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Kelly v. Burlington County Board of Elections

October 29, 1985

EDWARD A. KELLY, JR., INDIVIDUALLY AND AS COUNTY CLERK OF BURLINGTON COUNTY, PLAINTIFF
v.
BURLINGTON COUNTY BOARD OF ELECTIONS, DEFENDANT



Haines, A.j.s.c.

Haines

[207 NJSuper Page 336] Since 1977, absentee ballots provided by the Burlington County Clerk have been counted by an electronic device. The device consists of a small machine which counts absentee ballots (in the form of punched cards) with great rapidity, transmitting the results to a printer. Following the 1984 general election, the Burlington County Election Board ("board") has insisted upon a manual count and tabulation of these ballots. More than 22,400

absentee ballot cards were received in the course of that election. The county clerk now sues to restrain the board from using manual procedures, claiming that the use of the electronic device is mandatory.

The board of elections, consisting of two Democrats and two Republicans, is deadlocked and therefore has not appeared in this proceeding. However, Lillian Trainor and Raymond Vranich, members of the board and Paul Guidry and Lawrence Steinberg, freeholder candidates, have intervened. They oppose the requested relief, raising numerous issues concerning the use of the electronic device. They argue that problems exist requiring a manual approach to ballot tabulation. This opinion, responding to an order to show cause, disposes of the litigation.

The Statutes.

The use of the County's electronic device is authorized by N.J.S.A. 19:57-15.1 which provides in part:

Notwithstanding any provision of law to the contrary, any county may adopt a system of electronic scanning, punch cards or other mechanical or electronic device, which system has been previously approved by the Secretary of State, to be used in counting or canvassing absentee ballots.

It is the obligation of the county board of elections to open the envelopes containing absentee ballots, to "proceed to count and canvass the votes cast on such absentee ballots," and to certify the results of the canvass. N.J.S.A. 19:57-31.

N.J.S.A. 19:53A-8 provides:

a. Prior to the start of the count of the ballots, each county board of elections shall have the automatic tabulating equipment tested to ascertain that it will accurately count the votes case for all offices and on all measures. Public notice of the time and the place of the test shall be given at least 48 hours prior thereto. . . .

b. All proceedings at the counting center shall be under the direction of the county board of elections or persons designated by it; there shall always be two persons in charge, one from each opposite political party as in this act defined; and all proceedings shall be conducted under the observation of the public, but no persons except those authorized for the purpose shall touch any ballot card or return. All persons who are engaged in processing

and counting of the ballots shall be deputized and take an oath that they will faithfully ...


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