Plaintiff in the instant matter is the unsuccessful candidate for mayor of Prospect Park. Defendants include the superintendent of elections of Passaic County, members of the Passaic County board of elections and the successful mayoral candidate. By complaint filed November 12, 1974 plaintiff seeks to have set aside the election for mayor of Prospect Park held on November 5, 1974 and to have the court declare a new election. Argument was heard on November 27, 1974 on the return of an order to show cause. At that time this court determined that the matter should be set down for a plenary hearing pursuant to R. 4:67-5. Such a hearing was held on December 4, 1974.
The basic facts giving rise to plaintiff's challenge are not in dispute. Prospect Park, the smallest municipality in Passaic County, was comprised of four election districts on November 5, 1974, each district containing one polling place. For a period of approximately 2 1/2 hours commencing at 7 A.M., the time at which the polls were to open, voters in district three were unable to cast ballots because of a malfunction in the only voting machine at the polling place. Plaintiff avers in an uncontradicted affidavit that when this came to his attention at approximately 8:45 A.M. he telephoned defendant Smith, the superintendent of elections, and requested an extension of the hours of voting in the third district to compensate for the time lost while the polling place was closed. Mrs. Smith refused this request. Thereafter the machine was repaired and the polling place remained open until 8 P.M. A count of the total vote for all districts showed defendant Trommelen winning the election by a vote of 929 to 911. These figures were confirmed on a recount. It is plaintiff's contention that as a result of the closing of the third district
polling place a number of voters were turned away from the polls and were unable to return later in the day because of other committments. In view of the closeness of the vote he claims that the inability of these voters to cast their ballots cost him the election. He thus contests the election and seeks a new one.
In N.J.S.A. 19:29-1 et seq. the Legislature has provided a comprehensive scheme by which election contests may be initiated and pursued. Jurisdiction of this court in such matters is founded in N.J.S.A. 19:29-2. Procedure governing commencement, trial and disposition of an election contest is governed by N.J.S.A. 19:29-2 to 19:29-14. Grounds for such a contest are laid out in N.J.S.A. 19:29-1. With jurisdiction established the court must first determine whether sufficient grounds exist upon which plaintiff can base a contest. This requires consideration of the instant facts in view of the requirements of N.J.S.A. 19:29-1.
N.J.S.A. 19:29-1 provides a number of alternative grounds upon which the outcome of an election or nomination may be contested. Two provisions of that section are applicable to the instant case:
The nomination of election of any person to any public office or party position, or the approval or disapproval of any public proposition, may be contested by the voters of this State or of any of its political subdivisions affected thereby upon 1 or more of the following grounds:
a. Malconduct, fraud or corruption on the part of the members of any district board, or of any members of the board of county canvassers, sufficient to challenge the result;
e. When illegal votes have been received, or legal votes rejected at the polls sufficient to change the result;
In this case plaintiff does not allege any fraud, corruption or illegality on behalf of any of the defendants. Rather, his argument is that the breakdown of the machine in the third district and the ...