Friends of Jim Usry for Mayor Campaign v. Matthews for Mayor Campaign

• Decision Date: 10 November 1982
• Citation: 187 N.J.Super. 176,453 A.2d 1360
• Parties: FRIENDS OF JIM USRY FOR MAYOR CAMPAIGN and Jim Usry individually, Plaintiffs-Appellants, v. MATTHEWS FOR MAYOR CAMPAIGN, Michael Matthews, Mayor of Atlantic City, Michael Matthews, individually, Superintendent of the Board of Elections of Atlantic City, Board of Elections of Atlantic County and County Clerk of the County of Atlantic, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 176

187 N.J.Super. 176

453 A.2d 1360

FRIENDS OF JIM USRY FOR MAYOR CAMPAIGN and Jim Usry individually, Plaintiffs-Appellants, v. MATTHEWS FOR MAYOR CAMPAIGN, Michael Matthews, Mayor of Atlantic City, Michael Matthews, individually Superintendent of the Board of Elections of Atlantic City Board of Elections of Atlantic County and County Clerk of the County of Atlantic, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Submitted Nov. 1, 1982.

Decided Nov. 10, 1982.

Rudd & Simms, West Orange, for plaintiffs-appellants (Jeffrey Simms, West Orange, on the brief).

Charles M. Tisdale, appellant pro se.

Alten, Valentine, Seltzer & Schultz, Atlantic City, for defendant-respondent Matthews (Richard D. Alten, George L. Seltzer and William W. Schultz, Atlantic City, on the brief).

Irwin I. Kimmelman, Atty. Gen., for defendant-respondent Board of Elections of Atlantic County (Donna J. Kelly, Deputy Atty. Gen., on the brief).

Before Judges MATTHEWS, ANTELL and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.A.D.

This is an interlocutory appeal wherein plaintiffs challenge a ruling by the trial judge during the pendency of an election contest for the office of mayor of Atlantic City.

On July 9, 1982 plaintiff-appellant James Usry filed a petition in the Law Division pursuant to N.J.S.A. 19:29-1 contesting the June 15, 1982 election of Michael Matthews to the office of mayor of Atlantic City. Michael Matthews, individually and as mayor, the Michael Matthews Campaign, the Atlantic County Board of Elections and the Atlantic County Clerk were named defendants.

The matter was consolidated with two related cases, Charles M. Tisdale v. Mayor Elect Matthews and Bernard Fulton et al. v. Michael Matthews et al.

Although the exact context in which the trial court ruling arose is not available in the absence of the transcript, it appears that during the course of the trial plaintiffs alleged that approximately 200 votes were cast in violation of N.J.S.A. 19:31-11 and that such votes should be voided. Specifically, plaintiffs allege that a number of voters moved between election districts more than 29 days before the June 15 election and failed to file a change of residence form with the commissioner of registration or municipal clerk, as required by N.J.S.A. 19:31-11(a), and that other voters in question moved within the same election district more than two years before the election and also failed to file a change of residence form with the commissioner of registration pursuant to N.J.S.A. 19:31-11(b). Plaintiffs further assert that the district board workers failed to perform their duty by allowing these individuals to vote.

Judge Connor ruled that the votes that resulted, assuming they were cast in good faith, should not be voided for failure to comply with the notice requirement of N.J.S.A. 19:31-11. The court specifically noted that such voters were residents of Atlantic City who voted in the election for an "at large" office. The court further found no malconduct or fraud on the part of the district board workers for permitting such individuals to vote. We accept the accuracy of the latter finding by the court from a statement in the Attorney General's brief. As we have noted, we have nothing in the record before us to indicate otherwise.

We agree with the judge's ruling essentially for the reasons stated by Judge Connor in his oral ruling at the trial.

N.J.S.A. 19:31-11(a) provides that if a voter moves within a county before the close of registration, i.e., 29 days preceding an election, he or she must file a change of residence form with the commissioner of registration. Those voters, however, who move within the same election district are permitted to vote in the district within two years subsequent to the change of residence upon the signing of an affidavit at the polling place. The affidavit should set forth the voter's old and new address and the date of the move. N.J.S.A. 19:31-11(b).

Those voters who move within the county and between election districts after the close of registration shall be permitted to vote at the old election district upon the signing of the above noted affidavit. Such affidavit will constitute a transfer to the new address for any subsequent election. N.J.S.A. 19:31-11(b)

Plaintiffs contend that two types of illegal votes were cast in the June 15 election. Voters who moved between election districts before the close of registration did not file a change of address form with the commissioner of registration or the municipal clerk, and voters who moved within the same election district more than two years before the election did not file a similar form. This contention is undisputed. It is also undisputed that the above voters were residents at least 30 days before the election and were registered voters. Thus, the issue does not concern the failure of any of the voters to satisfy the substantive requirements for registration and residency as set forth in N.J.S.A. 19:31-5. The issue to be decided is whether the votes cast by such registered residents should be expunged by reason of the individuals' failure to comply with the requirement of notice as set forth in N.J.S.A. 19:31-11.

Plaintiffs contend that, pursuant to N.J.S.A. 19:31-1, those who did not comply with the provisions of N.J.S.A. 19:31-11 should not have been permitted to vote in the first place, and to give effect to that section ( N.J.S.A. 19:31-1) their votes should be expunged. We disagree. A failure by a voter to adhere to a statutory requirement such as N.J.S.A. 19:31-11 would have provided a basis upon which to deny that voter his franchise at the time he or she attempted to vote. That, however, is not the issue. Here, those voters were permitted to and did vote. The votes having been cast, we must consider whether any legislative purpose would be served by expunging them, a consideration that must be exercised from a perspective of liberal construction. It is well established that election laws are to be liberally construed so as not to "deprive voters of their franchise or so as to render an election void for technical reasons." Kilmurray v. Gilfert, 10 N.J. 435, 440, 91 A.2d 865 (1952). See, also, In re Smith, 59 N.J. 236, 237, 281 A.2d 276 (1971); In re Atlantic Cty. Election Bd., 117 N.J.Super. 244, 250, 284 A.2d 368 (App.Div.1971).

Somewhat analogous to the present case is Wene v. Meyner, 13 N.J. 185, 98 A.2d 573 (1953). In Wene the unsuccessful candidate in the Democratic gubernatorial primary contested the election, partly on the ground that approximately 3,200 voters illegally cast ballots because they had not signed a party declaration form before voting as required by law. The law in effect at that time provided:

A voter who has not voted in a primary election of a political party for two subsequent annual primary elections shall not be permitted to vote in any primary election ... until he has first signed and filed with the district board a declaration designating the political party in whose primary election he desires to vote. [ N.J.S.A. 19:23-45; emphasis supplied] ¹

There was no dispute that the voters had failed to comply with the statute. Nor was it disputed that the voters were disqualified or not otherwise entitled to vote, except for the failure to comply with the procedural requirement.

The court held that the failure to sign the required form was a "mere irregularity," which did not void any votes. 13 N.J. at 196, 98 A.2d 573. The court further stated:

The determinative factor is not whether the taking of the formal written declaration is mandatory or directory. The legal consequences of the omission are a matter of legislative intention; and in such an inquiry labels and nomenclature are not decisive. Acts and omissions to act may render the local election officers liable to indictment, and yet, absent...