. 13 decision that would count only irradiated absentee ballots that arrive at the Board of Elections office by today. Those ballots are the ones that were stuck in the Hamilton post office when it was closed Oct. 18 because of anthrax contamination.
The judge stated in her Dec. 13 ruling that it is impossible to attribute the tardiness of additional ballots to the closing of the Hamilton post office. She said it is possible that the ballots simply were mailed too late to arrive at the Board of Elections office by Nov. 6.
The appellate court disagreed with a portion of Judge Feinberg’s ruling that would have thrown out ballots received at the county Board of Elections Nov. 7 and Nov. 8.
The appellate judges were convinced by Acting Postmaster General Joseph Sautello’s testimony that the closure of the Hamilton facility could have not only locked some ballots in, but also could have delayed others by one day.
The panel wrote that the post office closure was "unprecedented, unparalleled and unpredictable, national in scope and of far-reaching consequence" and "has been indisputably established as the direct cause for a one-day delay in the delivery of the absentee ballots at issue in this case."
The 19 ballots now allowed by the appellate court ruling may be counted in addition to any irradiated ballots allowed by Judge Feinberg. However, Board of Elections spokesman Turner McLaughlin said today that no irradiated ballots had arrived at the office.
After the ruling was issued, Republican Councilman Rick Miller, the apparent top vote-getter in the disputed election, was thrilled.
"We win," said Mr. Miller. "This is not a snowstorm. This is terrorism. Nobody said don’t use the mail system. The postmaster was emphatic about the one-day delay."
Counsel for Democratic council candidates Michael Powers and Mark Sebastian said this election may not be over.
Attorney Arthur Sypek Jr. said he had hoped the appellate court would have upheld Judge Feinberg’s decision in full.
He said his clients will not decide whether to appeal to the state Supreme Court until after the 19 ballots have been counted.
"We don’t know what’s in those ballots," he said.
The decision today was reached by a panel of judges that included Anthony J. Parrillo, Dorothea O’C. Wefing and James J. Ciancia.
Township Councilman Mark Holmes, who filed the appeal, lost the Nov. 6 election to Mr. Powers. Mr. Holmes sought to have all absentee ballots counted including those ballots that arrived at the Board of Elections office Nov. 7 and Nov. 8.
Township Council would have reorganized New Year’s Day, but it has put off the annual reorganization meeting until Jan. 6 pending the outcome of the election and appeal.
In an earlier ruling issued Dec. 6, Judge Feinberg decertified the election results, which had given one seat to Mr. Miller and one seat to Mr. Powers.
Judge Feinberg’s ruling also postponed Township Council’s Jan. 1 reorganization meeting until after the two winners of the contested election can be determined.
The candidates for the two Township Council seats have been in and out of court over the results almost since the date of the election. The candidates asked for and received rechecks of the voting machine tallies and the absentee ballots that arrived before Election Day.
Mercer County Clerk Cathy DiCostanzo previously certified the election results Nov. 13. Those results showed Mr. Miller with 4,259 votes, Mr. Powers will 4,176 votes, Mr. Holmes with 4,175 votes and Democrat Mark Sebastian with 4,171 votes.