This is an election contest suit and the facts are largely undisputed. On November 8, 1977 four candidates ran for two councilman-at-large positions in the Borough of Oakland. The results of the tabulation of ballots showed the following:
On November 15, 1977 a petition for recount was filed under the provisions of N.J.S.A. 19:28-1 et seq. Security for costs was deposited.
Pursuant to the resulting court order the Bergen County Board of Elections, on notice to all interested parties, conducted the recount on November 22, 1977, including the examination of the voting machines and the absentee ballots. The new tally showed that plaintiff-petitioner Mulcahy had received two additional absentee votes, placing him in a tie for the second council position. Curiously, it developed that the board had apparently received 99 absentee ballot envelopes, but could account for only 98 ballots. The deciding vote was missing; however, there is no allegation of fraud or foul play. Consequently, the Bergen County Board of Elections was unable to and did not certify a winner. The attorneys for Mulcahy and Tauber, respectively, applied on
short notice (R. 1:6-3) to this court for alternative forms of relief in order to resolve how the seat was to be filled.
Mulcahy contended that certain absentee ballots which were not counted because they were received late (one or two days after election day) should be included because severe rainstorms and flooding conditions on election day allegedly prevented timely delivery by the postoffice officials to the election board. Plaintiff relied on the certified statement of an official of the post office that some mail deliveries were delayed on November 8 for several hours due to the inclement weather, and that a mail truck was delayed for almost 3 1/2 hours on its usual trip from the Newark Postoffice. As to that late delivery, he said it was "possible that one or more of these items of mail were on the truck delayed by the storm." Plaintiff sought to have the following ballots counted:
Postmarked Place of Mailing*fn1 Date Rec'd by Bd. of Elections
Nov. 7, 1977 Syracuse, N.Y. November 9, 1977
Nov. 7, 1977 Wilmington, Del. November 9, 1977
Nov. 8, 1977 Knoxville, Tenn. November 10, 1977
Non-Cancelled Washington, D.C. November 10, 1977
Nov. 7, 1977 San Diego, Cal. ...