Goldmann, Freund and Foley. The opinion of the court was delivered by Goldmann, S.j.a.d.
This is an appeal from two orders of the Hunterdon County Court invalidating certain civilian absentee ballots cast for the office of township committeeman in Bethlehem and Kingwood Townships, respectively, at the November 1961 general election, and invalidating the certificates of election theretofore issued to the two appellants, Meyers and Polazneck, who won a plurality of the votes in those townships when the absentee ballots were added to those cast at the polls.
Respondent Kinney, the Democratic incumbent, and appellant Meyers, Republican, were candidates at the general election for the three-year term of township committeeman for Bethlehem Township, Hunterdon County. Included in the total votes cast were two military absentee ballots and 16 civilian absentee ballots. Kinney received a majority of the votes cast at the polling place, but all 16 of the civilian absentee ballots were cast for Meyers. These latter were sufficient to give Meyers a majority of 11 votes. Kinney made timely application to the Hunterdon County Court for a recount under the provisions of N.J.S.A. 19:28-1 et seq. A recount was ordered, and on November 27, 1961 the four members of the Hunterdon County Election Board met to recount the ballots in the presence of the candidates and their attorneys. The result of the ballots cast at the polling place remained substantially unchanged. Kinney had no objection to the military absentee ballots, but did object to the inclusion of 13 of the 16 civilian absentee ballots. Eight were challenged because the blank spaces in the following, which appeared on the left-hand side of the absentee certificate (N.J.S.A. 19:57-17), had not been filled in:
"I, do solemnly swear that I am a registered voter of the State of New Jersey, and that I have
resided in the county of continuously since (month, date and year)
My address in said county is (street and number, if any, or rural route) where I have resided since (month, date and year)
I will be a resident of the State of New Jersey at the above address on (date of election)."
However, the voter's name and reason for absence, as well as the completed notary's certificate, were all affixed. One absentee ballot was challenged because the doctor's certificate stated merely that the voter, a woman, was confined to her home because of arthritis, but failed to state that she would be unable to vote at the polling place on the date of the election, as required by N.J.S.A. 19:57-18. Four certificates were challenged because of some defect in the notary's certificate: one because the notary's title was not designated; another because there was no county clerk's certificate showing that the notary had the power to take oaths or affidavits in Texas; a third because of the absence of such certificate as well as the date when the notary's commission expired; and the fourth because the New York notary had failed to affix her seal, no county clerk's certificate was attached, and no notation made of the expiration date of her commission.
The county election board being evenly divided on upholding Kinney's objections, the matter was submitted to the county judge. Before him in one pile were the 16 certificates which had been detached from the absentee ballots (the inner envelopes) and in another pile the absentee ballots themselves. There was, of course, no way for the judge to identify which certificate had accompanied a particular absentee ballot. After the court had reserved decision on the objections, Meyers on December 1, 1961 requested permission to offer proof that the persons who administered the oaths to the absentee civilian voters were in fact notaries
public. Pursuant to leave granted, Meyers soon after submitted a county clerk's certificate for each of the notaries involved, as well as a supplemental statement from the doctor, thereby supplying the deficiencies in the last five of the challenged civilian absentee ballots.
The County Court not having announced its decision, and a certificate of election having previously been issued to Meyers, he took office on January 1, 1962. On January 12 the county judge rendered an oral opinion which ignored the objections Kinney had raised as to deficiencies in the certificates accompanying the absentee ballots and held that the ballots should not have been counted. In his view, they had become marked ballots because they had not been legally processed and counted by the county board of elections in accordance with N.J.S.A. 19:57-24 and 31. The absentee ballots had not been opened and counted until election day, in contravention of N.J.S.A. 19:57-24, which requires that:
"The county board of elections shall, promptly after receiving each civilian absentee ballot, remove the inner envelope, containing the ballot, from the outer envelope and shall compare the signature and the information contained on the flap of the inner envelope with the signature and information contained in the respective requests for civilian absentee ballots. * * *
After such investigation the county board of elections shall detach or separate the certificate from the inner envelope containing the military service or civilian absentee ballot, unless it has been rejected by it or by the County Court, marking the envelope so as to identify the election district in which the ballot contained therein is to be voted as indicated by the absentee voter's home address appearing on the certificate attached to or accompanying said inner envelope * * *."
The county judge also called attention to N.J.S.A. 19:57-31, which provides:
"On the day of each election each county board of elections shall open * * * the inner envelopes in which the absentee ballots, returned to it, to be voted in such election, are contained, except
those containing the ballots which the board or the County Court of the county has rejected, and shall remove from said inner envelopes the absentee ballots and shall then proceed to count and canvass the votes cast on such absentee ballots, * * *."
The judge concluded, "I do not see how we can get away from the fact that the way in which these ballots or the whole envelope and ballot were opened that they became marked ballots, in my opinion, and should not have been counted." The judge was apparently of the impression that both the outer and inner envelopes had been opened on election day, the inner envelope having the certificate attached at the time it was opened.
The parties appeared before the County Court on January 19, 1962 because they had been unable to agree on the form of the order. The court then framed and entered the order from which Meyers appeals. Although it invalidated his certificate of election, it did not direct that a certificate be issued to Kinney, with the result that a vacancy has continued on the Bethlehem Township Committee. During the proceedings on that day Meyers applied for, and received, leave to submit evidence as to the procedure followed by the county election board, since the record was barren of any facts relating to the point upon which the county judge had based his opinion.
The County Court received further evidence on February 2, 1962, at which time the clerk and the chairman of the county board of elections testified. Their testimony was to the effect that as ballots were received through the mail at the county seat prior to election day, the clerk of the board opened the outer envelope and compared the signature on the large flap certificate attached to the inner envelope with the county clerk's list of voters to whom absentee ballots had been sent. The clerk verified whether the respective absentee voters were properly registered, and then set to one side the sealed inner envelopes containing the ballots, with the flap certificates still attached. The county board, it was testified, had then met on election day and
examined each flap certificate, passing on each one unanimously. All the certificates found valid were then detached from their sealed inner envelopes, and these envelopes placed in one pile. After all the absentee ballots for the entire county had thus been examined, and all the flaps detached and set aside, the then unidentifiable sealed inner envelopes were opened and the ballots tallied.
The court took no further action after having received this evidence, thus leaving standing the January 19, 1962 order.
Turning to the Kingwood Township committeeman election, appellant Polazneck and respondent Raffo were the Republican and Democratic candidates, respectively, for that office at the November 1961 general election. After all the votes, including the absentee ballots, had been counted, Polazneck was certified the winner by three votes. As in the Bethlehem Township election, there was a recount, as a result of which Raffo received an additional vote, but Polazneck was still the winner by two votes. Six ...