BY JOHN SNYDER
OF PASCACK PRESS
WESTWOOD, N.J.—James Whelan categorically denies any Democratic effort to game the Nov. 6, 2018 Borough Council election he won in a squeaker, despite a lawsuit now brought by Raymond Arroyo, who is alleging illegal votes were cast by mail.
Arroyo, a Republican, who narrowly lost his third term as councilman, is alleging eight suspect votes were cast for Whelan, more than enough to tip the race.
Neither Whelan nor Arroyo was sworn in at the Jan. 2 reorganization meeting per the order of Superior Court Judge Estela M. De La Cruz, following a challenge from Arroyo based on his concern about improper mail-in ballots.
Arroyo’s lawyer calls the votes illegal, says Facebook posts and other documents prove his case, and wants his client certified the winner. De La Cruz ordered on Jan. 2 that the matter is to be tried starting Jan. 28. She said depositions, including of voters and elections workers and officials, must be completed by Jan. 19.
Whelan told Pascack Press on Jan. 4 that the allegations of fraud are “absolutely ludicrous.”
He said, “Despite the fact that five of the eight people former Councilman Arroyo’s team allege committed voter fraud are former classmates of mine from Westwood High School, it has been years since I have spoken to almost all of them.”
He added, “I believe that these allegations are just a sad and desperate attempt by former Councilman Arroyo to cling to a seat that he has been democratically voted out of. The people have spoken.”
Whelan, who works for the county Department of Mosquito Control and has a degree in political science, said he was moved to run during recent years’ spate of pedestrian-related accidents.
Coincidentally, a Democratic addition to the council would for the first time give three-term Mayor John Birkner Jr. the ability to break party-line tie votes in the Democrats’ favor.
Democratic Municipal Chairman Eric Martinez, who led Whelan’s campaign, told Pascack Press on Jan. 3, “I believe these accusations are both unfair and unjustifiable. Their attempt to discredit our hard work simply sounds like sour grapes.”
He said “Westwood voters were ready for change on the dais. These are simply desperation attempts by the Westwood Republicans to hold onto power by any means necessary.”
He said the local Democratic Party plans to back Whelan fully during the trial “until he prevails.”
Arroyo, down by four after the Nov. 6 election, requested a recount and still lost—by a single vote.
On Dec. 18, Arroyo petitioned for a state Superior Court judge to examine the residency of those who cast mail-in ballots. He got his wish.
The Bergen County Clerk’s office said Westwood saw 515 mail-in ballots cast, including 256 for Whelan and 231 for Arroyo.
There were 94 provisional ballots cast in the borough, including 44 for Whelan and 45 for Arroyo.
On a 70 percent turnout, Whelan bumped Arroyo, 2403-2402.
According to Arroyo’s attorney, Charles Rabolli Jr. of Ramsey-based Messineo Law, the mail-in ballot report shows out-of-town mailing address for six voters, four of whom are registered Democrats and two unaffiliated; “one of whom is a self-described ‘liberal.’”
Further, he says, two people not permanently residing here, one Democratic and one unaffiliated, “voted at the poll” in town.
“Continuing investigation revealed that [two of these people] were high school classmates of Whelan,” Rabolli says.
The complaint names the voters Arroyo is concerned about and includes screenshots of Facebook and LinkedIn pages, both theirs and contacts of theirs, “indicating they no longer resided in Westwood.”
It also has photocopies of a local yearbook showing two voters’ past affiliation with Whelan, and a copy of a senior citizen group newsletter from Ohio wishing a member a happy birthday.
Rabolli says, “If the court does not grant summary judgment…the eight people identified must submit to their discovery depositions and subpoenas.”
But, he worries, “Who is going to provide an affidavit swearing that ‘I lied on my Facebook profile’? What started out innocently enough—to help a friend get elected to Borough Council—now has morphed into litigation with potential criminal implications.”
Rabolli also seeks permission for the parties to depose election workers and officials, saying, “The election workers, through fraud, corruption, or negligence, failed to follow and implement the statutory requirements and protections necessary to ensure a fair election.”
The allegation continues, “Because the number of illegal votes accepted exceeds the number of votes separating the candidates, these votes are sufficient to change the result of the election.”
In addition, the suit seeks “damages, counsel fees and costs for this application” and “such other relief as may be just and equitable.”
In August 2018, Gov. Phil Murphy signed a law automatically directing vote-by-mail ballots to voters if that’s how they cast their ballots in the 2016 election.
These voters will continue to get ballots by mail for every election unless they opt out in writing with their county clerk.
Proponents said the rule would enfranchise voters; critics said it would lead to confusion.
Whelan’s running mate, Councilwoman Jodi Murphy, who was sworn in Jan. 2, told Pascack Press on Jan. 3 that she has seen the evidence thus far and does not have a hand in the case.
“There are things that need to be looked into. However, it’s very one-sided. They only selected Democrats. They didn’t go through and look at both parties and the voters,” she said.
“In some cases, people that have been contacted are claiming that they didn’t send in a mail-in ballot. So then who filled in their mail-in ballot? There’s a lot of unanswered questions right now,” she added.