NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1139-20 IN THE MATTER OF THE PETITION OF CELESTE FERNANDEZ FOR A RECOUNT OF THE VOTES CAST AT THE ELECTION HAVING APPROVED FOR PUBLICATION OCCURRED ON NOVEMBER 3, June 29, 2021 2020 FOR THE 2020 ATLANTIC APPELLATE DIVISION COUNTY COMMISSIONER ELECTION, ATLANTIC COUNTY, NEW JERSEY, and CELESTE FERNANDEZ, Petitioner-Appellant. ______________________________ Submitted June 8, 2021 – Decided June 29, 2021 Before Judges Yannotti, Haas, and Mawla. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3848-20. Herman Law Offices, LLC, attorneys for appellant Celeste Fernandez (Robert D. Herman, on the briefs). Cooper Levenson, PA, attorneys for respondent John W. Risley, Jr. (Randolph C. Lafferty and Rebecca C. Lafferty, on the brief). Gurbir S. Grewal, Attorney General, attorney for amicus curiae Attorney General of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief). The opinion of the court was delivered by YANNOTTI, P.J.A.D. Celeste Fernandez appeals from an order entered by the Law Division on December 22, 2020, which accepted the results of the limited recount and recheck of the election results for one of two positions of Atlantic County Commissioner at Large (CAL) and denied her request for a more expansive recount.1 We reverse. I. We briefly summarize the pertinent facts and procedural history. On November 3, 2020, there were four candidates in the race for Atlantic County CAL: two Democrats and two Republicans. Each voter was permitted to vote for up to two candidates, and the two candidates who received the most votes would be declared winners. The Clerk released the following unofficial election results for the CAL race, as canvassed by the Atlantic County Board of Elections (Board): Caren 1 In the November 2020 election, the position was listed on the ballot as "Freeholder." However, after the election the office was renamed "County Commissioner." See L. 2020, c. 67 (eff. Jan. 1, 2021) (amending N.J.S.A. 1:1- 2, N.J.S.A. 40:20-1). A-1139-20 2 Fitzpatrick and John W. Risley, Jr. placed first and second, respectively, with Fitzpatrick receiving 67,600 votes, and Risley 66,427. Fernandez placed third with 66,046 votes, and James Toto came in fourth with 64,586 votes. The difference between Risley and Fernandez was 381 votes out of a total of 132,473 votes cast for either candidate, or a margin of .3%. Although Atlantic County voters cast just over 143,000 ballots in the November 2020 election, not all ballots included votes for the CAL race, and some ballots contained only one vote for that position. A ballot with one or no votes was labeled an "undervote." A ballot in which only one CAL candidate was selected counts as one undervote, whereas a ballot in which no candidate for that office was selected counts as two undervotes. The Board's initial canvass recorded 21,263 undervotes for the CAL race. Unlike an undervote, an "overvote" is a ballot in …
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