On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Before Judges Shebell, Skillman and Wallace.
[276 NJSuper Page 339] The opinion of the court was delivered by
This election appeal requires us to decide whether an absentee ballot which is mailed to a board of elections by a person other than the voter must be automatically invalidated simply because the outer envelope enclosing the ballot is not completed in conformity with N.J.S.A. 19:57-37.1.
Petitioner-appellant Allan E. Kriso was one of four candidates for two positions on the municipal council of the Borough of Wallington in Bergen County at the general election held on November 2, 1993. Kriso finished third, with four votes less than defendant-respondent Stephen Adzima.
After a recount which narrowed the gap between Adzima and Kriso to three votes, Kriso filed this action challenging the ballots of twenty-seven voters. Kriso subsequently amended his petition to include a challenge to the rejection of three other ballots by defendant-respondent Bergen County Board of Elections (the Board).
The trial court sustained petitioner's challenge to one ballot but rejected his other challenges. Since the vote of the single successfully challenged ballot could not have changed the results of the election,*fn1 the court entered final judgment dismissing the petition and ordering the Superintendent of Elections to issue a certificate of election to Adzima.
On appeal, petitioner's arguments are directed at eight of the twenty-six ballots which he unsuccessfully challenged before the trial court and at the three ballots which the court held the Board had properly rejected. Before considering petitioner's arguments
relating to the absentee ballots enclosed in improperly completed outer envelopes, we briefly discuss petitioner's other points.
Petitioner contends that the trial court erred in rejecting his claim that two voters, Dennis Jakubiec and Karen Smith, did not "actually reside" in Wallington within the intent of N.J.S.A. 19:4-1 and consequently were ineligible to vote. For the purpose of N.J.S.A. 19:4-1, "residence" is equated with "domicile," State v. Benny, 20 N.J. 238, 252-54, 119 A.2d 155 (1955), and the requirement of domicile is construed broadly and flexibly. See, e.g., Worden v. County Bd. of Elections, 61 N.J. 325, 294 A.2d 233 (1972); In re Petition of Hartnett, 163 N.J. Super. 257, 261-64, 394 A.2d 871 (App. Div. 1978). The trial court properly applied this expansive concept of domicile in concluding that Jakubiec's and Smith's part-time residency and other continuing, substantial connections with Wallington were sufficient for them to be considered domiciliaries for the purpose of voting.
Petitioner contends that the trial court should have invalidated Mary Kowal's ballot because she was capable of casting her ballot at the polling place on election day and hence was not eligible to vote by absentee ballot pursuant to N.J.S.A. 19:57-3. However, a voter who obtains an absentee ballot because he or she anticipates being physically unable to cast a ballot at the polling place but turns out to be physically able to go to the polls on election day is prohibited from voting in person and instead must use his or her absentee ballot. N.J.S.A. 19:57-28; see In re Farley, 78 N.J. Super. 349, 188 A.2d 607 (App. Div.), certif. denied, 40 N.J. 220 (1963). In any event, there is sufficient evidence to ...