This is an action in which plaintiff seeks to require a run-off election for four councilman-at-large positions in the City of Passaic. Plaintiff finished in fifth place in an election for four positions of councilman-at-large. The candidates who finished in the first four places have been permitted to intervene under R. 4:33-1.
There is no dispute as to the facts in the case. The City of Passaic operates under Council-Mayor Plan B, as provided by N.J.S.A. 40:69A-49. At an election held on May 13, 1975 for the four positions of councilman-at-large 9,414 persons were recorded as having entered and left the voting booths and 70 as having cast absentee ballots, making a total of 9,484. There were 11 candidates on the ballot. The one who attained the highest number of votes received 3,788, and the second highest received 3,720. All the 11 candidates together received an aggregate vote of 27,948, which figure is obtained by adding all the votes recorded by all the candidates. Other than the 11 candidates contesting for the four positions of councilman-at-large, there were no other candidates on the ballot since no offices other than these four councilman-at-large positions were to be elected.
The city clerk has declared that it is his intention to certify that no run-off election will be required, based upon his finding that four candidates have received a majority under a formula provided by N.J.S.A. 40:69A-160(d) for cases where no suitable counters have been provided or the tally of the number of voters cannot be determined. It is this determination that is challenged by plaintiff.
N.J.S.A. 40:69A-160 (d) provides that "if four councilmen at large are to be elected and 2 or more candidates for said office receive a majority of the votes cast, the 4 candidates receiving the greatest number of votes shall be elected." The statute then goes on to make the following provision, upon which the outcome of this case hinges:
As used in this section, the number constituting a majority of the votes cast shall be computed by dividing by 2 the number of voters
who cast a vote for at least one candidate for councilman at large, and then adding one. Voting machines to be used in such election shall be equipped, as soon as practicable with one or more counters so connected as to keep a tally of the number of voters who cast votes for one or more of the candidates for councilman at large. Until such time as suitable counters have been so provided, or whenever the tally of the number of voters cannot be determined for any reason, then the number constituting said majority of the votes cast shall be computed by adding all the votes cast for each candidate for said office, dividing that total by twice the number of councilmen at large to be elected and then adding one.
It is uncontroverted in this case that the voting machines used in the Passaic election had public counters to record the number of voters who entered the voting booths, and also counters to record the number of votes accorded each candidate. It is also agreed that there were no other special or additional counters. The Passaic County Superintendent of Elections testified that the voting machines used in the Passaic election were so devised that once a person entered a voting booth and pulled the handle to close the booth's curtain, the handle could not be moved to open the curtain unless a lever over the name of at least one candidate had been depressed. The Superintendent added, however, that it was possible for a voter to depress such lever over a candidate's name, restore it to its original position and then move the handle which controlled the curtain for exit.
It is the opinion of the court that even without special or additional counters, one can ascertain the number of votes that would constitute a majority "by dividing by two the number of voters who cast a vote for at least one candidate for councilman at large, and then adding one." 9,414 persons were recorded on the public counters. The only position for which they could have voted was councilman-at-large since no other position (or question) was on the ballot. Thus, the highest candidate having received only 3,788 votes, neither of the two leading candidates can be said to have garnered a majority of the votes cast.
Defendant and intervenors contend, however, that the public counters only disclose how many people entered and left the voting booths, but that we are left in the dark as to how many actually voted for at least one candidate. Accordingly, they urge that the court utilize the alternative method provided by the last sentence of N.J.S.A. 40:69A-160 quoted above, and compute a majority "by adding all the votes cast for each candidate for said office, dividing that total by twice the number of councilmen at large to be elected and then adding one", which was the formula employed by the city clerk.
The court is of the opinion that this formula need only be called into use when the presence on the ballot of another office (such as mayor) makes it impossible to ascertain the number of voters who cast a vote for at least one candidate for councilman-at-large. Since the only votes that could possibly be cast were for the office of councilman-at-large, there were "suitable counters" and thus it cannot be ...