Klayman, Application of
| Decision Date | 16 October 1967 |
| Docket Number | No. L--2117,L--2117 |
| Citation | 235 A.2d 45,97 N.J.Super. 295 |
| Parties | Application of Max KLAYMAN and Sylvia Klayman. |
| Court | New Jersey Superior Court |
Max Klayman, Livingston, for petitioners.
John W. Noonan, Newark, for incumbents.
Albert Poll, Asst. County Counsel, for Essex County Bd. of Elections.
Patrick J. Hanifin, Bloomfield, for Superintendent of Elections of Essex County.
Petitioners Max Klayman and Sylvia Klayman, candidates in the September 12, 1967 primary election for the office of Democratic county committeeman, male and female, respectively, to represent the 6th election district of Livingston Township, petition this court to set aside the election of the incumbents Frank Wexler and Frances Petrucelli who had conducted a write-in campaign. Also responding were the Essex County Board of Elections and the Superintendent of Elections of Essex County.
Forty-eight voters cast ballots in this Democratic primary. Eleven failed to cast any vote for county committeeman, male, and 13 did not vote for any county committeeman, female.
The certificate of election indicated that Wexler had received 19 votes as against 18 votes for Max Klayman for county committeeman, male, and Mrs. Petrucelli had received 18 votes as against 17 votes for Mrs. Klayman, county committeeman, female.
The Klaymans' names appeared on the ballot in positions 16A and 18A. Wexler and Mrs. Petrucelli had decided to conduct a write-in campaign and furnished friends and neighbors with adhesive-backed white labels with their names stamped thereon, with brief instructions as to how and where the labels were to be placed.
At or about 6 P.M. on election day Mrs. Klayman, Democratic voter No. 14, entered the polling booth, drew the curtain and noted that her name and that of her husband on the face of the machine were obliterated by a 'white tape-like substance.' Surprised and shocked, Mrs. Klayman immediately drew back the curtain, thereby registering a vote but without having in fact voted for anyone including her husband and herself.
She called to Republican Mrs. Roberta Clure, judge of the district board, and Democrat Herman Targansky, clerk, and directed their attention to the face of the machine. Targansky immediately began to remove the sticker with his fingernail and was moments later assisted by Mrs. Clure.
Mrs. Klayman immediately called friends who had already voted and learned that some of these had been unable to find the name of Klayman on the ballot.
When the polls closed and the back of the machine was opened, there appeared a number of written or printed names of Wexler and Mrs. Petrucelli and a number of tape-like labels with the names of the two write-in candidates stamped thereon.
Mrs. Klayman observed, and the petition charges, that 'the patches of white tape were identical with the patches of white tape which were used by the incumbents, Frank Wexler and Frances Petrucelli and others who voted for them to place their name on the irregular ballot.'
The prosecutor and the Livingston police promptly began an investigation. The Klaymans filed the present proceeding charging a violation of N.J.S.A. 19:29--1(e), (f) and (g).
Charging fraud and collusion, the petition alleged that the impairing and defacing of the voting machine ballot with the stickers caused the loss of votes to petitioners and the receipt of illegal votes sufficient in number to change the result of the election, and further, that the county board of elections was in error in counting the votes and declaring the results of the election.
Petitioners ask this court not only to set aside the election of the incumbents but also to declare that the Klaymans were duly elected.
In addition to the charges of fraud and collusion, petitioners assert that three of the write-in votes in column 18 (county committeeman, female) were for 'Fran Petrucelli' and not 'Frances Petrucelli,' and there was neither party nor office designation on the paper roll. They further show that two of the votes in column 16 (county committeeman, male) were for Frank Wexler without similar designation.
It was a complete mystery to all counsel and to the court in the early stages of the trial as to who had placed the stickers on the face of the machine obliterating the names of the Klaymans. The truth was unearthed during the presentation of evidence. The court had the opportunity as to each witness to observe the demeanor, mental capacity and qualifications, and to consider the interest or motive which any witness had in the outcome. Minor contradictions of no consequence did occur, but on the whole, as to the important relevant factual issues, all witnesses were straightforward and truthful.
Except where it is necessary in support of the findings of fact and the conclusions of law hereinafter set forth, the names of the various voters are not set forth, for it adds nothing but embarrassment and in some instances ridicule. The voters hereinafter designated by number only were Democratic primary voters.
The following voters (not in the order listed) were called by petitioners: Nos. 9, 10, 11 (Mrs. Petrucelli), 13, 14 (Mrs. Klayman) and 18. With the suspense of the mystery increasing, petitioners almost at the close of their case called voter No. 8, who testified as follows: She voted between 1 and 2 P.M.; had with her the Wexler-Petrucelli stickers; had not on any prior occasion voted an irregular (write-in) ballot; attempted to slide the stickers under a fixed metal strip running along the width of the entire voting machine directly above line A (the Democratic line); when this could not be done, and misunderstanding proper voting procedure, she placed stickers over Klayman names in 16A and 18A, registered what she thought was her vote and departed the polling place.
Voter No. 9 went into booth, noted two stickers, could not find Klayman names, intended to vote for them, and left without being able to do so.
Voter No. 10, after closing the curtain saw two stickers, could not find Klayman names, faintly remembered the sample ballot, believed she pulled down levers above where the Klayman names should have been, and after voting reported to an inspector of elections (a Democrat recommended for appointment by the Klaymans), who attributed the voter's failure to find the Klayman names to her being without reading glasses.
Voter No. 11 (Mrs. Petrucelli) raised the slides in columns 16 and 18, affixed stickers, voted and left without seeing stickers on the Klayman names; she first learned of the obliteration after the polls closed but did not know who did it.
Voter No. 13 studied the ballot on the machine, did not see the Klayman names although intending to vote for them, thought that perhaps they had decided not to run, did not lower the levers over 16A or 18A, voted and on the way out saw Mrs. Klayman but said nothing to her.
The testimony of Voter No. 14 (Mrs. Klayman) has been reviewed above. It was then that the First obliteration was discovered and the stickers removed.
Voter No. 18 entered the booth, had never voted an irregular ballot before, placed the stickers over the Klayman names and departed.
What happened thereafter has not been shown, but the stickers bearing the Wexler and Petrucelli names were removed certainly before the examination of the machine at the end of the voting day, although remnants of a yellow adhesive were discerned on the face of the machine. When or by whom they were removed is unknown.
Mrs. Clure, judge of the board, who had served in three elections as a member of district boards, testified that she had never received instructions that the official attending the voting machine was required by law to inspect the machine and specifically the face of the ballot as each voter left the booth.
Targansky corroborated this testimony. He and Mrs. Clure had each received four pages of complex printed instructions from the county board of elections, which instructions contained no mention whatsoever of this most important duty.
In any event, no official at district 6 looked at the machine after the vote.
Stephen F. Byrne, chairman of the Essex County Board of Elections, acknowledged that neither verbal nor written instructions were given as to the obligation of inspection. It had not been done in the last 70 elections.
The county board of elections through its attorney argues that (a) it would create quite a burden on the district election officials to follow the mandate of the statute and examine the face of the machine after each vote, and (b) to its knowledge this practice had not been followed since the advent of voting machines more than 70 elections ago--other counties have followed a like procedure. It is urged that because this has been the practice the court should not now declare this election or its results void. But practice in contravention of law may not be condoned because it is in common use. In re Livingston, 83 N.J.Super. 98, 199 A.2d 37 (App.Div.1964).
Byrne agreed that had the district board officials been so instructed and had they followed the instruction, what happened in district 6 could not have occurred.
The fact that each district board is supplied with a printed copy of the entire Title 19, 'Elections,' does not fill the void. Title 19 in many places is confusing, to say the least, to those trained in legal interpretation, lawyers and judges alike. District election officers should not be expected to search all of Title 19 to ascertain their duties.
N.J.S.A. 19:50--1 requires:
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