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Matter of Murphy

Decided: May 24, 1968.

APPLICATION OF JAMES T. MURPHY TO CONTEST THE ELECTION OF WILLIAM K. METTLER TO THE OFFICE OF COUNCILMAN-AT-LARGE OF THE CITY OF ENGLEWOOD, AND IN THE MATTER OF THE APPLICATION OF DOROTHY HEIR TO CONTEST THE ELECTION OF KENNETH KING TO THE OFFICE OF COUNCILMAN OF THE THIRD WARD OF THE CITY OF ENGLEWOOD, AND IN THE MATTER OF THE APPLICATION OF PETER M. ABEL TO CONTEST THE ELECTION OF ROBERT F. MILLER TO THE OFFICE OF MAYOR OF THE CITY OF ENGLEWOOD, PURSUANT TO N.J.S.A. 19:29-1, ET SEQ. WILLIAM K. METTLER, INCUMBENT-APPELLANT,
v.
JAMES T. MURPHY, PLAINTIFF-RESPONDENT



Gaulkin, Lewis and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.

Kolovsky

At the general election held in the City of Englewood on November 7, 1967, Mettler, King and Miller were the Democratic candidates and Murphy, Heir and Abel, the Republican candidates for the offices of Councilman-at-Large, Councilman of the Third Ward and Mayor, respectively. The election returns showed the Democratic candidates to be the winners, Mettler by a majority of 17 votes, King by a majority of 376 votes and Miller by a majority of 136 votes.

A recount under N.J.S.A. 19:28-1 increased Mettler's majority by one, an increase which was cancelled when it developed at the trial of the instant action that an additional absentee ballot should be counted for Murphy.

On November 24, 1967, the three Republican candidates instituted this action contesting the election of Mettler, King and Miller on the ground that, allegedly, "illegal

votes [had] been received * * * sufficient to change the result." N.J.S.A. 19:29-1(e).

During the course of a lengthy trial of the election contest, the court ruled that 35 of the more than 10,200 votes cast in the city-wide election for Councilman-at-Large and Mayor were to be deemed "illegal" votes for the following reasons:

(a) Six, because the voters were disenfranchised by reason of criminal convictions.

(b) Seven, because the voters had moved from Englewood.

(c) Three, because the voters, whose present addresses were not proven, had moved from the addresses shown on the permanent registry records.

(d) Thirteen, because the voters, who were still residents of Englewood but had moved from the addresses shown on the registry records, had not filed the change of address notice called for by N.J.S.A. 19:31-11(a) and had voted in the district of their former residence. Of this group, one had moved to another address in the same district; ten, from one district to another district in the same ward; and two, to another ward.

(e) Six, because the total vote shown on the voting machines in the districts where they were cast exceeded the number of voting authorities issued.

The 35 votes adjudged illegal were insufficient in number to have any effect on the elections of King and Miller. Their elections as Councilman of the Third Ward and Mayor, respectively, were ...


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