Sullivan, Lewis and Kolovsky. The opinion of the court was delivered by Sullivan, S.j.a.d.
This is an appeal in an election case involving the office of member of the city council, second ward, East Orange. Ben Sweetwood was the duly nominated Democratic candidate for said office and Donald F. MacArt the duly nominated Republican candidate. The election was held on November 2, 1965, and after a recheck and recount of voting machine totals and absentee ballots, was certified by the Essex County Board of Elections as a tie vote.
Proceedings challenging the result were instituted in the Superior Court by both candidates, and after a hearing it was judicially determined that the election had resulted in a tie vote.
The court hearing involved eight absentee ballots, six of which had been counted for MacArt. The court upheld the validity of these ballots. The remaining two ballots, one of which was voted for Sweetwood, and the other for MacArt, had not been counted. The court declared these ballots invalid.
Much of the confusion was not of the voters' making. The paper ballot sent to each absentee voter, although it contained a space at the bottom of each column "For Municipal Offices," did not have printed thereon the names of any of the candidates nominated for the municipal offices. Instead, there was forwarded with each ballot a separate instruction sheet reading as follows:
"EAST ORANGE, NEW JERSEY SECOND WARD
THE FOLLOWING MUNICIPAL OFFICERS ARE TO BE ELECTED:
To vote for any candidates whose names are listed below write the names and mark a cross (X), plus () or check (checkmark) in the square at the left of the names of such candidates, not in excess of the number to be elected to the office, in the column for municipal offices on the ballot.
FOR MAYOR -- Vote for One