On appeal from Superior Court, Law Division, Burlington County.
Seidman, Michels and Devine. The opinion of the court was delivered by Seidman, P.J.A.D.
This appeal involves a disputed election for the office of councilman in the Township of Bordentown, held on November 7, 1978. Nicholas Bonsanto, an unsuccessful candidate, filed a petition contesting the election. His opponent's motion for summary judgment was granted and Bonsanto appealed.
Of the four candidates for the two vacancies, Bonsanto received the third largest number of votes, but 13 fewer than Stephen D. Benowitz, who placed second. He challenged the
legality of 53 votes, out of a total of 338, in the 1st Election District of the municipality, cast by students at the Johnstone Training Center, an institution for blind or otherwise handicapped persons. The allegations were that some of the students, though not handicapped, and thus not entitled to assistance, were accompanied into the voting booth and assisted by election officials; that students were improperly coached by school counselors, and that there were students who were not qualified to vote because their signatures did not match those on the registration forms. In the voting district in which the alleged irregularities occurred, petitioner received more votes than did Benowitz, although the record does not disclose the total for each. Petitioner submitted an affidavit from one of the election officials in which it was alleged that 51 of the 53 students voted for respondent.
In granting Benowitz' motion for summary judgment the trial judge deemed N.J.S.A. 19:29-8 to be controlling. That statute provides in pertinent part:
The trial judge concluded that even if petitioner were to prove his allegations, the election should not be set aside. He reasoned that since petitioner received more votes than did respondent in the district in question, rejection of the entire district vote would not "change the result."
Among the allowable grounds set forth in N.J.S.A. 19:29-1 for contesting an election are:
a. Malconduct, fraud or corruption on the part of the members of any district board, or of any members of the board of county canvassers, sufficient to challenge the result;
e. When illegal votes have been received, or legal votes rejected at the polls sufficient to change the result; . . .. [Emphasis supplied]
It is evident from a reading of petitioner's brief that the thrust of his complaint is the casting of 53 allegedly illegal votes, attributable at least in part to alleged "malconduct" of members of the district election board. There is no allegation of fraud or corruption, other than an unsupported assertion that "the Democratic ...