Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
Joseph Mayers appeals from a Law Division judgment declaring void the absentee ballots cast by Elmer Johnson and Henry Chandler for him as Republican nominee for the Little Falls Township Committee at the April 21, 1959 primary election; adjudging the vote between Mayers and Robert E. Moore, his opponent, a tie; and ordering that the certificate of nomination theretofore issued to Mayers be annulled. The judgment also voided an absentee ballot cast by one Mildred Rhodus, but this ballot is not involved on this appeal because it could not be determined for whom she voted.
A total of 2,098 votes was cast at the primary election, 10 being absentee ballots. Mayers received 1,050 votes and Moore 1,048. A recount did not change the result. Moore then filed a petition in the Superior Court, Law Division, pursuant to N.J.S.A. 19:29-1 through 3, to invalidate certain absentee ballots, and to have Mayers' nomination as Republican candidate for the township committee set aside and petitioner Moore declared the winner. Among the reasons advanced by Moore was that the acknowledgments on the certificates submitted with the ballots of five civilian absentee voters were not taken in strict accordance with N.J.S.A. 19:57-17. At the hearing this contention was dropped as to three of the voters and continued against only two, Johnson and Chandler, the claim being that each had filled out his absentee ballot in the presence of others and before it had been exhibited unmarked to the notary public who took the acknowledgment, in direct contradiction to its wording:
"Sworn to and subscribed before me this day of 19 , and I hereby certify that the affiant exhibited the enclosed
ballot to me unmarked, and that he then in my presence and in the presence of no other person and in such manner that I could not see his vote, marked such ballot and enclosed and sealed the same in this envelope without my seeing or knowing his vote, and that the affiant was not solicited or advised by me to vote for or against any candidate or proposition."
The Law Division judge dismissed all of Moore's contentions except the last mentioned. However, during the hearing the judge, on his own motion, raised the question of whether the certificates, forwarded to every absentee voter along with the ballot, had been sufficiently filled in by Johnson, Chandler and Rhodus. Moore's petition had not alleged any such defect. The court held that Johnson and Chandler -- we disregard a similar ruling as to the Rhodus ballot -- had failed to complete the certificate in the manner required by the statute. This, together with their failure to follow out the procedure set forth in the acknowledgment, was held to be an irregularity sufficient to invalidate the Johnson and Chandler votes. The result, as indicated, was a tie in the Republican primary.
The circumstances as to the marking of the ballots by Johnson and Chandler and the administration of the oaths by the notary public who took their acknowledgment are not in dispute.
Johnson, a man well along in years, lives at a rest home in Little Falls operated by a Mrs. Carra. He suffers from glaucoma and is blind. He is also afflicted with arteriosclerosis and hypertension. Chandler, 86 years old, lives at the same place. He suffers from physical senility and has a discharging lesion of the knee. Dr. James F. Stokes, who treated both men, said that Chandler had cellulitis and possibly osteomyelitis. In his opinion, neither man had been medically fit to go to the polls on primary day.
Johnson and Chandler had applied for civilian absentee ballots because of their physical disability. N.J.S.A. 19:57-4. The county clerk reviewed the applications and approved them. N.J.S.A. 19:57-10. Thereafter he forwarded
the requested absentee ballots by mail. N.J.S.A. 19:57-11. Accompanying each ballot were printed instructions, "Information for absentee voters," indicating how it was to be filled in and listing the names of the Republican and Democratic primary candidates. Moore and Mayers were the only Republican nominees for township committee at that election. With each absentee ballot the county clerk also sent two envelopes, one to be inserted in the other. The outer envelope was addressed to the county board of elections. The inner was designed in the manner set out in N.J.S.A. 19:57-16, i.e. , it could be sealed after the ballot had been inserted, and its flap was large enough for the printing of the certificate prescribed by N.J.S.A. 19:57-17. The flap was so arranged that the margin containing the certificate could be folded after the inner envelope had been sealed, so that this envelope together with its attached certificate could be placed in the outer envelope.
On the front of the inner envelope the county clerk had caused to be printed the following:
"Complete Ballot as Soon as Possible After Receipt Instructions to Absentee Voter
1. Mark your ballot for the candidates of your choice. (And for or against the propositions appearing thereon)
2. Insert completed ballot in this envelope.
3. Complete the Certificate attached to the flap of this envelope.
4. Have signature witnessed by notary public or other authorized officer.
5. Seal this envelope. Do Not Detach the Certificate.
6. Insert this envelope containing the ballot in the return envelope provided, which is already addressed to the proper Board of ...