Nordstrom v. Lyon, 424 N.J. Super. 80 (App. Div. 2012). William “Hank” Lyon was a media star last year. In his early 20’s, and a newcomer to the political scene, Lyon ran for Morris County Freeholder (or, as his campaign materials put it, “for Conservative Freeholder”) in the Republican primary against four-term incumbent Margaret Nordstrom. Lyon appeared to have scored an upset victory, by ten votes. Nordstrom, however, challenged the election results, asserting voter misconduct and campaign financing and reporting improprieties by Lyon. Nordstrom won in the Law Division and went on to win the November election and retain her Freeholder seat. Lyon appealed, and the Appellate Division reversed in a lengthy opinion by Judge Harris. The panel removed Nordstrom from her office and declared the Freeholder seat vacant. Lyon demanded to be appointed in her place, but Judge Harris found no legal basis to do that.
Judge Harris recounted the facts in great detail. In essence, however, the Law Division was found to have erred in ruling against Lyon for two reasons. First, the alleged campaign contribution and reporting violations came within the purview of the New Jersey Election Law Enforcement Commission (“ELEC”), which had joined the case as an intervenor. Under caselaw such as Muise v. GPU, Inc., 332 N.J. Super. 140 (App. Div. 2000), the Law Division erred in failing to defer to the primary jurisdiction of ELEC on the campaign contribution and reporting issues. Judge Harris noted that the Law Division’s determination as to primary jurisdiction warranted no deference on appeal.
Second, as to the illegal voting allegations, Nordstrom was required to have shown (a) that enough illegal votes were cast so as to change the result if they had in fact been cast for Lyon, and (b) to the extent possible, for whom the illegal votes were cast. Nordstrom produced at trial twelve voters whose mail-in ballots were “questionably cast.” But no one asked those voters for whom they voted. Thus, the panel concluded that “although illegal votes may indeed have been cast” in the primary election, they were not sufficient to change the result. Therefore, the Law Division should not have ruled for Nordstrom on that issue.
In short, Lyon, not Nordstrom, should have been the Republican nominee in the 2011 Freeholder election. Since that election had already occurred and Nordstrom had won the election and kept her seat, the remedy was to remove Nordstrom and declare her seat vacant. Judge Harris found no basis for mandatorily “instat[ing Lyon] as the Morris County Freeholder” either for the balance of the term or on an interim basis. That was so even though, as the Law Division “hinted,” victory in the Republican primary in Morris County was tantamount to election over the Democratic nominee.
Nordstrom seems certain to take this case to the Supreme Court, given its high visibility and the election law issues involved. Meanwhile, Lyon is now back on top in this wrestling match.