Leonard, Conklin and Pashman. The opinion of the court was delivered by Leonard, J.s.c. (temporarily assigned). Pashman, J.s.c. (temporarily assigned) (dissenting).
This appeal involves an election contest. Appellant Everett C. Martin (hereinafter referred to as Martin), defeated petitioner-respondent and cross-appellant Walter C. Keogh-Dwyer (hereinafter called Keogh) in the 1963 primary election for the Republican nomination for the office of Vernon Township committeeman. At the following general election, held on November 5, 1963, Keogh became an independent write-in candidate for said office. The results of the general election as determined by the local district election boards were as follows: Martin 373; Keogh 371, and one Phillips, the Democratic candidate, 192.
A recount at the request of Keogh pursuant to N.J.S.A. 19:28-1 et seq. by the Sussex County Board of Elections and the County Court, acting where said Board did not agree, resulted in the following vote totals: Martin 368, Keogh 363, Phillips 192.
On December 5, 1963 Keogh, pursuant to N.J.S.A. 19:29-1 et seq. filed an election contest petition in the Superior Court. After a hearing judgment was entered on January 21, 1964 declaring the election between Martin and Keogh to be a tie, each receiving 372 votes. The judgment further provided that said election "be set aside" and that the certificate of election of Martin "be revoked and annulled."
We are requested to review the determination of the court below as to 32 ballots, 27 submitted by Keogh and 5 by Martin, and, further, the determination of the court below that 3 civilian absentee voting certificates were invalid.
We shall first consider the afore-mentioned 27 ballots in the four categories or groups as they were considered below and argued herein.
The county board of elections voided these 8 ballots cast for Keogh on the ground that they bore distinguishable or identifiable marks thereon. The court below reversed this determination, validating the same and counting them for Keogh. The pertinent portion of N.J.S.A. 19:16-4 provides as follows:
"No ballot which shall have, either on its face or back, any mark, sign, erasure, designation or device whatsoever, other than is permitted by this Title, by which such ballot can be distinguished from another ballot, shall be declared null and void, unless the district board canvassing such ballots, or the county board, judge of the Superior Court or other judge or officer conducting the recount thereof, shall be satisfied that the placing of the mark, sign, erasure, designation or device upon the ballot was intended to identify or distinguish the ballot." (Emphasis added)
In Bliss v. Wooley , 68 N.J.L. 51, 54 (Sup. Ct. 1902), the court said:
"The election act was only intended to defeat a ballot which was so marked that it was apparent that the voter had for some purpose, corrupt or otherwise, so marked it, or permitted it to be marked, that it could be identified or distinguished from 'any other ballot' used at such election."
Not every mark on a ballot makes the same null and void. It is only a mark that was placed thereon by the voter with the intention to identify or distinguish the ballot that so voids the same. Goddard v. Kelly , 27 N.J. Super. 517 (App. Div. 1963), and Petition of Wade , 39 N.J. Super. 520 (App. Div. 1956).
We shall individually review these ballots.
District 1, Ballot 18 and District 2, Ballot 6. In each of these a Keogh sticker was properly placed and marked. In addition, the name of the candidate was written thereon in pencil.
District 1, Ballot 19. Keogh's name was written in, crossed out, rewritten on the line below and properly marked. All of this was in the personal choice column.
District 2, Ballots 2 and 3. On each of these the voter placed an "x" opposite "yes" and opposite "no" on two of the public questions contained thereon. The vote for Keogh was properly placed and properly marked on each.
District 2, Ballot 9. There were two marks as aforesaid on the public question, but one was stricken out. The vote for Keogh was properly placed and marked.
District 2, Ballot 11. An "x" had been inserted and crossed out in the personal choice column for freeholder, although no name had been pasted or written thereon. The vote for Keogh was properly placed and marked.
The court below was satisfied that the marks on all of these seven ballots were not intended to identify or to distinguish them, and accordingly all were counted for Keogh. We are in accord therewith. There is no evidence present herein to support a finding of an intention to identify or distinguish the ballot.
District 2, Ballot 8. While this ballot was considered below in this group, it presents a distinct problem. Keogh's name was printed thereon in pencil. The marking in the square to the left thereof consisted of a single straight diagonal line running from the lower left of the printed square to the upper right thereof, all within said square and not touching the printed sides thereof. From observation it appears as if the voter then starting at the top of said line, came back down thereon for a very small portion and then made an infinitesimal line straight down so that the mark appeared to be thus: [/]. The court below did not count this ballot for Keogh. We concur in that determination.
N.J.S.A. 19:15-27 clearly and definitely, by words and symbols, indicates the three kinds of marks required to vote for a candidate, to wit: "a cross X, plus or check checkmark." The top of the ballot contains specific instructions that the above markings shall be "The only kind of a mark to be made on this ballot in voting." These marks are referred to in the first five of the six instructions, the sixth enjoining the voter not to mark the ballot in any other manner.
Keogh contends the mark to be "substantially" a check in conformity with N.J.S.A. 19:16-3(g). We do not agree. This mark is not substantially a hooked check. It is not argued that it is a cross or a plus. We therefore determine that said mark on this ballot is not any one of the three marks required. The voter might have intended to vote for Keogh, but as we have said in Petition of Wade, supra , at p. 524, "we are not at liberty to validate the ballot when he failed to mark it in the manner which the statute commands. There were undoubtedly good policy reasons for the Legislature limiting the marking of a ballot to the three ways mentioned." (Emphasis added) As in Wade , here too the voter knew exactly how to make a "checkmark" because in his vote for a candidate for freeholder and on the six public questions contained on the top of this ballot he marked his choice clearly by marking a very distinct check mark within the respective squares.
Keogh further argues that this ballot should be counted for him even if no mark were placed in the square. This position is considered in our disposition of the ballots in Group Four.
The single ballot involved herein is District 1, Ballot 24. Keogh's name thereon is written in an excellent hand in the personal choice column. Upon close observation and in good light there appears to be in the square to the left thereof a slight indentation of an "x," but it has no color. The impression thereof can only be seen by carefully and closely inspecting the reverse side of this ballot. From our observation of the front side thereof, it appears that either the mark was made by some instrumentality other than a pen or pencil, or the voter erased an "x" theretofore made. The latter interpretation is supported by a close inspection of the front of the ballot where it can be noted that portions of the printed square to the left of the written name and a part of the black printed dividing line of the columns appear to be lighter than the rest thereof and bear signs of erasure. The
voter did not vote for Martin. His marks for the four other candidates and for the six public questions are clearly and distinctly made and are readily discernible.
Whether we construe this ballot as containing a faint mark or an erasure of a previous mark, we concur with the finding of the court below in its determination that it cannot be counted for Keogh. 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 candidates in any column * * *." N.J.S.A. 19:16-3(a). The ballot must be plainly marked. Petition of Wade, supra , at p. 523. See Goddard v. Kelly, supra , 27 N.J. Super. 517 (App. Div. 1953). The mark herein cannot be described as either a proper or plain mark.
Keogh argues herein that we must give effect to the intent of the voter where such intent can be determined with reasonable certainty. If this be so, we must also give as much weight to his intention not to vote or to cancel his vote ...