General Election of November 5, 1991 for Office of Tp. Committee of Tp. of Maplewood, Essex County, In re

Decision Date05 November 1991
Citation605 A.2d 1164,255 N.J.Super. 690
CourtNew Jersey Superior Court
John M. Carbone, Ridgewood, for petitioner Noel S. Siegel (Carbone and Faasse, attorneys)



On November 5, 1991, the Township of Maplewood held an election to fill two seats on the five-member Township Committee. Four candidates ran for these seats. Robert H. Grasmere received 3,410 votes, Gerard W. Ryan received 2,973 votes, Noel S. Siegel received 2,968 votes and Stephen R. Gruchacz received 2,602 votes.

On November 14, 1991, Siegel applied for and received the right to a recount under N.J.S.A. 19:28-1. During this recount the Essex County Board of Elections ("Board of Elections"), consisting of two Democrats and two Republicans, met with all the parties. After the Board checked all the machines and reviewed all suspect ballots, they made a unanimous decision not to change any of the decisions previously made. The recount conducted November 26, 1991, confirmed that Ryan had received the second highest number of total votes. Machine totals gave Ryan, a Democrat, 2,932 votes and Siegel, a Republican, 2,908 votes. The recount was not completed in the presence of either attorney or completed on the day that the Court had ordered at the time the parties appeared. The Board could neither determine an accurate count nor account for the security of the absentee ballots until "after the thorough search" after all had departed. Thereafter, the Board certified 61 absentee ballots for Siegel and 41 absentee ballots for Ryan. These figures were combined for certified totals of 2,973 votes for Ryan and 2,969 votes for Siegel.

The only seat in contest is between Siegel and Ryan.

On December 13, 1991, Siegel filed a verified petition and obtained an order to show cause to challenge the election results, pursuant to N.J.S.A. 19:29-1. He alleged that many voting machines malfunctioned; absentee ballots were improperly rejected; an absentee ballot of a person who died before the election was counted; an emergency ballot was not counted because it never reached the Board of Elections; a voter who arrived at the polling place before 8:00 p.m. was denied the right to vote because the voting machine was closed down and locked and a non-resident voted illegally.

1. Where there has been no fraud or "malconduct" in an election but numerous improper rejections of legal votes by

election officials through no fault of any candidate, may the Court nevertheless void the election?

2. Did the malfunctions of the voting machines cause some votes not to be counted?

The court holds that to uphold the election would improperly disenfranchise voters and frustrate the will of the people and it would be unjust to the petitioner who received more legal votes than the respondent.






The right to vote in a democracy is among the most precious of all individuals' rights. It is a mechanism which individuals can and do use to hold government accountable, even when other parts of the political process fail to produce accountability. For one's vote, when cast, to be translated into a true message to government and candidates, that vote must be accurately counted, and, if necessary, recounted at every stage of the election process. That voter's exercise of the franchise must not be diluted by another's fraudulent or illegal vote. The moment an individual's vote becomes subject to an error in the vote tabulation process, the easier it is for one's vote to be diluted. (See The Law of the Electoral Counts, Burgess, John W., 1888, Political Science Quarterly 3:633-653).

Contested elections and recounts have been prevalent in the American political system ever since the founding of the Republic. New Jersey was the first state to report an election contest, The State v. Justices, etc., of Middlesex, 1 N.J.L. 244 (Sup.Ct.1794), which was ultimately overturned by the Governor and Privy Council. At the presidential level, major disputes took place in 1801 and 1825, with the House of Representatives choosing the President each time.

The other major dispute over the presidency took place in 1877 between Samuel Tilden, a Democrat, and Rutherford B. Hayes, a Republican. In that case, a commission resolved the electoral votes being disputed, in each instance in favor of Hayes, with the result that Hayes was elected President by the bare majority of one electoral vote. (See "Contested Elections", Encyclopedia of the Social Sciences, ed., Edward R.A. Seligman, pp. 308-310, New York, Macmillan, 1931).

Courts have long had certain inherent and equitable powers beyond those conferred upon them by statutes. Marbury v. Madison, 5 U.S. (1 Cranch ) 137, 2 L.Ed. 60 (1803); Stevenson v. Gilfert, 13 N.J. 496, 100 A.2d 490 (1953); Jacobs and Schnitzer, Report on the Proposed Revision of the New Jersey Election Law, 5 University of Newark Law Review 183 (1940).

Like the federal developments, the history of New Jersey election matters reveals jurisdictional uncertainty in each New Jersey jurisprudence. This uncertainty was somewhat clarified by the statutory procedure which evolved to hear and resolve election contests. The compelling judicial restraint theory grew out of the uncertainty of the court's powers and the constitutional commitment to the doctrine of "separation of powers". Yet, the strengthening of the courts as an equal branch of government in our present constitution changed the older decisions. (See History of Voting in N.J. ... 1664-1991, Richard P. McCormick, Rutgers Univ. Press, 1953). In re 1984 Maple Shade General Election, 203 N.J.Super. 563, 497 A.2d 577 (Law Div.1985).

The influential writers after the Revolution, at the nation's birth, urged preservation of the doctrine of "separation of powers" and sought, in fact, to insulate the judiciary from political involvement. See Locke, Second Treatise of Government, Gough 3rd ed. 1965; Montesquieu, The Spirit of the Law, (Nugent translation), 1949, pp. 141-143; and Madison, The Federalist, No. 47, Cooke ed. 1966.

In 1794, the inherent jurisdiction of the Court to review elections was challenged in The State v. Justices, etc., of Middlesex, supra, 1 N.J.L. at 251. The note entered upon the record, set forth at page 255 in the Chief Justice's handwriting, ended the right of inherent judicial review of elections:

... January 7, 1795, on error before governor and council, this judgment was reversed, 8 to 3. I have heard the ground of this reversal was that the Supreme Court had no jurisdiction. Sed. quere.

See also State v. The Clerk of Passaic, 25 N.J.L. 354, 355 (Sup.Ct.1856).

Thus, the uncertainty of the Court's role in election matters led to passage of an act in 1877 entitled "An Act to Regulate Elections". The Act itself contributed little to removing the question of jurisdiction and even less to removing the uncertainty therein. See Conger v. Convery, 52 N.J.L. 417, 439, 445, 20 A. 166 (Sup.Ct.1890), aff'd, 53 N.J.L. 658, 663, 24 A. 1002 (E. & A.1891).

The Legislature in 1890 adopted the "Ballot Reform Act," which provided for the nullifying of an election and the ordering of a new one by a "justice of the Supreme Court ...". However, the statute was imperfect, incomplete and had a very doubtful effect as recognized by our courts. See Roberts v. Shafer, 63 N.J.L. 182, 42 A. 770 (Sup.Ct.1899), where the Court did define what they believed to be the role of a judge sitting as a legislative agent in an election contest (the present N.J.S.A. 19:29-1 et seq.):

By the statute sub judice, the Justice sits as a commissioner and not in curia. Id. at 184 .

Thus, the courts changed from an activist position to that of a mere legislative agent in hearing election contests.

This was confirmed by Chief Justice Beasley in the case of In re Margarum, 55 N.J.L. 12, 14, 25 A. 702 (Sup.Ct.1892), where he stated the "legislative view".

Therefore, aside from the general revision under the Laws of 1930, c. 187, Section 355, p. 829 ( N.J.S.A. 19:29-1 et seq.), although the statutory scheme concerning the review of contests of nominations or elections by the judiciary has basically remained the same, the review has been expanded both by case law and the resultant ascendancy of the judicial branch as an equal power in government. Further, the present provisions of N.J.S.A. 19:29-5 implore the proceedings to be similar to a civil case, such that court rules apply. In addition, other statutes are now read into the election proceedings. See Iannone v. McHale, 236 N.J.Super. 227, 565 A.2d 422 (Law Div.1989) rev., 245 N.J.Super. 17, 583 A.2d 770 (App.Div.1990) (the frivolous litigation statute, N.J.S.A. 2A:15-59.1, allowed the award of counsel fees.)

This historical "uncertainty" of the court's role in The State v. Justices, etc., of Middlesex, supra, is the origin of the "judicial reluctance theory" in election matters. Whatever its source, the judicial hesitation seemed to have had little legal or philosophical support and has been abandoned now in...

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2 cases
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