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Matter of Municipal Election Held on May 10

April 12, 1995

IN THE MATTER OF THE MUNICIPAL ELECTION HELD ON MAY 10, 1994, FOR THREE POSITIONS ON THE SPARTA TOWNSHIP COUNCIL


On certification to Superior Court, Appellate Division.

The opinion of the Court was delivered by Pollock, J. Chief Justice Wilentz and Justices Handler, O'Hern, Garibaldi, Stein, and Coleman join in this opinion.

The opinion of the court was delivered by: Pollock

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

IN THE MATTER OF THE MUNICIPAL ELECTION HELD ON MAY 10, 1994, FOR THREE POSITIONS ON THE SPARTA TOWNSHIP COUNCIL (A-67-94)

Argued January 18, 1995 -- Decided April 12, 1995

POLLOCK, J., for a unanimous Court.

Richard W. Webster was a write-in candidate for one of three positions on the Sparta Township Council. He lost by five votes. He challenged the disqualification of fifteen votes.

Sparta tabulates votes electronically as authorized by a state statute. According to that statute, voters must write in the name of the candidate and "punch" the ballot card in the appropriate space. The fifteen votes in question were not punched.

The Elections Board did not count the fifteen cards that were not punched. Webster filed an action in the Superior Court, Law Division, that covered a number of ballots including the fifteen unpunched cards. The Law Division refused to count the fifteen cards that were not punched.

Webster appealed to the Appellate Division, which affirmed. The Supreme Court granted Webster's petition for certification.

HELD: In an electronically-tabulated election conducted pursuant to N.J.S.A. 19:53A-5e, a write-in vote that is not punched in the provided location is invalid.

1. The legislative mandate is clear in elections using electronically-tabulated ballots. For a write-in vote to count, a voter must both write in the name of the candidate and punch the ballot card. (pp.5-6)

2. Webster's argument that the preprinted "" on each ballot satisfies the statute's requirement is unpersuasive. The Legislature clearly contemplated that the voter must take some affirmative action to mark the ballot so it could be read by the electronic tabulating device. (p. 6)

3. Judicial construction of the requirement of an affirmative marking of a ballot was first articulated thirty years ago. Although the Legislature has amended the election statutes since then, it has ...


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