In re the Contest of the November 8, 2005 General Election

Justice RIVERA-SOTO,

concurring in part and dissenting in part.

To the extent the majority “do[es] not adopt the Appellate Division’s view that our modern pleading rules can be engrafted onto the [election contest] statute’s requirements so as to permit the [election contest] petition to be equated with a complaint, and therefore to be tested against liberal notice pleading coneepts[,]” ante at 570, 934 A.2d at 621, I concur. However, because the majority’s holding is premised on an incorrect impeachment of prior precedent and a failure to comply with the trial court’s lawful order, I respectfully dissent.

I.

This appeal requires that we examine the sufficiency of a statutorily authorized petition seeking to contest an election on the basis that “illegal votes have been received, or legal votes rejected *573at the polls [would have been] sufficient to change the result.” N.J.S.A 19:29-l(e). Citing various grounds, the trial court dismissed the election contest petition filed by the unsuccessful candidate as failing to state a claim on which relief can be granted. The Appellate Division reversed and remanded, concluding that under our liberalized pleading rules, the election contest petition “adequately appraised [the successful candidate] of the claims being made with detailed specificity so that he was fully able to prepare a defense.” In re the Contest of the November 8, 2005 Gen. Election for the Office of Mayor for the Twp. [of] Parsippany-Troy Hills, 388 N.J.Super. 663, 676, 909 A.2d 1199 (App.Div.2006) [hereinafter In re Contest ].

An election challenge is in derogation of the common law and is a creature of the Legislature. Thus, statutory election contests must hew closely to the requirements that the Legislature has adopted for the prosecution of any claim thereunder, as those requirements have been consistently enforced. When measured against that yardstick, the election contest petition in this case fails.

A.

On December 8, 2005, Rosemary Agostini, the runner-up candidate for election as mayor of the Township of Parsippany-Troy Hills, filed a verified petition pursuant to the election contest statute, N.J.S.A 19:29-1 to -14, alleging that, in the mayoral election held one month earlier, “illegal votes ha[d] been received, or legal votes [had been] rejected at the polls sufficient to change the result[,]” in violation of N.J.S.A 19:29-1(e).1 That statute specifically provides that any election contest “shall be commenced by the filing of a petition” and that “[t]he petition shall be verified *574by the oath of at least 2 of the petitioners, or by the candidate filing the same[.]” N.J.S.A. 19:29-2. It also provides that

[w]hen the reception of illegal or the rejection of legal voters is alleged as a cause of contest, the names of the persons who so voted, or whose votes were rejected, with the election district where they voted, or offered to vote, shall be set forth in the petition, if known.
[Ibid.]

In a written opinion, the trial court described Agostini’s verified petition as follows:

The [vjerified [pjetition in paragraph 7 stated “[ujpon information and belief, the following problems and violations of the provisions of N.J.S.A. 19:29-1 and the other provisions of Title 19, occurred such that a fair, free and full expression of the intent of the voters was not had. To the extent known, voters are identified pursuant to N.J.S.A 19:29-2.” The [p]etition then listed the “problems and violations” in subparagraphs 7(a) through (g), attaching exhibits with names and addresses, the most number and significant of which came in claimed illegal votes. (The term illegal votes includes herein claimed invalid absentee ballots.) However, paragraph 7 did not set forth any specifics. Only broad allegations were made. [ (Emphasis supplied).]

The trial court then explored the remainder of Agostini’s petition, noting that she relied on “what ‘a continuing investigation may disclose’ rather than on what any investigation revealed[,]” and that “especially absent ... throughout the [pjetition were any statements that illegal votes were cast for Mr. Luther and/or legal votes cast for Ms. Agostini were not counted.”

On December 13, 2005, the trial court conducted a telephone conference with counsel for both Michael Luther, the successful mayoral candidate, and Agostini. Focusing on “the lack of specifies in the [p]etition[,]” the trial court, without objection, allowed the filing of an amended verified petition, provided the same was filed no later than December 19, 2005. However, again without objection, the trial court ordered that “[tjhe amendment shall set forth the facts, circumstances and statutory basis regarding the deficiencies as alleged in the [pjetition, as amended, and attached exhibits[.j” The trial court also provided for discovery and pretrial motions, and scheduled the cause for a hearing on January 4, 2006. Significantly, neither Luther nor Agostini objected to that order.

*575On December 20, 2005, Agostini filed her “First Amended Verified Petition.”2 As described by the trial court,

the [a]mended [pjetition in its pleaded language was identical and word for word to the initial [pjetition. No changes were made and no facts and circumstances were alleged as required by Court Order except for adding a Code Key Chart to the Exhibits which set forth broad categories without specifics, which code key was referenced in the exhibits against names and addresses of voters.

The trial court noted that “there was no pleaded paragraph added to the [a]mended [p]etition to even at a minimum state, for example, that upon information and belief illegal votes were cast for Mr. Luther and legal votes cast for Ms. Agostini were not counted which [would] determine a change in the election results.” The trial court remarked that “there was also no pleaded paragraph that set forth any information by exhibit, facts, affidavit or otherwise that even one illegal vote was cast for Mr. Luther or legal vote for Ms. Agostini was not counted.”

Luther moved to dismiss Agostini’s petition for failing to state a claim on which relief can be granted. Arguing that the election contest petition had not been pled with specificity and that the amended petition “presented nothing more than suspicion or *576conjecture to support its allegations^]” Luther reasoned that “election contests, unlike traditional civil actions, require specificity in pleadings especially where the contest is based on illegal votes.” Asserting that election contests should be gauged by the same standards that apply to all civil litigation, Agostini argued that she was entitled to the benefit of all inferences and her election contest petition should be sustained. She also claimed that her petition was sufficient to meet the requirements of the election contest statute and that any further details should abide the hearing required on short notice under N.J.S.A. 19:29-4 (providing that election contest petition shall be heard “not more than 30 nor less than 15 days after the filing of the petition”).

On January 4, 2006, the return date on Agostini’s election contest petition, the trial court considered and granted Luther’s motion to dismiss challenging the legal sufficiency of Agostini’s election contest petition. The trial court reaffirmed the principle that “ ‘[b]ecause the right to vote is the bedrock upon which the entire structure of our system of government rests, our jurisprudence is steadfastly committed to the [principle] that election laws must be liberally construed to effectuate the overriding public policy in favor of the enfranchisement of voters.’ ” (quoting Afran v. County of Somerset, 244 N.J.Super. 229, 232, 581 A.2d 1359 (App.Div.1990)). Placing Agostini’s election contest petition in context, the trial court explained that “ ‘[t]he fundamental purpose of an election contest is to ascertain the true will of the electorate. The burden of proof lies upon the contestant to show that such will was thwarted [up]on one or several of the statutory grounds.’ ” (quoting Kirk v. French, 324 N.J.Super. 548, 552, 736 A2d 546 (Law Div.1998) (citations and editing marks omitted)).

Specifically addressing the statutory pleading requirements for an election contest petition and citing In re Petition of Clee, 119 N.J.L. 310, 196 A. 476 (Sup.Ct.1938), the trial court explained that “in order to challenge the popular vote of the individuals who partieipate[d] in an election, there must be a pleading that sets forth some specificity with respect to the statutory grounds by *577which an election may be contested.” The trial court noted that “mere suspicion is not enough, nor should there be mere general allegations with respect to a statutory ground; that is, it would be insufficient to simply say we are challenging this election on the grounds of [N.J.S.A 19:]29-l(e) or a general statement regarding the legal votes and rejected votes.” It explained that the reason for requiring specificity in pleading in an election contest petition was straightforward: “the burden is on the contestant to show by a preponderance of the evidence that there [are] statutory grounds to contest the election.” As the trial court noted,

[i]f there is a general pleading, without specificity, it has the effect ... of switching that burden to the ... successful candidate, because they must go forward in discovery and try to ascertain all the reasons ... there was a contest alleged by the petitioner.

Rejecting Agostini’s claim that liberal pleading rules should apply to election contest petitions and, hence, should save the petition from dismissal, the trial court explained that

a petition challenging an election is a statutory procedure not set by rules of court; and it is unlike a civil complaint with respect to its requirements in pleading. It is a petition. It is not a complaint, it is a petition; and it is a petition which is stating grounds by which an unsuccessful candidate wishes to contest voting that took place____
So that you do not treat it the same as a complaint under our rules of courts as a simple pleading. You need to look at it in terms of what it is, a statutory procedure set forth by our legislature!.]

Comparing Agostini’s petition against that standard, the trial court concluded that “[t]here’s nothing in the petition ... any type of certifications, affidavits, whatever, in terms of, for example, as to legal votes cast ... how, indeed, those votes are illegal, what are the facts” and that “[t]here is no insight in the pleadings offered ... with respect to legal votes.”

The trial court thus reasoned that the requirement for specificity in pleading an election contest petition was grounded on procedural due process principles of notice and opportunity to be heard. As it set forth,

this is what’s contemplated, that there be some allegations that have support so that ... it’s not a case of just listing the statutory grounds, but giving the *578respondent the opportunity to formulate a ... defense to the specific allegations as alleged.
The reason for that is ... a hearing should not be the hope that something can be found by calling 125 people. A hearing has to have some basis in the petition because the petition is not a civil complaint, ... where it can be broadly pled. It is a petition with specific allegations on a very serious matter; which is, contesting an election ... after a vote and after the voters have spoken in that regard.

The trial court ultimately characterized Agostini’s election contest petition as

in effect, [ ] shifting the responsibility to show what occurred here to the successful candidate. That’s not what’s contemplated. You lay out your reasons in your pleading, and then have discovery on those reasons. [One s]imply do[es] not do a broad brush in the hope that at the hearing you’ll be able to show more through testimony in combination with whatever documents were produced in that regard and leave to the successful candidate the burden of going forward in discovery to try to ascertain what all of this means in that regard.

B.

It is an unquestionable proposition that “ ‘[a] citizen’s constitutional right to vote for the candidate of his or her choice necessarily includes the corollary right to have that vote counted at full value without dilution or discount.’ ” In re Gray-Sadler, 164 N.J. 468, 474, 753 A.2d 1101 (2000) (quoting Reynolds v. Sims, 377 U.S. 533, 555 n. 29, 84 S.Ct. 1362, 1378 n. 29, 12 L.Ed.2d 506, 524 n. 29 (1964)). “To preserve those rights, our state election laws are designed to deter fraud, safeguard the secrecy of the ballot, and prevent disenfranchisement of qualified voters[, and i]n furtherance of those goals, we have held that it is our duty to construe election laws liberally[.]” Id. at 474-75, 753 A.2d 1101. See also Wene v. Meyner, 13 N.J. 185, 197, 98 A.2d 573 (1953) (holding that “ ‘[ejection laws are to be liberally construed so as to effectuate their purpose’ ” (quoting Kilmurray v. Gilfert, 10 N.J. 435, 440, 91 A.2d 865 (1952))).

That obligation — “to construe election laws liberally” — is tempered by our countervailing duty in respect of statutorily granted rights that are in derogation of the common law. See In re Petition of Byron, 165 N.J.Super. 468, 473, 398 A.2d 599 (Law Div.1978) (explaining that “the public election mechanism is entire*579ly a statutory creation lacking any common-law antecedents”), aff'd, 170 N.J.Super. 410, 406 A.2d 982 (App.Div.) (per curiam), certif. denied, 82 N.J. 280, 412 A.2d 786 (1979). In that context, our duty is clear: “a statute in derogation of the common law should be strictly construed.” Marshall v. Klebanov, 188 N.J. 28, 37, 902 A.2d 873 (2006) (citing Velazquez v. Jiminez, 172 N.J. 240, 257, 798 A.2d 51 (2002)). It is through that prism that we must gauge the requirements of the election contest statute.

C.

Chapter 29 of Title 19 of our consolidated statutes, N.J.S.A 19:29-1 to -14, sets forth in detail the grounds available and procedures to be followed for the contest of nominations and elections. Among those grounds, N.J.S.A 19:29-l(e) provides for an election contest “[w]hen illegal votes have been received, or legal votes rejected at the polls sufficient to change the result.” The procedure to be followed is principally set forth in N.J.S.A 19:29-2, which states that “the contest shall be commenced by the filing of a petition” and that “[t]he petition shall be verified by the oath of at least 2 of the petitioners, or by the candidate filing the same, as the ease may be, which verification may be made on information and belief.” The statute also requires that “[t]he petition shall be accompanied by a bond” and that “[w]hen the reception of illegal or the rejection of legal voters is alleged as a cause of contest, the names of the persons who so voted, or whose votes were rejected, with the election district where they voted, or offered to vote, shall be set forth in the petition, if known.” Ibid.

Recognizing the need to address election contests without delay, the statute also provides that “[t]he petition contesting any election to public office ... shall be filed not later than 30 days after such election,” N.J.S.A 19:29-3, and that the court shall set a hearing on the petition “not more than 30 nor less than 15 days after the filing of the petition, and the contestant shall cause a notice of such hearing ... to be served ... on the incumbent at least 10 days before the day set for trial[,]” N.J.S.A 19:29-4. The *580statute further provides that “[t]he proceedings shall be similar to those in a civil action so far as practicable,” and that the court will “determine the matter without a jury, with power to order any amendments in the petition, or proceedings as to form or substance, and to allow adjournments to any time not more than thirty days thereafter for the benefit of either party, on such terms as shall seem reasonable to the court[.]” N.J.S.A 19:29-5. Consistent with that mandate, the statute empowers the court to “compel the attendance of any ... person capable of testifying concerning the same, and also [to] compel the production of all ballot boxes, books, papers, [etc.],” N.J.S.A 19:29-6, and specifically authorizes the court to

require any person called as a witness who voted at such election to answer touching his qualification as a voter, and if the court, from his examination, or otherwise, is satisfied that he was not a qualified voter in the election district where he voted, he may compel him to disclose for whom he voted.
[N.J.S.A. 19:29-7.1

See N.J.R.E. 513 (codifying N.J.S.A. 2A:84A-25 (“Every person has a privilege to refuse to disclose the tenor of his vote at a political election unless the judge finds that the vote was cast illegally”)); N.J.R.E. 804(b)(7) (noting that, if declarant is unavailable, “[a] statement by a voter concerning the voter’s qualifications to vote or the fact or content of the vote” is “not excluded by the hearsay rule”).

The remainder of the election contest statute addresses the procedures upon and following entry of judgment on the election contest. See N.J.S.A. 19:29-8 (providing that “[t]he judge shall pronounce judgment whether the incumbent or any contestant was duly elected, and the person so declared elected will be entitled to his certificate”); N.J.S.A 19:29-9 (“If the judgment be against the incumbent, and he has already received a certificate of election, the judgment shall annul it. If the judge finds that no person was duly elected, the judgment shall be that the election be set aside.”); N.J.SA 19:29-10 (providing that court may “issue an order” placing the successful party in office); N.J.S.A. 19:29-11 (explaining that “party against whom judgment is rendered may *581have it reviewed by the Appellate Division ... on an appeal in lieu of prerogative writ”); N.J.S.A. 19:29-13 (addressing enforcement of judgment on appeal); N.J.S.A 19:29-14 (assessing liability for costs).

It is against that backdrop that compliance by Agostini’s election contest petition with that comprehensive statutory framework must be measured.

D.

In her initial verified petition, Agostini asserted seven categories of “problems and violations” that she alleged resulted in the absence of “a fair, free and full expression of the intent of the voters[.]” Without any additional detail, Agostini generally claimed that:

(a) Persons who were entitled to vote had their votes rejected and were not allowed to vote [ ];
(b) Illegal votes were received [], including persons who voted and were not residents, were imposters and/or otherwise were unqualified to vote or participate in the General Election;
(c) In some polling places, more persons entered and voted on the machines than voting authorities issued [ ];
(d) Upon information and belief, wrongful assistance occurred with regard to voters and absentee ballots, together with possible intimidation, violation of secrecy of the ballot and overreaching;
(e) Absentee ballots were not applied for, handled, messengered, returned, marked or processed in accordance with the statute [ ];
(f) There were 501 absentee ballots of voters approved for counting by the Board of Elections for this election, yet 507 absentee ballots were counted on election night. At the recount, Petitioner gained a vote but unexplainablfy] only 506 absentee ballots were counted. As such, there were more ballots counted than were received from voters and absentee ballots which were initially approved and counted, are now missing and cannot be accounted for by the Board of Elections.
(g) The election process and workers failed to follow, implement, and/or disregarded the statutory requirements and protections to ensure a fair election.

Via exhibits attached to her verified petition, Agostini listed, to the extent she then knew, (1) the names and addresses of those voters she claimed had their legal votes rejected; (2) the names, addresses and political party affiliation of those voters she alleged had illegal votes received; (3) the names and addresses of those voters *582she claimed had absentee ballots improperly recorded; and (4) alleged discrepancies in voting machines. Nothing in Agostini’s initial verified petition placed Luther on notice of how “illegal votes ha[d] been received, or legal votes [had been] rejected at the polls sufficient to change the result.” N.J.S.A. 19:29-l(e).

Confronted with such general allegations, Luther claimed, and the trial court agreed, that more specificity was required before the declared election winner is to be put to his or her proofs in an election contest. For that reason, on December 13, 2005, the trial court ordered that Agostini “shall file an amendment to [her petition, including exhibits referenced therein, by the 19th day of December[,] 2005.” It specifically ordered that “[t]he amendment shall set forth the facts, circumstances and statutory basis regarding the deficiencies as alleged in the [pjetition, as amended, and attached exhibits[.]” (Emphasis supplied). Tellingly, Agostini did not object to the form or entry of this order; on the contrary, that order was settled “per the telephone conference among the parties[J” See, e.g., R. 4:42-l(b) (providing for settlement of form of order by consent).

In response, Agostini filed a “first amended verified petition” that, in all material respects, was identical to her initial petition. The sole changes consisted of her addition of a “code key” that summarily categorized statutorily defined requirements, and the use of those codes in respect of her earlier lists of the names, addresses, and political party affiliation of those voters she alleged had illegal votes received, and the names and addresses of those voters she claimed had absentee ballots improperly recorded. Although Agostini’s amended petition, via her “code key,” purported to set forth the statutory bases for her challenges, nothing in her amended petition satisfied the trial court’s December 13, 2005 mandate that “[t]he amendment shall set forth the facts [and] circumstances ... regarding the deficiencies as alleged in the [petition.”3

*583E.

Since 1891, New Jersey has recognized that, in election contests, “[t]he presumption is with the incumbent[.]” Lehlbach v. Haynes, supra, 54 N.J.L. at 81, 23 A. 422. The election contest statute “makes the reception of illegal votes a ground of contest only when they are sufficient to change the result-that is, not merely to show that the plurality declared for the incumbent is erroneous, but to show that another ... was the person legally elected.” Ibid. That statute’s requirements are clear: “[u]nless the petition states circumstances which prima facie render this conclusion probable, it does not present a case within the law.” Ibid.

The “practice of considering the sufficiency of a petition in a contested election case ... seems to be an indispensable necessity.” In re Clee, supra, 119 N.J.L. at 313-14, 196 A. 476. In re Clee explains that “it is the duty of the court to see to it that the petitioner states a cause of action under the law before setting in motion the machinery for trying the contest.” Id. at 326, 196 A. 476. It holds that “it is an indispensable requirement that the petition make out a prima facie case[,]” noting that “[h]ow such case is to be made out is definitely settled by the statute under which we are proceeding and that statute, by all the cases on the subject, must, in this respect, be strictly followed.” Id. at 329, 196 A. 476 (citations omitted). This requirement finds expression in the notion that at the core of all legal proceedings rests the fundamental obligation to place one’s opponent on fair notice of what must be defended against. Thus, because under any differ*584ent view, “every elected official might be put to a contest ... merely because a petition is filed asking for a contest and stating, generally, the broad grounds of the statute, without detail sufficient to frame an issue against which the incumbent might prepare his defense!,]” the “standard of common sense or principles of justice” require strict observance with the election contest statute’s pleading requirements. Id. at 329-30, 196 A. 476. In this context, our duty is plain: “It is the duty of the court to uphold an election unless it clearly appears that it is illegal [because] public policy so ordains.” Id. at 330, 196 A. 476 (citations omitted).

Applying those principles, Agostini’s petition flatly failed to apprise Luther of “the facts [and] circumstances ... regarding the deficiencies as alleged in the [p]etition[,]” information that was required by the December 13, 2005 order and that, more to the point, is crucial in the accelerated and charged atmosphere of an election contest. Furthermore, as a result of the agreed-upon language in the trial court’s December 13, 2005 order, Agostini’s amended petition should have contained factual representations— not bare conclusions — as to the wherefores and the whys regarding those she identified as legal voters whose votes had been rejected or those she identified as illegal voters. The election contest statute requires that those representations be verified. Thus, to survive Luther’s motion to dismiss, Agostini statutorily was obliged to set forth those facts in her petition, verifying them either through her direct knowledge or on information and belief, N.J.S.A 19:29-2. Agostini failed to do so. Agostini also could have submitted affidavits from the legal voters rejected or the illegal votes received; that, also, was not done. Agostini tendered no explanation for those failures, and we should not surmise why.

There are several procedural safeguards within the election contest statute designed to avoid the kind of abuse one may expect from the hurly-burly of the election process. Supra at 579-80, 934 A2d at 627. These include the requirement of a verified petition, an accelerated hearing and disposition schedule, and the like. Specifically, the statute provides that, although “[t]he proceedings *585shall be similar to those in a civil aetion[,]” the court will “determine the matter without a jury, with power to order any amendments in the petition, or proceedings as to form or substance, and to allow adjournments to any time not more than thirty days thereafter for the benefit of either party.” N.J.S.A 19:29-5. The aggregate of those requirements mandates that election challenges be viewed as akin to “allegations of misrepresentation, fraud, mistake, breach of trust, willful default or undue influence[,]” which our Rules specifically require be pled with particularity. R. 4:5-8(a).

In the end, Agostini’s failure of pleading is dispositive. The statute — which permits the cause of action to exist in the first instance — is founded on a common sense notion: compliance with its terms is a condition precedent to relief under the statute, a conclusion reached over one hundred years ago in Lehlbach v. Haynes, supra, and repeated a half-century later in In re Clee, supra. We should not ignore the bases and logic — those earlier referenced “standard[s] of common sense or principles of justice” — that undergird the requirement that election contest petitions, from the outset, must set forth sufficient facts to allow the incumbent to fairly defend his or her election. There is no valid justification to abandon this long-standing precedent.

The majority, however, tracks the various amendments to the election contest statute and concludes that the 1920 amendments, which deleted the requirement that the contestant plead “the particular circumstances of the ease[,]” simply was ignored by the In re Clee court when it rendered its decision in 1938. There is nothing in the language or reasoning of In re Clee that admits of such interpretation. On the contrary, any fair reading of In re Clee demonstrates beyond doubt that its continued pleading requirement of “the particular circumstances of the case” in election contest matters is driven by the totality of the election contest statutory scheme: the obligation to commence an election contest by verified petition alleging certain limited, statutory grounds, *586coupled with the accelerated schedule for disposition of the matter required by the statute.

II.

One cannot dispute the high-sounding notions that frame the majority’s views. Of course, “[f]ree and fair elections are the foundation on which our democracy rests.” Ante at 549, 934 A.2d at 608. Of course, “[t]he right to vote, and to have one’s vote counted, is both cherished and fundamental to our way of life.” Ante at 549, 934 A.2d at 608-09. Of course, “[w]e rely on our election laws and on the fair conduct of elections to ensure that the people may be heard through the ballot and that their will, as expressed through their votes, may be effectuated.” Ante at 549, 934 A.2d at 609. Of course, “we can only be certain that the true will of the people has been expressed if we can be confident in the election process itself.” Ante at 549-50, 934 A.2d at 609. And, of course, “[t]he right of a defeated candidate to contest the outcome of an election, while carefully circumscribed, is an important means to ensure that the true will of the people is indeed heard through the ballot box.” Ante at 550, 934 A2d at 609.

At the same time, however, elections must bring finality, and the election contest procedure cannot be used as an adjunct to a political campaign. That is why election contest petitions must be verified; that is why election contest petitions must particularly describe the election’s shortcomings; and that is why election contests must be adjudicated without delay.

In the end, absent the statute’s allowance of election contests, there would be no mechanism for election contests at all; allegations of fraud or misconduct in respect of an election would be remedied solely by an award of damages, and not by the extraordinary remedy of voiding an election. See N.J.S.A 19:29-8 (providing that court “shall pronounce judgment whether the incumbent or any contestant was duly elected, and the person so declared elected will be entitled to his certificate”); N.J.S.A *58719:29-9 (providing for form and effect of judgment either annulling or setting aside an election); N.J.S.A. 19:29-10 (authorizing court to “command the sheriff of the county to put the successful party into possession of the office without delay”). Thus, because of the extraordinary nature of the relief available in an election contest by reason of a statutory grant, prudence requires that the contestant do more than simply place the victor “on notice” that the contestant intends to challenge an election on short notice while camouflaging his or her reasons. Those public policy considerations also militate against allowing Agostini’s challenge to proceed forward.

If a contestant seeks to challenge the results of an election, public policy, as expressed by the Legislature, requires that the challenger, in the election contest petition, bear the burden of both production and persuasion. In this context, the challenger must— from the very start — demonstrate that either “illegal votes have been received, or legal votes rejected at the polls sufficient to change the result.” N.J.S.A. 19:29-l(e). Any action to minimize those requirements downplays the public policy notions so plainly expressed in the election contest statute.

III.

For the foregoing reasons, I respectfully dissent from so much of the majority’s opinion that affirms the judgment of the Appellate Division and allows Agostini’s election contest to proceed. Instead, I would reverse the judgment of the Appellate Division and reinstate the reasoned judgment of the Law Division dismissing Agostini’s election contest petition.

Justice Wallace joins in this opinion.

For affirmance as modified and remandment — Chief Justice RABNER, and Justices LONG and HOENS — 3.

For reversal and reinstatement — Justices WALLACE and RIVERA-SOTO — 2.

Agostini originally also alleged "[m]alconduct, fraud or corruption on the part of the members of any district board, or of any members of the board of county canvassers, sufficient to challenge the result!,]" in violation of NJ.S.A. 19:29-l(a). Agostini later withdrew that allegation, and it is not before us.

Pursuant to the provisions of the trial court’s December 12, 2005 order, Agostini's amended verified petition was untimely; she filed it one day after the deadline set forth in the trial court's order. The untimeliness of Agostini's amendment has not been raised by the parties.

Luther has claimed that Agostini's amended verified petition was not itself verified. According to Luther, because the election contest statute requires that the petition be verified, Agostini's failure to verify her amendment — even though her original petition was verified — is fatal. The majority concludes that, "[a]l-though we would not condone a complete failure to comply with the verification requirement, in light of the fact that Agostini's original petition was verified and the challenged, unverified, petition was simply an amendment, we decline to allow her petition to be rejected on that technical ground.” Ante at 560, 934 A.2d at 615. Because Agostini's petition, even if verified, did not satisfy the statutory requirements, one need not reach that issue. That said, the better practice clearly would have been to verify the amended petition as if it had been the initial filing, and no excuse — much less a viable excuse — has been tendered by Agostini for that failure. Particularly in light of the majority’s strong reliance in its analysis on the statutes requirement that an election contest petition be verified, its willingness to overlook that requirement as a technical ground strikes a logically discordant note.

For example, Agostini's amended petition identifies forty-one illegal voters and that, using the "code key,” thirty-five are identified as voters who "were not *583residents of Parsippany-Troy Hills and were ineligible to cast votes in the election." Yet, of those thirty-five allegedly illegal voters, fourteen of them are identified by Agostini as in fact having a Parsippany address, and an additional two are identified by Agostini as persons whose address is "unknown at present time.” If those sixteen alleged illegal voters are deleted from Agostini's aggregate list of forty-one, only twenty-five allegedly illegal voters remain, an amount insufficient to surpass Luther's thirty-nine vote margin and, hence, not "sufficient to change the result” as required by the statute. N.J.S.A. 19:29-l(e). This example is but one illustration of the shortcomings inherent in Agostini’s pleading, the very shortcomings the statutory requirements seek to avoid.