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Matarese v. Superintendent of Elections

Decided: June 30, 1988.

SCOTT MATARESE, PLAINTIFF,
v.
SUPERINTENDENT OF ELECTIONS, DEFENDANT



Haines, A.j.s.c.

Haines

[228 NJSuper Page 149] This opinion addresses the question of whether a county board of elections may reject a civilian absentee ballot issued in

response to a defective application erroneously approved by a county clerk. It concludes that the board is so empowered.

Scott Matarese was a candidate for election to the Lumberton Township Committee in Burlington County. Following the election, he requested a recount of ballots and a recheck of voting machines. During those proceedings a question arose as to whether an absentee ballot should be rejected since the ballot application did not set forth any reason for its issuance. The board of elections, being deadlocked, could not reach a decision and the question was therefore referred to this court pursuant to N.J.S.A. 19:57-24.

The issue is novel. At the conclusion of the original argument, this court held that the board of elections had no authority to reject the absentee ballot. On reconsideration, it reverses.

County counsel, appearing for the county clerk, argues that the board has no authority to reject the ballot in question. Her position is that this authority resides only in the county clerk or, when a dispute arises, in this court. The argument rests on N.J.S.A. 19:57-10 which provides, in connection with the receipt of a request for an absentee ballot, as follows:

[T]he County Clerk shall, with the cooperation of the Commissioner of Registration, cause the signature of the applicant on the request to be compared with the signature of said person appearing on the permanent registration form in order to determine from such examination and any other available information if the applicant is a voter qualified to cast a ballot in the election in which he desires to vote, and determine in case of a primary election in which political party primary the voter is entitled to vote. The Commissioner of Registration or the superintendent of elections in counties having a superintendent of elections may investigate any application or request for an absentee ballot.

If after such examination, the county clerk is satisfied that the applicant is entitled to a ballot, he shall mark the application "Approved." If after such examination the county clerk determines that the applicant is not entitled to a ballot, he shall mark on the application "Disapproved" and shall so notify the applicant, stating the reason therefor.

Clearly, therefore, the county clerk may reject an application for an absentee ballot. The clerk claims that this authority is his alone and that his delivery of an absentee ballot is conclusive evidence of his approval of the application, an approval

which the board of elections cannot challenge. Matarese correctly argues to the contrary. His argument requires an examination of the statutes affecting the issue. (References to " N.J.S.A. " are omitted.)

19:57-3 provides the reasons upon which a registered civilian absentee voter may request an absentee ballot, namely: absence outside the State; inability to vote though present in the State because of permanent and total disability; illness or temporary physical disability; observance of a religious holiday; attendance at a school; college or university, and nature and hours of employment. The application under consideration here, which lists the reasons to support the absentee ballot request and provides blocks to be checked, contains no check marks, and hence, no reasons.

19:57-4 provides that the request for an absentee ballot shall be presented to the county clerk. It says in part: "Such application or request shall be made in writing, shall be signed by the applicant and shall state his or her place of voting residence and the address to which said ...


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