Fritz, Seidman and Milmed. The opinion of the court was delivered by Seidman, J.A.D.
[142 NJSuper Page 220] These consolidated appeals arise out of a contest for member of the Princeton Township Committee at the general election held on November 4, 1975. One is from the judgment below setting aside the election of a Republican candidate for that office and directing that no certificate of election be awarded either to him or to the Democratic candidate. The other is from the judgment in a related suit brought by the Township of Princeton for a construction of the Municipal Governing Body Vacancy Law (L. 1975, c. 213; N.J.S.A. 40:45B-1 et seq.), which judgment declared that the municipal governing body was
empowered under that law to fill the vacancy pending the 1976 general election, the appointee to be a member of the Democratic Party.
The issues to be resolved are, first, whether the malfunctioning of a voting machine in an election district, as a result of which only one vote was recorded for a candidate, was sufficient cause on the facts of this case to set aside the election of the opposing candidate; and, if so, whether the resulting vacancy was to be filled in accordance with the provisions of the Municipal Governing Body Vacancy Law.
At the general election here involved, four candidates, two Republicans and two Democrats, sought election to two three-year terms on the Princeton Township Committee. The total vote recorded for them was as follows:
Josephine Hall (Republican) 2419
Todd Peyton (Republican) 2270
Abbott Low Moffat (Democrat) 2178
Barbara Lependorf (Democrat) 2171
Included in the totals were 148 votes purportedly cast in the 12th Election District of the municipality by 143 voters. The voting machine tally was:
Moffat, who had sought reelection as an incumbent member of the township committee, thereupon filed a verified petition for a recheck of the voting machine in that district, and also for a judgment setting aside the election of Peyton and certifying his election, or, in the alternative, ordering a special election in the district. An order was issued directing that Peyton show cause why his election should not be declared void, and further, that the voting machine be opened and the registering counters rechecked against the tallies.
At the subsequent hearing counsel stipulated that candidate Hall would in any event have won, and that candidate Lependorf would in any event have lost. The uncontradicted testimony of an expert witness who had examined the voting machine disclosed that a shaft connected to the counter wheel recording the votes for Moffat became dislodged, so that the wheel failed to move after the first vote was cast for him. The witness stated further that this was the only counter on the machine which had become disengaged. Four voters in the district testified that they had voted for Moffat, and an affidavit of a fifth voter to the same effect was submitted.
The trial judge found that the machine was "obviously defective so that the votes cast for Mr. Moffat are not counted." He observed that 148 votes were recorded out of a possible 286, and that "it is highly probable that the people who voted for Ms. Lependorf voted for Moffat or at least a sufficient number of them did so as to affect the outcome of this election." He rejected as unnecessary the request of opposing counsel for a further hearing, and entered judgment setting aside Peyton's election. However, he refused to certify the election of Moffat and denied the request for a special election. The appeal of Peyton and the Republican Municipal Committee of the township followed.
Addressing ourselves first to this aspect of the matter before us, we have no doubt that the setting aside of Peyton's election was correct. N.J.S.A. 19:29-1 permits the voters of this State or any of its political subdivisions to contest the election of any person to any public office upon one or more of the enumerated grounds. Although the verified petition in this case asserted as the applicable ground subparagraph (g) of that section -- "[f]or any other cause which shows that another was the person legally elected" -- we perceive no merit in appellants' ...