In Re Donahay's Contested Election.

• Decision Date: 02 August 1943
• Citation: 34 A.2d 299
• Parties: In re DONAHAY'S CONTESTED ELECTION.
• Court: New Jersey Circuit Court

34 A.2d 299

In re DONAHAY'S CONTESTED ELECTION.

Circuit Court of New Jersey, Monmouth County.

Aug. 2, 1943.

Proceedings by E. Donald Sterner against Joseph L. Donahay to contest the alleged election of Joseph L. Donahay to the office of Surrogate of Monmouth County. Joseph L. Donahay counterclaimed.

Judgment for Joseph L. Donahay.

See, also, 32 A.2d 499, 21 N.J.Misc. 159. J. Victor Carton, of Asbury Park, John M. Pillsbury, of Atlantic Highlands, and Charles Frankel, of Asbury Park, for contestant.

Ward Kremer and Joseph F. Mattice, both of Asbury Park, for incumbent.

KINKEAD, Circuit Judge.

At the general election held in Monmouth County, N. J., on November 3, 1942, Joseph L. Donahay was declared elected as Surrogate of Monmouth County by a margin of 84 votes. His opponent, E. Donald Sterner, thereupon proceeded to recount 80 of the 153 election districts in Monmouth County. As a result of the partial recount, Donahay's plurality was reduced to a total of 14 votes.

Sterner then initiated this proceeding in the Circuit Court, contesting Donahay's election in accordance with the provisions of R.S. 19:29-2 et seq., N.J.S.A. In his petition, the contestant alleged that there had been malconduct, fraud or corruption on the part of the members of the district board of the 3rd district of the 3rd ward of the City of Long Branch, and contended that the entire vote cast for the office of Surrogate in said district should be rejected and eliminated.

Donahay filed an answer denying the allegations of fraud set forth in the petition. He also filed a counterclaim in which he alleged that there had been gross malconduct, fraud and corruption upon the part of the members of the district boards in the 1st, 2nd, 3rd and 4th election districts of the Borough of Belmar; as a result of which, Donahay sought to have the votes cast for Surrogate in those four districts set aside and rejected. The incumbent also alleged that the Monmouth County Board of Elections had made an error in counting, canvassing and declaring the vote of men in the Armed Forces of the United States at said election, and that the Board of Elections did not determine, prior to counting and convassing the said vote, whether the members of the Armed Forces were registered or not, as required by law.

The same rule and principle of law applies with equal force to the Long Branch and Belmar phases of the instant case. Therefore, these two issues can be considered jointly. In the Long Branch phase, the tally by the district board at the close of the election gave Donahay 294 votes and Sterner 77. In the recount of the Long Branch district, Donahay's total was reduced from 294 to 264, and Sterner's total was increased from 77 votes to 85. The recount therefore uncovered the fact that Sterner had been defrauded to the extent of 38 votes in the original tally.

In his contest in the Circuit Court, the contestant proved conclusively that 45 fraudulent votes had been received and counted by the board in the Long Branch district on Election Day. The contestant also proved that one of the election officers had taken some ballots on two different occasions, and after marking them, deposited them in the ballot box. The election officer so accused, while strenuously denying on the witness stand the charges of ballot box stuffing, frankly admitted that he had been working in the interests of the incumbent on Election Day, and that he was a Democratic County Committeeman.

The contestant further established that the names of persons who had voted in this district had not been entered in the poll book up to 2:30 P. M., and that, thereafter, names were written in the poll book by individuals who were not members of the election board. Several other irregularities were also proven, but the more serious violations have been heretofore set forth. At the close of the Long Branch testimony, the contestant had clearly proven the existence of fraud in the 3rd district.

In the Belmar phase of the contest, the incumbent proved that in the 3rd Belmar district, only 1 of the 4 election officers who had served on Election Day had been lawfully appointed by the Monmouth County Board of Elections; that one of the Democratic election officers who had served without legal authority had been a registered Republican in 1941; that the Republican member of the district board who had served without lawful appointment was an employee and also a tenant of the contestant. It was further established that this board had unlawfully received and counted the votes of 31 unregistered voters, and incumbent contended that the board had permitted one voter to vote who did not live in the district, and had accepted the vote of another person who did not even live in Belmar.

The incumbent contended that the irregular status of the election board in the 3rd district was brought about by a desire on the part of Carl Schroeder, Democratic leader of Belmar, to further Sterner's election, by substituting an election board on Election Day which would be amenable to the wishes of the Republican Party leaders. Donahay contended that Schroeder was not interested in a Democratic victory on November 3, 1942; that Schroeder was interested only in furthering Schroeder's own election chances in the spring of 1943, when Schroeder was a candidate on a ticket in Belmar bracketed with Mayor Abbott of Belmar, who is a political ally and supporter of the contestant; that Schroeder conspired with Mayor Abbott and with Sterner to aid Sterner on November 3, 1942, in return for which Mayor Abbott and Sterner were to aid Schroeder in the Belmar election of May, 1943.

Donahay further proved that in the 1st, 2nd and 4th Belmar districts, 55 unregistered voters had been permitted to vote, 10 in the 1st district, 7 in the 2nd, and 38 in the 4th.

The action of the 4 Belmar district boards in permitting unregistered voters to vote was, of course, illegal, but the proof offered by the incumbent nevertheless failed to substantiate his allegations of fraud as to any of the 4 districts. Furthermore, I find no merit in the charge that Carl Schroeder conspired with Mayor Abbott and the Belmar Republican leadership to aid Sterner.

The non-compliance with the provisions of the statute in the replacement of the 3 members of the district board in the 3rd district is censurable and unfortunate. Schroeder was also careless in permitting a 1941 registered Republican to act as a Democratic member of the district board. Despite any dereliction on his part, however, Schroeder made a good impression on the Court while on the witness stand. His testimony and that of Edward J. Ascher, vice-president of the Belmar Democratic Club, was quite convincing that while irregularities had taken place in Belmar, there was no reasonable ground to conclude that the Republicans and Democrats there had conspired to assist Sterner at the expense of Donahay. It is appropriate to note at this point that, even if the testimony offered by the incumbent had constituted fraud in any or all of the Belmar districts, that incumbent, even under those circumstances, would not be entitled to have the entire vote cast for Surrogate in any fraudulent district set aside and rejected.

In an election contest, the discovery of fraud in an election district does not ipso facto justify the rejection of the entire vote cast in that district. Where the result of the fraudulent conduct of the members of an election board can be ascertained and its effect exscinded, and the true will of the electorate determined, this should be done. The rejection of the entire vote of an election district is justifiable and permissible only when the fraud perpetrated or permitted by a district board, is so extensive or of such a character that the correct and genuine result of the voting in that district cannot be determined with reasonable certainty. Burkett v. Francesconi, 127 N.J.L. 541, 23 A.2d 780.

Applying this rule to the Long Branch phase of the case sub judice, it is quite apparent that the entire vote of the 3rd Long Branch district cannot be rejected. The attempt of the district board to increase Donahay's total and to reduce Sterner's total by a fraudulent tallying of the vote at the close of the election has been corrected and properly adjusted by the recount.

The net result of the other malconduct, on the part of the district board, as disclosed by the testimony, was the reception and counting of 45 fraudulent votes. It is not necessary to determine whether these 45 votes had been cast by means of ballot box stuffing on the part of one or more board members, or whether floaters were used. The extent to which fraud was perpetrated in the district is the important factor for the Court to determine; the method used in the perpetration, so far as this contest is concerned, is of no consequence.

It was not possible, of course, for the contestant to prove that the 45 fraudulent votes had been cast and counted for Donahay, and because of that fact, the incumbent contended that the...