Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
[39 NJSuper Page 521] This is an appeal from an order of the Cumberland County Court declaring Samuel A. Wade
the successful candidate for member of the Cumberland County Board of Chosen Freeholders from the First Ward of the City of Bridgeton, at the November 8, 1955 election, and directing the Chairman and Clerk of the County Board of Canvassers to issue a certificate of election to him.
Wade was the Democratic candidate, and W. Lowell Campbell the Republican candidate, for freeholder at the general election. The local election board certified that Campbell, the appellant, had been elected by a vote of 404 to 403 for his opponent Wade. Wade thereupon filed a complaint in the Cumberland County Court seeking a recount under N.J.S.A. 19:28-1 et seq. The Cumberland County Board of Elections conducted the recount and by majority vote determined that Campbell had received 402 votes and Wade 400, and 6 ballots were referred to the County Court as disputed. These ballots are marked R-1, R-2, D-1, D-2, D-3 and D-4, the R standing for Republican and the D for Democrat. The court determined that ballots R-1 and D-4 were a nullity, that ballots D-1, D-2 and D-3 should be counted for Democratic candidate Wade, and that the voter on ballot R-2 did not intend to vote for Republican candidate Campbell and it could not be counted. The result was that three votes were added to Wade's previous total, making the final vote 403 for Wade and 402 for Campbell. Campbell appeals. We will discuss the disputed ballots in the same order as they were taken up by the County Court and in the briefs of counsel.
Both of these ballots present the same question. Since one was cast for Wade and the other for Campbell, it makes no difference how the question is decided. Neither party particularly stresses the correctness or incorrectness of the County Court's ruling that both ballots were invalid, since they obviously offset each other. We therefore pass the question of their validity.
The voter in this case apparently started to vote for Campbell. He drew a diagonal line running from the upper left to the lower right corner of the box opposite Campbell's name, and then drew a series of very closely spaced lines in the opposite direction over this mark, which filled the box and extended beyond it. The trial judge correctly ruled that the vote was ineffectual, describing the marking as "the normal marks of cancellation." In the first place, disregarding the obliteration, the single diagonal line in the box is not the cross (X), plus () or check (X) required by the statute, N.J.S.A. 19:15-27. Secondly, even if there were an X in the box, the superimposed series of lines clearly indicates that the voter intended cancelling out what he had started to do. To count a vote for a particular candidate, the district election board is required to find that "proper marks are made in the squares to the left of the names of any candidate in any column * * *." N.J.S.A. 19:16-3(a). As noted, N.J.S.A. 19:15-27 indicates what is a "proper" mark. And N.J.S.A. 19:16-3(f) refers to the counting of ballots "for such other offices as are plainly marked." What is contained in the box opposite Campbell's name on ballot R-2 cannot be described as either a proper mark or a plain marking.
If we are to follow the principle that effect must be given to the intent of the voter where such intent can be determined with reasonable certainty, we must do so by giving as much weight to his intent not to vote, or to cancel his vote, as we do respecting his intent to cast a vote. In the case of this ballot the voter chose not to make a selection for assemblyman, voted only for the full-term coroner, chose to obliterate his vote for freeholder, cast only one vote for city council where he could have cast two, and neglected to vote for city treasurer. He voted on all three public questions at the bottom of the ballot. His activity for the day can be simply stated: he voted Republican for coroner,
Democratic for city council and scratched his vote ...