NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION
DOCKET NO. A-2536-24

MICHAEL HOPSON,

Plaintiff-Appellant/
Cross-Respondent,

v.

ANTHONY CIRZ,

Defendant-Respondent/
Cross-Appellant,
APPROVED FOR PUBLICATION
and July 1, 2025
APPELLATE DIVISION
FIRE DISTRICT NO. 1 OF
TOMS RIVER TOWNSHIP,
DANIEL ROMAN, in his
individual and official
capacity, ROBERT KROHN,
in his individual and official
capacity, MONICA BISCEGLIE,
in her individual and official
capacity, DAWN HALLIWELL,
in her individual and official
capacity, OCEAN COUNTY
BOARD OF ELECTIONS,
OCEAN COUNTY CLERK,
JAMES GOLDEN, as an
interested party, and RICHARD
TUTELA, as an interested party,

Defendants-Respondents.
____________________________
 Argued June 3, 2025 – Decided July 1, 2025

Before Judges Gilson, Firko, and Bishop-Thompson.

On appeal from the Superior Court of New Jersey,

Law Division, Ocean County, Docket No. L-0679-25.

Matthew C. Moench argued the cause for

appellant/cross-respondent (King, Moench & Collins,
LLP, attorneys; Matthew C. Moench, of counsel and
on the briefs; Alyssa D. Zara, on the briefs).

Scott D. Salmon argued the cause for

respondent/cross-appellant (Jardim Meisner Salmon
Sprague & Susser, PC, attorneys; Scott D. Salmon, of
counsel and on the brief; Julia Burzynski, on the
brief).

Mark A. Gulbranson, Jr. argued the cause for

respondent Ocean County Board of Elections
(Matthew J. Platkin, Attorney General, attorney;
Sookie Bae-Park, Assistant Attorney General, of
counsel; Mark A. Gulbranson, Jr., Deputy Attorney
General, on the brief).

The opinion of the court was delivered by

FIRKO, J.A.D.

Petitioner Michael Hopson was an unsuccessful candidate in the

February 15, 2025 election for a position as Commissioner of Toms River Fire

District No. 1 (Fire District). Hopson filed a petition challenging the

amendment of the election certification by defendant Fire District Clerk Robert

Krohn to count a write-in vote for defendant candidates Anthony Cirz and

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James Golden, which changed the election results from a tie between Cirz and

Hopson to Cirz winning by one vote.

Cirz cross-appeals from the dismissal of his cross-petition rejecting the

mail-in ballot of V.G.,1 because she submitted a deficient ballot. Cirz also

cross-appeals from the order rejecting the mail-in ballots of M.B., P.B., and

J.D., and denying his motion for leave to file an amended cross-petition

challenging the rejection of an additional mail-in ballot from an unidentified

voter.

Following a two-day bench trial on April 14 and 15, 2025, the trial court

determined that the write-in votes for Cirz and Golden cast on the voting

machine were to be counted in their favor. The trial court ruled the mail-in

ballots submitted by V.G., M.B., P.B., M.D., J.D., J.R., P.Ba., and S.B. were

not to be counted. The trial court also ruled the mail-in ballot submitted by

Z.G. would remain counted. The trial court then declared Cirz the winner of

the election, and dismissed Hopson's petition challenging the election results.

Hopson now appeals from that dismissal.

We affirm the trial court's decision not to count the mail-in ballot

submitted by V.G. However, we reverse the trial court's decision permitting

the write-in votes to be counted because the candidates were listed on the

1
We use initials to protect the confidentiality of the voters.

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3
ballot. We remand the matter for entry of an order for a run-off election

between Hopson and Cirz for the one open seat. We affirm the trial court's

decision barring Cirz from filing a belated third amended answer and cross-

petition.

I.

These are the relevant facts apparent from the record. Four candidates

for the two open seats on the Board of Fire Commissioners were listed on the

ballot: Hopson, Cirz, Golden, and defendant Richard Tutela. Voters were

instructed to "Vote for TWO" of the candidates.

Defendant Dawn Halliwell, the Fire District Financial Clerk, testified

that she was responsible for the "operations" at the close of the election,

receiving the totals from each polling place, and creating an Excel spreadsheet

of the results. The spreadsheet was entitled, "RESULTS OF ANNUAL

ELECTION OF FIRE COMMISSIONER CANDIDATES AND

APPROPRIATIONS FOR FIRE DISTRICT NO. 1 OF TOMS RIVER

TOWNSHIP, OCEAN COUNTY, NEW JERSEY HELD ON FEBRUARY 15,

2025."

Halliwell maintained the spreadsheet on her computer until Monday,

February 24, 2025, when she received from defendant Board of Elections (the

Board) the "certified absentee ballot results" from all of the mail-in votes that

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the Board had processed. After updating the spreadsheet, on February 25,

2025, at 10:36 a.m., Halliwell emailed defendant Monica Bisceglie, the Fire

District's Human Resources Coordinator, stating that Halliwell had left "two

copies of election results on [her] chair to [be] signed by the [C]lerk tomorrow

night then post on our website and put in [the] minute book." Bisceglie replied

to Halliwell by email on February 26, 2025, at 7:40 a.m., that she noticed the

spreadsheet did not list any write-in votes.

Bisceglie updated the spreadsheet to reflect that there were five write-in

votes, resulting in the following vote totals listed on the spreadsheet:

Cirz 615

Golden 614

Hopson 615

Tutela 690

Write-Ins 5

Krohn, as Fire District Clerk, signed the spreadsheet certifying the

election results. Krohn testified that he accepted Halliwell's numbers without

doing any of his own review because Halliwell "worked there longer than I've

been alive and has no reason to lie to me." The certified spreadsheet reflecting

a tie between Cirz and Hopson for one of the two open commissioner seats was

uploaded to the Fire District's website.

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 After Krohn certified the election results, Halliwell reviewed the "tapes"

from each voting machine and discovered the "third printout . . . where the

write-ins are." Halliwell then noticed that one of the five write-in votes was

for "Cirz" and one was for "Golden." Both of those write-in votes had been

made by a single voter who voted by machine, typing in the names. As the

parties stipulated, "Cirz" was typed next to candidate Cirz's name and

"Golden" was typed next to candidate Golden's name.

On March 3, 2025, at 2:15 p.m., Bisceglie emailed Jason Varano from

the Board posing questions regarding the consequences of a tie in the election.

Halliwell separately called the Board and asked if a voter could vote for named

candidates and also submit write-in votes for the same candidates. According

to her testimony, Halliwell was told "once they write[-in] the two write-ins,

they're locked out from picking a candidate. So they couldn't write[-]in the

two names and then also vote for the two names."

Halliwell inquired about the Board's policy and was told the Board

"would not count" the write-in votes for the named candidates. Halliwell

testified she then made the "unilateral decision on [her] own without talking to

anybody else that these ballots should be counted." Halliwell explained that,

notwithstanding the Board's policy, the Fire District "d[id]n't have a policy and

it's our election."

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 On Tuesday, March 4, 2025, Halliwell and Bisceglie conferred and

reviewed reorganization materials for the upcoming Fire District meeting.

Halliwell testified that she then realized the spreadsheet certifying the election

results was wrong because it did not include one of the write-in votes in Cirz's

vote tally and one in Golden's vote tally. Halliwell updated the spreadsheet to

show the following vote totals:

Cirz 616

Golden 615

Hopson 615

Tutela 690

Write-Ins 5

Halliwell explained she left the number of write-in votes on the

spreadsheet as five "[b]ecause there's still five write-ins" although she

acknowledged there were only three write-in votes that were not included in

the tally for the named candidates.

Also on March 4, 2025, Bisceglie emailed the Board to "disregard" her

March 3, 2025 email as "[w]e were informed it is out of the . . . [B]oard[']s

hands." Bisceglie testified that she sent this email based on the information

Halliwell had received when she called the Board.

That same day, Halliwell notified Krohn and Brian Kubiel, the Fire

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District administrator, by email of the presumed error in the first certification

spreadsheet. Defendant Daniel Roman, the Fire District treasurer, was also

notified of the issue by email. Roman went to the Fire District 's office and

reviewed the voting machine tapes himself. Roman consulted with an attorney

friend, who was not the Fire District's attorney, and told Bisceglie to post the

revised votes tally.

Krohn testified that he received an email about the "discrepancy in the

results" and was asked if he would sign the revised spreadsheet. Krohn

authorized his electronic signature being affixed to the revised spreadsheet

certifying the election results the day before the reorganization meeting.

Krohn explained that he revised the spreadsheet based solely on Halliwell's

representation, and he did not consult with an attorney, the Fire District

administrator, or the other Fire District commissioners. The revised certified

spreadsheet was thereafter posted on the Fire District's website. Roman swore

in Cirz as a Fire District commissioner. Tutela, whose election was never in

question, was also sworn in.

The next Fire District meeting was held on March 5, 2025. The meeting

was not recorded because Bisceglie, whose job it was to record the meetings,

was suspended. During the meeting, the Fire District's attorney made a

statement regarding the updated election results, and Cirz took his seat on the

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dais.

On March 7, 2025, Hopson filed his verified petition and complaint in

the Law Division against defendants seeking a declaratory judgment that Cirz

was not the winner of the election (count one); contesting the election results

under N.J.S.A. 19:29-1 due to malconduct, fraud, and corruption (count two);

contesting illegal votes received (count three); alleging error by the Board

(count four); and asserting he was deprived of his rights under the New Jersey

Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2 (count five). Hopson sought

to either be declared the lawful winner of one of the two commissioner seats in

the Fire District election, or alternatively, sought a declaratory judgment that

the election for one of the seats had resulted in a tie, thereby requiring a

special election.

The trial court issued an order to show cause directing the parties to

respond to Hopson's verified petition and complaint. Cirz filed an answer and

cross-petition seeking to have the mail-in ballots of V.G., M.B., P.B., and

J.D.—as well as others—counted. Thereafter, Cirz filed a first and second

amended answer and cross-petition alleging additional ballot challenges.

Three days before the trial commenced, Cirz moved for leave to file a

third amended answer and cross-petition challenging the rejection of an

additional mail-in ballot from an unidentified voter as an overvote. At the end

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of the first day of testimony, the trial court denied Cirz's motion for leave to

file a third amended answer and cross-petition.

V.G. testified that she was registered to vote in Toms River and she

attempted to vote in the February 15, 2025 Fire District election by mail-in

ballot, but her vote was not counted. V.G. explained she mailed her ballot on

February 10, 2025, but had filled out the ballot incorrectly. V.G. wrote her

name and address on the outer envelope of the mail-in ballot. However, on the

inner envelope, V.G. left the "Certificate of Mail-In Voter," which asked for

the voter's name, address, and signature attestation, blank. As V.G. testified,

"[t]here was a part [she] was supposed to sign but [she] didn't see it." She was

supposed to "sign[] the bottom portion," which states, "Certificate of Mail-In

Voter," but did not.

At some point during the week after the election, V.G. went to the Board

to try to cure the defect but was told "there was nothing else that could be

done." She never received a letter offering the opportunity to cure her ballot.

M.B. testified that she attempted to vote in the February 15, 2025, Fire

District election by mail-in ballot but her vote was not counted. She mailed

her ballot on Saturday, February 15, 2025, by placing it into her personal

mailbox at the street end of her driveway between 8:20 a.m. and 8:30 a.m.

M.B.'s ballot was thereafter postmarked February 18, 2025.

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 P.B. attempted to testify at trial, but there were technical difficulties

with the Zoom connection. The parties stipulated he filled out his mail-in

ballot for the February 15, 2025 Fire District election and that it was placed in

his home mailbox on the morning of February 15, 2025. P.B.'s mail-in ballot

was postmarked February 18, 2025.

J.D. testified that he is fully disabled and votes by mail-in ballot. He

filled out his ballot for the February 15, 2025 Fire District election on

February 7 or 8, 2025, and put the ballot in his personal mailbox by his curb.

J.D.'s ballot was thereafter postmarked February 18, 2025.

The trial court found all of the witnesses "credible." The trial court

determined the two write-in votes for Cirz and Golden should be counted and

dismissed counts one through four of Hopson's verified petition and complaint

with prejudice and count five under the NJCRA without prejudice. The trial

court acknowledged N.J.S.A. 19:49-5, which provides that "[n]o irregular

ballot shall be voted for any person for any office whose name appears on the

machine as a nominated candidate for that office . . . ; any irregular ballot so

voted shall not be counted." However, the trial court determined that the

"intent of [the] statute is to prevent a voter from casting two votes for the same

candidate." The trial court noted voters have the right to have their votes

"counted at full value without dissolution or discount."

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 The trial court noted that the two certifications issued by the Fire

District and the changes to "the tallies . . . without the write-in votes changing"

were "questionable" and caused "consternation among the voters of Toms

River." However, the trial court determined that the process was "faithful" and

"abided by certain [principles] of law."

The trial court found that the voter who wrote in "Cirz" intended to vote

for candidate Cirz. The trial court noted that "nothing" in the ballot

instructions "indicates that if a person's name is printed you cannot write it in ."

The trial court reasoned that it had an "obligation" to "make sure that under

these circumstances, the clear intent of the voter is carried out" when there is

"no confusion and no fraud." Thus, the trial court held that the write-in votes

should be counted.

With respect to the votes that were not counted, the trial court found

V.G.'s testimony to be "credible." However, since V.G. failed to sign the

Certificate of Mail-in Voter, the trial court held her ballot could not be

counted.

With respect to the votes that were not postmarked until February 18,

2025, the trial court found that the Legislature had set "strict timelines" to

"ensure the integrity of the process." Because those ballots were postmarked

more than forty-eight hours after the date of the election, those ballots were

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"outside the statutory framework." The trial court drew "a distinction between

errors that were caused by the election process versus the voter themselves ."

The trial court ruled the final vote totals were as follows:

Cirz 616

Golden 615

Hopson 615

Tutela 690

The trial court stayed its order declaring Cirz the winner of the February

15, 2025 election, and we continued the stay based on Hopson's application for

leave to file an emergent application, which we granted. Cirz filed a notice of

cross-appeal. We also accelerated the appeals.

On this appeal, the following five issues are presented for our

consideration:

(1) whether the Fire District Clerk had legal

authority to amend the election certificate to
count the two write-in votes for Cirz and
Golden;

(2) whether the trial court erred in counting the two

write-in votes;

(3) whether the trial court erred in not counting the

mail-in ballot submitted by V.G.;

(4) whether the trial court correctly refused to count

the three mail-in ballots submitted by M.B.,
P.B., and J.D.; and

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 (5) whether the trial court erred in denying Cirz's
motion to file a third amended answer and
cross-petition.

II.

N.J.S.A. 40A:14-70(a) authorizes any municipality to create a Fire

District to be governed by a board of five commissioners who are residents of

the municipality. The "commissioners of a [F]ire [D]istrict shall have the

powers, duties and functions within said district to the same extent as in the

case of municipalities, relating to the prevention and extinguishment of fires

and the regulation of fire hazards." N.J.S.A. 40A:14-81.

Elections for commissioners shall be held "annually either on the third

Saturday in February or at the time of the general election" in November.

N.J.S.A. 40A:14-72(a). Pursuant to N.J.S.A. 40A:14-72.1(a), if the Fire

District election is held at the time of the November general election, the

election procedures "shall be in accordance with the procedures provided for

the general election under" under N.J.S.A. Title 19, including N.J.S.A. 19:20 -

1, which provides that the "board of county canvassers . . . shall proceed to

determine what officers have been elected, and the result of the vote cast upon

any public question setting forth that it was approved or rejected."

However, for Fire District elections held on the third Saturday in

February, as in Toms River, N.J.S.A. 40A:14-77 provides that, "[i]mmediately

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after the close of the polls the [Fire District] clerk and tellers shall forthwith

canvass the vote and certify the results" and the Fire District "Clerk shall

publicly announce the results."

III.

A challenger has the burden of proving one or more legal votes were

rejected, and that the number of improperly rejected votes were sufficient to

change the result of the election. The challenger is not required to prove that

the rejected votes were cast for him or her. In re Ocean Cnty. Comm'r of

Registration for a Recheck of the Voting Machines for the May 11, 2004 Mun .

Elections, 379 N.J. Super. 461, 469 (App. Div. 2005) (citing In re Application

of Moffat, 142 N.J. Super. 217, 224 (App. Div. 1976); Kirk v. French, 324 N.J.

Super. 548, 553 (Law Div. 1998)).

First, we address Hopson's argument that the Fire District Clerk had no

legal authority to amend the election certificate to count the two write -in votes

for Cirz and Golden. Hopson contends that N.J.S.A. 40A:14-77 precludes the

Fire District Clerk from acting alone. According to Hopson, the Board should

have determined the election results under the framework set forth for

municipal and school board elections under Title 19. Even if the Fire District

Clerk had the power to act, Hopson alleges Krohn's second certification of the

election results was beyond the time allowed for a change.

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 We are unpersuaded by Hopson's argument that the Fire District Clerk

had no legal authority to amend the election certification as "ultra vires and

void." Although N.J.S.A. 40A:14-77 refers to the "clerk and tellers," 2 the

statute clearly gives to the clerk the authority to "publicly announce the

results" of the election.

Further, nothing in the applicable statutes sets forth a date by which Fire

District election results must be certified. Hopson relies on a timeline

document purportedly issued by the Secretary of State that lists February 24,

2025, as the deadline for "Fire District Certification of Election Results ," and

states that it is "to comply with N.J.S.A. 19:63-22." However, that statute does

not provide any specific deadlines for certifying election results. Hopson also

asserts that N.J.A.C. 5:31-2.4 requires Fire Districts "to upload the results of

the election to the FAST 3 system with the Department of Community Affairs

within [ten] days of the election," but that regulation relates only to election

results relating to budget referenda, not candidates for Fire District

2
There is no evidence in the record as to who the "tellers" were in this
election. We also note the word "teller" is not mentioned in the trial
transcripts.
3
FAST stands for "Financial Automation Submission Tracking." See
Financial Automation Submission Tracking ("FAST") System Updates, New
Jersey Department of Community Affairs,
https://www.nj.gov/dca/dlgs/Fast.shtml (last visited June 25, 2025).

A-2536-24
16
commissioner.

Hopson's argument that the Fire District Clerk was without authority to

change the certified election results after first certifying a tie was not

addressed by the trial court. In support of his argument, Hopson relies on

three cases that pre-date the current election statutes, and the 1947 New Jersey

Constitution, citing State v. Governor, 25 N.J.L. 331 (Sup. Ct. 1856), Darling

v. Murphy, 70 N.J.L. 435 (Sup. Ct. 1904), and Reed v. Bd. of Cnty.

Canvassers, 119 N.J.L. 115 (E. & A. 1937).

As the trial court found, the issuance of two different election

certifications by the Fire District Clerk was "questionable" and caused

"consternation among the voters of Toms River." This clearly undermined

"public confidence in the integrity of the electoral process," which "has

independent significance, because it encourages citizen participation in the

democratic process." Crawford v. Marion Cnty. Election Bd., 553 U.S. 181,

197 (2008); see also In re Malinowski, 481 N.J. Super. 128, 151 (App. Div.

2025). Moreover, the record makes clear the results would have been different

if the election had been overseen by the Board because the Board informed

Halliwell that its policy was not to count a write-in vote for a named candidate.

A difference in outcome based solely on the administrator of the election —in

February or November—does not serve the public interest.

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 We do not hold that the Fire District's issuance of a corrected

certification was in and of itself unlawful. Based upon our review of the

record, we conclude that Hopson has not demonstrated a "degree of gross

negligence or inattention to duty tantamount to purposeful conduct such as

fraud or corruption" sufficient to overturn the election on these grounds. In re

Mallon, 232 N.J. Super. 249, 272 (App. Div. 1989) (citing N.J.S.A. 19:29-

1(a)).

IV.

Next, Hopson contends the trial court erred in allowing the write-in

votes for two candidates who were also listed on the regular ballot to be

counted. In his cross-appeal, Cirz argues the trial court erred in refusing to

count the mail-in ballots of V.G., M.B., P.B., and J.D. The Board counters

that New Jersey election law does not permit any of these votes to be counted.

The plain language of the governing statute supports the Board's position .

N.J.S.A. 19:29-1 provides, in pertinent part, that the election "of any

person to any public office" may be contested on one or more of several

grounds, including "[m]alconduct, fraud or corruption on the part of the

members of any [D]istrict [B]oard, or of any members of the board of county

canvassers, sufficient to challenge the result;" "[w]hen illegal votes have been

received, or legal votes rejected at the polls sufficient to change the result;"

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"[f]or any error by any board of canvassers in counting the votes or declaring

the result of the election, if such error would change the result;" or "[f]or any

other cause which shows that another was the person legally elected . . . ."

N.J.S.A. 19:29-1(a), (e), (f), (g). To be successful in an election contest, a

petitioner must prove at least one of these grounds by a preponderance of the

evidence. In re Election for Atl. Cnty. Freeholder Dist. 3 2020 Gen. Election,

468 N.J. Super. 341, 355 (App. Div. 2021).

When we review a trial court's rulings in an election contest, its factual

findings are entitled to deference. Horne v. Edwards, 477 N.J. Super. 302,

312-13 (App. Div. 2023). Thus, we do not "review the record from the point

of view of how [it] would have decided the matter if we were the court of first

instance" but we consider the trial court's factual findings "binding on appeal

when supported by adequate, substantial and credible evidence." Id. at 312

(quoting Sebring Assocs. v. Coyle, 347 N.J. Super. 414, 424 (App. Div. 2002);

Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

However, the trial court's legal conclusions are reviewed de novo. D'Agostino

v. Maldonado, 216 N.J. 168, 182 (2013); see also Manalapan Realty, LP v.

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's

interpretation of the law and the legal consequences that flow from established

facts are not entitled to any special deference.").

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 Both Hopson's and Cirz's challenges to the trial court's decision require

us to interpret various provisions of New Jersey's election laws. In

interpreting a statute, we must "aim[] to effectuate the Legislature's intent" and

the "'best indicator' of legislative intent 'is the statutory language.'" W.S. v.

Hildreth, 252 N.J. 506, 518 (2023) (quoting State v. Lane, 251 N.J. 84, 94

(2022)). "As a general proposition, 'election laws are to be liberally construed

to the end that voters are permitted to exercise the franchise and that the will

of the people as expressed through an election is heard.'" In re Election for

Atl. Cnty. Freeholder Dist. 3, 468 N.J. Super. at 353 (quoting In re Contest of

Nov. 8, 2005 Gen. Election for Off. of Mayor of Twp. of Parsippany -Troy

Hills, 192 N.J. 546, 559 (2007)).

"[O]ur state election laws are designed to deter fraud, safeguard the

secrecy of the ballot, and prevent disenfranchisement of qualified voters." In

re Gray-Sadler, 164 N.J. 468, 474-75 (2000); see also Langbaum, 201 N.J.

Super. 484, 490 (App. Div. 1985) ("deterrence of fraud—maintenance of the

integrity of the elective process is one of the primary legislative concerns").

"A citizen's constitutional right to vote for the candidate of his or her choice

necessarily includes the corollary right to have that vote counted 'at full value

without dilution or discount.'" Gray-Sadler, 164 N.J. at 474 (quoting Reynolds

v. Sims, 377 U.S. 533, 555 n.29 (1964)).

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 Courts should "apply to the statutory terms the generally accepted

meaning of the words used by the Legislature," Patel v. N.J. Motor Vehicle

Comm'n, 200 N.J. 413, 418 (2009), "read . . . in context with related provisions

so as to give sense to the legislation as a whole." DiProspero v. Penn, 183 N.J.

477, 492 (2005). However, even a "straightforward" statute "must be read in

light of the broad purpose of the election laws to prevent disenfranchisement

of qualified voters." Gray-Sadler, 164 N.J. at 476. "Thus, absent an express

legislative directive that a violation of an election law requires invalidation of

a ballot, the court must determine whether 'under the circumstances' a ballot

should be invalidated to 'effectuate the legislative intent' in establishing a

particular voting requirement." In re Petition of Kriso, 276 N.J. Super. 337,

345 (App. Div. 1994).

To that end, courts have cautioned that "[v]oiding the ballot and thus

disenfranchising the voter is too harsh a remedy where the deficiency does not

affect the integrity of the electoral process." Langbaum, 201 N.J. Super. at

490. A reviewing court "however, may not 'rewrite a plainly-written

enactment of the Legislature [or] presume that the Legislature intended

something other than that expressed by way of the plain language.'" In re

Proposed Constr. of Compressor Station (CS327), 258 N.J. 312, 325 (2024)

(quoting O'Connell v. State, 171 N.J. 484, 488 (2002)).

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 A. Write-In Votes for Cirz and Golden

Hopson argues that N.J.S.A. 19:49-5 does not permit the write-in votes

for Cirz and Golden to be counted, because they were candidates listed on the

ballot. The Board supports Hopson's interpretation of N.J.S.A. 19:49-5, which

prohibits the counting of a write-in vote for any person who is a candidate

listed on the ballot.

N.J.S.A. 19:49-5 states:

Ballots voted for any person whose name does not

appear on the machine as a nominated candidate for
office are herein referred to as irregular ballots. Such
irregular ballot shall be written or affixed in or upon
the receptacle or device provided on the machine for
that purpose. No irregular ballot shall be voted for
any person for any office whose name appears on the
machine as a nominated candidate for that office or for
a delegate or alternate to a national party convention;
any irregular ballot so voted shall not be counted. An
irregular ballot must be cast in its appropriate place on
the machine, or it shall be void and not counted.

[Emphasis added.]

Hopson argues that the "statutory framework governing write-in votes is

clear and leaves no room for ambiguity or judicial modification." According

to Hopson, under the plain language of that statute, the write-in votes for Cirz

and Golden constituted an "irregular ballot," and because both Cirz and

Golden's names were also on the ballot as nominated candidates for the office

of Fire District commissioner, those irregular ballots "shall not be counted."

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N.J.S.A. 19:49-5.

Both Hopson and the Board rely on Ocean County, which applied

N.J.S.A. 19:49-5 to preclude the counting of a write-in vote. 379 N.J. Super.

at 476. In that case, Peter Murphy, an unsuccessful candidate for one of three

open seats on the Board of Commissioners of Long Beach Township, contested

the election result that he had received one fewer vote than Ralph Bayard, the

candidate who had received the third-highest number of votes. Id. at 465-66.

Among other issues, Murphy challenged the rejection of a single write -in vote

for him "on the basis of N.J.S.A. 19:49-5 because his name appeared as a

candidate on the printed machine ballot." Id. at 464, 472-73.

We held the "statutory direction" in N.J.S.A. 19:49-5 to be

"unambiguous" and rejected Murphy's claim that the voters were not

sufficiently warned about the consequences of writing in a name of a listed

candidate. Id. at 473. We noted "the strong public policy in favor of

protecting every citizen's right to vote, and to have his or her vote counted" as

"[l]ittle is more basic to the concept of a democracy." Id. at 474. We also

recognized the "duty to construe elections laws liberally." Ibid. (quoting Gray-

Sadler, 164 N.J. at 475). We further held that "the obvious purpose of

N.J.S.A. 19:49-5 is to prevent a voter from casting two votes for the same

candidate—once by marking the printed name and a second time by writing in

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the same name." Id. at 473.

Nevertheless, based on the record in Ocean County, "we [could not]

know for certain whether the same voter also cast a proper vote for Murphy

and if so, whether it was counted." Id. at 476. Thus, we held, "the unknown

write-in voter here was not deprived of the right to cast a vote for Murphy ,"

but was required to do so using the printed ballot. Id. at 476-77. Accordingly,

considering those facts, and the fact "[i]t is not too much to expect that a voter

would notice . . . his [or her] candidate's name appears as a choice on the ballot

and . . . there is a clearly prescribed place on the ballot for expressing that

choice," we discerned no basis to undo the certification of election results. Id.

at 476.

Cirz argues although the purpose of N.J.S.A. 19:49-5 is to prevent

double voting, "that concern is no longer relevant" because of the "widespread

and mandatory adoption of optical scan voting machines," which "generate

individual printouts of each ballot cast on the machine, including a breakdown

of all votes cast" and, thus, "election officials can disqualify true double

votes."

Although there is no evidence in the record regarding the voting

technology used in the Fire District election, Cirz cites to N.J.S.A. 19:53A -

3(i)(1), which mandates that "[b]y January 1, 2009, each voting machine shall

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produce an individual permanent paper record for each vote cast, which shall

be made available for inspection and verification by the voter at the time the

vote is cast, and preserved for later use in any manual audit." We are not

persuaded by Cirz's argument.

Regardless of the voting technology utilized, as stated in Ocean County,

the language in N.J.S.A. 19:49-5 is unambiguous: write-in votes for a

candidate already on the ballot shall not be counted. 379 N.J. Super. at 472.

The Court has recently emphasized the need to follow the plain language of a

statute in the absence of any ambiguity. See In re Proposed Constr. of

Compressor Station, 258 N.J. at 325. Whether the statute as written continues

to serve its purpose is a question for the New Jersey Legislature, not the

courts.

Relying on Gray-Sadler, 164 N.J. at 468, Cirz further argues the ballot as

written did not give voters sufficient warning that their votes would not count

if they wrote in the names of candidates already on the ballot, and therefore ,

the write-in votes should be counted. As the Court explained, voters were

informed to

"[v]ote for any person whose name is not printed on

the ballot, go to the personal choice column, darken
the oval and words write-in and the office in which
you want to write in, write in the name of the person
for which you wish to vote on for in the blank."

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 In Gray-Sadler, the Court reviewed sixty-four write-in votes for

municipal offices in Chesilhurst that had not been counted by election officials

because they had been placed in the wrong space on the voting machine. Id. at

473-74. None of the write-in candidates were officially on the ballot, but the

votes were rejected on the basis of the language in N.J.S.A. 19:49-5 that "[a]n

irregular ballot must be cast in its appropriate place on the machine, or it shall

be void and not counted." Id. at 472-73, 476.

The Court held although "straightforward," the statutory language "must

be read in light of the broad purpose of the election laws to prevent

disenfranchisement of qualified voters" and noted that, "[i]n cases involving

invalidated write-in votes, our courts have distinguished errors due to extrinsic

problems from errors caused by a voter's own neglect." Id. at 476. And, the

Court ruled the Legislature did not intend N.J.S.A. 19:49-5 "to be applied in a

manner that would frustrate the free expression of the voters' will when the

incorrect placement of the write-in vote is the result of mistakes or problems

beyond the voters' control." Id. at 477.

Recognizing that the voters clearly intended to vote for the write-in

candidates, the Court "ask[ed] why write-in votes were placed on the wrong

lines or not cast in the first place," which "should help us to determine whether

the 'rejected' voters had their votes invalidated as a result of their own errors or

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as a result of election officials' noncompliance with statutory requirements."

Id. at 478. The Court found that "no information was provided outside the

voting booths explaining how properly to cast write-in votes" and information

inside the booths contained "conflicting and incomplete instructions," which

caused confusion "attributable to defects outside of [voters'] control." Id. at

478-79. Most egregiously, the instructions directed "voters to seek assistance

from an official outside the booth" but "[a]nyone who followed that direction

would be barred from re-entering the voting machine after having been given

instructions," such as one voter who testified as a witness. Id. at 479.

Thus, the Court found these circumstances "readily distinguishable from

other cases in which voters' failure to comply with specific procedural

instructions invalidated their votes." Id. at 481 (citing In re Mun. Election

Held on May 10, 1994, 139 N.J. 553, 558 (1995); In re Keogh-Dwyer, 45 N.J.

117, 120 (1965)). Rather, "Chesilhurst voters . . . were given patently

inadequate instructions or none at all." Ibid. Because the write-in voters were

effectively disenfranchised, and this affected the election's outcome, the Court

ordered that a new election be held. Id. at 484-85. The Court mandated:

[f]or the new election, and for all future elections

throughout the state, explicit instructions on how to
cast a write-in vote must be provided with the sample
ballots sent to registered voters. The instructions must
offer clear, step-by-step directions that describe the
mechanics of the voting machine, explain how to

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 operate the windows and levers, and emphasize the
need to cast write-in votes on the appropriate lines.
Voters must be warned that an improperly cast vote
will be deemed void.

[Id. at 484.]

In this matter, Cirz is correct the instructions did not explicitly warn

voters that a write-in vote for a candidate already on the ballot would not be

counted. However, the instructions for this election did not have the same

deficiencies as those in Gray-Sadler. Voters here were instructed that if they

wanted to "[v]ote for any person whose name is not printed on the ballot," they

should use the write-in procedure. All voters but one complied with that clear

instruction.

In similar circumstances presented in Ocean County, we held a write-in

vote for a candidate already on the ballot was plainly not a mistake "beyond

the voter['s] control." 379 N.J. Super. at 475.

It is not too much to expect that a voter would notice

that his candidate's name appears as a choice on the
ballot and that there is a clearly prescribed place on
the ballot for expressing that choice. This is
particularly so in light of the sample ballot that
demonstrates, in advance, the names of the candidates
as they will appear on the voting machine.

[Id. at 476.]

In Ocean County, we also found significant that only one voter, as here,

made the mistake of writing in a candidate who was already on the ballot,

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noting that "a reasonable voter would understand, without explicit instruction,

that it is unnecessary to write in the name of a candidate whose name already

appears on the ballot, and that a vote for that candidate must be cast by

marking the place on the ballot where that candidate's name appears." Id. at

477. Applying these principles to the matter before us, we reject Cirz's

objections to the write-in voting instructions.

B. V.G.'s Mail-In Vote

Cirz argues in his cross-appeal that the trial court erred in failing to

count V.G.'s mail-in ballot after the Board denied her the opportunity to cure

the deficiency. Both the Board and Hopson argue that V.G.'s ballot was

properly rejected. We hold that V.G.'s ballot was correctly rejected.

Pursuant to N.J.S.A. 19:63-13, the inner envelope of all mail-in ballots

contains a Certificate of Mail-In Voter in the following form:

I, ___________________________________, whose
(print your name clearly)

home address is ______________________________

(street address or R.D. number) (municipality)

DO HEREBY CERTIFY, subject to the penalties for

fraudulent voting, that I am the person who applied for
the enclosed ballot. I MARKED AND SEALED THIS
BALLOT AND CERTIFICATE IN SECRET.
However, a family member may assist me in doing so.

_________________________________________
(signature of voter)

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There is no dispute V.G. failed to complete this Certificate of Mail-In Voter,

and thus, failed to comply with the requirements of N.J.S.A. 19:63-16(a) that

all mail-in voters must "fill in the form of certificate attached to the inner

envelope, at the end of which the voter shall sign and print the voter's name."

The record shows V.G. left the entire Certificate blank.

As amended by L. 2020, c. 70, N.J.S.A. 19:63-17 permits mail-in voters

to cure their incorrect ballots in limited circumstances involving "a missing

signature or discrepant signature." In that regard, N.J.S.A. 19:63-17(b)

provides that:

[t]he county board of elections shall, promptly after

receiving each mail-in ballot, undertake the following
procedures and requirements concerning the
acceptance or rejection of each mail-in ballot:

(1) within [twenty-four] hours after the decision has

been made to reject a voter's mail-in or provisional
ballot on the basis of a missing signature or discrepant
signature, issue a "Cure Letter" by mail or email to the
voter whose ballot was rejected, which shall inform
the voter of that fact and provide the reasoning for
rejection, and attempt to contact the voter by
telephone, if a telephone number is available. The
cure letter shall include a "Cure Form" and the form
shall include the voter's name and instruct the voter on
how to cure the alleged or actual deficiency. Cure
forms shall not be referred to as affidavits or
certifications and shall not be required to be sworn;

(2) when the alleged or actual deficiency involves the

signature of the voter, instruct the voter that they may
cure the deficiency by completing the cure form and

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returning it to the county board of elections in person,
by fax, or by email, not later than [forty-eight] hours
prior to the final certification of the results of the
election other than the general election, or in the case
of a general election within [eleven] days after the
general election, or by returning it to the county board
of elections by mail, and that the completed cure form
must be received by the county board of elections not
later than [forty-eight] hours prior to the final
certification of the results of the election other than
the general election, or in the case of a general
election within [eleven] days after the general
election;

(3) include, with the cure letter, when sent by mail, a

pre-printed cure form and a postage-paid return
envelope addressed to the county board of elections
which the voter may use to return the cure form; and

(4) inform voters that they shall not be required to

submit any form of hard-copy identification document
or copy thereof in order to cure a signature deficiency,
but may do so by declaring that they submitted their
provisional ballot or mail-in ballot, and verifying their
identity by either: (a) providing a valid New Jersey
driver's license number or Motor Vehicle Commission
non-driver identification number; or (b) if the voter
does not have a valid New Jersey driver's license
number or Motor Vehicle Commission non-driver
identification number, then by providing the last four
digits of their Social Security Number; or (c) if the
voter does not have the identification in (a) or (b),
then attaching a legible copy of a New Jersey State-
accepted form of identification, including either a
sample ballot which lists the voter's name and address,
an official federal, State, county, or municipal
document which lists the voter's name and address, or
a utility bill, telephone bill, or tax or rent receipt
which lists the voter's name and address; and (d)
signing and dating the cure form prior to returning it.

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 If the voter "returns a completed cure form in a timely manner and the

information provided verifies the voter's identity, pursuant to this section, their

otherwise valid mail-in or provisional ballot shall be counted in the final

election results irrespective of any signature deficiency previously identified

. . . ." N.J.S.A. 19:63-17(c).

Cirz maintains that because V.G.'s ballot rejection involved a missing

signature, N.J.S.A. 19:63-17(b) required the Board to offer her the opportunity

to cure the ballot errors. As V.G. testified, she went to the Board within the

time set forth in N.J.S.A. 19:63-17(b)(2) to cure her ballot errors, but the

Board refused to allow her to do so.

The Board counters that because the deficiency in V.G.'s ballot involved

more than just her signature and was an entirely blank Certificate of Mail-In

Voter, the Board had no statutory right to offer her the opportunity to cure. In

support of its argument, the Board claims that "[n]either N.J.S.A. 19:63-17 nor

any other part of Title 19 allows" the Board to allow any voter "to cure [a]

mail-in ballot when the [C]ertificate is left completely blank."

We affirm the trial court's decision not to count the mail-in ballot

submitted by V.G. The evidence shows that V.G.'s inner envelope was not

filled out. Thus, V.G. did not print her name, her street address, or sign the

inner envelope as required by N.J.S.A. 19:63-16(a). As just discussed,

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N.J.S.A. 19:63-17 permits mail-in voters to cure ballots only if the signature is

missing. We do not construe the statute as allowing the cure of a ballot

submitted with an inner envelope that was left completely blank.

C. Mail-In Ballots Postmarked February 18, 2025

Cirz also argues that the trial court erred in disqualifying the three mail-

in ballots because those ballots were postmarked February 18, 2025. The

Board and Hopson assert that the ballots were properly disqualified. We agree

that the ballots were correctly rejected.

N.J.S.A. 19:63-22(a) sets clear, explicit deadlines for the receipt of mail-

in ballots, stating:

Every mail-in ballot that bears a postmark date before

or of the day of the election and that is received by the
county board within 144 hours after the time of the
closing of the polls for the election that the ballot was
prepared shall be considered valid and shall be
canvassed. Every mail-in ballot that does not bear a
postmark date but that is received by the county board
by delivery of the United States Postal Service before,
or within [forty-eight] hours after, the time of the
closing of the polls for the election for which the
ballot was prepared shall be considered valid and shall
be canvassed.

There is no dispute that the three ballots mailed by M.B., P.B., and J.D.

did not comply with either of these requirements. Each of the three ballots

was postmarked on February 18, 2025, three days after the date of the Fire

District election.

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 Cirz urges us to allow these ballots to be counted because, as the trial

court found, the voters credibly testified that they placed their ballots in their

mail boxes on the day of the election, but the envelopes containing the ballots

were postmarked three days later, after the weekend, three days after the

Saturday election, and after the President's Day holiday. Cirz also argues we

should apply the time standards set forth in Rule 1:3-1,4 so that the time period

does not start running until the next business day.

The statutory construction urged by Cirz would alter the meaning of the

statute's plain language. The ballots at issue neither lacked a postmark, nor

were they postmarked on or before the date of the election. Moreover, as the

Board points out, the Toms River Post Office is open on Saturdays. Cirz

offers no legal support for his argument that the clear terms of N.J.S.A. 19:63 -

22 should be ignored in the circumstances here. And, Cirz does not offer any

4
Rule 1:3-1 provides:

In computing any period of time fixed by rule or court

order, the day of the act or event from which the
designated period begins to run is not to be included.
The last day of the period so computed is to be
included, unless it is a Saturday, Sunday[,] or legal
holiday, in which event the period runs until the end
of the next day with is neither a Saturday, Sunday[,]
nor legal holiday. In computing a period of time of
less than [seven] days, Saturday, Sunday[,] and legal
holidays shall be excluded.

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support for the application of the time standards under Rule 1:3-1. Therefore,

we reject Cirz's argument and conclude the clear terms of N.J.S.A. 19:63-22

preclude the mail-in ballots postmarked on February 18, 2025, from being

counted.

V.

Next, Cirz argues the trial court erred in denying his motion for leave to

file a third amended answer and cross-petition to include an additional

challenge to a single mail-in ballot that was rejected by the Board as an

overvote. Hopson argues that the trial court properly denied Cirz's motion,

which was filed one business day before trial, on April 11, 2025, as it was

prejudicial to Hopson. The ballot Cirz challenged was a mail-in vote by an

unidentified voter that had been rejected by the Board because the voter

blacked in the circles next to both Cirz's and Golden's names and also blacked

in one circle in the "Personal Choice—Write-In" column, but did not write in

any name.

At the close of the first day of trial, the trial court addressed Cirz's

motion for leave to amend. Counsel for Cirz argued that it had taken a

significant amount of time to review the "more than 1,300 ballots that we had

to go through," which was the reason the motion was filed just before the trial

date. Counsel for Hopson countered that all of the parties possessed all of the

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ballots at issue since March 25, 2025, and there was no new information

justifying Cirz's delay. Hopson further argued that granting Cirz's motion

would be prejudicial to Hopson since he had based his "case strategy" on the

ballot challenges Cirz had previously made.

In denying Cirz's motion to amend, the trial court found no

"extraordinary circumstance," and that to allow the amendment would be an

"unfair surprise" to Hopson. The trial court also found that "the prejudice

outweighs any probative value that would be offered to this dispute."

Under Rule 4:9-1, once a responsive pleading has been served, a

complaint may be amended "only by written consent of the adverse party or by

leave of court which shall be freely given in the interest of justice." This Rule

"'requires that motions for leave to amend be granted liberally' and that 'the

granting of a motion to file an amended complaint always rests in the court's

sound discretion.'" Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006)

(quoting Kernan v. One Wash. Park Urb. Renewal Assocs., 154 N.J. 437, 456-

57 (1998)).

This "exercise of discretion requires a two-step process: whether the

non-moving party will be prejudiced, and whether granting the amendment

would nonetheless be futile"; "that is, whether the amended claim will

nonetheless fail and, hence, allowing the amendment would be a useless

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endeavor." Ibid. "[T]he factual situation in each case must guide the court's

discretion, particularly where the motion is to add new claims or new parties

late in the litigation." Bonczek v. Carter Wallace, Inc., 304 N.J. Super. 593,

602 (App. Div. 1997).

"One of the factual situations to be considered by the trial court is the

reason for the late filing." Verni ex rel. Burstein v. Harry M. Stevens, Inc.,

387 N.J. Super. 160, 196 (App. Div. 2006) (citing Bonczek, 304 N.J. Super. at

602). We "review a trial court's decision to grant or deny a motion to amend

the complaint for abuse of discretion." Grillo v. State, 469 N.J. Super. 267,

275 (App. Div. 2021) (quoting Port Liberte II Condo. Ass'n v. New Liberty

Residential Urb. Renewal Co., 435 N.J. Super. 51, 62 (App. Div. 2014)).

Before us, Cirz challenges Hopson's assertions of prejudice. A factual

finding by the trial court is entitled to deference, and it is based on competent,

credible evidence in the record. See Horne, 477 N.J. Super. at 312-13. As

Hopson points out, prior to Cirz's proposed amendment, he had challenged two

ballots, and Cirz challenged six ballots. Based on those numbers, the record

supports Hopson's position that he "made calculated decisions, including

forgoing challenges to other questionable ballots uncovered during discovery ."

Therefore, we discern no abuse of discretion in the trial court's finding of

prejudice to Hopson.

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 Moreover, Cirz makes no showing that his challenge to this purported

"overvote" ballot had any likelihood of success on the merits. N.J.S.A. 19:16 -

3(a) provides that

If proper marks are made in the squares to the left of

the names of any candidates in any column and the
total number voted for, for each office, does not
exceed the number of candidates to be elected to each
office, a vote shall be counted for each candidate so
marked.

Further, N.J.S.A. 19:16-3(f) provides:

If a voter marks more names than there are persons to

be elected to an office, or writes or pastes the name of
any person in the column designated personal choice,
whose name is printed upon the ballot as a candidate
under the same title of office, or his choice cannot be
determined, his ballot shall not be counted for that
office, but shall be counted for such other offices as
are plainly marked.

Here, the voter in question made three separate, clear marks on a ballot

where he or she was permitted to only vote for two individuals. Thus, the

marks "exceed[ed] the number of candidates to be elected to each office" under

N.J.S.A. 19:16-3(a) and further made it impossible for a reviewer to determine

the voter's choice under N.J.S.A. 19:16-3(f). Therefore, "allowing the

amendment would" have been "a useless endeavor." Notte, 185 N.J. at 501.

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 VI.

In summary, we affirm the trial court's decision not to count the mail-in

ballot submitted by V.G., we reverse the trial court's decision permitting the

three write-in votes to be counted, and we affirm the trial court's decision

barring Cirz from filing a belated third amended answer and cross-petition.

We, therefore, remand the matter for entry of an order directing a run-off

election between Hopson and Cirz for the remaining open Commissioner seat.

The stay of Cirz assuming the position as one of the Fire District

Commissioners is continued until the completion and certification of the run-

off election.

Affirmed in part, reversed in part, and remanded for further proceedings

consistent with our opinion. We do not retain jurisdiction.

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