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In re Klayman

Decided: October 16, 1967.


Stamler, J.s.c.


[97 NJSuper Page 296] Petitioners Max Klayman and Sylvia Klayman, candidates in the September 12, 1967 primary election for the office of Democratic county committeeman, male and female, respectively, to represent the 6th election district of Livingston Township, petition this court to set aside the election of the incumbents Frank Wexler and

Frances Petrucelli who had conducted a write-in campaign. Also responding were the Essex County Board of Elections and the Superintendent of Elections of Essex County.

Forty-eight voters cast ballots in this Democratic primary. Eleven failed to cast any vote for county committeeman, male, and 13 did not vote for any county committeeman, female.

The certificate of election indicated that Wexler had received 19 votes as against 18 votes for Max Klayman for county committeeman, male, and Mrs. Petrucelli had received 18 votes as against 17 votes for Mrs. Klayman, county committeeman, female.

The Klaymans' names appeared on the ballot in positions 16A and 18A. Wexler and Mrs. Petrucelli had decided to conduct a write-in campaign and furnished friends and neighbors with adhesive-backed white labels with their names stamped thereon, with brief instructions as to how and where the labels were to be placed.

At or about 6 P.M. on election day Mrs. Klayman, Democratic voter No. 14, entered the polling booth, drew the curtain and noted that her name and that of her husband on the face of the machine were obliterated by a "white tape-like substance." Surprised and shocked, Mrs. Klayman immediately drew back the curtain, thereby registering a vote but without having in fact voted for anyone including her husband and herself.

She called to Republican Mrs. Roberta Clure, judge of the district board, and Democrat Herman Targansky, clerk, and directed their attention to the face of the machine. Targansky immediately began to remove the sticker with his fingernail and was moments later assisted by Mrs. Clure.

Mrs. Klayman immediately called friends who had already voted and learned that some of these had been unable to find the name of Klayman on the ballot.

When the polls closed and the back of the machine was opened, there appeared a number of written or printed names of Wexler and Mrs. Petrucelli and a number of tape-like

labels with the names of the two write-in candidates stamped thereon.

Mrs. Klayman observed, and the petition charges, that "the patches of white tape were identical with the patches of white tape which were used by the incumbents, Frank Wexler and Frances Petrucelli and others who voted for them to place their name on the irregular ballot."

The prosecutor and the Livingston police promptly began an investigation. The Klaymans filed the present proceeding charging a violation of N.J.S.A. 19:29-1(e), (f), and (g).

Charging fraud and collusion, the petition alleged that the impairing and defacing of the voting machine ballot with the stickers caused the loss of votes to petitioners and the receipt of illegal votes sufficient in number to change the result of the election, and further, that the county board of elections was in error in counting the votes and declaring the results of the election.

Petitioners ask this court not only to set aside the election of the incumbents but also to declare that the Klaymans were duly elected.

In addition to the charges of fraud and collusion, petitioners assert that three of the write-in votes in column 18 (county committeeman, female) were for "Fran Petrucelli" and not "Frances Petrucelli," and there was neither party nor office designation on the paper roll. They further show that two of the votes in column 16 (county committeeman, male) were for Frank Wexler without similar designation.

It was a complete mystery to all counsel and to the court in the early stages of the trial as to who had placed the stickers on the face of the machine obliterating the names of the Klaymans. The truth was unearthed during the presentation of evidence. The court had the opportunity as to each witness to observe the demeanor, mental capacity and qualifications, and to consider the interest or motive which any witness had in the outcome. Minor contradictions of no consequence did occur, but on the whole, as to the

important relevant factual issues, all witnesses were straight-forward and truthful.

Except where it is necessary in support of the findings of fact and the conclusions of law hereinafter set forth, the names of the various voters are not set forth, for it adds nothing but embarrassment and in some instances ridicule. The voters hereinafter designated by number only were Democratic primary voters.

The following voters (not in the order listed) were called by petitioners: Nos. 9, 10, 11 (Mrs. Petrucelli), 13, 14 (Mrs. Klayman) and 18. With the suspense of the mystery increasing, petitioners almost at the close of their case called voter No. 8, who testified as follows: She voted between 1 and 2 P.M.; had with her the Wexler-Petrucelli stickers; had not on any prior occasion voted an irregular (write-in) ballot; attempted to slide the stickers under a fixed metal strip running along the width of the entire voting machine directly above line A (the Democratic line); when this could not be done, and ...

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