On appeal from Superior Court, Law Division, Bergen County.
Lora, Michels and Larner. The opinion of the court was delivered by Larner, J.A.D.
This is an accelerated appeal from a determination in an election contest under N.J.S.A. 19:29-1(e) in which the judge set aside the election of J. Stanley Barlow in November 1977 as councilman at large in the Borough of Leonia. He declined to hold that the contestant Richard Hartnett, Jr. was the duly elected councilman, and thus declared the office vacant. Barlow appeals, contending that the voiding of the election is unwarranted under the facts and the law. Hartnett cross-appeals, asserting that the court erred in not declaring him to be the successful candidate.
As a result of an election in the Borough of Leonia, two Democrats, Robert Pacicco and J. Stanley Barlow, were certified as having been elected "at large" councilmen to two vacancies on the council. Two Republicans, Richard Hartnett, Jr. and Mary K. Slutz, were the unsuccessful candidates for those offices.
The tally of the votes cast for the slate of candidates, as confirmed by a recount, reflected the following:
Thereupon Hartnett filed a petition in the Superior Court pursuant to paragraph (e) of N.J.S.A. 19:29-1, contesting the election of Barlow on the basis that illegal votes were
received and legal votes rejected sufficient to change the result as between the two of them. After a plenary hearing before a county district court judge assigned to hear the matter by the Bergen County assignment judge, the election of Barlow was set aside because of illegalities found by the court with regard to seven votes, involving Joseph and Lois Muzio, Brian and Susan Murphy, Maryann LoPresti, Susan Peters Green and Elizabeth Kaiser. This determination was based on findings that one legal vote was rejected, six illegal votes received, and that they were sufficient to change the result of the election to the office to which Barlow was certified.
For the purpose of clarity we shall consider the irregularities based upon the nature of the deficiency found by the trial court.
I. Absentee votes of Joseph and Lois Muzio and Brian and Susan Murphy
Dr. and Mrs. Muzio were duly registered voters who requested, received and returned absentee ballots for the election of November 1977 pursuant to N.J.S.A. 19:57-3. The undisputed evidence established that at the time of the election Dr. Muzio, a college professor, was in Honolulu, Hawaii, for one year on a "sabbatical exchange program" with his university and was accompanied by his wife, who was to participate in the program as a nurse. They intended to return to their home at 69 Glenwood Avenue, Leonia, in time to resume their teaching assignments in New York as of September 1, 1978. During their absence they leased the home to three young women for the period of August 1, 1977 to August 31, 1978, together with the furniture and furnishings contained therein.
The trial judge made the foregoing fact findings and proceeded to conclude therefrom that these voters did not reside in the State of New Jersey on election day and as a consequence were not qualified to vote by absentee ballot. He further found from circumstantial evidence that they "probably"
cast their votes for Barlow. Appellant, and the Attorney General as amicus , assert that the voiding of these ballots ...