The opinion of the court was delivered by: Poritz, C.J.
On certification to the Superior Court, Appellate Division.
In this appeal, write-in candidates for the offices of mayor and borough council in the Borough of Chesilhurst challenge the results of the November 2, 1999, general election. After hearing testimony and reviewing the voting rolls, the Law Division ruled that irregularities related to the write-in instructions and non-compliant voting machines required the election results for those offices to be set aside. The court ordered a special election to fill the resulting vacancies. The Appellate Division reversed.
We now reinstate the decision of the trial court, with certain modifications, and order that a special election be held.
Chesilhurst is a small town in Camden County with 880 registered voters. Four-hundred-eleven of those voters participated in the 1999 election for the offices of general assembly, county freeholder, mayor, and borough council. The election took place at a single polling location with two voting machines rented from Camden County. Those machines were older models that use paper rolls to record write-in votes.
Among the candidates for local office were three individuals who ran a spirited write-in campaign -- Kati Gray-Sadler for mayor, John Sturgis for councilman, and Edward Geiger, also for councilman. The other candidates for those offices, Mayor Arland Poindexter, Jr., Councilman Bernard Congleton, and Councilman Ralph Johnson, were incumbents and were the only candidates whose names appeared on the voting machine ballot for mayor and borough council. To vote for a write-in candidate, a voter was required to hold down a lever with one hand, simultaneously slide open a metal window next to the appropriate office with the other hand, and then insert the name of the desired candidate in writing or with a sticker on the paper revealed in the open window.
Prior to the election, voters received sample ballots that depicted the face of the voting machine. In addition, petitioners distributed pre-printed stickers bearing the write-in candidates' names, together with information about their backgrounds and platforms. No information about how to cast a write-in vote was available at the polling place prior to entering the voting machines.
Inside the voting machines, the face of the ballot contained the following instruction in minute lettering placed in the top left corner:
"PERSONAL CHOICE WARNING! Do not touch personal choice unless you intend to write in. Ask Election Judge for instructions before entering machine to vote." *fn1 On the ballot, there were seven lines for each of the available offices (one for mayor and two each for general assembly, county freeholder, and borough council) and forty-three extra blank lines. On the left wall of the voting booths, a poster provided separate instructions that read:
To vote for a candidate of your personal choice, place finger of left hand on small lever indicated. Pull lever to right, this will release window slides.
Pull to right the window slide of the designated office for which you desire to cast your vote. Paper will then be exposed for your write-in vote.
You must place an X after written name. It is also permissible to attach a sticker to the paper with a candidates [sic] name plus the X.
The written instructions were accompanied by a photograph of two hands, one pointing to the small lever and the other to a metal window.
The initial election return sheet indicated that Poindexter received 164 votes for mayor and Gray-Sadler received 146 votes. With the addition of absentee and provisional ballots, Poindexter's total rose to 172 and Gray-Sadler's to 154. After a recount of the paper rolls, Gray-Sadler's total vote count was decreased from 154 to 152. The return sheet showed that incumbent Councilmen Congleton and Johnson received 166 and 164 votes, respectively, whereas write-in candidates Sturgis and Geiger received 123 and 113 votes. After the recount and the addition of absentee ballots, Sturgis's final total was 135 and Geiger's was 134.
On December 3, 1999, petitioners filed a complaint challenging the election results essentially on the grounds that the write-in instructions were confusing and that the voting machines had scraped off certain write-in stickers, a claim not raised before this Court. The trial court conducted a hearing in which the Borough of Chesilhurst and the Attorney General's Office, on behalf of the Camden County Board of Elections and the Camden County Superintendent of Elections, defended the results. Six witnesses testified for petitioners and all claimed that they had had difficulty in determining how to cast a write-in vote because the instructions were sparse and confusing. One witness testified that the confusion was so great it actually prevented her from casting a write-in vote, and another testified that she lost the opportunity to vote when she stepped out of the booth to ask an election official for instructions about write-in votes. The Board of Elections also disclosed for the first time that it had rejected votes, contrary to both the notation on the return sheet that no votes were rejected and the silence of the recount report concerning rejected votes.
The trial court subsequently ordered a review of the paper rolls and discovered that there were sixty-four write-in votes, either hand-written or affixed by sticker, that had not been counted by election officials. Forty-nine were placed on the voting machine in spaces that did not specify any office. Of those forty-nine, fifteen votes were for Gray-Sadler, nineteen for Sturgis, and fifteen for Geiger. The Board deemed those forty-nine votes void. Another fifteen votes were placed in spaces designated for offices that were not sought by petitioners (e.g., Gray-Sadler was placed twice in general assembly ...