On appeals from the Superior Court of New Jersey, Law Division, Ocean County, L-1346-04 and L-1495-04.
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Wecker and S.L. Reisner.
These consolidated appeals arise out of a May 11, 2004 municipal election in the Township of Long Beach, in Ocean County. Plaintiff, Peter L. Murphy, was an unsuccessful candidate in that election, having lost the position he sought by one vote. In A-5899, we affirm the order permitting a recheck of the voting machines at the request of the State, and in A-5900, we affirm the summary judgment dismissing plaintiff's complaint.
These are the relevant facts apparent from the record. The ballot contained the names of six candidates for three positions on the Township Board of Commissioners. The sample ballot shows that six printed names appeared, as well as three spaces for potential write-in votes. The three incumbents, Peter L. Murphy, Dianne C. Gove, and Joseph H. Mancini, ran as a slate. Each was listed on a separate line under Column D, with the caption "The Leadership Team You Can Trust" under each name. The three challengers were separately listed. Ralph H. Bayard was listed under Column A with the caption "People's Choice for a New Voice"; Robert A. Palmer was listed under Column B; and William W. Buckley was listed under Column C with the caption "Fair and Equal Treatment for Residents." The fifth column on the ballot was labeled "Personal Choice," and provided three lines for write-in votes.*fn1
Immediately upon the close of the polls at 8 p.m., the 1,134 machine ballots and the thirty-three absentee ballots that had been received by that time were tallied. At that point, the tally for each of the six candidates in the ballot stood as follows:*fn2
A total of five write-in votes also had been cast: three for Tice Ryan, one for Jeff Seddon, and one for Peter L. Murphy. The write-in vote for Murphy was rejected on the basis of N.J.S.A. 19:49-5 because his name appeared as a candidate on the printed machine ballot.*fn3 Thus prior to counting any of the provisional ballots, plaintiff was tied with defendant Ralph Bayard for the third Commissioner position.
Seven provisional ballots also were cast.*fn4 Six were subsequently counted; one was rejected on the ground that the provisional voter had recently moved to Stafford Township and was no longer a resident entitled to vote in Long Beach Township. When the six valid provisional ballots were counted on May 17, and all additional votes for any candidate were tallied, Bayard received two additional votes and Murphy received one. The totals for the six candidates whose names appeared on the ballot were recertified as follows:
Robert A. Palmer 677 DiAnne C. Gove 552 Ralph H. Bayard 520 Peter Murphy 519 William W. Buckley 485 Joseph H. Mancini 377*fn5
Bayard, having then received one vote more than Murphy, was promptly sworn in as a Commissioner, along with the first two successful candidates, Palmer and Gove.
Three additional absentee ballots, each of which was postmarked prior to May 11, were not received until May 12. They were rejected and never opened because they were not received by the close of the polling place on May 11, as required by N.J.S.A. 19:57-23; 19:57-26.*fn6
On this appeal from both Law Division orders, plaintiff presents these arguments:
THE PLAINTIFF WAS STATUTORILY ENTITLED TO A RECOUNT OF THE VOTES.
THE FACT THAT THE ELECTION RESULTS WERE SUBJECTED TO A "RECHECK" BY THE STATE ATTORNEY GENERAL'S OFFICE DOES NOT AFFECT ...