State Superior Court Judge Yolando Ciccone on Tuesday afternoon upheld the county's certification of Priti Shah as the winner of a seat on Board of Education, confirming a 1,193 to 1,191 vote count that negates a request for a special run-off election by former board member Bev Cwerner.
Cwerner, through her attorney, Kevin Orr, had argued that the County Board of Elections had "erroneously" rejected two absentee votes on the basis that the signatures on those votes didn't match the signatures on those residents' voter registrations.
With affidavits provided by the two voters that indeed they had filled out the ballots, Orr contended that the addition of two more votes to the official count would create a tie. In that case, he said in papers and in a Somerville courtroom on Monday afternoon, state law would require a special runoff election to be held before June 27, within 60 days after the April 27 election.
"Every vote should count in this election," Orr told the judge.
But Ciccone said she found "total and complete compliance" by the county Board of Elections in rejecting the ballots, and she was therefore unwilling to overturn the Election Board's final certification of results.
"The judge made the right decision," Shah afterward said in the hallway of the courthouse. She noted she has been serving as a full board member since being sworn in on May 9.
Although Cwerner declined to comment immediately following the decision at about 3 p.m., she issued a statement through email at 5:30 p.m.
"This afternoon, Judge Ciccone entered an Order terminating the election contest proceedings, essentially finding that she lacked authority to overturn the decision made by the Board of Elections on election night that the absentee ballots of two voters were not cast by the voters—even though the two voters filed sworn Affidavits that they in fact cast the ballots. Therefore, under the Court’s order, the two votes cast by absentee ballot in my favor will not be counted," Cwerner said in the email statement.
The email continued, "I remain firm in my belief that the vote of all citizens should be counted, whether cast in person or by absentee ballot. A democracy cannot properly function unless the true will of the people is heard. Unfortunately for the two absentee voters (and all the other voters that cast a vote for me) their voice will not be heard. I thank my supporters as I consider my options," Cwerner said in the statement.
Election Board Supervisor Jerry Midgette later said that a panel of four commissioners on the election board had reviewed the signatures on the absentee ballots as compared with voter registration records, and had concluded they did not match.
The county Board of Elections had previously held a recount on May 19 that upheld the two-vote win for Shah. Cwerner had filed a court motion requesting the recount because she said the vote total had changed a number of times, and she considered the two-vote margin to be close enough to merit a recount.
An attorney representing Shah, Julie Warshaw, contended that the votes had been properly certified.
Warshaw also said that she had affidavits from two other voters, one whose absentee ballot had been rejected because of a mistake in not printing a name where specified. Another already has filed a complaint that a poll working accidentally opened the curtain of the voting booth before the voted had finished voting, Warshaw said. Both of those voters had supported Shah.
But following a discussion among attorneys involving technicalities, Ciccone said she could not even consider contentions by those two voters since Shah's attorney had not filed a cross-certification seeking to have those votes included in the certified count.
Warshaw also said during the hearing that Cwerner and Orr had attempted to serve court papers regarding the case on Shah's 15-year-old son. She said Shah was not at home at the time the two visited Shah's house. She later said the papers should have been served at her law office, even if she herself was not in the office at the time Orr apparently tried to reach her.
Orr did not comment on whether he had visited Shah's house, but said in court that all interested parties had been served. "What difference does this make to the ultimate issue?"
Orr said that failing to count the two absentee votes not only disenfranchised those two voters, but also any other supporters of Cwerner's who had voted for her, and not for Shah.
School Board incumbent Susan McGowan and candidate Linda Wooldridge decisively won two seats of the three board positions up for election in April. Nine candidates ran for the three positions.
Before the hearing, Somerset County Clerk Brett Radi said the last time a special school runoff election was held in Somerset County was 2007. However, in that case, he said the Board of Elections had certified a tie vote in Bernardsville, and the special election was automatically scheduled to break the tie.