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In re Application of Wene

Decided: May 29, 1953.


Joseph L. Smith, J.s.c.


On May 14, 1953 a petition, hereinafter referred to as complaint, in the above entitled cause, was filed pursuant to chapter 29 of Title 19 of the Revised Statutes , dealing with contested elections, with Honorable John B. McGeehan, Judge of the Superior Court, "without prejudice to the rights of any party." This complaint related only to the questions hereinafter considered occurring in Hudson County.

The Honorable Arthur T. Vanderbilt, Chief Justice of the Supreme Court of the State of New Jersey, on May 20, 1953, pursuant to R.S. 19:29-2 (as amended by L. 1953, c. 19, sec. 33), assigned to me the hearing of the said cause and the handling of all matters in connection therewith.

On May 22, 1953 an amended pleading, now referred to as a complaint, was filed, covering the questions presented in both Hudson County and Warren County. The proceedings involve a contest by Elmer H. Wene of the nomination of Robert B. Meyner as candidate for Governor in the primary election of the Democratic Party held April 21, 1953.

On May 22, 1953 an order was made by me setting May 28, 1953 at the court house in Jersey City, as the time and place, the parties having agreed thereto, for the court to hear a motion on the part of the said Robert B. Meyner for summary judgment dismissing the complaint.

On May 26, 1953 the attorneys for the incumbent, Robert B. Meyner, served and filed a notice of motion for summary judgment in favor of the said incumbent, with respect to the whole of the amended complaint, on the ground that the

said amended complaint showed that there was no genuine issue as to any material issue of fact, and that the said Robert B. Meyner was entitled to a judgment as matter of law, in that the complaint did not disclose a violation of the statute, and in that the alleged violation, if any, did not affect the legality of the votes cast or the legality of the election. Attached to said notice of motion were supporting affidavits of Philip A. Donnelly and Thomas C. Swick.

This motion for summary judgment aforesaid is now before the court for determination upon briefs and oral argument.

The amended complaint sets forth that the said Elmer H. Wene was a candidate for the Democratic nomination for Governor of the State of New Jersey in the primary election held on April 21, 1953. He concedes that his principal opponent for the said nomination was Robert B. Meyner. The court takes cognizance of the fact that in addition to the foregoing two candidates there were two other candidates in the said primary for the Democratic nomination for Governor, Alexander F. Ormsby, and John J. Winberry.

In Warren County the returns in all of the voting districts, after a recount of the votes at the request of said Elmer H. Wene, gave Robert B. Meyner 7,918 votes, and Elmer H. Wene 358 votes.

The amended complaint further alleges that voters were allowed to vote in the said primary election in Warren County who had not voted for "two subsequent annual primary elections," and that the said persons so allowed to vote had not signed but were legally required to sign a declaration stating the party in whose primary election they desired to vote, as provided in R.S. 19:23-45 (as amended by L. 1952, c. 158);

"A voter who has not voted in a primary election of a political party for two subsequent annual primary elections shall not be permitted to vote in any primary election of a political party until he has first signed and filed with the district board a declaration designating the political party in whose primary election he desires to vote."

Mr. Wene's contention is that all voters who cast their ballot without being required to comply with the aforesaid statute, by their failing to sign the "declaration" aforesaid, be declared to have cast illegal votes, and he sets forth a list of voters' names totaling approximately 3,200 who allegedly voted but without first having signed such a declaration, asserting that these votes should be declared illegal and not counted, which he claims would result in his having received the largest number of votes in the Democratic primary, and thereby entitling him to become the nominee for Governor of the Democratic Party in the coming general election to be held on November 3, 1953.

The recitals in the pleading in reference to Hudson County are the same as in Warren County, except that after a recheck of the votes on a statutory recount in Hudson County it was found the candidates had received the following number of votes:

Robert M. Meyner 58,883

Elmer H. Wene 28,908

Alexander F. Ormsby 9,557

John J. Winberry 953

There is no allegation as to the exact number of persons who are alleged to have illegally voted on account of their failure to have first signed a declaration in accordance with the provisions of the statute aforesaid. This complaint alleges that Robert B. Meyner was the winner of the said primary contest held on April 21, 1953 as the candidate of the Democratic Party for Governor of New Jersey; that the difference in the vote between Robert B. Meyner and the said Elmer H. Wene throughout the State of New Jersey was 1,506 votes, and that the aforesaid illegal votes in the County of Warren or County of Hudson or both, would be sufficient to entitle the contestant to receive the nomination for Governor of the State of New Jersey. He seeks in his complaint that a hearing be had to determine the exact number of persons so voting in the said primary in Warren County and in Hudson County on April 21, 1953, who had not voted for "two

subsequent annual primary elections" and failed to sign a declaration "as required by law."

He further asks this court at said hearing to set aside and declare as illegal all those votes cast in the said primary election held in said counties aforesaid by those persons who had so failed to vote in two subsequent annual primary elections and had failed to sign and file the necessary declarations as required by law. He further seeks to be declared the winner of said primary election by this court. Attached to the said complaint are the names of voters in the several voting districts in Warren County and Hudson County, referred to in the aforesaid complaint.

Now, let us consider the pending motion.

Although the sufficiency of the amended complaint is to be adjudged only on the basis of the legal sufficiency of facts well pleaded therein, we may look to the affidavits for light as to surrounding circumstances, in view of the 1953 primary being the first application of the 1952 amendment of the section involved. The record on this motion shows that in Monmouth and Atlantic Counties, the election officials considered the statute R.S. 19:23-45, as amended by L. 1952, c. 158, as not requiring the signing by any voter in said primary of any separate form of declaration. The requirement for signing a declaration of the political party in which the voter desired to vote was deemed satisfied by the signature which every voter made in the official signature copy register, together with the voter announcing at the same time the party primary he desired to vote in, and by the local election board official writing an abbreviation of the party name alongside said name as required by R.S. 19:23-46 and checking the qualifications of the voters as required by R.S. 19:31 A -8. No separate forms of declaration were sent to be used by or returned by any local election board in either Monmouth or Atlantic Counties. Therefore, no voters there signed or filed any such form.

In Bergen County, according to the motion papers, the local boards received forms of declaration but many, if not most, of said local boards did not require voters to sign same,

and some of said local boards failed to return any forms of declaration to the county election officials.

Substantially the same procedure was followed in Burlington County, Gloucester County, Morris County, Cumberland County, Salem County, and Ocean County.

There was considerable lack of uniformity in the disposition of the forms after the results of said election were compiled. In Essex County forms of declaration were sent to local election boards but no reference to such forms, or to any requirement for procuring them to be signed, were contained in the comprehensive printed instructions sheet which was sent to each local board by the county board of elections. The Essex County Superintendent of Elections "spot checked" some of those declarations after the election and then destroyed all of them, so that it is now impossible to determine which voters signed or failed to sign them in Essex County.

In Union County the forms were supplied to the local boards and fairly generally used.

Except for the "spot checking" which it is said was made of the declaration forms by the Essex County Superintendent of Elections, none of the other county election boards above referred to, have checked any of the declaration forms to determine whether all of the voters referred to in R.S. 19:23-45 (those who voted in a prior primary and failed to vote in the next two subsequent primary elections) actually signed them. In these said counties, no effort was made to collect all such declarations or to determine whether any local boards had retained any signed forms after the election or had deposited them in ballot boxes rather than return them to the county boards.

The incumbent argues that since the 1952 amendment of R.S. 19:23-45, abolished the previous requirement of an affidavit establishing the party affiliation of voters who failed to vote in the next two subsequent primary elections after a primary election in which they did vote, that the new and present provision of R.S. 19:23-45, requiring that in such case the voter shall sign a declaration "designating the

political party in whose primary election he desires to vote" seems to serve no practical purpose, if it is not deemed to be satisfied by the declaration that the voter makes when he announces his party and signs the signature register record, alongside of which the local election board concurrently specifies the name of his party in writing, all being required by R.S. 19:31 A -8. His position is that this latter procedure, together with the directions in R.S. 19:23-46 for checking these voters' prior voting record, constitutes a complete and permanent record of the voter's prior primary voting record and a sufficient safeguard against a voter improperly voting in the primary of a party of which he is not a member. An additional signed declaration by the voter, incumbent argues, would add no protection in this regard, particularly since there is no provision under R.S. 19:23-45 prescribing the form that the declaration shall take, nor ...

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