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Friends of Jim Usry for Mayor Campaign v. Matthews for Mayor Campaign

Decided: November 10, 1982.

FRIENDS OF JIM USRY FOR MAYOR CAMPAIGN AND JIM USRY INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
MATTHEWS FOR MAYOR CAMPAIGN, MICHAEL MATTHEWS, MAYOR OF ATLANTIC CITY, MICHAEL MATTHEWS, INDIVIDUALLY, SUPERINTENDENT OF THE BOARD OF ELECTIONS OF ATLANTIC CITY, BOARD OF ELECTIONS OF ATLANTIC COUNTY AND COUNTY CLERK OF THE COUNTY OF ATLANTIC, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Atlantic County.

Matthews, Antell and Francis. The opinion of the court was delivered by Francis, J.A.D.

Francis

This is an interlocutory appeal wherein plaintiffs challenge a ruling by the trial judge during the pendency of an election contest for the office of mayor of Atlantic City.

On July 9, 1982 plaintiff-appellant James Usry filed a petition in the Law Division pursuant to N.J.S.A. 19:29-1 contesting the June 15, 1982 election of Michael Matthews to the office of mayor of Atlantic City. Michael Matthews, individually and as mayor, the Michael Matthews Campaign, the Atlantic County Board of Elections and the Atlantic County Clerk were named defendants.

The matter was consolidated with two related cases, Charles M. Tisdale v. Mayor Elect Matthews and Bernard Fulton et al. v. Michael Matthews et al.

Although the exact context in which the trial court ruling arose is not available in the absence of the transcript, it appears that during the course of the trial plaintiffs alleged that approximately 200 votes were cast in violation of N.J.S.A. 19:31-11 and that such votes should be voided. Specifically, plaintiffs allege that a number of voters moved between election districts more than 29 days before the June 15 election and failed to file a

change of residence form with the commissioner of registration or municipal clerk, as required by N.J.S.A. 19:31-11(a), and that other voters in question moved within the same election district more than two years before the election and also failed to file a change of residence form with the commissioner of registration pursuant to N.J.S.A. 19:31-11(b). Plaintiffs further assert that the district board workers failed to perform their duty by allowing these individuals to vote.

Judge Connor ruled that the votes that resulted, assuming they were cast in good faith, should not be voided for failure to comply with the notice requirement of N.J.S.A. 19:31-11. The court specifically noted that such voters were residents of Atlantic City who voted in the election for an "at large" office. The court further found no malconduct or fraud on the part of the district board workers for permitting such individuals to vote. We accept the accuracy of the latter finding by the court from a statement in the Attorney General's brief. As we have noted, we have nothing in the record before us to indicate otherwise.

We agree with the judge's ruling essentially for the reasons stated by Judge Connor in his oral ruling at the trial.

N.J.S.A. 19:31-11(a) provides that if a voter moves within a county before the close of registration, i.e., 29 days preceding an election, he or she must file a change of residence form with the commissioner of registration. Those voters, however, who move within the same election district are permitted to vote in the district within two years subsequent to the change of residence upon the signing of an affidavit at the polling place. The affidavit should set forth the voter's old and new address and the date of the move. N.J.S.A. 19:31-11(b).

Those voters who move within the county and between election districts after the close of registration shall be permitted to vote at the old election district upon the signing of the above noted affidavit. Such affidavit will constitute a transfer to the new address for any subsequent election. N.J.S.A. 19:31-11(b)

Plaintiffs contend that two types of illegal votes were cast in the June 15 election. Voters who ...


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