Salmon: New Jersey's Recount Process Has Become A Pay-To-Play Barrier To Democracy
I used to charge clients just $500 to handle a recount. File a simple petition, pay the appropriate deposit, and show up to observe at the Board of Elections. If the election was close, sometimes the deposit would be waived. The process took a matter of days. It was fast, cheap, and accessible. That was how the Legislature designed it in 1880, and that is how it worked for well over a century.
That $500 recount no longer exists. Today, a candidate who loses an election by three votes must retain counsel, brief the legal issues, sometimes attend multiple conferences, prepare for an adversarial evidentiary hearing, and potentially engage expert witnesses, all within 72 hours, without any right to discovery, against a standard never authorized by statute. It can cost thousands of dollars. For candidates in small local races who raised nothing and spent nothing (or almost nothing) on their campaigns, it isn’t a hurdle: it’s a wall.
This transformation was not enacted by the Legislature, but by a single decision from the Appellate Division. Democracy in New Jersey demands that it be undone.
New Jersey’s recount statute has been on the books since 1880. For 140 years, the proceeding was administrative, not judicial. The substantive threshold evolved: before 1953, a candidate had to show the error actually changed the result. In 1953, the Legislature removed that requirement. Since then, a reason to believe a counting error occurred is enough. But across both eras, the process was the same: petition, post a deposit, get a recount. That was it. The judge’s role was ministerial, and courts said so repeatedly. Mathis v. Voorhees, 81 N.J.L. 26, 32 (1911). In 1952, the Appellate Division confirmed that the judge acts “solely in the capacity of a legislative agent exercising a delegated authority.” Petition for Recheck of Voting Machines & Irregular Ballots, 19 N.J. Super. 187, 189-90 (App. Div. 1952). Judges had “no right to take evidence,” or do anything but “merely… count the ballots.” State ex rel. Ruh v. Frambach, 47 N.J.L. 85, 87 (1885). While judges still wore the robe and held the gavel, they were not actually acting as a judge. And the message was consistent across a century of decisions: count the ballots, don’t hold a trial.
https://newjerseyglobe.com/judiciary/salmon-new-jerseys-recount-process-has-become-a-pay-to-play-barrier-to-democracy/