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Millman v. Kelly

Decided: October 25, 1979.


Haines, J.s.c.


John L. Millman, the 1979 Democratic candidate for the office of Burlington County Clerk, sues Edward A. Kelly, the incumbent Republican County Clerk, also a candidate this year, the Burlington County Board of Elections and its Commissioner of Registration. He seeks to restrain the distribution of approximately 172,000 sample ballots and the use of 1,200 ballots to be inserted in voting machines ("official" ballots), all of which have been printed. He would require all of these ballots to be reprinted, alleging numerous violations of the Election Law pertaining to their wording and arrangement.

These proceedings were commenced on October 23, 1979 although plaintiff had been aware of the facts on which he relied on October 5, 1979. At the conclusion of the hearing on October 25 the parties were provided with an oral decision and the promise that this opinion would follow promptly. Time considerations made an immediate determination imperative; sample ballots must be mailed on October 31, 1979. N.J.S.A. 19:14-25.

Copies of the 1979 sample ballots, official ballots and absentee ballots for Burlington County were introduced into evidence, together with a number of sample ballots used in this county and in other counties in past years. Examination of these documents makes it immediately apparent that all of them contain errors and omissions constituting violations of our Election Law, requiring consideration of reprinting problems. A

detailed analysis of the statutory derelictions appears at the end of this opinion.

Jack Armshire, the election printer employed by Burlington County since 1942, testified that his firm could print 172,000 new sample ballots in eight days. Aubyn Cardenas, whose highly automated firm prints ballots for Camden County, said that the work could be completed within five days, provided basic materials already assembled were available. Representatives of the Board of Elections were of the opinion that mailing of ballots could be completed in five days and, if extra equipment and personnel were employed, in half that time, assuming there were no machine breakdowns. Mailing activities could be carried on simultaneously with printing work since some ballots would be completed and delivered each day. 1200 voting machine ballots are required in Burlington County. It was agreed that reprinting them in time for the general election presented no problem. The cost of reprinting all ballots was estimated at $30,000 to $40,000.

Only six days remain within which to meet the October 31 mailing deadline. The election will be held in 12 days. The Cardenas firm could be employed responsibly only after a reasonable investigation of its capacity is undertaken and a contract negotiated. Its five-day printing goal could be realized only if it uses materials assembled by Armshire, a problem not explored. Deadlines depend in part upon the number of ballot changes required, an unknown factor at the time of the hearing. Unexpected events, such as equipment failures, may cause delay. The picture is one of considerable uncertainty. If sample ballots are required to be reprinted they may not be ready by the mailing date and may not reach voters within time to provide voting information before the election.

N.J.S.A. 19:14, regulating official and sample ballots generally, and N.J.S.A. 19:49, regulating machine ballots, are the basic statutes which control this litigation. The challenged ballots reflect violations of both chapters. The statutory scheme [171 NJSuper Page 597] presents difficulties. It is apparent that many of the provisions of Chapter 14 were drafted for application to paper ballots*fn1 and remain in force although such ballots are no longer in use anywhere in the State of New Jersey.*fn2 Chapters 14 and 49 must nevertheless be read together. Axtell v. Caputo , 85 N.J. Super. 80 (App.Div.1964). N.J.S.A. 19:49-1 provides: "Official ballots of the form and description set forth in this subtitle for use upon voting machines shall be prepared and furnished in the same manner as now provided by law." N.J.S.A. 19:49-2 provides: ". . . The providing of the official ballots and the order of the precedence and arrangement of parties and of candidates shall be as now required by law . . .." While Chapter 49 contains some instructions for printing and arranging the machine ballot, most of this information is found in Chapter 14, which was the law in existence when Chapter 49 was adopted. Furthermore, the Legislature amended Chapter 14 on September 13, 1979, L. 1979, c. 191. It must be presumed that it knew no paper ballots were in use in New Jersey, that its new legislation could apply only to machine ballots, and therefore it must have intended that application. The failure to revise these statutes to reflect modern election practices makes it necessary to pick and choose among their various provisions in order to determine those which are appropriate to machine ballots. Thus, in Axtell v. Caputo, supra , the court held that a machine ballot authorized by Chapter 49 must be prepared in accordance with the directions of N.J.S.A. 19:14-12. In re Borough of South River , 26 N.J. Super. 357 (Law Div.1953), however, held that N.J.S.A. 19:14-4 applied only to paper ballots.

N.J.S.A. 19:14-20 applies here and provides:

When it shall appear that an error or omission has occurred in the copy prepared by the county clerk for the printer or in the printing of the ballot by any county clerk, any voter resident in the county may present to a judge of the Superior Court assigned to the county a verified petition setting forth such error or omission; and such judge being satisfied thereof, shall thereupon summarily, by his order, require the county clerk to correct such error or show cause before the judge at the shortest possible day, why same should not be corrected. The county clerk shall correct the same by causing new ballots to be immediately printed in place of those found to be inaccurate or incomplete; and those found to be inaccurate or incomplete shall be immediately destroyed.

The ballots presented here contain errors and omissions. If ยง 20 is mandatory, I have no discretion and must allow the requested order.

The question is one of legislative intent. Whether a statute is mandatory depends on whether the directed act is essential to that which is required, and what is essential must often be ascertained by judicial construction. Sharrock v. Keansburg , 15 N.J. Super. 11, 17 (App.Div.1951). The basic concern is whether deviations from statutory requirements are so significant as to prevent full expression of the popular will. Wene v. Meyner , 13 N.J. 185, 196 (1953). These cases dealt with errors discovered after elections had been held. Here, the election is 12 days away. No case has been found which deals with similar circumstances. However, the closeness of the election and the uncertainty as to whether sample ballots (as opposed to official ballots) can be reprinted in time makes it advisable to consider the existing sample ballots as the only ones available; if they are not mailed, no sample ballots will be available to voters. The ...

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