NOT FOR PUBLICATION WITHOUT THE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 

OCCURRED ON NOVEMBER 3, 

2020 FOR THE 2020 ATLANTIC 

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; 

APPROVED FOR PUBLICATION

June 29, 2021

APPELLATE DIVISION
2

A-1139-20

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). 
3

A-1139-20

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 which the voter selects

more than the permitted number of candidates. This results in a rejected vote, 

recording zero votes for all candidates. The Board's initial canvassing recorded 

740 overvotes for the CAL race.

On November 20, 2020, Fernandez filed a petition in the Law Division

seeking a recount. Thereafter, at the direction of the New Jersey Secretary of
4

A-1139-20

State, the Board conducted a hand-to-eye audit of voter-verifiable paper records 

for several races, including the CAL race. The Board conducted the audit in 

accordance with procedures established by the State's Division of Elections

(DOE). 

On December 1, 2020, Fernandez filed an amended petition in the trial 

court, and the following day, the Law Division judge conducted an evidentiary 

hearing on the petition. The judge heard testimony from Evelyn Caterson, the 

Board's Chairperson, and from Susan Sandman and William Sacchinelli, the 

Board's Republican and Democratic clerks, respectively. 

Sandman testified that the State-mandated audit process consisted of a 

hand-to-eye recount of 767 randomly selected audit units, or "batches" of 200 

ballots. Sacchinelli testified that the Board was still reviewing the form of the

audit report for accuracy and would release the results within a couple of days. 

Caterson testified that the audit, which was conducted by twelve workers, 

took about five-and-a-half hours, not including the subsequent Board review. 

She was unable to say how long it would take for a hand recount of all 143,000 

ballots cast in the election. 

Caterson stated, however, that such a recount would require the Board to 

hire forty staff members and its supervisors would have to perform additional 
5

A-1139-20

tasks. She estimated that the cost of hiring additional staff for a two-week period 

would be "close to $90,000." 

Caterson added that the hand recount of 143,000 ballots could take 

"several weeks" without additional staff, and that a hand recount of fewer ballots 

would take less time. She did not offer any testimony regarding how long it 

would take, how expensive it would be, or how many workers would be required 

for a limited hand recount of only the ballots registering overvotes and 

undervotes after using the machine to identify those ballots.

The judge granted the petition for a recount. The court scheduled the 

matter for another hearing on the size and scope of the recount. 

On December 4, 2020, the Board released the results of the Statemandated audit. Risley's margin of victory over Fernandez was reduced by one 

vote to 380. 

The court conducted another hearing on December 7, 2020. Sandman 

testified that the machine scanner the Board used was capable of "identify[ing] 

specific ballots which contain overvotes . . . [and] undervotes." She stated that 

because of the decrease in overvotes and undervotes tallied in the audit, the total 

votes cast for the CAL position in the batches of ballots recounted increased 
6

A-1139-20

from 5,158 to 5,184, which, according to Sandman's calculation, resulted in an 

"error rate" of about .5%. 

Sacchinelli testified that the entire audit process, including the review by 

Board staff, had taken between seven and eight hours. He said that, in general, 

the machine scanner could read approximately 3,000 ballots per hour at 

maximum capacity. He explained that after the scanner identified ballots as 

overvotes or undervotes, the staff could then separate those ballots from the 

other ballots in the batch for a hand recount. 

Sacchinelli further explained that although a staff member would have to 

separate the overvote and undervote ballots physically from the rest of the batch, 

"the scanner would pick up [the ballots that included] undervotes and overvotes" 

to facilitate separation of the ballots. He added that with the vendor's assistance, 

the machine could segregate the ballots that contained undervotes or overvotes

from the rest of the batch.

At the December 7 hearing, the judge asked Fernandez's attorney whether 

Fernandez was seeking a hand recount of all 143,000 ballots cast in the CAL 

election. Counsel replied:

No, Judge. Given the nature and circumstance, I 

mean during a normal election year where we utilize the 

machine to a greater level, then the answer is yes. But 

this year . . . we’re looking at error rates. In particular, 
7

A-1139-20

we're looking at the overvotes and the undervotes 

because that seems to be where you have a [fifty 

percent] error rate and then the other one somewhere 

between, you know, [an error rate of] .75 to 1.5 or 

maybe higher, we're not even sure . . . . It seems that 

the better [approach is to have] a hand count for the 

undervotes and the overvotes and a machine total for 

the remainder, Judge.

Counsel added that Fernandez was requesting that the Board run all the ballots 

through the vote-tallying machines, have the machine separate the overvotes and 

undervotes from the rest, and have a hand recount of the overvotes and 

undervotes. 

On December 11, 2020, the judge ordered the Board to conduct a further 

audit of two additional two percent batches of ballots for the CAL race, using 

the same procedures that the Board used in the State-mandated audit. On 

December 15, 2020, Fernandez filed a motion seeking reconsideration of the 

December 11, 2020 order. 

Fernandez asked the court "to expand the recount and recheck to include 

the machine rescanning of 143,000 ballots cast and the hand counting of all 

ballots containing undervotes and overvotes." On December 16, 2020, the court 

denied Fernandez's motion for reconsideration "at this time." 

On December 18, 2020, the Board released the results of the recount, 

which included 5,855 randomly selected ballots in two separate two percent 
8

A-1139-20

batches. Before the recount, these ballots had contained a total of 10,825 

recorded votes, 38 overvotes, and 839 undervotes. After the recount, the total 

amount of overvotes had decreased by eighteen and the total number of 

undervotes had decreased by forty-four, with most of these newly recorded 

candidate votes going to the two candidates who were not parties to the lawsuit. 

In the first batch of hand-counted ballots in the recount, both Fernandez's 

and Risley's vote tallies increased by five, the number of recorded overvotes 

decreased by five, from twelve to seven, and the number of undervotes decreased 

by twenty-three, from 446 to 423. In the second batch of hand-counted ballots, 

both Fernandez's and Risley's vote tallies increased by eight, the number of 

overvotes was cut in half, from twenty-six to thirteen, and the number of 

undervotes decreased by twenty-one, from 393 to 372. 

In all, combining the 8,646 ballots and 15,983 votes hand-counted in the 

three batches included in the audit and the recount, the total number of overvotes 

had decreased by 24, from 50 to 26, and the number of undervotes had decreased 

by 50, from 1,247 to 1,197. Combined, 1,297 votes originally tallied as either 

overvotes or undervotes had been recounted, and 74 had been changed from 

undervotes or overvotes to recorded votes for candidates. 
9

A-1139-20

On December 22, 2020, the trial court entered the order, which denied 

Fernandez's motion for reconsideration and accepted "as sufficient the results of 

the [r]ecount and [r]echeck completed." The court ordered the Clerk to "adjust 

and recertify the final results of the 2020 Atlantic County [CAL] Election in 

accordance with the results of the audit and additional recount." This appeal 

followed. 

On February 18, 2021, the Clerk, the Board, and the County 

Superintendent of Elections advised this court they would not be participating 

in the appeal. Thereafter, we granted the Attorney General's motion to appear 

as amicus curiae. 

II.

On appeal, Fernandez argues that under N.J.S.A. 19:28-1, an unsuccessful 

candidate is entitled to a full or partial recount of the votes cast in an election, 

and the trial court erred by interpreting the statute to give the court discretion in 

determining whether to order a recount. Risley contends the statute does not 

mandate a recount on request. The Attorney General agrees and argues that 

N.J.S.A. 19:28-1 provides the court with discretion to determine if a recount is 

required. 
10 A-1139-20

Issues raised regarding the interpretation of statutes are questions of law 

which we review de novo. Kocanowski v. Twp. of Bridgewater, 237 N.J. 3, 9 

(2019) (citing State v. Fuqua, 234 N.J. 583, 591 (2018)). Therefore, the trial 

court's "interpretation of the law and the legal consequences that flow from 

established facts are not entitled to any special deference." Manalapan Realty, 

L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995). 

"The overriding goal" of statutory interpretation "is to determine . . . the 

intent of the Legislature, and to give effect to that intent." State v. Hudson, 209 

N.J. 513, 529 (2012). "The inquiry thus begins with the language of the statute, 

and the words chosen by the Legislature should be accorded their ordinary and 

accustomed meaning." Ibid. 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). 

Section one of the recount statute provides in part that: 

When any candidate at any election shall have reason 

to believe that an error has been made in counting the 

votes of that election, the candidate may, within a 

period of [seventeen] days following such election, 

apply to a judge of the Superior Court assigned to the 

county wherein such district or districts are located, for 
11 A-1139-20

a recount of the votes cast at the election in any district 

or districts.

[N.J.S.A. 19:28-1.]

Section two of the recount statute, governing costs, requires, in pertinent 

part, that the recount applicant must place a sum "not exceeding twenty-five 

dollars" per district for which a recount is sought with the court, "as security for 

the payment of the costs and expenses of the recount in case the original count 

be confirmed." N.J.S.A. 19:28-2. Section three of the recount statute states that 

a "judge shall be authorized to order upon such terms as he deems proper a 

recount of the votes as he may determine, to be publicly made under his direction 

by the county board." N.J.S.A 19:28-3. 

A separate statute, which was enacted in 2005, creates a vote-auditing 

process, pursuant to which the Attorney General is required to appoint a 

"professional audit team" to "oversee, in each county, random hand-to-eye 

counts of the voter-verifiable paper records that are to be conducted by 

appropriate county election officials . . . for each election held for . . . county 

and municipal offices selected by the Attorney General." N.J.S.A. 19:61-9(a). 

The statute requires that, "the audit shall be conducted in at least two percent of 

the election districts in which each audited election appears on the ballot." Ibid. 

The statute further provides:
12 A-1139-20

Nothing in this section shall be construed to prevent a 

candidate or other applicant from requesting a recount 

pursuant to R.S.19:28-1 et seq. or any other law. In the 

event that such a recount is held in any election district 

that has been audited pursuant to this section, the 

official result from such election district shall be 

applied to the recount in lieu of conducting a 

subsequent hand count of the audited election district 

unless a court, at the request of a candidate or other 

applicant who requested the recount, so orders.

[N.J.S.A. 19:61-9 (d).]

Furthermore, on August 14, 2020, Governor Murphy issued Executive 

Order 177, titled "An Order to Protect Public Health By Mailing Every Active 

Registered Voter a VBM [Vote-By-Mail] Ballot Ahead of the General Election." 

Exec. Order. No. 177 (Aug. 14, 2020), 52 N.J.R. 1701(b). Among other things, 

the order directed that, "[t]he November General Election shall be conducted 

primarily via vote-by-mail ballots, which will be sent to all 'Active' registered 

voters without the need for an application to receive a vote-by-mail ballot." Ibid.

Thereafter, on August 28, 2020, the Legislature enacted three separate 

election-related laws: a law designed "to modify and establish various voting 

procedures," for the 2020 election and beyond, including provisions relating to 

the "curing" of mail-in ballots (The Ballot Cure Act), L. 2020, c. 70; and two 

laws that codified several of the vote-by-mail procedures for the 2020 election 

directed by Executive Order No. 177, and amended various other statutory 
13 A-1139-20

provisions, L. 2020, c. 71; L. 2020, c. 72 (collectively, the 2020 election 

statutes). 

The 2020 election statutes provided that the Legislature did not intend to 

disturb the existing scheme for election laws in New Jersey, except as otherwise 

provided, stating that "[t]he November 2020 General Election shall be 

conducted in accordance with Title 19 except as set forth below." N.J.S.A. 

19:63-31(a). Among the new election procedures implemented were a 

codification of the directive in Executive Order No. 177 that the election would 

be "conducted primarily via vote-by-mail ballots," N.J.S.A. 19:63-31(a), as well 

as the following:

[T]o account for the increase in vote-by-mail ballots 

and to ensure that registered voters' efforts to vote are 

not impacted by delays in the postal service, every voteby-mail ballot that is postmarked on or before 

November 3, 2020, and that is received by November 

10, 2020, at 8:00 p.m. shall be considered valid and

shall be canvassed, assuming the ballot meets all other 

statutory requirements. . . .

[N.J.S.A. 19:63-31(m).]

Prior to the election, the Secretary of State determined that the 

Commissioner elections in Atlantic County would be among those subject to a 

mandatory hand-to-eye audit pursuant to N.J.S.A. 19:61-9. The State DOE

issued procedures for the audit, which provided in part that each county board 
14 A-1139-20

of elections, shall "conduct a hand-to eye manual count" in "at least [two per 

cent] of the election districts in which each audited election contest appears on 

the ballot . . . of the voter-verifiable paper records and compare those results to 

the results produced by the voting machine." 

Here, the trial court found that there is no automatic right to a recount 

under N.J.S.A. 19:28-1. The court noted that under New Jersey law, there is no 

objective measure that would trigger a recount.2 The court therefore determined 

that to secure a recount, the candidate must establish that the board of elections 

erred in its tabulation of the votes, or that the results of the election were 

sufficiently close that denial of a request for a recount would undermine the 

integrity of the electoral process. 

The trial court noted that the Board had initially reported a 381-vote 

difference between Risley and Fernandez. The court observed that this 

difference was "extremely close," equaling a twenty-nine-vote difference for 

2

 The Attorney General notes that other states require recounts of ballots cast 

if the returns show a margin of victory that is less that a specified number or 

percentage. See Del. Code. Title 15, § 5702(e) (requiring recount if number of 

votes separating candidates for certain offices is less than 1,000 votes or onehalf of one percent of all votes for those candidates); 25 Pa. Stat. § 3154(g)(1)(i)

(requiring a recount if candidate for public office was defeated by one-half of 

one percent or less of the votes cast for the office). 
15 A-1139-20

every 10,000 votes cast. The court found that based on the closeness of the 

results, plaintiff was entitled to a recount. 

We are convinced that the trial court correctly found that N.J.S.A. 19:28-

1 does not provide a candidate with an automatic right to a recount. Moreover,

the statute does not expressly authorize a court to order a recount due to the 

closeness of the reported results. As noted, the statute provides that a candidate 

may apply for a recount if he or she "shall have reason to believe that an error 

has been made in counting the votes of that election . . . ." Ibid.

Therefore, to secure a recount pursuant to N.J.S.A. 19:28-1, a candidate 

must present sufficient competent, credible evidence showing there is reason to 

believe an error was made in the tabulation of the votes. The court then must 

determine whether the claimed error warrants a recount. In making that 

decision, the court must consider whether the claimed error has the capacity to 

affect the outcome of the election. 

In her initial petition, Fernandez asserted that, upon information and 

belief, there were reasons to believe an error was made in counting the votes in 

the CAL election. She asserted that certain machine, vote-by-mail ballots, 

provisional ballots, and emergency ballots had not been counted properly. She 

claimed that if the ballots had been properly counted, she would attain the votes 
16 A-1139-20

needed for her election to the CAL position. Fernandez provided no 

certifications or affidavits to support these claims. 

Fernandez repeated these same allegations in her amended petition. She

further alleged that, upon information and belief, errors had been revealed in the 

State-mandated audit. She contended there was an "unusual" number of 

overvotes and undervotes in the election. She did not submit any affidavits or 

certifications to substantiate her claims. 

However, the results of the State-mandated audit provided sufficient 

support for Fernandez's request for a recount. The audit encompassed a hand 

count of 2,791 randomly selected ballots, and only changed the difference 

between Fernandez and Risley by one vote, with an overall 99.45% accuracy 

rate. Even so, the audit reduced the number of overvotes in the batch audited 

from twelve to six, and the number of overvotes from 408 to 402. 

Thus, the audit showed an error rate of 50% for overvotes and about 1.5% 

for undervotes in the batch. It is reasonable to assume, for purposes of 

determining the scope of the recount, that the same error rates would apply to

all the initially reported overvotes and undervotes. Based on this analysis, the 

number of erroneously recorded overvotes and undervotes could be sufficient to 

affect the outcome of the CAL race between Risley and Fernandez. 
17 A-1139-20

We therefore conclude that under N.J.S.A. 19:28-1, there is no automatic 

right to a recount and a recount is not required merely because the reported 

results of the election are close. The candidate seeking a recount under N.J.S.A. 

19:28-1 must present the court with sufficient competent, credible evidence 

showing there is reason to believe there was an error in the count. If the claimed 

error could alter the results of the election, the court should order a recount. 

Here, Fernandez presented the trial court with sufficient evidence to show 

there is reason to believe there was an error in the count of overvotes and 

undervotes. Moreover, the record shows that the claimed error could affect the 

outcome of the CAL race between Risley and Fernandez. Therefore, the court 

did not err by ordering a recount.

III.

Fernandez argues that that the trial court mistakenly exercised its 

discretion by denying her application for a hand recount of the overvotes and 

undervotes in the CAL election. In response, Risley contends that trial court 

properly exercised its discretion to order a limited audit of two additional two 

percent batches of votes. The Attorney General takes no position on this issue. 

"A trial court's exercise of discretion is 'entitled to respectful review under 

an abuse of discretion standard[.]'" Thabo v. Z Transp., 452 N.J. Super. 359, 
18 A-1139-20

368 (App. Div. 2017) (quoting Serenity Contracting v. Fort Lee, 306 N.J. Super. 

151, 157 (App. Div. 1997)). Typically, an abuse of discretion will only "arise[ 

] when a decision is 'made without a rational explanation, inexplicably depart[s] 

from established policies, or rest[s] on an impermissible basis.'" Flagg v. Essex 

Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. 

Immigr. and Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir.1985)). 

Although this standard of review "defies precise definition," the 

"functional approach . . . examines whether there are good reasons for an 

appellate court to defer to the particular decision." Ibid. Reviewing courts 

should "accord substantial deference to the trial court's findings of fact provided 

that they are 'supported by adequate, substantial and credible evidence[,]' and 

also give deference to the trial court's conclusions and 'discretionary 

determinations that flow from them.'" Pitney Bowes Bank, Inc. v. ABC Caging 

Fulfillment, 440 N.J. Super. 378, 382-83 (App. Div. 2015) (alteration in 

original) (quoting Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. 

Super. 191, 202 (App.Div.1997)).

Here, the trial court found that "there [wa]s no justification to order a full 

recount of all ballots," due to "the significant burden" that a hand recount of all 

143,000 ballots received would "impose[ ] on the Board." The court reasoned 
19 A-1139-20

that because the State-mandated audit had resulted in "an error rate of only about 

a half of a percentage point," a full hand recount was not warranted. 

As stated previously, the court instead ordered a randomly selected hand 

recount of an additional four percent of the ballots so that the combination of 

the State-mandated audit and the court-ordered recheck would result in a hand 

recount of six percent or "about [8,100] ballots." The court stated that this would 

"provide even more confidence in the accuracy of the results consistent with 

legislative intent." 

When it ordered the recount, the court did not address Fernandez's specific 

request to have a machine scan and identify the ballots marked as overvotes or 

undervotes and then conduct a hand recount of those ballots only. The court

found that it would be an "immense task" for "the Board to rescan all 143,000 

ballots and then identify and separate the ballots with undervotes and overvotes 

for a hand recount of the ballots containing undervotes and overvotes." The 

court noted that the State-mandated audit had revealed only "minor 

inaccuracies," and had only reduced Risley's margin of victory by one vote.

Following the recount of the additional four percent of the ballots, the 

court issued another order denying Fernandez's request for an expanded hand 

recount. In the written decision accompanying the order, the court again stated
20 A-1139-20

that the audit had "provide[d] a reliable method for recounting the ballots," and 

had resulted in "a reliability rate of over 99.498% accuracy based on the 

testimony presented." 

The court found that because the additional recount "did not change the 

vote difference between [Risley] and [Fernandez] . . . the audit and the additional 

recount provided enhanced reliability and confidence in the election results in 

accordance with the statutory scheme." Due to the "greater confidence in the 

election results" that resulted from the court-ordered recount, the court found no 

justification for "ordering a further recount." 

On appeal, Fernandez contends that the trial court erred by declining to 

order the hand recount she had requested because, following the audit and the 

limited recount, the margin of victory had narrowed between Fernandez and 

Risley,3and there was an error rate of forty-eight percent on the overvotes 

already recounted, and four percent on the undervotes. She contends that 

applying those error rates to the unrecounted ballots would result in 331 

3

 As discussed, the court found the margin between Risley and Fernandez, after 

the court-ordered recount, remained at 380 votes, the same margin that separated 

the candidates after the initial State-mandated audit. Fernandez claims, without 

explanation, that the gap is now 377 votes. However, the margin of 380 is 

consistent with the results of the audit and partial recount.
21 A-1139-20

additional countable votes which had been mischaracterized as overvotes and 

800 votes that were mischaracterized as undervotes. 

Fernandez asserts that the trial court erred by focusing on whether a 

review of the overvotes and undervotes would weigh overwhelmingly in her 

favor and change the result. She maintains the court should instead have only 

considered whether the uncounted overvotes and undervotes were "sufficient in 

number to effect an outcome" or "raise concerns as to the certainty of the vote

total." 

As noted, the court's decision to limit the recount to a second audit was 

based in part on its finding that a hand recount of the overvotes and undervotes 

would pose an "immense" or "significant burden" on the Board. It appears that 

in making that finding, the court relied on Caterson's testimony that a full hand 

recount of all 143,000 ballots could take several weeks and could require the 

Board to devote extensive resources to the effort, at considerable expense. 

However, the record shows that Fernandez was not seeking a full hand 

recount of 143,000 ballots. As stated previously, Fernandez's attorney told the 

court that Fernandez was asking to have all ballots run through the machine 

scanner again so that the overvotes and undervotes could be identified and 
22 A-1139-20

separated. The Board's staff then could conduct a hand recount of the overvotes 

and undervotes only.

When the court determined the scope of the recount, there remained 

20,855 unrecounted undervotes and 728 unrecounted overvotes, or 21,583 

combined. In requesting the ballots containing those rejected votes be 

recounted, counsel referenced Sacchinelli's testimony regarding the Board's 

ability to bring in the machine vendor to better facilitate the separating of 

overvotes and undervotes from the remainder of the ballots. There was no 

testimony from Caterson, Sandman, or Sacchinelli indicating that such a process 

would present the Board with a logistical or financial burden. 

The hand recount of 5,585 ballots, and 11,702 votes, as ordered by the 

court, included only 877 votes that Fernandez had asked to be recounted by hand 

(the overvotes and undervotes in the two batches recounted) and 10,825 votes 

that Fernandez had not asked to be recounted by hand (the remainder). The hand 

recount of more than 11,000 votes had been completed within one week of the 

court's order. Accordingly, the court's finding that a hand recount of 21,583 

votes would pose a significant and "immense" burden on the Board was not 

supported by sufficient credible evidence in the record. 
23 A-1139-20

Moreover, the trial court's apparent misapprehension that Fernandez was

seeking a full hand recount seems to have led the court to conclude the "error 

rate" in the machine's tabulation of overvotes and undervotes was .5%. The 

court based this on Sandman's testimony that the "error rate" of the audit was 

.5%, and the results 99.498% accurate.

The court relied upon the .5% error rate for its conclusion that Fernandez's 

request for a machine recount of every vote was unnecessary. But that error rate 

was irrelevant to Fernandez's application which was for machine scanning of all 

votes cast in the CAL election and a hand recount of the ballots identified as 

having overvotes and undervotes. Fernandez's application was premised on the 

claim that the machine scanner had erroneously discarded valid votes, which 

had been mistakenly recorded as overvotes and undervotes. 

In determining the "error rate," or amount of false positive overvotes in 

the CAL election, the numerator should be the number of votes amended from 

uncounted overvotes to recorded candidate votes either in the audit (6), the 

recount (18), or both combined (24). Similarly, for the error rate of the 

undervotes in the election, the numerator should be the number of votes 

amended from uncounted undervotes to recorded candidate votes following the 

audit (6), the recount (44), or both combined (50).
24 A-1139-20

Furthermore, the denominator for determining the error rate of overvotes 

should be the number of votes originally recorded as overvotes in the sample 

audited (12), recounted (38), or both combined (50). Similarly, the correct 

denominator for the error rate of undervotes was the number of votes originally 

recorded as undervotes in the sample audited (408), recounted (839), or both 

combined (1,247).

Considered together, as overall false positives, the numerator for 

overvotes and undervotes from the audit and recount combined would be 74 and 

the denominator 1,297. This equation yields an overvote false positive rate of 

50% in the audit, 47.37% in the recount, or 48% overall; an undervote false 

positive rate of 1.47% in the audit, 5.24% in the recount, or 4.01% overall; and 

a combined false positive rate of 5.71% overall. 

Applying the appropriate cumulative error rates to the 690 unrecounted 

overvotes and the 20,016 unrecounted undervotes, a hand recount of those 

ballots would be expected to result in approximately 331 additional overvotes, 

1,143 undervotes, and 1,474 combined additional votes. 

We note that there can be no certainty as to how these votes would likely 

be distributed among the four candidates for the two CAL positions, and even 

less certainty as to the likelihood that counting these votes would diminish 
25 A-1139-20

Risley's margin of victory over Fernandez. However, no testimony or other 

evidence was presented to the trial court as to whether the 380-vote gap between 

Risley and Fernandez could be overcome if an additional 1,474 votes were 

considered. 

We conclude that the trial court erred by finding that the results of the 

State-mandated audit and the court's initial limited recount showed the election 

results for the CAL positions were sufficiently reliable and obviated the need 

for a hand count of the overvotes and undervotes. Rather, the results of the audit 

and initial recount established there was reason to believe an error had been 

made in the tabulation of the overvotes and undervotes, and the error could affect 

the outcome of the contest between Risley and Fernandez for the CAL position. 

We therefore conclude the court erred by denying Fernandez's application 

for a machine recount to identify and segregate the overvotes and undervotes in 

the CAL election, and a hand recount of the overvotes and undervotes in the 

election. We remand the matter to the trial court for the issuance of an order 

requiring such a recount. 

Reversed and remanded to the trial court for further proceedings in 

accordance with this opinion. We do not retain jurisdiction.