Petition of Livingston
| Decision Date | 14 May 1963 |
| Citation | 199 A.2d 37,83 N.J.Super. 98 |
| Parties | In the Matter of the Petition of John T. LIVINGSTON to Set Aside, Annul and Revoke the Election of Manus J. O'Donnell for the Office of Borough Commissioner in the Borough of Avon-By-The-Sea, County of Monmouth, State of New Jersey, as a result of the Election held |
| Court | New Jersey Superior Court — Appellate Division |
Joseph F. Mattice, Asbury Park, for incumbent-appellant (Thomas E. Durkin, Jr., William J. Gearty, Newark, of counsel and on the brief).
Arthur J. Sills, Atty. Gen., amicus curiae, pro se (William L. Boyan, Deputy Atty. Gen., of counsel).
Joseph N. Dempsey, Asbury Park, for petitioner-respondent.
Before Judges GOLDMANN, KILKENNY and COLLESTER.
The opinion of the court was delivered by
KILKENNY, J.A.D.
Manus J. O'Donnell appealed from a judgment of the Superior Court, Law Division, entered on June 26, 1963, declaring that John T. Livingston, rather than he, had been elected to fill the third seat on the three-man Board of Commissioners of the Borough of Avon-by-the-Sea, as the result of the municipal election held on May 14, 1963. Harry B. Crook, Jr. and William A. Herbert had, concededly, been elected to fill the other two seats.
O'Donnell had originally been declared the winner over Livingston and had been sworn into office as the third commissioner. He performed the duties of a commissioner and received his official salary until his certificate of election was annulled by the judgment of the Law Division. The salary of a commissioner in Avon is $1125 per annum.
O'Donnell died on November 4, 1963 while his appeal was pending and before oral argument. On motion made by his attorney, we permitted O'Donnell's widow, as administratrix of his estate, to be substituted as appellant. Livingston opposed the substitution. We felt that the public interest in having only a duly elected person serve as commissioner and the possible claim of O'Donnell's estate to the emoluments of the office prior to his death justified our grant of permission to O'Donnell's administratrix to complete the appeal which he had instituted in his lifetime.
The original tabulation of the voting showing the following results:
Harry B. Crook, Jr .. 693 votes
William A. Herbert .. 615 votes
Manus J. O'Donnell .. 555 votes
John T. Livingston .. 542 votes
Henry M. Brewster ... 474 votes
Richard E. Merlino .. 154 votes
Based thereon, the board of canvassers declared Messrs. Crook, Herbert and O'Donnell the duly elected commissioners.
Livingston, as a defeated candidate, contested O'Donnell's election and petitioned the Superior Court, Law Division pursuant to N.J.S.A. 19:29--1 et seq., to annual the certificate of election issued to O'Donnell and to direct a certification that he had been elected. He claimed that 54 of the 94 non-military absentee ballots had been rendered void by reason of the fact that 51 of them had been notarized by candidate Crook, 2 by candidate O'Donnell and 1 by candidate Brewster. No question was raised as to the military absentee ballots.
Following a hearing in the Law Division, the trial court declared invalid all of the 94 nonmilitary ballots. The 54, admittedly notarized by the three candidates, were declared void solely because they were so notarized. Since they constituted the majority of the civilian absentee ballots which were cast and could not be disassociated from the remainder, the entire civilian absentee vote was nullified. Such action was taken in reliance upon In re Donahay's Contested Election, 21 N.J.Misc. 360, 34 A.2d 299 (Cir.Ct.1943).
The civilian absentee votes were distributed among the candidates as follows:
Harry B. Crook, Jr .. 71
William A. Herbert .. 41
Manus J. O'Donnell .. 56
John T. Livingston .. 29
Henry M. Brewster ... 29
Richard E. Merlino .. 12
Nullification of all 94 civilian absentee votes reduced the total vote of each of the candidates by the number of civilian absentee votes each had received, thus making the vote tabulation:
Harry B. Crook, Jr .. 622
William A. Herbert .. 574
John T. Livingston .. 513
Manus J. O'Donnell .. 499
Henry M. Brewster ... 443
Richard E. Merlino .. 142
On those revised figures, Messrs. Crook, Herbert and Livingston were declared the duly elected commissioners and the certificate of election therefofore issued to O'Donnell was annualled by judgment of the Law Division. O'Donnell's appeal followed.
The basic issue before us is whether civilian absentee ballots are rendered void, if the statutorily required certification on the flap of the return envelope by one capable of administering an oath is executed by a notary public, whose name appears on the ballot as a candidate. The secondary issue is whether notarization by one candidate can Per se invalidate absentee ballots cast in favor of another candidate. The two absentee ballots notarized by O'Donnell and the one notarized by Brewster would not have altered the original results. The crucial ballots are the 51 upon which Candidate Crook certified compliance with the law. Should these, and the remainder of the 94 civilian absentee ballots, be invalidated? If not, O'Donnell's certificate of election should not have been annulled.
Our absentee voting law, N.J.S.A. 19:57--1 et seq., requires the voter to exhibit his absentee ballot unmarked to a person authorized by law, of the place where the oath is administered, to administer oaths, and then, in the presence of such officer and in the presence of no other person and in such manner that the officer cannot see his vote, to mark the ballot and enclose and seal it in the envelope without the officer's seeing or knowing his vote. On the flap of the envelope in which the ballot is placed for return and count by the county board of elections, there is a certificate which must be executed by the officer, showing compliance with the foregoing requirements and also stating that the voter was not solicited or advised by the officer to vote for or against any candidate or proposition. N.J.S.A. 19:57--17.
Concededly, there is no provision in the statute Expressly prohibiting candidates from administering oaths and completing these flap certificates, if they are duly authorized to administer oaths by the law of the place where the oath is administered. The authority of candidates Crook, O'Donnell and Brewster to administer oaths by the law of the place where the oaths in issue were administered by them, has not been questioned.
The Law Division rested its conclusion, that candidates were precluded from performing the statutorily required notarial function, on the ground that the Election Law Impliedly banned such conduct. Its rationale was that the secrecy of the ballot and the voter's freedom of choice would be endangered if candidates were permitted to perform this function. To allow a candidate to be present and alone with the absentee voter while he is marking his ballot would, according to the trial court, subject the voter to possible coercion or corruption and undermine public confidence in our election process. The trial court found an analogy between the duties performed by members of a district board of elections, on which a candidate may not sit, R.S. 19:6--12, N.J.S.A., and those of the certifying officer under the absentee voting law.
The trial court also deemed significant the language in the officer's certification, that 'the affiant was not solicited or advised by me to Vote for or against any candidate or proposition.' (Emphasis supplied). It found that 'the italicized portion of this statement leads irresistibly to the conclusion that the Legislature intended that the certifying officer be a non-participant in that election.' It reasoned that if a candidate could act as a certifying officer, his certification would have been worded by the drafters of the law to include a statement that the officer 'did not solicit a vote for himself' as well as 'for or against any candidate or proposition.'
That the drafters of the law would have included this additional verbiage in the certification is speculative, at best. The all-comprehensive 'any candidate' is adequate enough to include the certifying officer. Hence, we do not find in the language used any clear evidence of a legislative intent to prohibit candidates from acting as the certifying officer.
The analogy drawn by the trial court between a member of a district board of elections and a notary completing the envelope flap certificate is of doubtful validity. The Attorney General, in his brief as Amicus curiae, points out that district boards of election have much wider functions and greater responsibilities at the polls than do notaries in the case of civilian absentee voting. The district boards are responsible for opening and closing the polls at the proper times, R.S. 19:15--2, N.J.S.A., R.S. 19:23--47, N.J.S.A.; assuring that only official ballots are used, and restricting the use of emergency or unofficial ballots to those situations in which the law permits their use, R.S. 19:15--4 to 6, N.J.S.A., R.S. 19:15--29, N.J.S.A.; determining whether the voter who presents himself at the polls is properly registered, as shown by the 'signature copy registers' in their custody and control, R.S. 19:15--17 and 25, N.J.S.A., N.J.S.A. 19:31--21, N.J.S.A. 19:31--20; returning the registers to the commissioners of registration after the election, N.J.S.A. 19:31--22; entertaining and determining challenges to the right of a person to vote, R.S. 19:15--18 to 24, N.J.S.A.; counting the votes at the close of the polls, when paper ballots are used, N.J.S.A. 19:16, and making sure that the counters are originally set at zero when voting machines are used, N.J.S.A. 19:52--1, recording the readings at the close of the polls, R.S. 19:52--5, N.J.S.A., and then locking the machines,...
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