Lawsuit: New Jersey Election Officials Broke the Law, Disenfranchised Hundreds of Voters with Missing Ballots in 2022

County voters see opportunities for tampering and fraud where ballot “chain of custody” is compromised

When two officials from the New Jersey’s Attorney General’s Office visited David Fried just after the 2022 elections, he was initially pleased. 

“I thought they were coming to investigate what happened on Election Day,” he said. “The ballots from an entire district in my township went missing. So, I put this information out on my Facebook page since I had a responsibility to let the public know what was going on. There were problems all over the county and we had serious questions about the chain of custody for the missing ballots.”

The county in question was Mercer County, which includes the state capital of Trenton, and the township was Robbinsville, where Fried has served as mayor since 2001. After receiving reports that ballots had gone missing, Fried took to Facebook to inform his constituents about the missing ballots and the technical glitches that prevented hundreds of voters from their votes counting.

“There were problems everywhere on Election Day in 2022,” Fried recalled. You’ll see photographs of ballots strewn all over floors, I also know there were ballots left in machines in Princeton. We also received reports from different parts of the county about bags containing ballots that had been opened, which raises at least the possibility of tampering, and in our town, ballots went missing entirely in District 5.”

The two officials representing State Attorney General Matthew Platkin came to visit Fried at the Robbinsville Township Municipal Building on the Thursday morning after the 2022 election. That’s where they questioned the mayor about his Facebook postings. 

“I was extremely excited to meet these folks because I thought they were there to investigate what happened,” Fried said. “But they were sent from the AGs office not to investigate the fact that our ballots went missing, but to ask why I put out a Facebook posting saying that this had happened.  I explained to them that it’s called transparency, and that the people had a right to know. They took my statement and left and to this day I’m shocked no one from AGs office cared that the ballots went missing, they only thing they cared about was the fact that I put this information on Facebook. I never heard from them again.”

But Fried and other county residents have made certain the four individuals sitting on the Mercer County Board of Elections, along with the superintendent of elections, continue to hear from them. As it turns out, the missing ballots in Robbinsville fit into a larger pattern of irregularities and alleged civil rights violations that revolve around the county’s response to tabulator machines’ malfunction on the morning of Election Day 2022. 

In February 2024, ten Mercer County residents filed a lawsuit against the board members and the superintendent alleging hundreds of voters were disenfranchised because election officials did not follow the law and failed to properly execute their responsibilities. The suit details how the tabulating machines, manufactured by the election technology company Dominion Voting System, were unable to function “because Dominion failed to update the numbering of ballots after a change was requested by the Mercer County clerk, so the tabulators did not recognize the ballots as legitimate.” For its part, Dominion has a page devoted to “Setting the Record Straight.” 

After investigating, the Mercer County prosecutor’s office determined there was no criminal activity and that the problem stemmed from a “miscommunication” between Dominion and Royal Printing Service, the company which prints the ballot. The problem, from a legal point of view, is what happened next after the machines malfunctioned. 

“The failure of the tabulating machines only affected the manner in which the paper ballots would be collected and tabulated,” the suit claims. “It should not have affected any qualified voters’ ability to cast a regular ballot.”

The experience Jeremy Whaley had the morning of the election was repeated many times over. He was checked in and “was indisputably qualified to vote,” according to suit, but the board required him to vote by provisional ballot since the machines were not working. That following December he received a letter from the county informing him that his ballot was rejected because he had “voted by machine,” when in reality, he had not. Hundreds of other legitimate voters who were also told to cast provisional ballots received the same letter. 

A provisional ballot is used when a voter’s eligibility is in question or cannot be verified on Election Day. But there was no question about the eligibility of Whaley, his fellow plaintiffs, and other county residents that day. 

“Everything on Election Day was done either incorrectly or without care,” said Whaley, who is also the chairman of the Ewing Township Republican Party. “Almost everyone who voted that morning on Election Day had to vote by provisional ballot and then when you add the missing ballots on top of what happened with machines, and the missing bags, it begins to raise questions about the possibility of tampering. Everyone on the board, and everyone who had responsibility for that election, needs to be replaced. We need fresh faces.”

In addition to the two Democratic and two Republican board members, the suit also names Nathaniel Walker, then the elections superintendent in 2022, and Walker Worthy, the incumbent superintendent, as defendants. Mercer County Clerk Paula Sollami Covello was initially named as a defendant, but her name was dropped during an August court proceeding. 

Restoration News reached out to the current defendants for comment, but they did not respond.

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Chain of Custody

The suit’s allegations are largely built around New Jersey’s Title 19 procedures, which are designed to maintain election integrity while ensuring the proper chain of custody of ballots. The plaintiffs claim the board and the superintendent did not have the necessary protocols in place when the tabulation machines did not work and also failed to train county workers and district board members who did not know how to handle paper ballots in manner that is in line with maintaining the chain of custody. Consequently, the plaintiffs argue, district board workers, based on instructions from County Election Officials, incorrectly informed those voters who showed from approximately 6 a.m. to 8 a.m. the morning of the election to vote provisionally when they should have been voting by regular paper ballot.

The suit gathered additional momentum in August when the Superior Court of New Jersey rejected a motion from the defendants to dismiss the case. 

“It was the job of the county, to be able to conduct the election even if the technology fails,” said Dana Wefer, the attorney representing the Mercer County voters. “That’s what this lawsuit is all about.”

The suit estimates that at least 759 voters in Mercer County were disenfranchised because the board and the superintendent informed them they’d already voted by machine—even though officials knew full well that it was impossible that those individuals could’ve voted by machine. 

“Election integrity is really important and it’s important that the people who run our elections follow the law and know what to do in the event of a technological failure, or if anything else unforeseen happens,” said Wefer, who is also a former Republican candidate for U.S. Senate in New Jersey. “Getting accountability in this case will hopefully set a precedent that says all counties in the state need to be prepared for events like this.”

Mercer election officials  eventually did switch to paper ballots after the morning mayhem. But further difficulties ensued because “there were no protocols for the proper handling of the paper ballots and because the District Board workers were not trained on how to handle paper ballots, chain of custody was not preserved on many, perhaps most, ballots in Mercer County for the 2022 election cycle,” according to the suit.

This is where the problems Fried experienced in Robbinsville come into play. “Entire bags of votes were misplaced, bags and machines containing ballots were not properly sealed, and at least 1500 ballots were found left behind in tabulators six days after the election,” the suit says. “The final numbers for the election are unknown and unknowable.”

What should have happened instead? 

The board simply should have had early morning voters fill out paper ballots and then have those paper ballots inserted into the tabulators, Wefer explained. That’s because ballots can be manually inserted into the tabulator through an emergency box and/or by removing the top part of the machine. For this reason, the failure of tabulators to scan did not alter where the ballots were deposited.

“The next big issue arose because what should have happened is those paper ballots should have been counted at the district board polling places by district board members in accordance with Title 19,” Wefer said. “But they didn’t do that and instead they transported all the ballots to the county [office in Trenton] to be tabulated and there were no protocols in place to keep the chain of custody on those ballots.”

Although the case does not explicitly involve voter fraud, Whaley, the Ewing GOP chair, points to the mishandling of ballots by poorly trained officials as a prime example of how points of vulnerability can emerge making it possible for fraud to occur. 

“We need to clean house and get the right people into these positions,” he said. “We need to make the necessary changes to the laws and make sure election integrity is the mainstay and focus.”

One Man, Three Votes?

There are good reasons for that. 

A nonpartisan watchdog group called Fight Voter Fraud has compiled public records since it was founded in 2018 highlighting where people are “double-registered” or have “double-voted” in particular areas. A key part of this process involves cross-checking “National Change of Address” data with voter rolls. 

In Mercer County, Fight Voter Fraud found two people who were double-registered: One individual simultaneously registered in a Ewing apartment on Parkside Ave., as well as in Ohio and New York; and another individual simultaneously registered in Hamilton, New Jersey, and Chicago and New York. 

Statewide, the figures are much more unsettling. 

Fight Voter Fraud data shows there are 94 New Jersey voters who are “double-registered”—meaning they are registered in Jersey and in another state. The data also shows that 94 Jersey residents “double-voted” meaning they voted in both places where they were registered. 

The Heritage Foundation, a Washington D.C.-based think tank, has a detailed database on the instances of voter fraud in New Jersey dating back to 2003 that includes several criminal convictions. The database is part of a larger project documenting voter fraud cases. 

New Jersey has not voted for a Republican in a presidential race since George H.W. Bush won the state in 1988. Democrats continue to hold a significant party registration advantage. Critically, however, the number of unaffiliated voters is roughly even to the number of registered Democrats, making Republican candidates for governor and U.S. Senate surprisingly competitive when those unaffiliated voters break their way. 

In the 2021 governor’s race, for instance, Republican Jack Ciattarelli, a former assemblyman and businessman, nearly upset Gov. Phil Murphy, the incumbent Democrat. Ciattarelli has announced he will run for governor again next year. 

In a close race, a couple of hundred voters like those identified in the Mercer County suit could make a difference. The presidential race was shown to be in single digits when President Biden was the candidate. Donald Trump, the Republican, is trailing Vice President Kamala Harris by 12 points, according to recent polls. But New Jersey does have a long history of breaking late. Closing the gap in Jersey to single digits could help with the popular vote nationwide. 

Back in Robbinsville, Mayor Fried continues to be unimpressed with the performance of his county’s Board of Elections. He describes what it was like to attend their first meeting after the 2022 elections.

“I went because all my phone calls went unanswered,” he said. “I sat there with a group of people, and we all asked questions and none of those questions were answered. I don’t even know why they have meetings since they can’t give us any explanations. That was the only meeting I ever went to where the American flag was dangling from the wall by a paperclip. 

“That says it all.”

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