The Morris County Freeholders will begin Wednesday’s meeting one member short.
An appeals court on Tuesday removed Freeholder Margaret Nordstrom from the seat she won in November, the latest development in a long-running election battle.
Nordstrom, an incumbent heading into 2011 election, only became the official Republican nominee for the freeholder seat after a Superior Court Judge in Morris County overturned that year’s primary election. Challenger William ”Hank” Lyon had appeared to narrowly win the primary—after multiple recounts—until the judge tossed out his victory, and turned the nomination process over to the county Republican organization, which picked Nordstrom in a special convention session.
But state appellant judges ruled Tuesday that the Superior Court judge in Morris County improperly decided Nordstrom’s lawsuit challenging Lyon’s primary win.
The seven-member all-Republican Freeholder board will operate with six members until Nordstrom’s former seat is filled.
Freeholder Director William Chegwidden, who said he was surprised by the decision, said the board is sorting out committee assignments and other issues to allow it to function short one member.
The appeals court did not turn the seat over to Lyon. Rather, its ruling set the stage for a new county convention vote to fill the seat.
“We do not lightly determine that the Law Division erred and that Lyon should have been the Republican nominee to run in the November 2011 general election. Said another way, Nordstrom should not have been the Republican nominee to run in said general election,” it said.
“I’m very pleased,” said Lyon, a 24-year-old first time candidate from Montville. “Just as I said at the convention [the meeting that turned the nomination over to Nordstrom], a judge thwarted the will of the people. Now the voice of the people will be heard. At the end of the day, the court can’t decide the results of an election.”
Nordstrom of Washingon Township said she was “surprised, but it is what it is. This is a surreptitious business.”
What Happens Next
John Sette, Republican Committee chairman, and a member of the county’s board of elections, said that the committee will hold a convention within 30 days.
If the winner of that convention wants to continue serving past this year, he or she would need to run in the June primary for the GOP nomination, and then in the general November election. Ither candidates could seek the remainder of the unexpired term as well.
The convention winner could also choose not to run in the primary.
The appeals court said that it saw no reason for its decision to “as Lyon argues, result in Lyon being mandatorily instated as the Morris County Freeholder, either for the balance of the term or on an interim basis.”
The June primary already has three open freeholder seats as Chegwidden of Wharton, John Murphy of Morris Township, and Gene Feyl of Denville are up for re-election.
Both Lyon and Nordstrom said they will participate in the upcoming convention.
Lyon said he will also participate in the June primary no matter the outcome of the convention.
Nordstrom said she has not made a decision about the primary.
“Today I made a single decision about the convention,” she said.
Impact of Illegal Votes
On Tuesday, the appeals court also reversed the Superior Court order that set up last year’s special convention—the meeting giving Nordstrom the Republican nomination.
“We believe this decision to be flawed on several grounds and we are reviewing our options,” said Nordstrom’s attorney Alan Zakin.
In its opinion, the appeals court said, “We reverse the Law Division's annulment of Lyon's nomination because of multiple legal errors that materially contributed to the court's ultimate declaration that Lyon's nomination is null and void.”
The key issues were the impact of illegal votes cast in Parsippany, and an alleged illegal $16,000 campaign contribution made in the campaign’s waning days by Robert Lyon, Hank Lyon’s father and the treasurer of the Lyon’s campaign. The late contribution was not reported in a timely manner to the state’s Election Law Enforcement Commission, as required.
On the first issue, Nordstrom claimed in her challenge last year that there were sufficient voting irregularities that deprived her of possibly 41 votes, enough to secure the primary victory.
After testimony the appeals court called “confusing, self-contradictory, and difficult to follow,” Weisenbeck ruled last year that Nordstrom had made a reasonable attempt to determine for whom the in-question votes were cast, and that there was no way to simply deduct votes from either candidate based on the information available.
But appeals court ruled Tuesday that Nordstrom had failed to demonstrate that "illegal votes [were] received . . . sufficient to change the result."
First, the appeals court said, “Nordstrom had to prove "that illegal votes were cast in number sufficient to change the result if they had in fact been cast for the contestee. Second, the she was obliged to the extent possible under the circumstances, [to show] for whom the illegal votes were cast.'"
Zakin objected to this portion of the ruling, saying, “They said Nordstrom should have compelled voter testimony as to how the witness voters voted; however, only a judge can compel such testimony and the judge ruled that such testimony was not necessary.”
A Matter of Jurisdiction
In the second part of the ruling, the appellate judges said that Weisenbeck did not have the authority as a Superior Court judge to rule on the nature of the $16,000 campaign donation made by Robert Lyon. The court said that power belongs solely to the state Election Law Enforcement Commission, also known as ELEC.
Nordstrom claimed that the failure by the Lyon’s campaign to file a notice with ELEC that the $16,000 donation had been made affected her campaign’s response and changed the outcome in the 13 Morris County towns where fliers paid for by that contribution were distributed to 25,000 homes.
The fliers, Nordstrom claimed, falsely portrayed her position on the county’s open space trust fund and claimed “county open space monies went to . . . create [her] own personal Shangri-La out in Middle Valley.” the appeals court wrote.
The election results showed that Lyon received a slight majority of the votes cast in all the towns where the flier was distributed.
Weisenbeck had ruled that ELEC’s jurisdiction over contributions applied to general elections, and not primary elections.
Jeff Bindle, ELEC’s executive director, which filed for interventor status in the case, was delighted by the appeals court decision. In its filing to the appeals court, ELEC claimed that it alone, and not Superior Court, has the authority to rule in issues relating to campaign contributions.
“We felt all along that a recent Morris County election should not have been overturned based on alleged violations of campaign finance regulations,’’ said Brindle. “It is ELEC’s job to determine when such violations exist.”
Zakin, in response said, “Case law holds that judges have to follow administrative agency rules in determining a violation as the trial judge did, however, the trial judge does not have to look to the agency, as the appellate court maintained, to establish a just remedy. Case law holds that the judge may establish their own remedy outside of agency rules.”
Further, Zakin said, “The June 3, 2003 primary election case was bought after the general election was completed, however this case was brought before the general election, when there was still sufficient time to change the primary nominee on the general election ballot, unlike June 3, 2003.”