Matthews, Fritz and Botter. The opinion of the court was delivered by Matthews, P.J.A.D.
[133 NJSuper Page 35] These are consolidated appeals from decisions of the State Board of Education in the matters of the annual school elections held in the school district of Lambertville, Hunterdon County, and the school districts of the Borough of Watchung and the Watchung Hills Regional High School, Somerset County, affirming decisions of the Commissioner of Education which overruled his prior decision that had directed that any list of voters' names compiled by challengers in school district elections should be destroyed to prevent their further use after the closing of the polls.
On February 13, 1973 a school election was held in the City of Lambertville school district in which appellant Shanahan is a resident and taxpayer. On February 22, 1973 Shanahan filed a letter of complaint with the Commissioner of Education charging that certain challengers employed at the polls in that election had left the polling places without destroying or disposing of the informal poll lists they had compiled. He requested the Commissioner to determine whether such lists had been kept by the challengers and, if so, to order them destroyed. He did not challenge the results of the election.
A hearing was held on Shanahan's petition before a hearing officer designated by the Commissioner. The hearing officer found that although the challengers who testified admitted that they had compiled informal polling lists during the election, there was no evidence either that they had removed their lists from the polling place or that such lists were still in existence at the time of the hearing. He therefore recommended that in the absence of any proof of Shanahan's allegation of election irregularities, his petition should be dismissed.
The Commissioner noted in his decision that the question raised by appellants had been considered previously in his decision, In the Matter of the Annual School Election in the School District of the Borough of Watchung, Somerset County, rendered May 11, 1972, which was affirmed by the State Board of Education. In that opinion the Commissioner found that it would not be improper for a challenger to prepare an informal poll list. However, he noted that by statute formal poll lists must be prepared, N.J.S.A. 18A:14-28, and that within five days of the election these lists together with other specified election materials must be forwarded in a sealed package to the county superintendent to be preserved for one year. N.J.S.A. 18:14-62. Therefore, he concluded that even though challengers' informal lists are not subject to the requirements of N.J.S.A. 18A:14-62, they should be destroyed following an election.
In reviewing Shanahan's petition the Commissioner reconsidered his May 11, 1972 decision and overruled it insofar as it required destruction of informal poll lists, because (1) the requirement had proven unenforceable, and (2) the list compiled by a challenger is an informal one reflecting only his observation of who has voted, while the official poll list which is the subject of statutory protection is an official compilation of voters' signatures used by election officials for purposes of comparison with the signature copy register to determine voters' eligibility to receive a ballot. N.J.S.A. 18A:14-51. Shanahan's petition was therefore dismissed.
Shanahan appealed the decision to the State Board of Education insofar as it overruled the 1972 Watchung holding. The State Board affirmed. It concluded that since, pursuant to N.J.S.A. 19:31-18.1, any voter, including a challenger, may purchase a copy of the voters' registry list from the county clerk, it was proper for a challenger to prepare an unofficial poll list by checking off names of voters on his own copy of the registry list, and thereafter retain and remove it from the polling place without legal impediment. The State Board further concluded that N.J.S.A. 18A:14-62, which requires sealing and protection of official poll lists, does not apply to unofficial lists informally compiled by challengers.
In the second action appellant Cornell filed a letter complaint with the Commissioner claiming that in a statement issued to the public on January 18, 1973 the board of education of the school district of the Borough of Watchung had indicated that it did not intend to require that challengers' informal poll lists be destroyed following the approaching school election. A hearing was held on that complaint before a hearing examiner designated by the Commissioner on the same day that the annual school election was held in the district.
Subsequently, Cornell filed complaints with the Commissioner charging that in the school district elections for both
the Watchung Hills Regional and Watchung Borough districts, election officials were advised by their respective school board secretaries that challengers could prepare lists of people voting and could retain those lists, contrary to the Commissioner's decision in the 1972 Watchung case which required destruction of challengers' lists. Cornell petitioned the Commissioner to investigate these alleged irregularities and to take appropriate action, should irregularities be found. He did not challenge the results of the elections.
A hearing was held on both complaints before a hearing examiner designated by the Commissioner. The Commissioner rendered a decision covering both complaints in which he overruled his earlier determination in the 1972 Watchung decision requiring destruction of challengers' informal poll lists for the same reasons set forth in his ...