Plaintiff seeks by order to show cause restraints from this court whereby the name of defendant Thomas Penza shall be removed from the ballot, or, in the alternative, the ballots having already been printed, that Penza's name be barred from inclusion in the tabulation of results.
Plaintiff contends lack of compliance by Penza in the filing of his application for candidacy in the Egg Harbor City council-manic election to be held November 4, 1980, with certain statutory requirements mandated by N.J.S.A. 19:13-20(e) and alleges that Penza's certification of candidacy was fatally defective in that the following language was by Penza deleted, i.e. , "I have not voted in a primary election of any other political party in the last two primaries, or contributed to the campaign funds of any other political party within one year prior to the last primary election."*fn1
Penza, an incumbent councilman in Egg Harbor who won election as a Republican, chose not to seek re-election. On October 1, 1980, at about 4:15 p.m., the last day for filing as a
candidate, he was endorsed by the Democratic Party, changed his registration and filed application to run in the election as a Democrat for an unexpired term of a Democratic councilman who had resigned his seat in August 1980. Plaintiff Mays seeks, as a Republican, election to the same seat as defendant Penza. The attorneys in this case stipulated certain facts:
1) Plaintiffs were aware of Penza's actions as of October 2, 1980;
2) Sample ballots are printed, addressed and ready for mailing, which by law must occur no later than October 29, 1980;
3) Absentee ballots have already been mailed;
4) Voting machines must be delivered to polling places by October 29, 1980.
Defendant Penza argues that any alleged noncompliance with N.J.S.A. 19:13-20(e) is not fatal to Penza's candidacy since the statutory requirements are unconstitutional. Furthermore, defendant Penza asserts relief to plaintiffs is barred by laches and failure to timely assert plaintiffs' rights. Plaintiffs argue that the county clerk should not have accepted the application as altered on its face. The clerk was apparently confronted with a quick judgment within the closing minutes of the last day for filing by a candidate. The latter issue is easily disposed of since our courts have held that a municipal clerk has no power to rule a candidate for office off the ballot because of a failure to comply with statutory requirements of residency; that issue must be determined by the court. Cf. Bell v. Foster , 83 N.J. Super. 455 (App.Div.1964). In this case defendant county clerk simply fulfilled her statutory duty of accepting Penza's certification as a candidate.
As to the remaining issues, testimony was taken from plaintiff Clifford Mays and plaintiff Julia Wimberg.
The certification referred to and marked DP-1 was attached to the verified complaint. The testimony revealed that plaintiff Mays, upon learning of the filing by Penza on October 2, 1980, immediately communicated with the county clerk's office where he was informed Penza may not be eligible to run because of the statute, but that the county clerk herself would not be available ...