(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).
Argued May 1, 2000 -- Decided June 30, 2000
PORITZ, CJ., writing for a unanimous Court.
This appeal concerns a challenge of the results of the November 2, 1999 general election by write-in
candidates for the offices of mayor and borough council in the Borough of Chesilhurst, Camden County.
Four-hundred eleven of Chesilhurst's 880 registered voters participated in the November 2, 1999 election
for the offices of general assembly, county freeholder, mayor, and borough council. The election took place at a
single polling place with two of the older type of voting machines that use paper rolls to record write-in votes. Kati
Gray-Sadler was a write-in candidate for mayor. John Sturgis and Edward Geiger were write-in candidates for
borough council seats. The incumbent candidates for the mayoral and council seats were the only candidates whose
names appeared on the voting machine ballot. 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 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. Gray
Sadler, Sturgis, and Geiger (petitioners) ran a spirited campaign, distributing pre-printed stickers bearing their
names, together with information about their backgrounds and platforms.
No information on 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 an extremely small instruction in the top left
hand 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.” On the ballot, there were seven lines for each of
the available offices and forty-three extra blank lines. On the left wall of the voting booths, a poster provided
separate instructions.
The incumbents were declared the winners of the mayoral and council seats. On December 3, 1999,
petitioners filed a complaint challenging the election results essentially on the grounds that the instructions
concerning write-in votes were confusing and that the voting machines had scraped off certain write-in stickers, a
claim not made before the Supreme Court. The trial court held a hearing during 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
difficulty figuring out how to cast a write-in vote because the instructions were sparse and confusing. One witness
testified that she was so confused that it actually prevented her from casting a write-in vote, and another testified that
she lost the chance 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 that it had rejected votes. The trial court 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 of those were placed on the voting machine in spaces that did not
specify any office. The Board of Elections deemed those votes void. Another fifteen votes were placed in spaces
designated for offices that were not sought by petitioners. Those votes were counted as votes for those offices, not
the offices for which petitioners were running.
The trial court concluded that serious irregularities in the conduct of the election denied qualified write-in
voters their “constitutional right to vote for any person they chose.” Because the voting machines were not
accompanied by proper mechanical models and because voting instructions were not provided to each voter in the
manner required by statute, the court voided the results for the offices of mayor and borough council and ordered a
special election to be held. The Appellate Division reversed. The Supreme Court granted petitioners' request for
certification and cross-petitions filed by Camden County and the Attorney General in respect of the appropriate
procedures in the event of a new election.
HELD: In light of all the circumstances, it cannot be determined with reasonable certainty those candidates who
received a majority of votes for either the mayor or borough council seats. Therefore, the election for the
offices of mayor and borough council are null and void. A special election must be held to fill the resulting
vacancies not less than 45 days nor more than 50 days from the effective date of this opinion.
1. One of the statutory grounds for contesting an election occurs when legal votes have been rejected at the polls
sufficient to change the result. Rejection of votes can be demonstrated when, through no fault of their own, voters
were prohibited from voting for a specific candidate by some irregularity in the voting procedures. The essential
question is whether Chesilhurst voters were denied the opportunity to vote for a candidate of their choice. (Pp. 7-9)
2. The statutory language, requiring election officials to reject votes if a write-in vote is not in its appropriate place
in the voting machine, must be read in light of the broad purpose of the election laws to prevent voter
disenfranchisement. Errors due to extrinsic problems are distinguished from errors caused by a voter's own neglect.
The Legislature did not intend for the statute to be applied in a manner that would frustrate the free expression of the
voters' will when incorrect placement of the write-in vote is the result of mistakes or problems beyond the voters'
control. (Pp. 10-12)
3. The record illustrates a failure to comply with N.J.S.A. 19:50-3, which directs election officials to instruct voters
on the proper use of the voting machines. No information was provided outside of the voting booths explaining how
properly to cast write-in votes nor were there mechanical models. Voter confusion is attributable to defects outside
of their control: sincere efforts to cast write-in votes were thwarted by insufficient instructions provided inside the
booths; there were clear and precise instructions on the top of the ballot describing how to cast a vote for the
candidates printed on the ballot but not for casting write-in votes; and the personal choice warning was easy to miss,
difficult to read, and, if voters followed the instruction to seek help outside the booth, they were barred from
reentering the booth to finish voting. Overall it was much easier to vote for the candidates whose names appeared on
the ballot as opposed to write-in candidates, regardless of voter preference. (Pp. 12-16)
4. Furthermore, the poster on the left wall of each booth omitted an essential piece of information necessary for
casting a write-in vote and the sample ballots sent to voters prior to the election lacked clear instructions for casting a
write-in vote. Thus, the Chesilhurst voters were given patently inadequate instructions or none at all, differentiating
this case from those where the voters' failure to comply with specific procedural instructions invalidated their votes.
(Pp. 16-18)
5. An election can be vitiated only if those contesting it can show that as a result of the irregularities, the free
expression of popular will has in all likelihood been thwarted. Petitioners meet the statutory requirement for
successfully contesting the results of the election, requiring a special election. (Pp 18-23)
6. For the new election, and for all future elections throughout the State, explicit instructions on how to cast a write
in vote must be provided with the sample ballots sent to registered voters. The instructions must offer clear, step-by
step directions that describe the mechanics of the voting machine, explain how to operate the windows and levers,
and emphasize the need to cast write-in votes on the appropriate lines. Voters must be warned that an improperly
cast vote will be deemed void. Similarly clear instructions must be provided at the polling place, giving the voter the
opportunity for review prior to going into the booth. A mechanical model or demonstration machine is preferred but
not required if it would pose an undue burden on the locality. Camden County should fund the cost of this special
election. (Pp. 23-25)
Judgment of the Appellate Division is REVERSED. A special election is to be held in Chesilhurst for the
offices of mayor and borough council as set forth herein. The effective date of the opinion is deferred to July 31,
2000 to permit the scheduling of the special election in September pursuant to N.J.S.A. 40A:16-16.
JUSTICES O'HERN, STEIN, COLEMAN, LONG, VERNIERO, and LaVECCHIA join in CHIEF
JUSTICE PORITZ's opinion.
SUPREME COURT OF NEW JERSEY
A-97/103/
104 September Term 1999
IN THE MATTER OF THE PETITION
OF KATI GRAY-SADLER, JOHN
STURGIS AND EDWARD GEIGER,
WRITE-IN CANDIDATES FOR THE
OFFICES OF MAYOR AND BOROUGH
COUNCIL OF CHESILHURST
BOROUGH, CONTESTING THE
RESULTS OF THE GENERAL
ELECTION OF NOVEMBER 2, 1999.
Argued May 1, 2000 -- Decided June 30, 2000
On certification to the Superior Court,
Appellate Division.
Shirley Grasso argued the cause for
appellants and cross-respondents Kati Gray
Sadler, John Sturgis and Edward Geiger
(Grasso & Inferrera, attorneys).
Robert G. Millenky, Camden County Counsel,
argued the cause for respondent and cross
appellant County of Camden.
Donna Kelly, Senior Deputy Attorney General,
argued the cause for respondents and cross
appellants Camden County Superintendent of
Elections and Camden County Board of
Elections (John J. Farmer, Jr., Attorney
General of New Jersey, attorney; Mark J.
Fleming, Assistant Attorney General, of
counsel; Ms. Kelly and Karen Griffin, Deputy
Attorney General, on the briefs).
John B. Kearney argued the cause for
respondent and cross-respondent Arland
Poindexter (Kearney & Castillo, attorneys,
Carol R. Cobb, on the brief).
David E. Mapp argued the cause for
respondent and cross-respondent Borough of
Chesilhurst (Harvey C. Johnson, attorney).
The opinion of the Court was delivered by
PORITZ, C.J.
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.
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.”See footnote 11 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 spaces
and six times in borough council spaces). Those votes were
counted as votes for those offices, not the offices for which
petitioners were running.
The trial court concluded that serious irregularities in the
conduct of the election denied qualified write-in voters their
“constitutional right to vote for any person they chose.”
Because the voting machines were not accompanied by proper
mechanical models, as specified in N.J.S.A. 19:48-1(l), and
because voting instructions were not provided to each voter in
the manner required by N.J.S.A. 19:50-3, the court voided the
results for the offices of mayor and borough council and ordered
a special election to be held. On emergency appeal, the
Appellate Division reversed. We granted petitioners' request for
certification and cross -petitions filed by Camden County and the
Attorney General in respect of the appropriate procedures in the
event of a new election.
163 N.J. 398 (2000).
e. When . . . legal votes [have been] rejected at the
polls sufficient to change the result;
f. For any error by any board of canvassers in
counting the votes or declaring the result of the
election, if such error would change the result; [or]
g. For any other cause which shows that another was
the person legally elected.
All three petitioners claim that write-in votes placed on the
wrong line due to insufficient and unintelligible instructions
were ignored or counted as votes for offices that the candidates
were not seeking. They also claim that the inadequate
instructions prevented other voters from casting any write-in
votes at all. The gravamen of those claims is that legal votes
cast for the petitioners were “rejected.” See N.J.S.A. 19:29
1(e).
Petitioners' reading of the term “rejected” is supported by
prior caselaw that defines the term “'to include any situation in
which qualified voters are denied access to the polls.'” In re
1984 Maple Shade Gen. Election,
203 N.J. Super. 563, 590 (App.
Div. 1985) (quoting Magura v. Smith,
131 N.J. Super. 395, 399
(Law Div. 1974), overruled in part on other grounds, In re
Mallon,
232 N.J. Super. 249, 271 (App. Div.), certif. denied,
117 N.J. 166 (1989)); accord In re Moffat,
142 N.J. Super. 217, 223
(App. Div.) (holding that votes “rejected” when partially
malfunctioning voting machine prevented recording of votes for
one candidate), certif. denied,
71 N.J. 527 (1976). Voters need
not be physically barred from voting to have their votes
rejected, but may instead show that, through no fault of their
own, they were prohibited from voting for a specific candidate by
some irregularity in the voting procedures. In re Moffat, supra,
142 N.J. Super. at 223. The essential question is whether voters
were denied the opportunity to vote for a candidate of their
choice. Ibid.
Respondents admit that many write-in votes were ignored
because they were placed on the wrong line. They argue, however,
that N.J.S.A. 19:49-5 required election officials to reject those
votes, based on a plain reading of the statute, which states that
if a write-in vote, or “irregular ballot,” is not “in its
appropriate place on the [voting] machine, . . . it shall be void
and not counted.”
Although the statute appears straightforward, it must be
read in light of the broad purpose of the election laws to
prevent disenfranchisement of qualified voters. In cases
involving invalidated write-in votes, our courts have
distinguished errors due to extrinsic problems from errors caused
by a voter's own neglect. In re Hartnett,
163 N.J. Super. 257,
268 (App. Div. 1978) (holding that vote properly voided where
intent was clear but error was within voter's control); In re
Fifteen Registered Voters on Behalf of Flanagan,
129 N.J. Super. 296, 301-02 (App. Div.) (holding that write-in votes bearing only
surname should not have been voided where desired candidate was
obvious and voter sufficiently complied with instructions),
certif. denied,
65 N.J. 577 (1974); In re Klayman,
97 N.J. Super. 295, 304 (Law Div. 1967) (holding that incorrect spelling or
absence of middle initial should not void write-in vote where
intent clear and write-in space small); but see In re Sweetwood,
91 N.J. Super. 496, 499 (App. Div. 1966) (holding that although
ballot did not instruct voter to designate office for selected
candidate, failure to do so invalidated vote). Those cases
generally adhere to the principle that rigid application of
technical rules should not prevent otherwise valid write-in votes
from being counted. See Riecker v. Hartmann,
130 N.J. Super. 266, 272 (Law Div. 1974) (stating that “the technical restraints
of the election laws” should not restrict voters' will).
We do not believe that the Legislature intended N.J.S.A.
19:49-5 to be applied in a manner that would frustrate the free
expression of the voters' will when the incorrect placement of
the write-in vote is the result of mistakes or problems beyond
the voters' control. To determine the nature of any alleged
mistakes or problems and their impact on the voters, we consider
extrinsic factors such as the notoriety of the candidates'
campaign and the character of the electorate. See In re Fifteen
Voters, supra, 129 N.J. Super. at 300-01. Reliable extrinsic
evidence, “which, in light of human experience might reasonably
be expected to demonstrate intent expressed on the ballot but
less than perfectly, should be searched to effectuate the voter's
wish and preserve the franchise.” Id. at 301.
We observe, in the case before us, that this was a small
election in a small borough with only seven offices to be filled.
Like Harry Wright, the candidate for office in In re Fifteen
Voters, petitioners campaigned vigorously for write-in votes and
sent publicity mailings to all of the registered voters in the
borough. Petitioners also campaigned together in opposition to
the incumbent candidates and made it quite clear that they were
running as a mayor/council team. Cf. id. at 298 (noting joint
campaign of write-in candidate and other candidates). On the
paper rolls, many of the voided votes were cast in groups of
three, but on lines just above or just below the designated
spaces. The only reasonable conclusion to be drawn from those
groupings is that the intention of the voters who cast those
votes was to elect Gray-Sadler for mayor, and Sturgis and Geiger
for borough council.
The voters who used stickers had taken the trouble to bring
them to the voting booth and to attempt to affix them in the
proper place. It defies common sense to imagine that those
voters entered the voting machines with any intent other than to
elect the candidates named on the stickers to the offices for
which they were running. To disregard those votes would run
counter to the purpose of our inquiry -- to search for the real
intention of the voter “no matter how crudely it is expressed,
provided only, of course, that there is a reasonable expression
of that intent on the ballot.” Id. at 300.
Recognizing the voters' intent, we must ask why write-in
votes were placed on the wrong lines or not cast in the first
place. The answer to that question should help us to determine
whether the “rejected” voters had their votes invalidated as a
result of their own errors or as a result of election officials'
noncompliance with statutory requirements. See, e.g., Kirk v.
French,
324 N.J. Super. 548, 554 (Law Div. 1998) (distinguishing
extrinsic cause of rejection from voter's refusal to comply with
simple, reasonable, and normal requirement designed to assure
honest voting). In fact, the record illustrates a failure to
comply with N.J.S.A. 19:50-3, which directs election officials to
instruct voters on the proper use of voting machines. The
instructions should have been “carefully drawn so as to fully
advise the voter as to the proper procedure he [or she] is to
follow.” In re Sweetwood, supra, 91 N.J. Super. at 500. Indeed,
the statute requires that a mechanical model be provided, if
practicable, to illustrate how to operate the actual machine and
to afford voters an opportunity to practice on the model.
N.J.S.A. 19:50-3; see also N.J.S.A. 19:48-1(l) (requiring
mechanical model). It also requires that “[t]he voter's
attention . . . be called to [a] diagram of the face of the
machine so that the voter can become familiar with the location
of the questions and the names of the officers and candidates.”
N.J.S.A. 19:50-3.
During the Chesilhurst election, no information was provided
outside the voting booths explaining how properly to cast write
in votes. Voters seeing conflicting and incomplete instructions
for the first time on entering the booths were understandably
confused, and their confusion is attributable to defects outside
of their control. The testimony at the hearing indicated that
voters who made a sincere effort to cast a write-in vote were
thwarted by the limited and deficient instructions provided
inside the booths. For example, one voter, Bernadette Freeman,
testified that she wished to cast write-in votes for Gray-Sadler,
Sturgis, and Geiger, but followed the personal choice “warning”
and stepped out of the booth to ask an election official for
instructions. When she spoke with an official, the official
entered the voting machine and pulled the lever to enter Ms.
Freeman's votes before she was finished voting.See footnote 22 Even if she had
been allowed to re-enter the booth and continue voting, Ms.
Freeman would not have found an adequate explanation of the
personal choice procedures in the polling place.
Under the heading “INSTRUCTIONS TO VOTERS” at the top of the
ballot, there were clear, legible step-by-step instructions on
how to vote for the candidates printed on the ballot, illustrated
by two separate diagrams showing how to push the voting switch.
No mention of how to cast a write-in vote was included in those
instructions. By contrast, the personal choice warning was
printed in difficult-to-read type and located in a corner space
one point five centimeters wide and two centimeters high on the
far left side of the ballot. It was both easy to miss and
difficult to read, and, most important, instructed voters to seek
assistance from an official outside the booth. Anyone who
followed that direction would be barred from re-entering the
voting machine after having been given instructions, as was Ms.
Freeman.
The warning also indicated to voters that they had to “touch
personal choice” to register a write-in vote. However, no
personal choice button or switch was on the machine. Rather,
personal choice could be entered only by means of a complicated
series of actions. Finally, the wording on the machine
(“Personal Choice Warning! Do not touch personal choice unless
you intend to write in”) likely led voters to be unduly cautious
about pressing any personal choice apparatus without first
consulting with an official. Overall, it was considerably easier
to vote for candidates whose names were printed on the ballot as
opposed to write-in candidates, regardless of the voters'
preferences.
As for the poster on the left wall of the voting machine, it
provided more detailed instructions but omitted a critical piece
of information. The poster indicated that, to cast a write-in
vote, a voter must pull a small lever and then pull the window
slide; it did not state that both the lever and the slide had to
be pulled at the same time. Unless there was simultaneous action
by the voter, the window would not slide open. There was a
picture on the poster, but it also failed to indicate the need to
simultaneously work the levers, and was, as the trial court
found, “at once confusing, ambiguous and incomplete.” Thus, it
is likely that voters pressed the lever, let go, and then tried
to slide the window, only to find that the window would not
budge. That could explain why eighty-three voters entered the
voting machine for a mayoral election but did not cast a vote for
mayor. It is also likely that voters tried to open different
windows after an unsuccessful first try, and then cast their
write-in votes on the first window that would open, even if it
was not the proper window.
Those defects may not have been so troubling had there been
clear instructions prominently posted outside the voting machines
in the polling area or models to demonstrate how the voting
machine worked. Unfortunately, no instructions were provided in
the polling place other than inside the voting machines.
Moreover, the sample ballots sent to voters prior to the election
lacked clear information about how to cast a write-in vote. The
sample ballot looked substantially the same as the face of the
voting machine and thus raised the same issues we have discussed
in connection with the personal choice warning on the voting
machine ballot. The sample ballot is even more confusing because
it does not indicate that there are windows next to each office
on which to cast write-in votes. On the face of the sample,
there is no space for a write-in vote to be placed, nor is there
any indication that there is a small lever on the machine that
must be pulled to release the windows.
This case is readily distinguishable from other cases in
which voters' failure to comply with specific procedural
instructions invalidated their votes. See In re Municipal
Election Held on May 10, 1994,
139 N.J. 553, 558 (1995); In re
Keogh-Dwyer,
45 N.J. 117, 120 (1965). In those other cases,
voters were clearly and unambiguously instructed to punch or mark
the ballot in a designated box next to the candidate's name and
warned that if the marking was not made, the ballot would not be
counted. Similarly clear instructions were not provided to the
Chesilhurst voters; rather, they were given patently inadequate
instructions or none at all. More analogous are the cases that
discuss the provision of defective voting machines. Cf. In re
Maple Shade, supra, 203 N.J. Super. at 585 (finding error when
voting machines broke down and officials failed to offer all
voters paper ballots); In re Moffat, supra, 142 N.J. Super. at
222 (noting that voting machine counter became disengaged during
election); Magura, supra, 131 N.J. Super. at 397 (noting
mechanical breakdown of voting machines). There, voters, through
no fault of their own, are rendered incapable of recording their
preferences for candidates on the voting machines. Whether the
barrier is created by a defective machine, or the failure of
election officials to provide adequate personal choice
instructions, is of little importance. In the end, qualified
voters have been disenfranchised.
Whether petitioners may prevail on their N.J.S.A. 19:29-1(e) claim depends on whether the “rejected” votes were sufficient to change the result. In essence, the Court must decide, under the totality of the circumstances, whether the election irregularities were so significant as to warrant a new election. Simple deviance from statutory election procedures, absent fraud or malconduct, will not vitiate an election unless those contesting it can show that as a result of irregularities “the free expression of the popular will in all human likelihood has been thwarted.” Wene, supra, 13 N.J. at 1960; see also In re Hackensack Recall Election, 31 N.J. 592, 595 (1960) (holding that if election results unaffected by alleged error, election should not be overturned). Only when those irregularities “are such that the court cannot with reasonable certainty determine who received the majority of the legal vote,” can a court set aside an election. In re Mallon, supra, 232 N.J. Super. at 270; In re Bonsanto's Application, 171 N.J. Super. 356, 360 (App. Div. 1979).
In undertaking this analysis our
“courts [have] consider[ed] the nature of the
irregularity, its materiality, the significance of its
influence and consequential derivations in order to
determine whether the digression or deviation from the
prescribed statutory requisitions had in reasonable
probability so imposing and so vital an influence on
the election proceeding as to have repressed or
contravened a full and free expression of the popular
will. . . .”
[In re Mallon, supra, 232 N.J. Super. at 270 (quoting
Sharrock v. Borough of Keansburg,
15 N.J. Super. 11, 17
(App. Div. 1951).]
At the heart of the inquiry is the need to safeguard the
franchise of not only the voters who cast valid votes at the
election, but also those whose votes were rejected. See
Sharrock, supra, 15 N.J. Super. at 19. If the irregularities are
found to have been so serious as to prejudice the election
result, N.J.S.A. 19:29-9 requires the election to be set aside,
the results declared null and void, and a special election held.
Gray-Sadler satisfies this test because the total votes cast
for her, on both the correct and incorrect lines, exceeds the
total cast votes for Poindexter. The inquiry is more difficult
for Sturgis and Geiger, however, because they cannot prove that
votes not cast due to the problematic personal choice
instructions would have been cast for them. Because we cannot
require them to prove to a certainty how the rejected voters
would have voted, they need only show that enough qualified
voters were denied the right to cast write-in votes to affect the
outcome of the election. See In re Maple Shade, supra, 203 N.J.
Super. at 589; In re Moffat, supra, 142 N.J. Super. at 225.
Petitioners' burden may be met “by a demonstration that had the
votes been cast for [them], the result would have been
different.” In re Moffat, supra, 142 N.J. Super. at 224. The
standard we apply is one of reasonable certainty as opposed to
absolute certitude. In re Fifteen Voters, supra, 129 N.J. Super.
at 302.
The Official Board of Canvassers Report dated November 2,
1999, indicates that eighty-three people entered the voting booth
and did not cast a vote for mayor, and that 215 votes that could
have been cast for borough council were not cast. Although some
voters may have simply decided not to vote for those offices,
there is a strong possibility that enough of those “missing
votes” were not cast because of the confusing personal choice
instructions. Cf. In re Moffat, supra, 142 N.J. Super. at 225-26
(finding that discrepancy between number of persons who used
malfunctioning voting machines and votes for sole open office
suggested certain votes rejected). One witness testified to that
effect, and other witnesses corroborated how difficult it was to
cast a write-in vote even though those voters ultimately were
able to do so.
Although it would have been preferable to have more voters
testify at the hearing, we recognize that concerns about privacy,
embarrassment, and ridicule may prevent voters from coming
forward to offer testimony that they did not vote because they
could not understand the instructions. See id. at 225; In re
Klayman, supra, 97 N.J. Super. at 299. Because Sturgis and
Geiger would have lost by about only ten votes if the voided
write-in votes were counted, only a small number of the “missing”
votes would have changed the election. Accordingly, we conclude
that Sturgis and Geiger also meet the statutory requirement for
successfully contesting the results of the council election.See footnote 33
In light of all the circumstances, we cannot determine with reasonable certainty those candidates who received a majority of the votes for either the mayor or borough council seats. See In re Fifteen Votes, supra, 129 N.J. Super. at 302. Therefore, we declare the election for the offices of mayor and borough council null and void. A special election must be held to fill the resulting vacancies “not less than 45 days nor more than 50 days” from the effective date of this opinion. N.J.S.A. 40A:16-16. The Camden County Clerk must, at least thirty days preceding the election, make the necessary arrangements with the postmaster to have sample ballots mailed, and notify the commissioner of registration in writing to that effect. N.J.S.A. 19:49-4(c). The election must be conducted as it was on the original election day, except that there must be adequate instructions as outlined below and the election will be limited to the offices of mayor and borough council. N.J.S.A. 19:27-1. Petitioners' names will not appear on the face of the ballot and they will not have a new opportunity to petition to have their names placed on the ballot as they did not earlier comply with N.J.S.A. 19:13-3 or N.J.S.A. 19:14-2.1.
For the new election, and for all future elections throughout the state, explicit instructions on how to cast a write-in vote must be provided with the sample ballots sent to registered voters. The instructions must offer clear, step-by step directions that describe the mechanics of the voting machine, explain how to operate the windows and levers, and emphasize the need to cast write-in votes on the appropriate lines. Voters must be warned that an improperly cast vote will be deemed void.
Similarly clear and informative instructions must be provided at the polling place. Election officials must prominently display outside the voting machines a copy of the reformulated poster explaining personal choice that is located inside the voting booth. As a general rule, any of the instructions contained inside the voting machines should be displayed outside the voting machines so that voters have an opportunity to read the instructions in advance and pose any questions they may have to the election officials.
It is preferred that a mechanical model and/or demonstration voting machine be available to instruct voters, but unlike the voting instructions, they are not absolutely required. Although N.J.S.A. 19:48-1(l) states that all voting machines “shall be provided with a mechanical model, illustrating the manner of voting on the machine, suitable for the instruction of voters,” N.J.S.A. 19:50-3 adds that the model must be provided only if “practicable.” When interpreting different statutory provisions, we are obligated to make every effort to harmonize them, even if they are in apparent conflict. State v. Federanko, 26 N.J. 119, 130 (1958); Builders League, Inc. v. Pine Hill, 286 N.J. Super. 348, 352 (App. Div. 1996). Reading those provisions in pari materia, we conclude that the latter modifies the former to require the provision of a model only when it will not be a heavy burden on the locality. Consequently, if the Borough of Chesilhurst has difficulty in procuring either an accurate and complete mechanical model or a demonstration voting machine, it need not provide those aids.
For this election, however, there is only one polling place with two voting machines. Thus, providing an extra machine for instructional purposes is not likely to be an undue burden. Respondents concede that the extra machine is feasible here, but express concern about the cost of extra machines in future elections when multiple polling places are used. We do not require that there be an extra voting machine for future elections, but rather that an extra machine be provided when a mechanical model is unavailable and the extra machine would not be a great burden to obtain. Chesilhurst argues that Camden County should be responsible for the costs of the special election because the county breached its contract to provide Chesilhurst with legally compliant voting machines, election workers, and printed ballots. See N.J.S.A. 19:8-6, 19:48-3.17, 19:48-3.18 (providing that local municipalities rent voting machines, personnel, and ballots from the county). After oral argument we were informed by counsel for Camden County that a new election in Chesilhurst would cost approximately $9,000. We agree with the trial court that, in these circumstances, Camden County should fund the costs of the special election.
The judgment of the Appellate Division is reversed. A special election is to be held in Chesilhurst for the offices of mayor and borough council as set forth herein. We defer the effective date of this opinion to July 31, 2000, to permit the scheduling of the special election in September 2000 pursuant to N.J.S.A. 40A:16-16.
JUSTICES O'HERN, STEIN, COLEMAN, LONG, VERNIERO and LaVECCHIA join in CHIEF JUSTICE PORITZ's opinion.
NO. A-97/103/104 SEPTEMBER TERM 1999
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
IN THE MATTER OF THE PETITION
OF KATI GRAY-SADLER, JOHN
STURGIS AND EDWARD GEIGER,
WRITE-IN CANDIDATES FOR THE
OFFICES OF MAYOR AND BOROUGH
COUNCIL OF CHESILHURST
BOROUGH, CONTESTING THE
RESULTS OF THE GENERAL
ELECTION OF NOVEMBER 2, 1999.
DECIDED June 30, 2000
Chief Justice Poritz PRESIDING
OPINION BY Chief Justice Poritz
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 1Respondents contend that the personal choice warning was only on the sample ballot and not on the face of the machine. However, the trial court found testimony that the warning was on the face of the machine to be credible. We have no basis for questioning that finding. Footnote: 2 2Under N.J.S.A. 19:52-3, a voter may not exit the voting booth and then re-enter; once the voter exits, his or her vote is cast and cannot be amended. Footnote: 3 3Since petitioners have demonstrated that “legal votes [have been] rejected at the polls sufficient to change the result,” N.J.S.A. 19:29-1(e), we need not decide whether further grounds exist to contest the election.