Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Goldmann, S.j.a.d. Sullivan, J.A.D. (concurring).
This appeal involves the validity of two ballots cast for the office of township committeeman at the November 3, 1964 general election held in the Township of Independence, Warren County. Joseph Sadlon was the Democratic candidate and Alanson A. Remley the Republican candidate for that office. The board of county canvassers certified that Remley was the winner by one vote, having received 347 votes to Sadlon's 346.
Sadlon filed a complaint seeking a recount pursuant to N.J.S.A. 19:28-1 et seq. The County Court judge conducted such recount on December 4, 1964 and entered judgment adjudging that Sadlon had received 346 votes and Remley 345 (thereby reversing the previous result), and declaring Sadlon elected as member of the township committee. In arriving at that decision the county judge found that two ballots were invalid: No. 552 (exhibit P-1), because it tended to identify the voter by the placing of an asterisk opposite the public questions on the ballot, and No. 430 (exhibit P-2), because the voter had marked both the "Yes" and "No" squares opposite the public questions.
N.J.S.A. 19:15-27 directs that the voter shall mark his ballot with a cross (X), plus () or check (checkmark) in the square to the left of the public question or candidate's name. The top of the official ballot used at the Independence Township election carried voting instructions in bold-face print. The very first instruction specifically provided that "The only kind of a mark to be made on this ballot in voting shall be a cross X, plus or check checkmark." The three marks were referred to in the succeeding four instructions. Directly below the caption "Public Questions To Be Voted Upon" there again appeared the direction that one of the three authorized marks be used. Despite all this, the voter on ballot P-1 used a mark resembling an asterisk in voting "No" on the two public questions. Both marks were heavy and distinctive, each filling the entire large square. However, in voting for the Republican candidates,
the same voter marked a cross (X) in each of the squares.
The second paragraph of N.J.S.A. 19:16-4 provides:
"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."
In examining the ballot the county judge observed that the voter had used a proper mark in voting for all candidates for office, but had deviated from the instructions where the public questions were involved by using an asterisk. The judge was thus satisfied that the deviation was intended by the voter to distinguish his ballot, and he therefore held the ballot void.
Appellant Remley suggests that the voter on P-1 possibly felt that he ought to make a larger, more emphatic mark because of the larger size of the squares provided for the public questions, or because he felt violently on the bond issues involved and wanted to express his strong feelings. To permit such speculation as a means for validating a ballot marked otherwise than permitted by statute would in the end eliminate any need for the statute itself. The asterisks here were no accident. The voter knew exactly how to mark a ballot properly. The situation is not unlike that involving ballot D-2 with which we dealt in In re Wade, 39 N.J. Super. 520, 524 (1956).
Under N.J.S.A. 19:16-4 the determination of whether a mark, sign, erasure, designation or device upon a ballot was intended to identify or distinguish that ballot is left to the judge conducting the recount. Due regard must be given to the county judge's exercise of his function as a fact-finder. We will not disturb his determination that P-1 was invalidated because of the use of the asterisks.
The voter who voted the Republican column on ballot P-2 placed a lopsided plus mark in both the "Yes" and "No" squares opposite the two public questions. It is not contended here, nor was it below, that this marking was intended to identify or distinguish the ballot, contrary to the second paragraph of N.J.S.A. 19:16-4. The county judge ruled the ballot ...