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In re Petition of Fifteen Registered Voters of County of Sussex on Behalf of Joan M. Flanagan

Decided: July 12, 1974.

IN THE MATTER OF THE PETITION OF FIFTEEN REGISTERED VOTERS OF THE COUNTY OF SUSSEX ON BEHALF OF JOAN M. FLANAGAN, CANDIDATE FOR THE OFFICE OF COUNCILMAN IN AND FOR THE TOWNSHIP OF SPARTA IN THE COUNTY OF SUSSEX


Fritz, Lynch and Michels. The opinion of the court was delivered by Fritz, J.A.D.

Fritz

At issue in this election dispute is whether 294 write-in votes for a candidate for council in Sparta Township should be counted for Harry C. Wright, an active candidate for the office, as the board of canvassers and county board of elections decided, or should be disregarded, as the judge below determined, because they were voted only for "Wright" or "Mr. Wright" and without a first name or initial.

The facts are undisputed. The final results of the election, held May 14, 1974, (after a recount) were certified according to the following tabulation: George Dykstra, 1,744; Richard Hunsicker, 1,523; Harry Wright, 1,193; Joan M. Flanagan, 1,161; Charles Fletcher, 1,022; all others, 53. Among the "others" were votes for C. Wright, 3; George Wright, 4; Frank Wright, 1; Charles Wright, 1; W. Wright, 1; Richard Wright, 1; Henry Wright, 1; and Harry R/--t [ sic ], 1. Since there were three vacancies, Dykstra, Hunsicker and Harry Wright were declared the winners.

The remaining significant facts can be readily synthesized: Other than Harry C. Wright and his wife, there are eight registered voters in the township whose last name is Wright.

There is no record among the registered voters in the township of any named Frank, Richard, Henry, George or William Wright. Nobody in the township named Wright campaigned for the office except Harry Wright. There is no suggestion in the record that any Wright other than Harry sought the office or, indeed, authorized a candidacy, either directly or indirectly.

On the other hand, Harry Wright campaigned vigorously for a write-in vote, from the day he was denied a place on the printed ballot when his nominating petitions were held to be untimely filed, through an unsuccessful application to the courts to be permitted to use stickers, up to the day of the election. His picture appeared, with that of the other four candidates whose names appeared on the ballot, in a leading newspaper article on Sunday two days prior to the election. Most significantly, he campaiged in tandem with Dykstra and Hunsicker, in opposition to Flanagan and Fletcher. The campaign advertising of Dykstra and Hunsicker inevitably embraced Wright in the coalition. It would appear that in none of the political advertising did Dykstra and Hunsicker join without equal billing for Harry Wright. A published "open letter" endorsement by the state senator from the 15th Legislative District extolled "the qualifications and stated aims of the candidates" Hunsicker, Dykstra and Harry Wright, describing the challenge facing the latter as "probably the most difficult" because he was a write-in candidate. Unfortunately, Harry Wright's campaign suggested, on frequent occasions, the mnemonic, "Write in Wright."

In such circumstances we are persuaded beyond any doubt that the characterization by the trial judge of the questioned 294 votes as "ambiguous" and their allocation to Harry Wright as "arbitrary" disregards the real world practicality of the situation.

There is evidence of four write-in votes cast for George Wright, concededly not registered in Sparta. There is evidence of three such votes for C. Wright and one vote for Charles Wright. None other of the Wrights (or R/--t) received

more than one vote. Petitioners argue that one vote constitutes its recipient a candidate.*fn1 No authority is offered for this dogma. We reject the argument as an absolute proposition because the ultimate conclusion as to candidacy vel non depends so intimately on the circumstances of a given case. We can contrive hypotheses in which one vote might well constitute its recipient a candidate. The converse is as easily conceived. Here concededly no Wright other than Harry sought the office. There is no suggestion whatsoever (leaving aside the 294 votes for the moment) that any of the other Wrights was the subject of any elective desire beyond an isolated wayward expression, a self-cast vote, or a prank. Accordingly we find the statement of the court below that "This is certainly not a case where there is only one candidate for the office in question whose surname is the same or essentially the same as the one written-in by the voter," one with which we cannot concur, which we believe is unsupported in the record, and which, in our judgment, ignores the hard realities of the situation.

No evidence whatsoever appears of more than that lonely one (or not more than four in the case of George, the ineligible) vote for any Wright other than Harry (still leaving aside for the moment the 294 votes). In these circumstances we decline to share the apparent concern of the trial judge that some of the 294 votes must necessarily have been meant for the "other" Wrights. We are persuaded that in the situation here the probability almost to a certainty is that those intending to cast the isolated vote for one other than Harry Wright identified their selection by something other than a surname in view of the "Write-in Wright" campaign. It is ...


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