(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 never amended the ballot-marking provisions. (pp. 7-8)
4. The statutory requirement has several practical benefits. It hinders election fraud, makes voters express
unambiguously their preference for a candidate, and eliminates the need for a visual inspection of every ballot.
The last, in turn, permits a more efficient tabulation of electronic ballots. (p. 8)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN, and
COLEMAN join in JUSTICE POLLOCK's opinion.
SUPREME COURT OF NEW JERSEY
A-
67 September Term 1994
IN THE MATTER OF THE MUNICIPAL
ELECTION HELD ON MAY 10, 1994,
FOR THREE POSITIONS ON THE SPARTA
TOWNSHIP COUNCIL
Argued January 18, 1995 -- Decided April 12, 1995
On certification to Superior Court,
Appellate Division.
Gary A. Kraemer argued the cause for
appellant, Richard W. Webster (Daggett &
Kraemer, attorneys).
Donna Kelly, Deputy Attorney General, argued
the cause for respondent Sussex County Board
of Elections (Deborah T. Poritz, Attorney
General of New Jersey, attorney).
The opinion of the Court was delivered by
POLLOCK, J.
Petitioner, Richard W. Webster, a write-in candidate for one
of three positions on the Sparta Township Council, challenges the
disallowance of fifteen ballots on which voters ostensibly wrote
his name but failed to punch a corresponding hole in an
electronic voting card. The Sussex County Board of Elections
(Elections Board) disallowed the ballots, and petitioner filed an
action in the Law Division to determine whether these ballots and
others should be counted. The Law Division disallowed the
ballots. In an unreported decision, the Appellate Division
affirmed. We granted Webster's petition for certification,
137 N.J. 313 (1994), and now affirm.
On May 10, 1994, pursuant to N.J.S.A. 40:45-7, Sparta Township, a municipality organized under N.J.S.A. 40:69A-1 to -210, held an election for three seats on the Township Council.
Petitioner mounted a vigorous write-in campaign for one of those seats.
Three other candidates, Christopher Blaicher, George
Dykstra, and Dorothy Witte, qualified for the pre-printing of
their names on the ballot, a rectangular voting card (see
Appendix A). Beneath the pre-printed names appeared three spaces
for voters to write in the names of other candidates, such as
petitioner. Opposite each pre-printed name and each write-in
space appeared a plus (+) sign in a small square box.
Repeating instructions prominently posted in each voting
booth, the ballot card instructed voters to punch out the plus
sign opposite the name of the chosen candidate and insert the
card into the ballot machine. The instructions further stated
that to vote for an unlisted candidate, the voter, before
inserting the card, must write the candidate's name in the
provided space and punch out the corresponding plus sign to the
right of that name. Voters could cast up to three votes.
The ballot card instructions provided in relevant part:
A. To vote for a candidate, punch a hole in the square at the right of your choice. Do not vote for more candidates than are to be elected to any office.
B. To vote for any person whose name is not
printed on this ballot, write name in blank
space and punch hole in square at right of
your choice, but not in excess of the total
number allowed for each office.
Nine hundred sixty voters, including those submitting
absentee ballots, voted. The Elections Board tabulated the
results: 712 votes for Dystra; 617 votes for Witte; 457 votes
for Blaicher; and 447 votes for petitioner. Petitioner filed an
action in the Law Division, contesting the election and seeking a
recount. The Law Division ordered the Elections Board to conduct
a recount both by machine and by hand.
The Elections Board determined that voters cast 458 votes for Blaicher and 435 votes for petitioner. Included in the votes credited to petitioner were votes cast for Richard Webster, R. Webster, Webster, Mr. Webster, or W. Webster. Also included were two ballots on which voters wrote petitioner's name and an "X" in the box to the right, without punching out the appropriate hole. The Elections Board also discovered nineteen ballots that it had not originally counted for petitioner because the voters had misspelled petitioner's name or written in an incorrect first name. The Elections Board did not credit petitioner with the
fifteen ballots that form the basis of this appeal. On these
ballots, voters had specified either "Richard Webster" (eleven
votes), "D. Webster" (one vote), "R. Webster" (two votes), or
"Mr. Webster" (one vote) as a write-in choice, but had not
punched out the hole opposite the square for the write-in name.
Blaicher argued that petitioner should not be credited with
the fifty-seven votes marked only "Webster," the nineteen votes
marked with variations of petitioner's name, or the fifteen
improperly executed ballots. The parties stipulated that only
two registered voters in Sparta had the surname "Webster" -
petitioner and his mother, Mary Jane Webster, who has never been
active in local politics. Consequently, the trial court credited
petitioner with the fifty-seven ballots containing only the
surname "Webster." The court further credited petitioner with
eighteen of the nineteen ballots listing some variant of his
name, such as Robert Webster or Weber. It declined to credit
petitioner with a ballot indicating only the name "Richard."
The court, however, refused to count the improperly executed
ballots without the punched hole adjacent to the write-in name.
Accordingly, it determined that voters had cast 453 votes for
petitioner and 458 votes for Blaicher. Thus, Blaicher finished
third and was entitled to the council seat.
Petitioner appealed, contending that he should have been
credited with the fifteen ballots. Blaicher cross-appealed,
contending that the Law Division should not have credited
petitioner with the fifty-seven ballots bearing only the surname
"Webster" or the eighteen ballots listing variations of
petitioner's name. The Appellate Division agreed that petitioner
should not be credited with the fifteen improperly executed
ballots, determined that the cross-appeal was moot, and affirmed.
Petitioner sought review of the disallowance of the fifteen
votes. No one cross-appealed. Hence, the only question before
us is the validity of the fifteen ballots credited to Blaicher.
The critical issue is whether a ballot card on which a voter has written in the name of a candidate without punching out the hole next to that name constitutes a valid vote for the write-in candidate. To resolve this issue, we turn to the statute controlling the electronic tabulation of ballots. The relevant statute provides in part:
In elections in which voters are authorized to vote for persons whose names do not appear on the ballot, at the discretion of the county board of elections . . . (2) provisions shall be made for the voter to write the name of the person or persons for whom he wishes to vote on the ballot card in the location designated and to punch the ballot card in the location provided.
The legislative mandate is clear. For a write-in vote to
count, writing in the candidate's name will not suffice. A voter
must both write in the name of the candidate and punch the ballot
card. Contrary to petitioner's arguments, a voter does not
satisfy the statute by writing the candidate's name without
punching the ballot. The voter must "punch the ballot card in
the location provided."
We are unpersuaded by petitioner's reliance on N.J.S.A.
19:16-3d, which pertains to counting paper ballots. That statute
provides: "Where the name of any person is written or pasted in
the column designated personal choice, and a cross X, plus + or
check . appears in the square to the left of the name, it shall
be counted as a vote for such person."
Petitioner claims that the pre-printed plus sign on the
ballot card complies with the statutory requirement. We
disagree. N.J.S.A 19:16-3d contemplates not that a paper ballot
would bear a pre-printed "cross X, plus + or check .," but that
the voter would place one of those marks opposite the name of a
write-in candidate. As with an electronic ballot, the
Legislature contemplates that the voter will take action other
than merely writing in the candidate's name. Here, moreover, we
are concerned not with paper, but electronic, ballots. N.J.S.A.
19:16-3d does not apply.
In analyzing section 19:53A:5e(2), as when construing all
statutes, our goal is to ascertain the intent of the Legislature.
Lesniak v. Budzash,
133 N.J. 1, 8 (1993). Because the regulation
of elections is exclusively a legislative matter, courts, even
when they question the wisdom of legislation, must respect the
legislative scheme. Sharrock v. Keansburg,
15 N.J. Super. 11,
16-17 (App. Div. 1951). Tempering that respect is the canon of
statutory construction that courts should construe liberally
election laws to avoid depriving voters of the right to vote.
Kilmurray v. Gilfert,
10 N.J. 435, 440 (1952). Courts construe
election laws liberally, however, not to achieve goals of their
own but to effectuate the underlying legislative purpose.
Thirty years ago we held in In Re Keogh-Dwyer,
45 N.J. 117,
119 (1965), that "it is mandatory that a voter not only write or
paste in [the name of a write-in candidate] but also put an
adequate mark in the square to the left of the name." Although
Keogh-Dwyer concerned paper ballots and the present case concerns
electronic ballots, the requirement for marking applies as
readily to electronic as to paper ballots. The principle is that
voters, to exercise their franchise, must comply with a statutory
requirement to do more than merely write the name of the
candidate, whether the additional action is making a specific
mark, as in Keogh-Dwyer, or punching a hole, as in the present
case.
Legislative acquiescence in the interpretation of a statute
for three decades provides some assurance that our interpretation
comports with the intent of the Legislature. See Lemke v.
Bailey,
41 N.J. 295, 301 (1963) ("The construction of a statute
by the courts, supported . . . by continued use of the same
language or failure to amend the statute, is evidence that such
construction is in accordance with legislative intent. . . .
The persuasive effect of such legislative inaction is increased
where the statute has been amended after a judicial construction
without any change in the language so interpreted."). In the
three decades since we decided Keogh-Dwyer, the Legislature has
authorized the use of electronic-voting systems, see L. 1973, c.
82, and eliminated the requirement that voters use a black pen or
pencil to cast a write-in ballot. See L. 1994, c. 77. In
neither amendment has the Legislature touched our holding that
the election laws require voters to do more than merely designate
the name of their chosen candidate. Consequently, we conclude
that our construction of the election laws comports with the
legislative intent.
Practical considerations support that construction. The requirement that the voter both write the candidate's name and punch a hole in the electronic card necessarily hinders election fraud and protects the integrity of the ballot. Moreover, perhaps in recognition that voters might change their minds, the
Legislature included the requirement of punching the ballot to
identify an act that unambiguously expresses the voters' final
choice. Further, the requirement eliminates the need for visual
inspection of every ballot and permits a more efficient
tabulation of electronic ballots.
The judgment of the Appellate Division is affirmed.
Chief Justice Wilentz and Justices Handler, O'Hern,
Garibaldi, Stein, and Coleman join in this opinion.
NO. A-67 SEPTEMBER TERM 1994
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
IN THE MATTER OF THE MUNICIPAL
ELECTION HELD ON MAY 10, 1994,
FOR THREE POSITIONS ON THE SPARTA
TOWNSHIP COUNCIL
DECIDED April 12, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY