Set-Aside Primary Results Create an “Inoperative” Nomination Filled by Party Committee Under N.J.S.A. 19:13-20; No Post-Election Special Primaries or Dual-Candidate Ballots

Introduction

This unanimous decision by the Supreme Court of New Jersey, authored by Chief Justice Rabner, addresses a recurring but undertheorized problem in election administration: what happens when a court sets aside the results of a close primary shortly before the general election. The case arises from the Democratic primary for Council-Member-at-Large in the Borough of Roselle, where Denise Wilkerson initially prevailed by three votes over Cynthia Johnson. After a recount narrowed the margin to two votes and an election contest established that three voters were improperly denied the franchise, the trial court first ordered a new primary election, then—on reconsideration—directed that the Democratic County Committee fill the vacancy in the nomination under N.J.S.A. 19:13-20. The Committee selected Johnson.

Wilkerson urged the appellate courts to order a special primary in December and a special general election in January, or alternatively to place both Democratic primary candidates on the general election ballot. The Supreme Court rejected both requests, holding that the governing statutes supply the exclusive remedies: once the primary result is set aside, the nomination becomes “inoperative” under N.J.S.A. 19:13-18, creating a vacancy to be filled by the party’s county committee under N.J.S.A. 19:13-20(a)(4). The Court also relaxed the statute’s 70-day timing requirement in light of litigation delays, emphasizing the need to conduct the general election on schedule and to respect statutory mail-in ballot deadlines.

Procedural Timeline

June 10, 2025: Wilkerson wins the Democratic primary 1,496–1,493.
June 25: Johnson requests recount and recheck.
July 10: Trial court denies recount but allows recheck; Appellate Division summarily reverses denial of recount.
August 4: Recount reduces Wilkerson’s margin to two votes.
August 7: Johnson files amended petition contesting the election.
September 3–9: Trial court hearing; court finds three voters were improperly denied the right to vote; orders a new election.
September 12: On reconsideration, trial court removes new-election remedy and directs selection by the Democratic County Committee under N.J.S.A. 19:13-20 by September 14.
September 14: Democratic County Committee selects Johnson (20–7) as the nominee.
September 17: Appellate Division (Sabatino, P.J.A.D.) affirms use of N.J.S.A. 19:13-20 process.
September 19: Supreme Court issues order affirming, vacating the Appellate Division’s stay, directing compliance with N.J.S.A. 19:13-20(d)(2) and (e), and instructing the County Clerk to proceed with mail-in ballots per N.J.S.A. 19:63-9.
October 27: Supreme Court issues full opinion explaining its rationale.

Summary of the Opinion

The Court holds that two statutes govern when a primary election result is set aside: N.J.S.A. 19:13-18 (section 18) and N.J.S.A. 19:13-20 (section 20). The trial court’s invalidation of the primary rendered the nomination “inoperative” within the meaning of section 18, creating a vacancy. Section 20 specifies how such vacancies are filled; for local offices within a single county, section 20(a)(4) mandates that the county committee select the replacement nominee. Although section 20 ordinarily requires that the vacancy arise at least 70 days before the general election, the Court relaxed that deadline because litigation delays pushed the vacancy past the statutory cutoff, and there remained sufficient time to conduct the general election in an orderly fashion and meet ballot-mailing deadlines.

Rejecting Wilkerson’s proposed equitable remedies, the Court rules that there is no statutory authorization for:

A special primary election after the date of the general election;
A special general election to remedy a nomination vacancy, particularly one held after Election Day; or
Placing both Democratic primary candidates on the general election ballot (which would effectively convert the general election into a second, open-party primary).

The Court emphasizes that while New Jersey election laws are liberally construed to preserve the franchise and promote voter choice, courts may not construct remedies that the statutes do not authorize. Any broader remedies must come from the Legislature.

Analysis

Statutory Framework and Interpretive Approach

The Court applies familiar canons with particular sensitivity to election contexts:

Liberal construction of election statutes to promote voter participation and orderly elections, while respecting statutory text and structure (Kilmurray; Gangemi; Catania; Samson).
Ordinary-meaning rule: terms like “nomination,” “nominee,” and “vacancy” are given their commonly understood meanings (Fiscella; N.J.S.A. 1:1-1).
Anti-surplusage canon: the word “may” in section 18 does not render succeeding vacancy provisions optional; section 20’s “shall” is mandatory and must be given effect (M.R. v. Dep’t of Corr.; Hoffman v. Heck).

Applying this framework, the Court reads “inoperative” (as in section 18) to mean “having no force or effect.” Once the trial court set aside the primary result, the prior nomination ceased to have legal effect and a vacancy arose. Section 20 therefore governed the method for filling that vacancy.

Precedents Cited and Their Influence

Kilmurray v. Gilfert, 10 N.J. 435 (1952): The Court allowed a party committee to fill a vacancy caused by a candidate’s death even though it occurred after the then-applicable deadline, treating the time limit as directory to preserve the statutory scheme and voter choice. This case undergirds the relaxation of section 20’s 70-day rule where necessary to maintain an orderly general election and avoid disenfranchisement.
Fields v. Hoffman, 105 N.J. 262 (1986): The Court held that an “insufficient” write-in showing in a primary created a vacancy that could be filled by the party committee under sections 18 and 20. Although the Legislature later amended the law to foreclose that specific scenario (see N.J.S.A. 19:13-20.1, recognized in Catania), Fields remains important for its articulation of “insufficient” and “inoperative” as triggers for the vacancy-filling mechanism.
N.J. Democratic Party, Inc. v. Samson, 175 N.J. 178 (2002): The Court permitted the Democratic State Committee to replace a U.S. Senate candidate (Sen. Torricelli) outside section 20’s time limit, reasoning that voters’ choice should not be unnecessarily limited where the election can proceed in an orderly way. Samson confirms that deadlines in section 20 may be relaxed to preserve electoral order and voter choice—principles invoked here.
Catania v. Haberle, 123 N.J. 438 (1990): Emphasizes liberal construction of election laws to maximize voter choice and orderly processes, while acknowledging legislative primacy to amend statutes that courts interpret.
Gangemi v. Rosengard, 44 N.J. 166 (1965) and Kilmurray again: Caution against voiding elections for technical reasons; promote preserving the franchise consistent with statutory text.
Lesniak v. Budzash, 133 N.J. 1 (1993): Recognizes the state’s interest in restricting a party’s candidate-selection process to party members. This supports rejecting the proposal to list both Democratic primary candidates on the general election ballot, which would let non-Democrats effectively choose a party nominee.
Fiscella v. Nulton, 22 N.J. Super. 367 (App. Div. 1952): Words in election statutes are given their common usage—supporting the Court’s ordinary-meaning analysis of “inoperative.”
Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366 (1995): De novo review for questions of law, framing the Court’s interpretive role.
M.R. v. Dep’t of Corr., 261 N.J. 322 (2025) and Hoffman v. Heck, 8 N.J. 397 (1952): Anti-surplusage canon used to reject reading section 18 as making section 20 optional.

Legal Reasoning Applied to the Facts

The nomination became “inoperative,” creating a vacancy. The trial court set aside the primary based on the disenfranchisement of three voters. Under section 18’s text and ordinary meaning, that ruling rendered the nomination “inoperative,” i.e., without force or effect, which in turn produced a “vacancy” in the nomination.
Section 20 mandates the vacancy-filling method. Section 20 begins with mandatory language—“a candidate shall be selected in the following manner”—and subsection (a)(4) specifically requires the county committee to select a replacement nominee for an office elected within a portion of a single county (here, Roselle). The Court rejects the notion that section 18’s use of “may” permits courts to bypass section 20.
Relaxing the 70-day deadline due to litigation delays. Although section 20 contemplates that vacancies occur at least 70 days before the general election, the Court, consistent with Kilmurray and Samson, relaxes that requirement where litigation timelines made strict compliance impossible, and where there was still time to conduct an orderly general election and meet statutory ballot-mailing deadlines (N.J.S.A. 19:63-9).
Rejection of extra-statutory remedies. The statutes do not authorize:
- Special primaries scheduled after the general election date;
- Special general elections to remedy a nomination vacancy (as distinct from vacancies in office addressed in N.J.S.A. 19:27-6; 19:27-11; and N.J.S.A. 40A:16-1 to -23); or
- Listing both primary candidates on the general ballot, which would effectively transform the general election into a second party primary and implicate party-membership concerns noted in Lesniak.
The Court underscores that liberal construction permits relaxation within the statutory scheme, not the creation of new procedures without legislative authorization.
Orderly general election and statutory deadlines control. The New Jersey Constitution schedules general elections for early November (art. II, § 1, ¶ 1), and the statutory mail-in ballot timeline (N.J.S.A. 19:63-9) requires ballots to be transmitted 45 days in advance. Judicial remedies must preserve these structural requirements absent legislative direction to the contrary.

Impact

Clarified trigger and remedy for set-aside primaries. When a court invalidates a primary, the nomination becomes “inoperative” under section 18 and a vacancy arises that must be filled per section 20. For local races within a county, the county committee has the mandatory role under section 20(a)(4).
Limited equitable discretion. Courts may relax timing to preserve an orderly general election (as here), but they cannot order remedies not grounded in Title 19—such as post-November special primaries or placing multiple party nominees on the general ballot. This cabins equitable relief to statutory boundaries.
Party committees’ enhanced practical role. County committees become the default mechanism to resolve late-breaking nomination defects that arise from litigation, heightening the importance of their procedures, notice, and transparency (see Court’s directive to comply with N.J.S.A. 19:13-20(d)(2) and (e)).
Administrative certainty for election officials. The decision safeguards the schedule for ballot preparation and mailing, providing certainty to clerks and boards of elections when litigation affects primaries late in the cycle.
Legislative invitation. The Court expressly signals that broader or different remedies—such as authorizing special primaries when primaries are set aside—must come from the Legislature. Policymakers may consider whether to design narrowly tailored, time-sensitive remedies for late primary failures.

Complex Concepts Simplified

“Inoperative” nomination: A nomination is “inoperative” when it has no legal force—here, because a court set aside the primary result. That status triggers a vacancy under N.J.S.A. 19:13-18.
Vacancy in nomination vs. vacancy in office: A vacancy in nomination involves who the party’s candidate will be; a vacancy in office occurs when an elected official leaves office. Different statutes govern each. Special elections are authorized for office vacancies, not for nomination vacancies unless Title 19 expressly says so.
Recount vs. recheck: A recheck compares machine counters to election returns (N.J.S.A. 19:52-6). A recount is a fresh count of votes (N.J.S.A. 19:28-1, -3).
Directory vs. mandatory deadlines: A “directory” deadline guides timing but may be relaxed when strict compliance would frustrate statutory purposes and orderly elections; a “mandatory” provision must be followed. The Court treated section 20’s 70-day timing as relaxable in particular circumstances, but not the core command that the committee “shall” select the candidate.
County committee selection (N.J.S.A. 19:13-20(a)(4)): For local races within a county, the party’s county committee members representing the relevant district convene to choose a replacement nominee when a vacancy arises. Procedural safeguards include notice and certification requirements (see N.J.S.A. 19:13-20(d)(2), (e)).
Liberal construction of election laws: Courts interpret election statutes to maximize voter participation and maintain orderly elections, but they do so within the statutes’ text and structure; they do not invent processes the Legislature has not authorized.
Mail-in ballot timeline: Ballots must be sent at least 45 days before the election (N.J.S.A. 19:63-9), which constrains late-stage judicial remedies.

Practical Guidance

For litigants contesting primaries: File promptly and seek expedited relief. If the primary is set aside close to the general election, expect the vacancy to be filled by the party committee under section 20, not through a new special primary.
For trial courts: Avoid ordering special primaries or dual-candidate general ballots absent express statutory authority. When timing is tight, focus on remedies that preserve the November general election and compliance with N.J.S.A. 19:63-9.
For county committees: Prepare to act swiftly and transparently when vacancies arise; ensure compliance with notice and certification requirements in N.J.S.A. 19:13-20(d)(2) and (e).
For election administrators: Track litigation milestones and coordinate with courts on statutory deadlines; maintain the general election schedule and ballot-mailing timelines.
For policymakers: Consider whether to authorize narrowly tailored special-primary mechanisms when primary results are judicially invalidated near the general election, with clear timelines that harmonize with ballot production and mailing requirements.

Unresolved Questions and Limits

Scope of deadline relaxation: The opinion relaxes the 70-day window when litigation delays occur and the election can proceed orderly. Future cases may test how far this flexibility extends, especially if administrative capacities are strained.
Attribution of delay: The decision does not address whether relaxation would differ if delay is attributable to a party’s litigation strategy rather than court docket realities.
Alternative safeguards: While the Court signals confidence in county committee processes, concerns about democratic legitimacy in very close primaries may prompt legislative refinement (e.g., enhanced notice, quorum, or public transparency requirements).

Conclusion

Cynthia Johnson v. Denise Wilkerson clarifies a pivotal point in New Jersey election law: when a primary election is set aside, the nomination becomes “inoperative,” creating a vacancy that must be filled by the party’s county committee under N.J.S.A. 19:13-20. Courts may relax the statute’s timing in the face of litigation delays to ensure an orderly November general election and compliance with ballot-mailing requirements. But equitable concerns cannot justify remedies that Title 19 does not authorize—no post-election special primary, no special general election for nomination vacancies, and no dual-candidate general ballot to rerun an intra-party contest.

The opinion balances two core commitments: liberal construction to protect the franchise and strict adherence to the statutory scheme that structures timely, orderly elections. By affirming the Appellate Division and foreclosing extra-statutory remedies, the Court stabilizes election administration and invites the Legislature to design any additional tools it deems appropriate for late-breaking primary failures. In the meantime, party committees and election officials remain the statutory backstop for close, contested primaries that are judicially invalidated on the eve of a general election.