On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.
Deighan, Baime and A.m. Stein. The opinion of the court was delivered by A.m. Stein, J.A.D.
Pursuant to R. 2:2-3(a)(1), Frank E. McGuckin, a candidate for mayor of Monroe Township, Gloucester County, appeals the ruling of the Law Division invalidating six votes for mayor and declaring his opponent, Carmen J. DiNovi, Sr., the winner. If the six votes are not counted, DiNovi wins the election by a vote of 3614-3610. If the six votes are counted, a tie results, and a runoff election is required because five of the disputed votes were cast for McGuckin and one for DiNovi. We reverse.
Gloucester County uses an electronic voting system pursuant to N.J.S.A. 19:53A-1 et seq. The ballot is in the form of a rectangular card. There are printed names on the ballot for those offices up for election, and a section underneath the printed names for write-in votes. The voter must either punch a hole in a circle alongside a candidate's name printed on the ballot, or write in the name of a candidate not printed on the
ballot, then punch the circle alongside the handwritten name. The instructions to voters on the top of the ballot state:
(B) Write-in Candidates Section is for anyone wishing to vote for any person whose name is not printed on the ballot.
The "Write-in Candidates Section" near the bottom of the ballot instructs the voter:
USE THIS SECTION ONLY IF YOU HAVE VOTED FOR FEWER THAN THE NUMBERS TO BE ELECTED FOR ANY OFFICE.
WRITE-IN AND PUNCH YOUR OWN CHOICE BUT NOT IN EXCESS OF THE TOTAL NUMBER ALLOWED FOR EACH OFFICE.
Six voters punched in their choice for mayor on the printed portion of the ballot and also wrote in and punched in the same name for mayor on the ballot's write-in section.
The County Board of Elections divided 2-2 on whether the votes should be counted. The Law Division judge, acting as the "tie-breaker" pursuant to N.J.S.A. 19:28-3, held that the votes should not be counted. He read together the statutes regulating paper and electronic ballots and concluded ...