Despite 18 out of 55 votes being withdrawn earlier this week, the attorneys representing Toshiba Foster say they still have a case.
Foster, a Democratic member of the Morristown Planning Board, has since early June been challenging the results of the Town Council primary for the Second Ward, . A recount was later conducted,
However, according to Sharon Weiner, the attorney representing Foster at a hearing before Superior Court Judge Thomas Weisenbeck scheduled for Friday at 11 a.m. at the (in which Smith-Reid's attorney, Paul Bangiola, will ask the case be dismissed), the challenge will not be dropped.
"She (Foster) felt so strong that the irregularities connected with this election needed to be revealed that she asked me to continue to represent her," said Weiner, noting another attorney representing Foster had to withdraw from the case on Monday because of pneumonia. "We have presented enough challenges to change the outcome of the election, and are asking the judge not to grant Paul's motion to dismiss."
Bangiola said the case had no merit at the onset. "This was capable of being evaluated from the beginning as not being based in the law," he said. "There are insufficient facts."
Thirty-seven challenged votes for Smith-Reid remain argued by Foster's attorneys. Bangiola said he is seeking to have 20 of those dismissed on Friday, which would leave Foster with only 17, which would make the challenge moot, as she would need at least 21 to be tied with Smith-Reid, and at least 22 for her to win the primary election.
"A lot of this is really extremely strained," Bangiola said. "We are optimistic it will be dismissed on Friday. If 21 challenges remained, then there is a trial. They have to basically run the table. Every single one of those has to be sustained as an illegal vote."
Besides Foster's opposition to the primary election results, Bangiola also questioned how she was funding the challenge, citing the involvement of County Democratic Chair Mary Dougherty (Mayor Tim Dougherty's wife), Weiner and Jerry McCann, the former mayor of Jersey City. "There has been a lot of resource investment in one form or another, and all of this has to be disclosed in campaign finance reports," Bangiola said. "The source of the funds and contributions need to be disclosed."
Weiner said those funds and contributions have been disclosed, to the state Election Law Enforcement Commission (ELEC), and was organized last week by Weiner herself, not by anyone else. "We had a fundraiser from residents of Morristown to pay for the recount; Jerry McCann was a volunteer," she said.
In asking only to have the judge dismiss 20 of Foster's challenges, Weiner said, "He's (Bangiola) already acknowledged we have 17 ballot challenges. None will be withdrawn tomorrow."
Still, Bangiola remains confident that the outcome will favor his client.
"At some point, elections are over and someone wins and someone loses," he said. "It can be painful for someone to lose."