[165 NJSuper Page 470] Following the November 7, 1978 general election two petitions were filed pursuant to N.J.S.A. 19:29-1 et seq. challenging the validity of elections conducted in the Borough of Wrightstown and the Borough of Fieldsboro. At the court's request, motions for summary judgment were filed in each case concerning a legal issue common to both. The NAACP was allowed to intervene and filed a brief. The cases were consolidated for argument and are considered together in this opinion.
In the Wrightstown election the office of mayor and two seats on the borough council were at stake. The Burlington County Board of Elections rejected 152 absentee ballots, primarily on the ground that they were improperly delivered. This action was commenced by the losing candidates, who contend that the ballots should have been included in the final vote totals. The successful candidates counterclaimed (see In re Donahay , 21 N.J. Misc. 159 (City Ct. 1943)) seeking declaratory relief validating the action of the board and alleging other violations and abuses of the election laws.
In Fieldsboro the same positions were at stake. However, the board of elections counted the 51 absentee ballots that the losing mayoralty candidate now seeks to have voided on the ground of improper delivery and fraud.
In Wrightstown it was stipulated that certain candidates obtained and delivered applications for absentee ballots to the county clerk, who gave them the unmarked ballots for transmittal to the voters. These ballots found their way back to the board of elections by different routes, some by mail, some by hand delivery by candidates or others and some through the county clerk's office to which they had been returned by methods unknown.
It was stipulated that the 51 absentee ballots questioned in Fieldsboro were issued on the basis of applications delivered to the clerk by an interested citizen, to whom in return, the unmarked ballots were delivered for transmittal to the voters. Sixteen or 17 of these unmarked ballots were not transferred directly to the voters, but were given to the initially successful mayoralty candidate for delivery to the voters. All of the ballots were returned to the board of elections by mail.
Central to this inquiry is N.J.S.A. 19:57-11, as amended in 1972. This section states:
Each county clerk shall forward a military service ballot or a civilian absentee ballot, as the case may be, for use under this
act by first-class mail or hand delivered to each military service voter who applies therefor or on whose behalf application is made therefor, and whose application is approved in any case where approval is required under section 10 of this act, and to each civilian absentee voter whose request therefor has been approved. Ballots that have not been hand delivered to the voter shall be addressed to the voter at the forwarding address given in the application. All ballots to be forwarded to persons at an address located within the limits of the states of Alaska and Hawaii or anywhere else without the limits of the other 48 states and the District of Columbia shall be forwarded by air mail.
Such ballots shall be so forwarded as soon as practicable after the twenty-fifth day preceding the day upon which any election is to be held.
The controversy centers upon the meaning that is to be given the words "each county clerk shall forward * * * by first-class mail or hand delivered [sic] to each [absentee voter]" a ballot.
The Legislature, in adopting N.J.S.A. 19:57-4, chose to set forth the conditions as well as the procedure pursuant to which the county clerk is authorized to forward an absentee ballot to a voter by messenger. An individual may be used to deliver an absentee ballot only when a voter is sick or confined and has provided a signed designation naming the individual his authorized messenger. No claim is made that any of the voters ...