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In re General Election of November 5

Decided: February 18, 1992.

IN RE THE GENERAL ELECTION OF NOVEMBER 5, 1991 FOR THE OFFICE OF TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MAPLEWOOD, ESSEX COUNTY, STATE OF NEW JERSEY


Villanueva, J.s.c.

VILLANUEVA

OPINION

VILLANUEVA, J.S.C.

PROCEDURAL HISTORY

On November 5, 1991, the Township of Maplewood held an election to fill two seats on the five-member Township Committee. Four candidates ran for these seats. Robert H. Grasmere received 3,410 votes, Gerard W. Ryan received 2,973 votes, Noel S. Siegel received 2,968 votes and Stephen R. Gruchacz received 2,602 votes.

On November 14, 1991, Siegel applied for and received the right to a recount under N.J.S.A. 19:28-1. During this recount the Essex County Board of Elections ("Board of Elections"), consisting of two Democrats and two Republicans, met with all the parties. After the Board checked all the machines and reviewed all suspect ballots, they made a unanimous decision not to change any of the decisions previously made. The recount conducted November 26, 1991, confirmed that Ryan had received the second highest number of total votes. Machine totals gave Ryan, a Democrat, 2,932 votes and Siegel, a Republican, 2,908 votes. The recount was not completed in the presence of either attorney or completed on the day that the Court had ordered at the time the parties appeared. The Board could neither determine an accurate count nor account for the security of the absentee ballots until "after the thorough search" after all had departed. Thereafter, the Board certified 61 absentee ballots for Siegel and 41 absentee ballots for Ryan. These figures were combined for certified totals of 2,973 votes for Ryan and 2,969 votes for Siegel.

The only seat in contest is between Siegel and Ryan.

On December 13, 1991, Siegel filed a verified petition and obtained an order to show cause to challenge the election results, pursuant to N.J.S.A. 19:29-1. He alleged that many voting machines malfunctioned; absentee ballots were improperly rejected; an absentee ballot of a person who died before the election was counted; an emergency ballot was not counted because it never reached the Board of Elections; a voter who arrived at the polling place before 8:00 p.m. was denied the right to vote because the voting machine was closed down and locked and a non-resident voted illegally.

ISSUES

1. Where there has been no fraud or "malconduct" in an election but numerous improper rejections of legal votes by

election officials through no fault of any candidate, may the Court nevertheless void the election?

2. Did the malfunctions of the voting machines cause some votes not to be counted?

The court holds that to uphold the election would improperly disenfranchise voters and frustrate the will of the people and it would be unjust to the petitioner who received more legal votes than the respondent.

I.

THE COURT IS VESTED WITH CERTAIN INHERENT POWERS BEYOND THOSE CONFERRED UPON IT BY N.J.S.A. 19:29-1 ET SEQ. AND IT CAN SET ASIDE ANY ACTION TAKEN WHICH IS ILLEGAL OR INEQUITABLE IN ORDER TO CARRY OUT THE WILL AND MANDATE OF THE PEOPLE.

The right to vote in a democracy is among the most precious of all individuals' rights. It is a mechanism which individuals can and do use to hold government accountable, even when other parts of the political process fail to produce accountability. For one's vote, when cast, to be translated into a true message to government and candidates, that vote must be accurately counted, and, if necessary, recounted at every stage of the election process. That voter's exercise of the franchise must not be diluted by another's fraudulent or illegal vote. The moment an individual's vote becomes subject to an error in the vote tabulation process, the easier it is for one's vote to be diluted. (See The Law of the Electoral Counts, Burgess, John W., 1888, Political Science Quarterly 3:633-653).

Contested elections and recounts have been prevalent in the American political system ever since the founding of the Republic. New Jersey was the first state to report an election contest, The State v. Justices, etc., of Middlesex, 1 N.J.L. 244 (Sup.Ct. 1794), which was ultimately overturned by the Governor

and Privy Council. At the presidential level, major disputes took place in 1801 and 1825, with the House of Representatives choosing the President each time.

The other major dispute over the presidency took place in 1877 between Samuel Tilden, a Democrat, and Rutherford B. Hayes, a Republican. In that case, a commission resolved the electoral votes being disputed, in each instance in favor of Hayes, with the result that Hayes was elected President by the bare majority of one electoral vote. (See "Contested Elections", Encyclopedia of the Social Sciences, ed., Edward R.A. Seligman, pp. 308-310, New York, Macmillan, 1931).

Courts have long had certain inherent and equitable powers beyond those conferred upon them by statutes. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803); Stevenson v. Gilfert, 13 N.J. 496, 100 A.2d 490 (1953); Jacobs and Schnitzer, Report on the Proposed Revision of the New Jersey Election Law, 5 University of Newark Law Review 183 (1940).

Like the federal developments, the history of New Jersey election matters reveals jurisdictional uncertainty in each New Jersey jurisprudence. This uncertainty was somewhat clarified by the statutory procedure which evolved to hear and resolve election contests. The compelling judicial restraint theory grew out of the uncertainty of the court's powers and the constitutional commitment to the doctrine of "separation of powers". Yet, the strengthening of the courts as an equal branch of government in our present constitution changed the older decisions. (See History of Voting in N.J.. . . 1664-1991, Richard P. McCormick, Rutgers Univ. Press, 1953). In re 1984 Maple Shade General Election, 203 N.J. Super. 563, 497 A.2d 577 (Law Div.1985).

The influential writers after the Revolution, at the nation's birth, urged preservation of the doctrine of "separation of powers" and sought, in fact, to insulate the judiciary from political involvement. See Locke, Second Treatise of Government, Gough 3rd ed. 1965; Montesquieu, The Spirit of the

Law, (Nugent translation), 1949, pp. 141-143; and Madison, The Federalist, No. 47, Cooke ed. 1966.

In 1794, the inherent jurisdiction of the Court to review elections was challenged in The State v. Justices, etc., of Middlesex, supra, 1 N.J.L. at 251. The note entered upon the record, set forth at page 255 in the Chief Justice's handwriting, ended the right of inherent judicial review of elections:

See also State v. The Clerk of Passaic, 25 N.J.L. 354, 355 (Sup.Ct.1856).

Thus, the uncertainty of the Court's role in election matters led to passage of an act in 1877 entitled "An Act to Regulate Elections". The Act itself contributed little to removing the question of jurisdiction and even less to removing the uncertainty therein. See Conger v. Convery, 52 N.J.L. 417, 439, 445, 20 A. 166 (Sup.Ct.1890), aff'd, 53 N.J.L. 658, 663, 24 A. 1002 (E. & A.1891).

The Legislature in 1890 adopted the "Ballot Reform Act," which provided for the nullifying of an election and the ordering of a new one by a "Justice of the Supreme Court . . .". However, the statute was imperfect, incomplete and had a very doubtful effect as recognized by our courts. See Roberts v. Shafer, 63 N.J.L. 182, 42 A. 770 (Sup.Ct.1899), where the Court did define what they believed to be the role of a Judge sitting as a legislative agent in an election contest (the present N.J.S.A. 19:29-1 et seq.):

By the statute sub judice, the Justice sits as a commissioner and not in curia. Id. at 184 [42 A. 770].

Thus, the courts changed from an activist position to that of a mere legislative agent in hearing election contests.

This was confirmed by Chief Justice Beasley in the case of In re Margarum, 55 N.J.L. 12, 14, 25 A. 702 (Sup.Ct.1892), where he stated the "legislative view".

Therefore, aside from the general revision under the Laws of 1930, c. 187, Section 355, p. 829 (N.J.S.A. 19:29-1 et seq.), although the statutory scheme concerning the review of contests of nominations or elections by the judiciary has basically remained the same, the review has been expanded both by case law and the resultant ascendancy of the judicial branch as an equal power in government. Further, the present provisions of N.J.S.A. 19:29-5 implore the proceedings to be similar to a civil case, such that court rules apply. In addition, other statutes are now read into the election proceedings. See Iannone v. McHale, 236 N.J. Super. 227, 565 A.2d 422 (Law Div.1989) rev., 245 N.J. Super. 17, 583 A.2d 770 (App.Div.1990) (the frivolous litigation statute, N.J.S.A. 2A:15-59.1, allowed the award of counsel fees.)

This historical "uncertainty" of the court's role in The State v. Justices, etc., of Middlesex, supra, is the origin of the "judicial reluctance theory" in election matters. Whatever its source, the judicial hesitation seemed to have had little legal or philosophical support and has been abandoned now in current practice.

Courts have long struggled with their proper role in review of contested elections. The New Jersey Constitution designates three distinct branches of government, and provides that:

"[n]o person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution." [ N.J. Const. (1947), Art. III, para. 1.]

New Jersey courts have followed the provisions for review of elections as set forth by the New Jersey legislature in N.J.S.A. 19:29-1, but they have construed such 0 powers of review to be "strictly statutory" and have determined that this section should be "rigidly" followed. Burkett v. Francesconi, 127 N.J.L. 541, 23 A.2d 780 (Sup.Ct.1942); see also Clee v. Moore, 119 N.J.L. 215, 195 A. 530 (Sup.Ct.1937).

The question as to whether a Judge in an election contest sits as a legislative agent or with the full powers of the judiciary was not the subject of any judicial analysis from the adoption of

our present Constitution in 1947 until 1985. In a thorough and skillful analysis, Judge Haines distinguished between a Judge's role as a legislative agent and a Judge acting judicially. See In re 1984 Maple Shade General Election, supra, where Judge Haines stated:

The Legislature exercises paramount control over election matters and the courts are bound by its enactments. Justice Handler, in his concurrence/Dissent in Gormley v. Lan, 88 N.J. 26 [438 A.2d 519] (1981), stated it as follows:

The greater the statutory and administrative responsibility that is vested in the executive or legislative agents over election matters, the more constricted is the jurisdiction of the courts. Judicial and executive 1 responsibilities in election matters stand, as it were, in inverse proportion to one another. (Id. at 46 [438 A.2d 519]).

The present quest does not ignore that principle. It seeks only to fix the role of the court when it addresses election problems requiring judicial solutions, i.e., problems which have not been considered by the Legislature. It acknowledges the fact that some problems must be resolved by Judges who sit, not as Judges, but as agents of the Legislature because the Legislature has said so.

The difference between election recounts and election contests illustrates the difference between Judges who are agents and Judges who are Judges. Recounts are covered by N.J.S.A. 19:28-1 et seq. contests by N.J.S.A. 19:29-1 et seq. Recounts involve Judges only ministerially, as the officials who order recounts to be made. Only elementary decisions are required; the actual recounts are conducted by election officials. As a consequence the courts have referred to the Judges who issue recount orders as legislative agents. In re Election in Bethlehem Tp, 74 N.J. Super. 448, 459-460 [181 A.2d 523] (App.Div.1962); In re Recheck of Machines 2 in Jersey City, 19 N.J. Super. 187, 189-190 [88 A.2d 227] (App.Div.1952). ("It is clear that the statutory jurisdiction conferred upon the Judges of the Law Division of the Superior Court by R.S. 19:28-1, et seq., is conferred upon them as individual Judges thereof and is not conferred upon the court as such, and that the individual Judge who acts in exercising such jurisdiction acts solely in the capacity of a legislative agent exercising a delegated authority.") See also the dicta in Massett Bldg. Co. v. Bennett, 4 N.J. 53, 60 [71 A.2d 327] (1950) and In re Recheck of Ballots in South River, supra, 27 N.J. Super. [109] at 111 [98 A.2d 900 (1953)]. Election contests involve much more than ministerial actions of Judges and invite the Conclusion reached here that they are subject to the exercise of judicial power. (Maple Shade, supra, 203 N.J. Super. at 576-577 [497 A.2d 577]).

In an election contest, the Judge is a Judge, hearing the matter with full authority in deciding the facts, the law and structuring a remedy. Without that Conclusion, we would be left without a forum or remedy. Id. at 584, 497 A.2d 577.

The Board of Elections, both in its election day functioning 3 and in conducting a recount, does not conduct an adversarial proceeding wherein a record is made that can be reviewed. On election day no determination was made on some ballots, no writings or any minutes or records were kept indicating the reasons for receiving or rejecting absentee ballots, and no record is available to review. Two commissioners testified that they could not remember the actual reason why certain absentee ballots were accepted and why others were rejected.

Although requested by petitioner at the recount, no Board member at any time expressed a desire to vote individually on each of the ballots that were before them. The sole question asked of them was "does any one want to change their opinions from the day of the election?" The commissioners having answered in the negative, no reason for the acceptance or rejection of any absentee ballot was ever established.

On the day of the recount the Board of Elections could not conclude and complete the recount since they could not locate an equal number of envelope flaps to match the number of absentee ballots. In a subsequent search, they found an additional absentee ballot which was eventually included in the total. 4 All absentee ballot envelope flap certificates were then located, which finally equalled the total number of ballots.

Many of the actions and activities taken by the Board were outside the presence of the parties and their counsel, and there is no record from which this Court could conduct a review.

N.J.S.A. 19:29-1 states that an ". . . election . . . . may be contested . . ." The statute does not state that the election can be reviewed or that the actions can be reviewed. It sets forth an adversarial proceeding of a contest, a hearing and trial between the contestant and incumbent. The Board of Elections is not even a party. See Darling v. Murphy, 71 N.J.L. 524, 59 A. 225 (Sup.Ct.1904). It is important to contrast this statute with N.J.S.A. 19:29-11 which provides:

The party against whom judgment is rendered may have it reviewed by the Appellate Division of the Superior Court on an appeal in lieu of prerogative writ. (Emphasis added).

N.J.S.A. 19:16-3 bespeaks of concurrent jurisdiction when it states the ". . . county board, Judge of the Superior Court or other Judge or officer conducting a recount thereof . . ." N.J.S.A. 19:16-4 5 provides that ". . . unless the district board canvassing such ballots or the county board, Judge of the Superior Court or other Judge or officer conducting the recount thereof . . ." This suggests that the Court has its own right to make determinations thereon.

II.

PETITIONER MUST ESTABLISH HIS ALLEGATIONS BY THE PREPONDERANCE OF THE EVIDENCE.

The standard of proof, or quantum of proof, that the petitioner must satisfy herein is that of the preponderance of the evidence. See Evid.R. 1(4), Comment 5; McCormick, Evidence (1954), § 320, p. 679. N.J.S.A. 19:29-5 provides for procedures at trial to be similar to those in a civil action "so far as practicable" but does not state any specific evidentiary standard.

The standard of proof in an election case was first set forth in Brueckmann v. Frignoca, 9 N.J.Misc. 128, 152 A. 780 (Passaic Cty.Cir.Ct.1931), where an election challenge was brought against various voters (inmates in a sanitorium) who voted, alleging they were not residents. The court found that to overcome the presumption of the continuance of prior domicile the petitioner had to establish his proofs by a preponderance. Id. at 132, 152 A. 780.

6 Judge Haines in the matter of In re Evans, 227 N.J. Super. 339, 547 A.2d 344 (Law Div.1988), considered the standard of proof in an election case under N.J.S.A. 19:29-1 et seq. There the petitioner, in addition to challenging voters, votes cast and election results, sought to remove the successful candidate

from office by claiming he was no longer a resident of the municipality, thereby actually challenging the qualifications of the incumbent office holder and successful candidate of the election to office. Judge Haines, after analyzing the cases, found that since the relief sought was not merely the contest of an election, but removal of a person from office based on qualifications, he set a higher standard of proof. Judge Haines stated:

The preponderance rule is applicable in the normal civil case. Evid.R. 1(4), Comment 5. Only two New Jersey courts have addressed the question in an election case. In Lepre v. Caputo, 131 N.J. Super. 118 [328 A.2d 650] (Law Div.1974), the court held that the right to amend a nominating petition had to be proved by clear and convincing evidence. The court's concern was fraud, e.g., that a candidate 7 might procure signatures on a petition nominating him for one office and then, through an amendment procedure, change the petition to refer to another office. In Michaud v. Yeomans, 115 N.J. Super. 200 [278 A.2d 537] (Law Div.1971), the court established a presumption that a university student was not domiciled at the university and required him to rebut that presumption by only a preponderance of the evidence.

The many cases dealing with standards of proof shed little light on the immediate problem. It is apparent, however, that the standard to be applied becomes more difficult as the significance of the issue increases. A criminal charge, for example, must be proved by the State beyond a reasonable doubt. In Michaud, the issue involved a student who attempted to register for voting purposes and was refused. The issue, as here, was domicile. Arguably, it was an issue fraught with consequences as serious as those considered in Lepre: the easy registration of thousands of college students who could change the balance of power in a community. A false claim of domicile is as fundamentally fraudulent as a false representation in a nominating petition. Both 8 invite criminal penalties. Evans faces those penalties in the present suit. The claims against him are serious, too serious to be proved by the lowest standard of evidence. Clear and convincing proof is required. The Conclusions of Michaud are rejected. [ Id. at 347-348, 547 A.2d 344.]

Judge Haines applied a higher standard because respondent faced criminal penalties if in fact he was not a resident. The interest to be protected here is that of the "public interest." The interest of the voters who are legally entitled to vote is not to have their votes diluted by illegal voters. As such, the preponderance of the evidence burden applies. Invoking a higher standard of proof obviously favors one side over the other, and clearly there are no sides here. Instead, the interest of the public is paramount and this interest is equally present in

both sides of the case. See Herman v. United States, U.S. , 111 S. Ct. 355, 112 L. Ed. 2d 318 (1990); In re Polk License Revocation, 90 N.J. 550, 560-561, 449 A.2d 7 (1982). The parties are not the participants nor did they testify.

Judge Cammarata's approach in Michaud v. Yeomans, 115 N.J. Super. 200, 278 A.2d 537 (Law Div.1971) 9 was indirectly ratified by the Supreme Court in Worden v. Mercer Cty. Bd. of Elections, 61 N.J. 325, 294 A.2d 928 (1972), when it indicated that "domicil" (the criterion underlying "residence" for voting purposes) "is not a unitary concept." Id. at 343, 294 A.2d 928. In adopting a more lenient standard for proof of election domicil than might apply elsewhere, the Court gave weight to the idea that voting rights are to be treated indulgently and are to be subjected to the minimal restraints necessary to prevent fraud. In Worden, college students were held capable of registering and voting from campus addresses despite having homes elsewhere.

The Deputy Attorney General suggests that one way to harmonize all the published opinions is to require proof of illegality by clear and convincing evidence, while applying only a preponderance burden to proof of legality. No court has done so in an election contest where there has been no wrong-doing by either candidate. There is no basis to raise the level of proof for one candidate against another candidate for wrongful or illegal acts of third persons.

Why afford an illegal voter greater rights and protections and require 0 a higher standard of proof for a petitioner to nullify an illegal vote? Why grant an illegal voter greater protection than afforded a legal voter? It is obvious that an illegal voter, by voting wrongfully, dilutes the rights and votes of all legally qualified voters. Thus the illegal voter should be afforded no greater protection than a legal voter.

The standard to be utilized for the petitioner to establish his cause of action is preponderance of the evidence.

III.

"LEGAL VOTES" WERE REJECTED "SUFFICIENT TO CHANGE THE RESULT" ALONE OR WHEN ADDED TO OTHER IRREGULARITIES, REQUIRING SETTING ASIDE THE RESULTS.

N.J.S.A. 19:29-1(e) provides that an election may be contested:

When illegal votes have been received, or legal votes rejected at the polls sufficient to change the result;

This statute permits an election to be contested where illegal votes were cast or bona fide votes were rejected.

A. Voter Rejected because the Polls Closed Early.

The court is satisfied that three men entered the outside door of the polling place at Jefferson School before 8:00 p.m. before the door was closed by the janitor in the presence of Sgt. Robert Cimino, assigned by 1 the Maplewood Township Police Department to the polling place, who radioed to the Police Department for a time check. They responded "20:00." Sgt. Cimino said the three entered "simultaneously with my time check" before the door was closed. From the door there is a hallway leading to the gymnasium where voters from three districts vote.

Several witnesses testified that the three men had entered the polling place at or about 8:00 p.m., but no one knew their names or whether they were eligible voters. Even after the testimony concluded, it was unknown who these three men were.

After the election the wife of Stephen Balls read in the local newspaper about this trial and the testimony of voters being rejected at the polls before 8:00 p.m. Since Balls had told his wife that he had been rejected, she told him about the newspaper story. He then contacted Siegel to tell him about the rejection. Upon petitioner's request, the court exercised its discretion to reopen the case to take Balls' testimony, which

corroborated and pieced together all the other testimony and was believable in all respects.

Maura Kelly was elected Judge of the district board of elections by the other members 2 pursuant to N.J.S.A. 19:6-10*fn1, which placed her in charge of the polling place. She testified that the polling place opened at 7:00 a.m., based upon the clock upon the wall. Therefore, the polling place should have closed by that clock also. She testified that sometime before 7:55 p.m., and definitely before 8:00 p.m., a man she did not recognize came in and attempted to vote at her polling place. She was sure it was before 8:00 p.m. because, as she was removing the flag which was on the wall behind the table, she looked up at the clock on the wall when "the commotion" started.

Patrick Clark, district board member, testified that either Maura Kelly or Claudia Donnelly informed him that someone was present to vote 3 and that someone did, in fact, present himself to the table. Maura Kelly testified she heard Clark tell the voter, "It's past eight o'clock; you can't vote." Kelly's testimony further indicated that it was not she who said it because she heard Clark respond as she was taking down the flag. Thus it is clear that the voter presented himself at the table to the other worker, Ms. Donnelly, and thereafter was told he could not vote.

Yet, Maura Kelly is certain that this occurred before 8:00 p.m. Clark says he thinks it was after 8:00 p.m., but he did not determine the time from the clock on the wall.

Clark pulled the plug on the machine, disconnected the light, returned to the machine and turned the key which locked the machine. He did not close the machine at the direction of the Judge.

Arnold Urken,*fn2 a district board member, testified that the end of election "was not coordinated" and that they were "overwhelmed" at the close down.

4 After Clark and Urken had closed down the voting machine, they heard three people complaining about not being able to vote. Sgt. Cimino said that since the machines were closed, they could not vote. He said at the time the three were turned away it was at least 8:00 p.m., but that they could have been in the building before 8:00 p.m.

Once the plug for the voting machine was disconnected by turning the key at or before 8:00 p.m., the turning of the key prevented restarting the machine.

The rejection of Balls caused a commotion. Respondent's witness, Harvey Weissbard, said that a Discussion occurred between a district board worker and a voter who was attempting to vote. He approached and said that the person should be allowed to vote. He said that the man was "probably in the room before 8:00 p.m., but I told the man to leave his name, but the man did not." He further stated that the police officer told the voter that the polling place was closed and he would have to leave. However, at that time voters were still voting at District 2 in the gymnasium.

N.J.S.A. 19:15-2 requires the polling places to open at 7:00 a.m. and to close at 8:00 p.m., but this statute is subject 5 to N.J.S.A. 19:15-9 which provides:

After the hour fixed for closing the polls voters already within such place or room or in line shall be permitted to prepare and cast their ballots.

Whether Balls arrived at the table or voting machine before or after 8:00 p.m. is irrelevant because he was within the

polling place before 8:00 p.m. when the door was closed and therefore should have been permitted to vote.

What took place herein is that it is illegal to shut down the voting machines at 8:00 p.m. UNLESS AND UNTIL all voters in line and "already within such place or room", whether it be the entrance hall, lobby, hallway or room where the voting machines are located, are permitted to vote.

Balls testified that after he entered the hall to the gymnasium, two other people followed him "right at or just about 8:00 p.m. . . . I believe it was before 8:00 p.m. The clock said a couple of minutes before 8:00. The person at the machine said 'the clock was wrong and my watch was correct'." When Balls presented himself to the first desk the workers pointed to another polling machine where he went, but it was closed down. He was told by Urken, "Once the machine is locked, 6 there is nothing that I can do about it." As Sgt. Cimino was standing between the machines there was a Discussion as to whether Balls was in before 8:00 p.m. When Sgt. Cimino told Balls that there was nothing he could do, Balls left without voting. Someone asked for his name, but he said he did not think it made any difference. He did not think anymore about his rejection until his wife read the newspaper.

It is uncontroverted by the Judge, Maura Kelly, by district board member Urken and Stephen Balls, that Balls was in the polling place before 8:00 p.m., that the machine had been shut down by Clark before 8:00 p.m., and that Balls was told he could not vote at that time.

No member of the district board, including Clark, offered Balls an alternative method of voting, such as an emergency ballot. No member of the district board offered to call the Township Clerk or Board of Elections to determine if anything could be done. Despite the intercession of Weissbard to assist Balls, all they said was that he could not vote.

The Deputy Attorney General contends that Balls never went so far as to prove himself a "legal voter" by presenting himself

to the district board to sign the signature 7 copy register, as required by N.J.S.A. 19:31A-8. It is undisputed that he was ready, willing, able and eligible to vote but was told emphatically by the district worker, "You can't vote." He was clearly frustrated and denied the right to vote. Since there was great confusion, he could not be expected to ask to sign the register book. The right to vote far outweighs technical niceties.

Signing the signature register would have been a futile act since there would have been no way for him to vote since the machine had been closed down. The district board members were derelict in their duties and responsibilities because they did not offer Balls an emergency ballot or even bother to identify Balls despite the fact that Weissbard insisted that they take his name.

This situation is not analogous to In re Petition of Hartnett, 163 N.J. Super. 257, 394 A.2d 871 (App.Div.1978), where a voter refused to go to the municipal building because a page listing her name in the permanent registration book was missing. Nor is it a situation where a voter refused to take direction from the district board as to what he would have to do to preserve his right to vote. Balls listened 8 to the district board, which offered him no alternatives or options but simply told him "It's too late." The fact they could have offered him an emergency ballot, and did not do so, only heightens the effect of the early closing.

The mystery about the other two men who came in the door about the same time as Balls was solved when Balls said that they went to another district table in the same room and were allowed to vote at another machine.

Therefore, Balls was a legal voter rejected. However, the court does not know for whom he would ...


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