On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
King and McElroy. The opinion of the court was delivered by McElroy, J.A.D.
This appeal requires interpretation of the election law pertaining to civilian absentee ballots and in particular, N.J.S.A. 19:57-37.1 and N.J.S.A. 19:57-23 as amended by L. 1981, c. 390 §§ 8, 11, effective January 6, 1982.
Petitioner-appellant Almerth Battle lost the November 2, 1982 election to a seat on the Township Committee of Neptune Township by 24 votes. A total of 9,961 votes were cast, 342 of these by absentee ballot. Petitioner received 4,453 votes, her opponent, Joseph Pepe, received 4,477. On her petition a recount was ordered by the court which revealed the vote count to have been accurate and a date was set for a hearing to determine petitioner's claim of illegality as to certain absentee ballots. At the court's request and prior to the hearing petitioner's counsel listed 74 ballots alleged to be illegal. Sixty-six of these were ballots where the alleged illegality was the absence on the outside envelope of the printed name and signature of the messenger who hand-delivered the ballot to the board of elections (N.J.S.A. 19:57-37.1) or a failure to record the name of the messenger by having the messenger sign "a record which the county shall maintain of all absentee ballots personally delivered
to it." N.J.S.A. 19:57-23. Eight other ballots were asserted to bear the same deficiencies and to contain other faults as well.
Although the petition filed with the court made general allegations of fraud the issue narrowed to whether a violation of either or both N.J.S.A. 19:57-37.1 and N.J.S.A. 19:57-23 in the delivery of an absentee ballot to the county board of elections creates a vote which is illegal and thus not countable in the election. The matter was so treated in the trial division by counsel for the parties and the court. At the hearing of petitioner's challenge to the 74 absentee ballots no evidence was taken. Instead, the judge entertained an oral motion for summary judgment by counsel for the successful candidate. Pepe conceded that petitioner could prove the questioned ballots failed to comply with the statutes above cited but argued that the statutes were merely directory and a violation of them gave no ground for declaring those votes invalid. After argument from both parties on that issue the judge dismissed the petition on the ground that he observed no legislative intent in the cited statutes to disenfranchise a voter who failed to comply with N.J.S.A. 19:57-37.1 which provides:
Delivery by person other than voter to county board or postal box
No person shall take an absentee ballot from a voter or other person having custody of it for the purpose of delivering it to the county board of elections or a postal box or post office, nor shall any voter permit any person to do so, unless the ballot is sealed in the outer envelope and the person who shall transport or deliver it first signs and prints his name on the outer envelope. No other person shall attempt to do any of the foregoing. [Emphasis ours.]
The portion we have italicized is clear, the onus is put upon the absentee voter to see that the person who carries the ballot to the county board first signs and prints his name before the voter releases his ballot to that messenger.
N.J.S.A. 19:57-23, in pertinent part, requires: ". . . At the time any person delivers a ballot to the county board, he shall sign a record which the county shall maintain of all absentee ballots personally delivered to it."
The operative part of the judge's oral decision was as follows:
I'm not at all in a position to say that that irregularity which has been referred to by counsel as an illegality and I'm not going to argue with them there. It may very well be an apt description of someone if it were not to carry that description into some distinction as to outcome. Whether you call it an illegality or irregularity. I'm satisfied that under the purposes of this particular statute and the amendments thereto which were intended to protect the voter that it would be improper for this Court to interpret that purpose and all that's involved with it as being something that's going to disenfranchise the voter if someone else, the bearer or the person who is to keep the register, does not carry out their function to the letter. There are ways of dealing with that. It's something that I'm sure being the first time around there may very well be some shortcomings in that regard. I'm sure it will be dealt with and not be a problem in the future. Knowing the type of responsible persons we have in this county who are involved in the election process on both sides. But I find no basis whatsoever for invalidating those ballots which fail to identify the bearer on the envelope and fail to bear the signature or carry the signature of the bearer in the registry vote. While it is something that did not comply with the statute it is of such a nature as to without a showing that there has been tampering of that ballot not call for the setting aside of the vote or the ballot or the election process. If in fact we had a coalescence of the two I would think that the failure to comply here would be something that would go very strongly in terms of any showing of irregularity on a particular ballot that did not have the information required.
But where there is no evidence or hint of tampering with the individual ballots, and in the absence of these particular requirements of the signing of the envelope and the registry I will not disqualify the particular ballots in question. And in light of that and in light of the stipulation and understanding that otherwise without a ruling that it would cast aside those votes I will grant the summary judgment against the plaintiffs in the matter.
In our judgment, the judge erred in concluding as he did. The problem may be in the fact that the motion for summary judgment was permitted to be urged orally, on the date set for hearing of petitioner's challenges, without a notice of motion that it was to be brought and without the briefs mandated by R. 4:46-2, which would have given the court opportunity to more thoroughly consider this important issue. Petitioner complains of this hasty disposition and, in our view, with justification.
The sections of the election law to be considered are, as the trial court noted, the result of recent legislative amendment, effective January 6, 1982 and operative as to the absentee ballots for this November 2, 1982 election. Although, as the trial court observed, the amendments "were intended to protect
the voter" a review of the legislative history and the statements accompanying the amendments when proposed indicate, as will be demonstrated, that this legislation had another vital purpose directed to the overall integrity of the electoral process of utilizing absentee ballots. Moreover, although we agree that disenfranchisement of a voter is an end reasonably to be avoided, Wene v. Meyner, 13 N.J. 185, 197 (1953), it must be kept in mind that the statutory right to vote as an absentee is not an absolute right and is subject to proper legislative exception and limitation. Mulcahy v. Bergen County Bd. of Elections, 156 N.J. Super. 429, 433-434 (Law Div.1978). There relying in part on this court's decision in DeFlesco v. Mercer County Bd. of Elections, 43 N.J. Super. 492, 495-496 (App.Div.1957), Judge Petrella observed that absentee voting is "a privilege rather than a right, and its roots must come by way of legislative enactment since absentee voting did not exist at common law. See 2 Antieau Municipal Corporation Law, § 17.19 at 568.1 (1973)." Id. at 434. Although the legislative enactment here considered is to be liberally construed to effectuate the purpose of enabling a registered civilian absentee voter to cast his or her vote (N.J.S.A. 19:57-3), the manner and method by which this shall be accomplished is subject to the valid legislative concern that not only the voter but the process of exercising the vote be secure from the opportunity for fraud. In a decision this court endorsed, Judge Haines held certain absentee ballots void under the election laws as they existed in 1978. He observed:
Since the public election mechanism is entirely a statutory creation lacking any common-law antecedents, the judiciary must always seek to vindicate the perceived intent of the Legislature in the particular situation. Sharrock v. Keansburg, 15 N.J. Super. 11, 16 (App.Div.1951). Thus, if the election statute "expressly declares that a specified irregularity shall nullify an election, the courts, irrespective of their views of the wisdom or serviceability of the requirement, uniformly respect the legislative declaration." Id. at 16-17. But if the statute is silent, the legislative will must be found and followed through careful analysis of the statutory language and expressed concerns of the Legislature. Often the label mandatory or directory is appended to the section of the election law implicated as a symbol of the ...