Fred Henry SOUTH AMBOY — More than a year after the city’s mayoral election, an appeals court has upheld Fred Henry’s victory.
The panel of judges from the state Superior Court Appellate Division reviewed the appeal of the election results on Oct. 4 in Jersey City and released its decision Nov. 23.
The appeal came from Mary O’Connor, an independent mayoral candidate who, according to tallies certified by the Middlesex County Board of Elections, received 1,127 votes, three short of Henry’s 1,130. Ultimately, Henry’s margin of victory was reduced to one vote as the case was reviewed during the legal challenge.
O’Connor sought a new election on grounds of election fraud.
After the November 2010 election, O’Connor filed a petition asserting that the votes of three registered voters were not counted; that two people who voted were not residents of SouthAmboy; and that five provisional ballots were cast by voters who had changed addresses within 21 days of the election but failed to advise the Board of Election, as is required by statute.
The judges said they were not in a position to re-examine the evidence, only to judge as to whether the lower courts acted in accordance with the law. The appellate court did assert that a vote cast by a woman who was determined to be a resident of Sayreville should have been disallowed, but since that did not affect the outcome of the election, no further action is being taken by the court.
O’Connor disagreed with the court’s ruling.
“Henry knows that two people voted illegally and he has to live with that,” O’Connor said. “I sincerely thank the majority of legitimate South Amboy constituents who voted for me.”
Henry said he was happy with the outcome and hopes everyone — including O’Connor — can move on.
“As with the past rulings, I was very happy with the results, and so far all of the rulings have been in my favor,” Henry said. “If there were any more concerns, I hope that this puts them to rest. If the decision was anything less than unanimous, then I think that it might continue. But it was unanimous by a three-to-nothing ruling, and I hope this puts it at an end.”
He acknowledged that O’Connor still has options, should she wish to pursue another appeal.
“I am realistic enough to realize that she can appeal to the state Supreme Court,” he said .
Henry thanked his attorneys, Mike Baker and Karl Kemm, in representing him throughout the matter.
“I know that it was only one vote, and I know how difficult it is to accept, but it would be nice if Ms. O’Connor would graciously concede the election so that we could all move on. Even if she doesn’t, I will continue to serve all the citizens of SouthAmboy to the best of my ability,” he said.
O’Connor’s attorney, Christopher Struben, said he and his client are discussing potential next steps.
Also part of the case was an amicus curiae brief filed by Flavio Komuves, who at the time of the election was with the American Civil Liberties Union. The ACLU was not backing a particular candidate, but was concerned about various voter-disenfranchisement issues.
“Unfortunately, the court rejected our claims about … a firsttime voter who was disenfranchised on a technicality after her registration was botched by the local motor vehicles office.” The voter’s provisional ballot in the 2010 election had been rejected.
Komuves said the outcome of the election and subsequent legal actions will ripple beyond South Amboy’s borders.
“The court’s opinion reinforces what responsible policymakers already know about the state’s laws and practices on voter registration, which is that the current system creates an unacceptably high risk of disenfranchising otherwise eligible voters,” Komuves said.
While the court found some merit to the ACLU’s concerns about voters’ due process rights, it asked that it be addressed by the Legislature.
“There is a real urgency to fix these problems. We urge the Legislature to seize the opportunity to remedy these and other flaws now, well in advance of the upcoming 2012 presidential elections, when turnout could exceed 4 million citizens,” Komuves said.
To read the full decision, visit http://www.judiciary.state.nj.us/opinions/a2 499-10.pdf.