Alexander D. Lehrer, J.s.c.
The opinion of the court was delivered by: Lehrer
Alexander D. Lehrer, J.S.C.
On May 13, 1997, the City of Asbury Park conducted an election for the entire city council; five seats in total were to be filled.
Eleven formally nominated candidates were printed on the ballot. The first five names on the ballot, Kenneth "Butch" Saunders, Sheila Solomon, Al Reinoso, James G. Condos, and John J. Hamilton, Jr., ran next to the "Asbury First" slogan.
The next five names on the ballot, Lawson June, Jr., Robert Lee Sanders, Louise L. Murray, John Loffredo, and Louise M. Singleton ran next to the slogan "Make a Difference". Mohinder "Moe" Singh appeared last on the ballot and did not run next to a slogan.
The candidates running next to the "Asbury First" slogan, Kenneth "Butch" Saunders, James Condos, Sheila Solomon, John Hamilton and Albert Reinoso received the most votes. Albert Reinoso was the lowest of the five, receiving 969 votes. Louise Murray, a "Make a Difference" candidate was the sixth highest receiving 955 votes, 14 votes less than Albert Reinoso.
On June 11, 1997, Louise Murray filed a petition to contest the election pursuant to N.J.D.S. 19:29-1 et seq. Ms. Murray alleged 27 legal votes were rejected and 59 illegal votes were counted. On the same date, the 27 voters also filed a petition to have their votes counted; the matters were consolidated and tried together.
During the trial, Ms. Murray withdrew the allegation concerning 56 of the 59 votes and seeks to void 3 of the 59 votes as illegal.
The 27 individual petitioners reside in a senior citizen, state licensed, class C boarding home known as the Atlantic Belmont. Hotel located at 300-302 Asbury Avenue, Asbury Park, New Jersey. Ms. Kathryn McGlynn, a registered nurse, is the owner-operator of the Atlantic Belmont Hotel. Ms. McGlynn has lived in the hotel for 18 years.
The hotel houses approximately 65 senior citizens who suffer from various ailments and need some lever of assistance in their daily living. Ms. McGlynn provides that assistance to include distribution of medication, preparation of three meals daily, and receiving and distributing mail. Other needs of the residents are met as the occasion requires.
Of the 65 residents, 45 are registered voters. Due to their advanced age, various disabilities, and anticipated inability to get to the polls, 30 residents applied for, received, and voted absentee ballots. Ms. McGlynn filled out the request for an absentee ballot for any resident who asked for her help. After the request was filled out, the resident signed the request which was mailed to the County of Monmouth for processing.
Before the absentee ballots were received, and 7 days before the election, Ms. McGlynn was asked by some of the residents to discuss her voting preferences. In response, Ms. McGlynn testified she discussed the candidates she believed would be most favorable to the mutual interest of keeping boarding homes open and funded in the City of Asbury Park. No other evidence was produced of any Discussion as to the election or the candidates.
Mail is routinely distributed to the residents at their evening meal. On the Wednesday before the election, the absentee ballots were received by mail. At dinner that night, Ms. McGlynn announced that those who wished to vote by absentee ballot should do so after dinner. Ms. McGlynn testified she decided to have all residents vote at that time because she was leaving for Florida the next day and would not have any other time to help the residents should they need it.
After dinner, Ms. McGlynn distributed the ballots with the assistance of LouAnn Pouzenc, a friend who helped out at the hotel from time to time. After the absentee ballots were distributed, some of the residents remained in the dining room to complete their ballots while others returned to their room to do so. Those that remained in the dining room either sat alone while casting their vote, or sat at a table with a small group of others. Each voter punched his or her own ballot; placed the voted ballot into the inner envelope; sealed the inner envelope; and signed the absentee voter certificate on the inner envelope.
While the residents were voting, Ms. McGlynn continued to work in the kitchen until the absentee voters called her back to the dining room after they were finished voting. When Ms. McGlynn and Ms. Pouzenc reentered the dining room, the ballots were sealed in the inner envelopes and the voters had affixed their signatures on the appropriate place on the inner envelopes. Due to the physical ailments of some of the voters, the assistance of either Ms. McGlynn or Ms. Pouzenc was sought in completing the absentee voter certificate on the outside of the inner envelope. The only assistance provided entailed the printing of the voter's name and address on the top portion of the certificate after the inner envelope was sealed and signed in private.
Ms. McGlynn testified she initially helped one elderly resident fill out the return address because of handwriting problems. After she helped one resident, the others began to request that she do the same for them. Ms. McGlynn and Ms. Pouzenc complied by printing the return address on the inner and outer envelopes. Thereafter, the inner envelope was placed in the outer envelope by the voter, sealed and a stamp was placed on the outer envelope. The voter placed the completed absentee ballot in a basket in the dining room from which a postal worker picks up the mail daily. Some of the residents voted their ballot's in their rooms with no assistance.
Ms. McGlynn testified 33 absentee ballots were received by residents, 30 of which were voted and mailed. Three residents chose not to vote and Ms. McGlynn destroyed their ballots at the request of those residents. Of the 30 that did vote, 27 were voided on election day in a brief judicial proceeding and 3 were counted. Of the 27 that were voided, one voter has since died and another has been moved by her family to the mid-western United States.
Ms. McGlynn testified she aided the residents in filling out the return addresses when asked because of their illegible writing due to shaky hands from medication, arthritis, or age. This has been verified by certifications filed by all voters in this action.
It is undisputed that neither Ms. McGlynn nor Ms. Pouzenc signed the assistor certificate on the inner envelope.
Ms. McGlynn testified she rendered assistance to resident absentee voters in the past, including reading and punching the ballot for the voter. She testified, in the past, when she helped mark the ballot, she signed the certificate as the assistor on the flap of the inner envelope. She did so because she was aware of the vote as she helped mark the ballot. Ms. McGlynn further testified she did not sign the assistor certification in this matter as she thought it was not required; she did not help any of the voters mark their ballot; nor did she know the vote. All ballots were sealed and signed before assistance was rendered. Ms. Pouzenc testified to the same effect.
Ms. Donna Dawes, Chairperson of the Monmouth County Board of Elections, testified that the board noticed a pattern of similar handwriting on the return addresses of the 27 ballots which did not match the signatures. This indicated to the board that the 27 voters had help, but there was no signature on the assistor certificate.
The board considered the 27 ballots and deadlocked 2 to 2 as to whether to void them or count them. Due to the deadlock, the matter proceeded to a brief, emergent judicial proceeding which resulted in the 27 ballots not being counted on election day.
The consolidated plaintiffs allege that 27 legal absentee ballots were not counted, and if counted, they would change the 14 vote margin of victory. These allegations raise a novel issue to be decided by the court:
Does the failure to complete the assistor certification by a person providing assistance to an absentee voter invalidate the ballot where the assistance is ministerial in nature and does not have the potential to breach the secrecy of the ballot or endanger the integrity of the voting process?
The right to contest an election and the procedure thereof is strictly a matter of legislative determination which must be followed. In Re Petition of Clee, 119 N.J.L. 310, 196 A. 476 (Sup. Ct. 1938). Pursuant to N.J.S.A. 19:29-1, there are specific statutory grounds upon which a contest must be based. The two that are asserted here are found in N.J.S.A. 19:29-1(e) and (f):
The *** election of any person to any public office may be contested *** upon 1 or more ...