Mulcahy v. Bergen County Bd. of Elections

• Decision Date: 31 January 1978
• Citation: Mulcahy v. Bergen County Bd. of Elections, 383 A.2d 1214, 156 N.J.Super. 429 (N.J. Super. 1978)
• Parties: James MULCAHY, Plaintiff, v. BERGEN COUNTY BOARD OF ELECTIONS, Mimi Sarthou, Superintendent of Elections of Bergen County, Carl R. Hartmann, Bergen County Clerk, Margaret Suman, Borough Clerk of the Borough of Oakland, and Jack Tauber, Defendants.
• Court: New Jersey Superior Court

Page 429

156 N.J.Super. 429

383 A.2d 1214

James MULCAHY, Plaintiff, v. BERGEN COUNTY BOARD OF ELECTIONS, Mimi Sarthou Superintendent of Elections of Bergen County, Carl R Hartmann, Bergen County Clerk, Margaret Suman, Borough Clerk of the Borough of Oakland, and Jack Tauber, Defendants.

Superior Court of New Jersey, Law Division.

Decided Jan. 31, 1978.

John V. McCambley, Wyckoff, for plaintiff.

Malcolm Blum, Hackensack, for defendant Jack Tauber (Carlton & Blum, Hackensack, attorneys).

PETRELLA, J. S. C.

This is an election contest suit and the facts are largely undisputed. On November 8, 1977 four candidates ran for two councilman-at-large positions in the Borough of Oakland. The results of the tabulation of ballots showed the following:

Enright (R)  -- 1928
                Tauber (D)   -- 1905
                Mulcahy (R)  -- 1903
                Held (D)     -- 1745
                

On November 15, 1977 a petition for recount was filed under the provisions of N.J.S.A. 19:28-1 et seq. Security for costs was deposited.

Pursuant to the resulting court order the Bergen County Board of Elections, on notice to all interested parties, conducted the recount on November 22, 1977, including the examination of the voting machines and the absentee ballots. The new tally showed that plaintiff-petitioner Mulcahy had received two additional absentee votes, placing him in a tie for the second council position. Curiously, it developed that the board had apparently received 99 absentee ballot envelopes, but could account for only 98 ballots. The deciding vote was missing; however, there is no allegation of fraud or foul play. Consequently, the Bergen County Board of Elections was unable to and did not certify a winner. The attorneys for Mulcahy and Tauber, respectively, applied on short notice (R. 1:6-3) to this court for alternative forms of relief in order to resolve how the seat was to be filled.

I

Mulcahy contended that certain absentee ballots which were not counted because they were received late (one or two days after election day) should be included because severe rainstorms and flooding conditions on election day allegedly prevented timely delivery by the postoffice officials to the election board. Plaintiff relied on the certified statement of an official of the post office that some mail deliveries were delayed on November 8 for several hours due to the inclement weather, and that a mail truck was delayed for almost 3 1/2 hours on its usual trip from the Newark Postoffice. As to that late delivery, he said it was "possible that one or more of these items of mail were on the truck delayed by the storm." Plaintiff sought to have the following ballots counted:

                                       Date Rec'd by
                Postmarked     Place of Mailing 1  Bd. of Elections
                -------------  ----------------------  -----------------
                Nov. 7, 1977   Syracuse, N.Y.          November 9, 1977
                Nov. 7, 1977   Wilmington, Del.        November 9, 1977
                Nov. 8, 1977   Knoxville, Tenn.        November 10, 1977
                Non-Cancelled  Washington, D.C.        November 10, 1977
                Nov. 7, 1977   San Diego, Cal.         November 9, 1977
                Nov. 7, 1977   New Brunswick, N.J.     November 10, 1977
                Nov. 7, 1977   Allston, Mass.          November 10, 1977
                Nov. 8, 1977   Paterson, N.J.          November 9, 1977
                

Counsel for plaintiff argued that voting is a right pursuant to N.J.S.A. 19:4-1 and, therefore, these ballots should be counted. But that section is not an absolute, as can be seen by the exceptions and limitations set forth therein. Judge Jayne said in DeFlesco v. Mercer Cty. Bd. of Elections, 43 N.J.Super. 492, 129 A.2d 38 (App.Div.1957) The opportunity of an absentee to cast his vote at a public election by mail has the characteristics of a privilege rather than of a right. Even the recognized right of every voter personally to express his will at the polls is not an absolute but a conditional right dependent upon many circumstances, some of which are not within the control of the voter. . . . When, where, and how the voting is to take place are matters prescribed and governed by the will of the Legislature. (at 495-496, 129 A.2d at 40; citations omitted)

Thus, absentee voting has been also referred to as a privilege rather than a right, and its roots must come by way of legislative enactment since absentee voting did not exist at common law. See 2 Antieau, Municipal Corporation Laws, § 17.19 at 568.1 (1973). N.J.S.A. 19:57-1 et seq. sets forth the requirements of absentee voting. The tenor of the act is to specify those entitled to vote and procedures to be utilized when a voter is unable to personally vote at the polls on election day.

The specific statute in question (N.J.S.A. 19:57-26) reads:

All valid military service ballots and valid civilian absentee ballots received by the country boards prior to the time designated for the closing of the polls for each election shall be counted.

Plaintiff has not offered a single ballot which was received on election day, but rather, relies on the alleged exceptional circumstances of the weather to bolster his argument. The critical time in the statute is that an absentee vote must be received by the board of elections before the closing of the polls on election day. The postmark date is not and cannot be controlling; the received date is and must be conclusive to avoid fraud and provide some finality to the closing of the polls.

The court is mindful of the statutory reference which requires liberal construction ² of the act, N.J.S.A 19:57-3. Nevertheless, it has long been held that this clause "is not a license to completely disregard the clear and explicit provisions in the absentee voting law which were adopted to preserve the sanctity and proper functioning of the elections laws." In re Gould, 81 N.J.Super. 579, 584-585, 196 A.2d 278, 281 (Law.Div.1963) (where Judge Halpern disallowed two absentee votes; one of a soldier who signed his own jurat in contravention of N.J.S.A. 19:57-17, and the other where the required physician's certificate was not attached as provided by N.J.S.A. 19:57-18). See In re Keogh-Dwyer, 85 N.J.Super. 188, 204-205, 204 A.2d 351, 360 (App.Div.1964), rev'd on other grounds, 45 N.J. 117, 211 A.2d 778 (1965), where two votes were rejected for not providing "the reason why they desired an absentee ballot".

The court has no authority or discretion to adjust the time requirement. To do so would undermine the legislative intent and pave the path for future abuses. There have been many changes in the postal system in recent years which the court could well take judicial notice of, including the private use of postage meters, a mechanism which could easily subject the absentee voting procedure to abuse if the postmark date was determinative. Absentee voting should be done in conformity with the statute since such statutes are not designed to insure a vote but rather to permit a vote in a manner not provided by common law. * * * Needless to say, however, the courts will not sanction flagrant irregularities which circumvent the plain purposes of the law and open the door to fraud. (3 McQuillin, Law of Municipal Corporations (3 ed. 1973), § 12.16 at 124.)

In DeFlesco v. Mercer Bd. of Elections, supra (43 N.J.Super. at 495, 129 A.2d 38), the trial court had erroneously permitted certain ballots postmarked prior to election day, but received after that day, to be opened and counted. The Appellate Court reversed. Judge Jayne, speaking for the panel, noted:

* * * we are unable to discern in our present statute any legislative intent to constitute the time of mailing, postmarked on the envelope, as the determinative of the lawful propriety of the counting and canvassing of the enclosed ballot.

Just as it has always been deemed necessary to designate a time for the closing of the polls to resident voters, so likewise is it expedient and practicable also to fix the time of the closing of the polls to the absentee voters. The obligation of both the resident voter and the absentee voter is to deliver his ballot to the proper election officials within the prescribed time, in the former case in person, and in the latter by mail. (43 N.J.Super. at 499-500, 129 A.2d at 42).

The DeFlesco rationale is controlling as to this aspect of the case. See State v. Sheppard, 125 N.J.Super. 332, 335, 310 A.2d 731 (App.Div.1973), and Caldwell v. Rochelle Park Tp., 135 N.J.Super. 66, 76-77, 342 A. 583 (Law Div. 1975). Indeed, in the present case one ballot bears no postmark. This forewarns of the panoply of problems which could result if the statute ³ is not enforced as written. The preservation of the enfranchisement of qualified voters and of the secrecy of the ballot, the prevention of fraud, and the achievement of a reasonably prompt determination of the result of the election have been the vital considerations in the development of the absentee voting legislation. (DeFlesco v. Mercer Bd. of Elections, supra (43 N.J.Super. at 496, 129 A.2d at 40)).

See generally, Aspen v. Howell, 170 Colo. 82, 459 P.2d 764, 767 (Sup.Ct.1969); Mommsen v. School District, 181 Neb. 187, 147 N.W.2d 510, 513 (Sup.Ct.1966), and Hammond v. Hatfield, 137 W.Va. 407, 71 S.E.2d 807, 816 (Sup.Ct.1952). The court need not mention other problems that may arise in this age of instant computer predictions of elections based on preliminary returns.

There is hardly an election where some voters do not find it difficult to get to the polls. The infirm, the travelling businessman, may require absentee ballots. Each must forward his absentee vote so it is received before the time designated for the closing of the polls. The weather, albeit perhaps stormy and impeding travel, is a factor that may occur any year and all voters may be confronted with it. Likewise, absentee voters share similar risks. When a voter entrusts his ballot to a third party, even if the United States Postal Service, the voter takes the responsibility and the risk of nondelivery. The prevention of fraud and...