IMO the Petition of Kati Gray-Sadler, John Sturgis and Edward Geiger
Annotate this Case(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued May 1, 2000 -- Decided June 30, 2000
PORITZ, CJ., writing for a unanimous Court.
This appeal concerns a challenge of the results of the November 2, 1999 general election by write-in candidates for the offices of mayor and borough council in the Borough of Chesilhurst, Camden County.
Four-hundred eleven of Chesilhurst's 880 registered voters participated in the November 2, 1999 election for the offices of general assembly, county freeholder, mayor, and borough council. The election took place at a single polling place with two of the older type of voting machines that use paper rolls to record write-in votes. Kati Gray-Sadler was a write-in candidate for mayor. John Sturgis and Edward Geiger were write-in candidates for borough council seats. The incumbent candidates for the mayoral and council seats were the only candidates whose names appeared on the voting machine ballot. To vote for a write-in candidate, a voter was required to hold down a lever with one hand, simultaneously slide open a metal window with the other hand, and then insert the name of the desired candidate in writing or with a sticker on the paper revealed in the open window.
Prior to the election, voters received sample ballots that depicted the face of the voting machine. Gray Sadler, Sturgis, and Geiger (petitioners) ran a spirited campaign, distributing pre-printed stickers bearing their names, together with information about their backgrounds and platforms.
No information on how to cast a write-in vote was available at the polling place prior to entering the voting machines. Inside the voting machines, the face of the ballot contained an extremely small instruction in the top left hand corner: PERSONAL CHOICE WARNING! Do not touch personal choice unless you intend to write-in. Ask Election Judge for instructions before entering machine to vote. On the ballot, there were seven lines for each of the available offices and forty-three extra blank lines. On the left wall of the voting booths, a poster provided separate instructions.
The incumbents were declared the winners of the mayoral and council seats. On December 3, 1999, petitioners filed a complaint challenging the election results essentially on the grounds that the instructions concerning write-in votes were confusing and that the voting machines had scraped off certain write-in stickers, a claim not made before the Supreme Court. The trial court held a hearing during which the Borough of Chesilhurst and the Attorney General's Office, on behalf of the Camden County Board of Elections and the Camden County Superintendent of Elections, defended the results. Six witnesses testified for petitioners and all claimed that they had difficulty figuring out how to cast a write-in vote because the instructions were sparse and confusing. One witness testified that she was so confused that it actually prevented her from casting a write-in vote, and another testified that she lost the chance to vote when she stepped out of the booth to ask an election official for instructions about write in votes.
The Board of Elections also disclosed that it had rejected votes. The trial court ordered a review of the paper rolls and discovered that there were sixty-four write-in votes, either hand written or affixed by sticker, that had not been counted by election officials. Forty-nine of those were placed on the voting machine in spaces that did not specify any office. The Board of Elections deemed those votes void. Another fifteen votes were placed in spaces designated for offices that were not sought by petitioners. Those votes were counted as votes for those offices, not the offices for which petitioners were running.
The trial court concluded that serious irregularities in the conduct of the election denied qualified write-in voters their constitutional right to vote for any person they chose. Because the voting machines were not accompanied by proper mechanical models and because voting instructions were not provided to each voter in the manner required by statute, the court voided the results for the offices of mayor and borough council and ordered a special election to be held. The Appellate Division reversed. The Supreme Court granted petitioners' request for certification and cross-petitions filed by Camden County and the Attorney General in respect of the appropriate procedures in the event of a new election.
HELD: In light of all the circumstances, it cannot be determined with reasonable certainty those candidates who received a majority of votes for either the mayor or borough council seats. Therefore, the election for the offices of mayor and borough council are null and void. A special election must be held to fill the resulting vacancies not less than 45 days nor more than 50 days from the effective date of this opinion.
1. One of the statutory grounds for contesting an election occurs when legal votes have been rejected at the polls sufficient to change the result. Rejection of votes can be demonstrated when, through no fault of their own, voters were prohibited from voting for a specific candidate by some irregularity in the voting procedures. The essential question is whether Chesilhurst voters were denied the opportunity to vote for a candidate of their choice. (Pp. 7-9)
2. The statutory language, requiring election officials to reject votes if a write-in vote is not in its appropriate place in the voting machine, must be read in light of the broad purpose of the election laws to prevent voter disenfranchisement. Errors due to extrinsic problems are distinguished from errors caused by a voter's own neglect. The Legislature did not intend for the statute to be applied in a manner that would frustrate the free expression of the voters' will when incorrect placement of the write-in vote is the result of mistakes or problems beyond the voters' control. (Pp. 10-12)
3. The record illustrates a failure to comply with N.J.S.A. 19:50-3, which directs election officials to instruct voters on the proper use of the voting machines. No information was provided outside of the voting booths explaining how properly to cast write-in votes nor were there mechanical models. Voter confusion is attributable to defects outside of their control: sincere efforts to cast write-in votes were thwarted by insufficient instructions provided inside the booths; there were clear and precise instructions on the top of the ballot describing how to cast a vote for the candidates printed on the ballot but not for casting write-in votes; and the personal choice warning was easy to miss, difficult to read, and, if voters followed the instruction to seek help outside the booth, they were barred from reentering the booth to finish voting. Overall it was much easier to vote for the candidates whose names appeared on the ballot as opposed to write-in candidates, regardless of voter preference. (Pp. 12-16)
4. Furthermore, the poster on the left wall of each booth omitted an essential piece of information necessary for casting a write-in vote and the sample ballots sent to voters prior to the election lacked clear instructions for casting a write-in vote. Thus, the Chesilhurst voters were given patently inadequate instructions or none at all, differentiating this case from those where the voters' failure to comply with specific procedural instructions invalidated their votes. (Pp. 16-18)
5. An election can be vitiated only if those contesting it can show that as a result of the irregularities, the free expression of popular will has in all likelihood been thwarted. Petitioners meet the statutory requirement for successfully contesting the results of the election, requiring a special election. (Pp 18-23)
6. For the new election, and for all future elections throughout the State, explicit instructions on how to cast a write in vote must be provided with the sample ballots sent to registered voters. The instructions must offer clear, step-by step directions that describe the mechanics of the voting machine, explain how to operate the windows and levers, and emphasize the need to cast write-in votes on the appropriate lines. Voters must be warned that an improperly cast vote will be deemed void. Similarly clear instructions must be provided at the polling place, giving the voter the opportunity for review prior to going into the booth. A mechanical model or demonstration machine is preferred but not required if it would pose an undue burden on the locality. Camden County should fund the cost of this special election. (Pp. 23-25)
Judgment of the Appellate Division is REVERSED. A special election is to be held in Chesilhurst for the offices of mayor and borough council as set forth herein. The effective date of the opinion is deferred to July 31, 2000 to permit the scheduling of the special election in September pursuant to N.J.S.A. 40A:16-16.
JUSTICES O'HERN, STEIN, COLEMAN, LONG, VERNIERO, and LaVECCHIA join in CHIEF JUSTICE PORITZ's opinion.
SUPREME COURT OF NEW JERSEYA-97/103/ 104 September Term 1999
IN THE MATTER OF THE PETITION
OF KATI GRAY-SADLER, JOHN
STURGIS AND EDWARD GEIGER,
WRITE-IN CANDIDATES FOR THE OFFICES OF MAYOR AND BOROUGH COUNCIL OF CHESILHURST BOROUGH, CONTESTING THE RESULTS OF THE GENERAL ELECTION OF NOVEMBER 2, 1999.
Argued May 1, 2000 -- Decided June 30, 2000
On certification to the Superior Court, Appellate Division.
Shirley Grasso argued the cause for appellants and cross-respondents Kati Gray Sadler, John Sturgis and Edward Geiger (Grasso & Inferrera, attorneys).
Robert G. Millenky, Camden County Counsel, argued the cause for respondent and cross appellant County of Camden.
Donna Kelly, Senior Deputy Attorney General, argued the cause for respondents and cross appellants Camden County Superintendent of Elections and Camden County Board of Elections (John J. Farmer, Jr., Attorney General of New Jersey, attorney; Mark J. Fleming, Assistant Attorney General, of counsel; Ms. Kelly and Karen Griffin, Deputy Attorney General, on the briefs).
John B. Kearney argued the cause for respondent and cross-respondent Arland Poindexter (Kearney & Castillo, attorneys, Carol R. Cobb, on the brief).
David E. Mapp argued the cause for respondent and cross-respondent Borough of Chesilhurst (Harvey C. Johnson, attorney).
The opinion of the Court was delivered by
In this appeal, write-in candidates for the offices of mayor and borough council in the Borough of Chesilhurst challenge the results of the November 2, 1999, general election. After hearing testimony and reviewing the voting rolls, the Law Division ruled that irregularities related to the write-in instructions and non compliant voting machines required the election results for those offices to be set aside. The court ordered a special election to fill the resulting vacancies. The Appellate Division reversed.
We now reinstate the decision of the trial court, with certain modifications, and order that a special election be held.
Chesilhurst is a small town in Camden County with 880 registered voters. Four-hundred-eleven of those voters participated in the 1999 election for the offices of general assembly, county freeholder, mayor, and borough council. The election took place at a single polling location with two voting machines rented from Camden County. Those machines were older models that use paper rolls to record write-in votes.
Among the candidates for local office were three individuals who ran a spirited write-in campaign -- Kati Gray-Sadler for mayor, John Sturgis for councilman, and Edward Geiger, also for councilman. The other candidates for those offices, Mayor Arland Poindexter, Jr., Councilman Bernard Congleton, and Councilman Ralph Johnson, were incumbents and were the only candidates whose names appeared on the voting machine ballot for mayor and borough council. To vote for a write-in candidate, a voter was required to hold down a lever with one hand, simultaneously slide open a metal window next to the appropriate office with the other hand, and then insert the name of the desired candidate in writing or with a sticker on the paper revealed in the open window.
Prior to the election, voters received sample ballots that depicted the face of the voting machine. In addition, petitioners distributed pre-printed stickers bearing the write-in candidates' names, together with information about their backgrounds and platforms. No information about how to cast a write-in vote was available at the polling place prior to entering the voting machines.
Inside the voting machines, the face of the ballot contained the following instruction in minute lettering placed in the top left corner: PERSONAL CHOICE WARNING! Do not touch personal choice unless you intend to write in. Ask Election Judge for instructions before entering machine to vote. See footnote 11 On the ballot, there were seven lines for each of the available offices (one for mayor and two each for general assembly, county freeholder, and borough council) and forty-three extra blank lines. On the left wall of the voting booths, a poster provided separate instructions that read:
To vote for a candidate of your personal choice, place finger of left hand on small lever indicated. Pull lever to right, this will release window slides.
Pull to right the window slide of the designated office for which you desire to cast your vote. Paper will then be exposed for your write-in vote.
You must place an X after written name. It is also permissible to attach a sticker to the paper with a candidates [sic] name plus the X.
The written instructions were accompanied by a photograph of two hands, one pointing to the small lever and the other to a metal window.
The initial election return sheet indicated that Poindexter received 164 votes for mayor and Gray-Sadler received 146 votes. With the addition of absentee and provisional ballots, Poindexter's total rose to 172 and Gray-Sadler's to 154. After a recount of the paper rolls, Gray-Sadler's total vote count was decreased from 154 to 152. The return sheet showed that incumbent Councilmen Congleton and Johnson received 166 and 164 votes, respectively, whereas write-in candidates Sturgis and Geiger received 123 and 113 votes. After the recount and the addition of absentee ballots, Sturgis's final total was 135 and Geiger's was 134.
On December 3, 1999, petitioners filed a complaint challenging the election results essentially on the grounds that the write-in instructions were confusing and that the voting machines had scraped off certain write-in stickers, a claim not raised before this Court. The trial court conducted a hearing in which the Borough of Chesilhurst and the Attorney General's Office, on behalf of the Camden County Board of Elections and the Camden County Superintendent of Elections, defended the results. Six witnesses testified for petitioners and all claimed that they had had difficulty in determining how to cast a write-in vote because the instructions were sparse and confusing. One witness testified that the confusion was so great it actually prevented her from casting a write-in vote, and another testified that she lost the opportunity to vote when she stepped out of the booth to ask an election official for instructions about write-in votes. The Board of Elections also disclosed for the first time that it had rejected votes, contrary to both the notation on the return sheet that no votes were rejected and the silence of the recount report concerning rejected votes.
The trial court subsequently ordered a review of the paper rolls and discovered that there were sixty-four write-in votes, either hand-written or affixed by sticker, that had not been counted by election officials. Forty-nine were placed on the voting machine in spaces that did not specify any office. Of those forty-nine, fifteen votes were for Gray-Sadler, nineteen for Sturgis, and fifteen for Geiger. The Board deemed those forty-nine votes void. Another fifteen votes were placed in spaces designated for offices that were not sought by petitioners (e.g., Gray-Sadler was placed twice in general assembly spaces and six times in borough council spaces). Those votes were counted as votes for those offices, not the offices for which petitioners were running.
The trial court concluded that serious irregularities in the conduct of the election denied qualified write-in voters their constitutional right to vote for any person they chose. Because the voting machines were not accompanied by proper mechanical models, as specified in N.J.S.A. 19:48-1(l), and because voting instructions were not provided to each voter in the manner required by N.J.S.A. 19:50-3, the court voided the results for the offices of mayor and borough council and ordered a special election to be held. On emergency appeal, the Appellate Division reversed. We granted petitioners' request for certification and cross -petitions filed by Camden County and the Attorney General in respect of the appropriate procedures in the event of a new election. 163 N.J. 398 (2000).
A citizen's constitutional right to vote for the candidate of his or her choice necessarily includes the corollary right to have that vote counted 'at full value without dilution or discount.' Reynolds v. Sims, 377 U.S. 533, 555 n.29, 84 S. Ct. 1362, 1378 n.29, 12 L. Ed. 2d 506, 524 n.29 (1964) (quoting South v. Peters, 339 U.S. 276, 279, 70 S. Ct. 641, 643, 94 L. Ed. 834, 838 (1950) (Douglas, J., dissenting)). That principle also encompasses the right of all qualified electors to vote for [a write-in candidate] by such means. Sadloch v. Allan, 25 N.J. 118, 128 (1957); see also Stevenson v. Gilfert, 13 N.J. 496, 503 04 (1953) (discussing right to cast write-in vote for any person). To preserve those rights, our state election laws are designed to deter fraud, safeguard the secrecy of the ballot, and prevent disenfranchisement of qualified voters. Cf. In re Byron, 165 N.J. Super. 468, 474 (Law Div. 1978) (concerning purpose of election laws in relation to absentee ballots), aff'd, 170 N.J. Super. 410 (App. Div.), certif. denied, 82 N.J. 280 (1979). In furtherance of those goals, we have held that it is our duty to construe elections laws liberally. See Wene v. Meyner, 13 N.J. 185, 197 (1953) (citing Chief Justice Vanderbilt's opinion in Kilmurray v. Gilfert, 10 N.J. 435, 440 (1952)).
A.
Among the grounds for contesting an election set forth in N.J.S.A. 19:29-1, subsections (e), (f), and (g) are applicable to this appeal. Those subsections provide, in relevant part, that voters may challenge an election,
e. When . . . legal votes [have been] rejected at the polls sufficient to change the result;
f. For any error by any board of canvassers in counting the votes or declaring the result of the election, if such error would change the result; [or]
g. For any other cause which shows that another was the person legally elected.
All three petitioners claim that write-in votes placed on the wrong line due to insufficient and unintelligible instructions were ignored or counted as votes for offices that the candidates were not seeking. They also claim that the inadequate instructions prevented other voters from casting any write-in votes at all. The gravamen of those claims is that legal votes cast for the petitioners were rejected. See N.J.S.A. 19:29 1(e).
Petitioners' reading of the term rejected is supported by prior caselaw that defines the term 'to include any situation in which qualified voters are denied access to the polls.' In re 1984 Maple Shade Gen. Election, 203 N.J. Super. 563, 590 (App. Div. 1985) (quoting Magura v. Smith, 131 N.J. Super. 395, 399 (Law Div. 1974), overruled in part on other grounds, In re Mallon, 232 N.J. Super. 249, 271 (App. Div.), certif. denied, 117 N.J. 166 (1989)); accord In re Moffat, 142 N.J. Super. 217, 223 (App. Div.) (holding that votes rejected when partially malfunctioning voting machine prevented recording of votes for one candidate), certif. denied, 71 N.J. 527 (1976). Voters need not be physically barred from voting to have their votes rejected, but may instead show that, through no fault of their own, they were prohibited from voting for a specific candidate by some irregularity in the voting procedures. In re Moffat, supra, 142 N.J. Super. at 223. The essential question is whether voters were denied the opportunity to vote for a candidate of their choice. Ibid.
Respondents admit that many write-in votes were ignored because they were placed on the wrong line. They argue, however, that N.J.S.A. 19:49-5 required election officials to reject those votes, based on a plain reading of the statute, which states that if a write-in vote, or irregular ballot, is not in its appropriate place on the [voting] machine, . . . it shall be void and not counted.
Although the statute appears straightforward, it must be read in light of the broad purpose of the election laws to prevent disenfranchisement of qualified voters. In cases involving invalidated write-in votes, our courts have distinguished errors due to extrinsic problems from errors caused by a voter's own neglect. In re Hartnett, 163 N.J. Super. 257, 268 (App. Div. 1978) (holding that vote properly voided where intent was clear but error was within voter's control); In re Fifteen Registered Voters on Behalf of Flanagan, 129 N.J. Super. 296, 301-02 (App. Div.) (holding that write-in votes bearing only surname should not have been voided where desired candidate was obvious and voter sufficiently complied with instructions), certif. denied, 65 N.J. 577 (1974); In re Klayman, 97 N.J. Super. 295, 304 (Law Div. 1967) (holding that incorrect spelling or absence of middle initial should not void write-in vote where intent clear and write-in space small); but see In re Sweetwood, 91 N.J. Super. 496, 499 (App. Div. 1966) (holding that although ballot did not instruct voter to designate office for selected candidate, failure to do so invalidated vote). Those cases generally adhere to the principle that rigid application of technical rules should not prevent otherwise valid write-in votes from being counted. See Riecker v. Hartmann, 130 N.J. Super. 266, 272 (Law Div. 1974) (stating that the technical restraints of the election laws should not restrict voters' will).
We do not believe that the Legislature intended N.J.S.A. 19:49-5 to be applied in a manner that would frustrate the free expression of the voters' will when the incorrect placement of the write-in vote is the result of mistakes or problems beyond the voters' control. To determine the nature of any alleged mistakes or problems and their impact on the voters, we consider extrinsic factors such as the notoriety of the candidates' campaign and the character of the electorate. See In re Fifteen Voters, supra, 129 N.J. Super. at 300-01. Reliable extrinsic evidence, which, in light of human experience might reasonably be expected to demonstrate intent expressed on the ballot but less than perfectly, should be searched to effectuate the voter's wish and preserve the franchise. Id. at 301.
We observe, in the case before us, that this was a small election in a small borough with only seven offices to be filled. Like Harry Wright, the candidate for office in In re Fifteen Voters, petitioners campaigned vigorously for write-in votes and sent publicity mailings to all of the registered voters in the borough. Petitioners also campaigned together in opposition to the incumbent candidates and made it quite clear that they were running as a mayor/council team. Cf. id. at 298 (noting joint campaign of write-in candidate and other candidates). On the paper rolls, many of the voided votes were cast in groups of three, but on lines just above or just below the designated spaces. The only reasonable conclusion to be drawn from those groupings is that the intention of the voters who cast those votes was to elect Gray-Sadler for mayor, and Sturgis and Geiger for borough council.
Recognizing the voters' intent, we must ask why write-in votes were placed on the wrong lines or not cast in the first place. The answer to that question should help us to determine whether the rejected voters had their votes invalidated as a result of their own errors or as a result of election officials' noncompliance with statutory requirements. See, e.g., Kirk v. French, 324 N.J. Super. 548, 554 (Law Div. 1998) (distinguishing extrinsic cause of rejection from voter's refusal to comply with simple, reasonable, and normal requirement designed to assure honest voting). In fact, the record illustrates a failure to comply with N.J.S.A. 19:50-3, which directs election officials to instruct voters on the proper use of voting machines. The instructions should have been carefully drawn so as to fully advise the voter as to the proper procedure he [or she] is to follow. In re Sweetwood, supra, 91 N.J. Super. at 500. Indeed, the statute requires that a mechanical model be provided, if practicable, to illustrate how to operate the actual machine and to afford voters an opportunity to practice on the model. N.J.S.A. 19:50-3; see also N.J.S.A. 19:48-1(l) (requiring mechanical model). It also requires that [t]he voter's attention . . . be called to [a] diagram of the face of the machine so that the voter can become familiar with the location of the questions and the names of the officers and candidates. N.J.S.A. 19:50-3.
During the Chesilhurst election, no information was provided outside the voting booths explaining how properly to cast write in votes. Voters seeing conflicting and incomplete instructions for the first time on entering the booths were understandably confused, and their confusion is attributable to defects outside of their control. The testimony at the hearing indicated that voters who made a sincere effort to cast a write-in vote were thwarted by the limited and deficient instructions provided inside the booths. For example, one voter, Bernadette Freeman, testified that she wished to cast write-in votes for Gray-Sadler, Sturgis, and Geiger, but followed the personal choice warning and stepped out of the booth to ask an election official for instructions. When she spoke with an official, the official entered the voting machine and pulled the lever to enter Ms. Freeman's votes before she was finished voting.See footnote 22 Even if she had been allowed to re-enter the booth and continue voting, Ms. Freeman would not have found an adequate explanation of the personal choice procedures in the polling place.
Under the heading INSTRUCTIONS TO VOTERS at the top of the ballot, there were clear, legible step-by-step instructions on how to vote for the candidates printed on the ballot, illustrated by two separate diagrams showing how to push the voting switch. No mention of how to cast a write-in vote was included in those instructions. By contrast, the personal choice warning was printed in difficult-to-read type and located in a corner space one point five centimeters wide and two centimeters high on the far left side of the ballot. It was both easy to miss and difficult to read, and, most important, instructed voters to seek assistance from an official outside the booth. Anyone who followed that direction would be barred from re-entering the voting machine after having been given instructions, as was Ms. Freeman.
The warning also indicated to voters that they had to touch personal choice to register a write-in vote. However, no personal choice button or switch was on the machine. Rather, personal choice could be entered only by means of a complicated series of actions. Finally, the wording on the machine ( Personal Choice Warning! Do not touch personal choice unless you intend to write in ) likely led voters to be unduly cautious about pressing any personal choice apparatus without first consulting with an official. Overall, it was considerably easier to vote for candidates whose names were printed on the ballot as opposed to write-in candidates, regardless of the voters' preferences.
As for the poster on the left wall of the voting machine, it provided more detailed instructions but omitted a critical piece of information. The poster indicated that, to cast a write-in vote, a voter must pull a small lever and then pull the window slide; it did not state that both the lever and the slide had to be pulled at the same time. Unless there was simultaneous action by the voter, the window would not slide open. There was a picture on the poster, but it also failed to indicate the need to simultaneously work the levers, and was, as the trial court found, at once confusing, ambiguous and incomplete. Thus, it is likely that voters pressed the lever, let go, and then tried to slide the window, only to find that the window would not budge. That could explain why eighty-three voters entered the voting machine for a mayoral election but did not cast a vote for mayor. It is also likely that voters tried to open different windows after an unsuccessful first try, and then cast their write-in votes on the first window that would open, even if it was not the proper window.
Those defects may not have been so troubling had there been clear instructions prominently posted outside the voting machines in the polling area or models to demonstrate how the voting machine worked. Unfortunately, no instructions were provided in the polling place other than inside the voting machines. Moreover, the sample ballots sent to voters prior to the election lacked clear information about how to cast a write-in vote. The sample ballot looked substantially the same as the face of the voting machine and thus raised the same issues we have discussed in connection with the personal choice warning on the voting machine ballot. The sample ballot is even more confusing because it does not indicate that there are windows next to each office on which to cast write-in votes. On the face of the sample, there is no space for a write-in vote to be placed, nor is there any indication that there is a small lever on the machine that must be pulled to release the windows.
This case is readily distinguishable from other cases in which voters' failure to comply with specific procedural instructions invalidated their votes. See In re Municipal Election Held on May 10, 1994, 139 N.J. 553, 558 (1995); In re Keogh-Dwyer, 45 N.J. 117, 120 (1965). In those other cases, voters were clearly and unambiguously instructed to punch or mark the ballot in a designated box next to the candidate's name and warned that if the marking was not made, the ballot would not be counted. Similarly clear instructions were not provided to the Chesilhurst voters; rather, they were given patently inadequate instructions or none at all. More analogous are the cases that discuss the provision of defective voting machines. Cf. In re Maple Shade, supra, 203 N.J. Super. at 585 (finding error when voting machines broke down and officials failed to offer all voters paper ballots); In re Moffat, supra, 142 N.J. Super. at 222 (noting that voting machine counter became disengaged during election); Magura, supra, 131 N.J. Super. at 397 (noting mechanical breakdown of voting machines). There, voters, through no fault of their own, are rendered incapable of recording their preferences for candidates on the voting machines. Whether the barrier is created by a defective machine, or the failure of election officials to provide adequate personal choice instructions, is of little importance. In the end, qualified voters have been disenfranchised.
B.
Whether petitioners may prevail on their N.J.S.A. 19:29-1(e) claim depends on whether the rejected votes were sufficient to change the result. In essence, the Court must decide, under the totality of the circumstances, whether the election irregularities were so significant as to warrant a new election. Simple deviance from statutory election procedures, absent fraud or malconduct, will not vitiate an election unless those contesting it can show that as a result of irregularities the free expression of the popular will in all human likelihood has been thwarted. Wene, supra, 13 N.J. at 1960; see also In re Hackensack Recall Election, 31 N.J. 592, 595 (1960) (holding that if election results unaffected by alleged error, election should not be overturned). Only when those irregularities are such that the court cannot with reasonable certainty determine who received the majority of the legal vote, can a court set aside an election. In re Mallon, supra, 232 N.J. Super. at 270; In re Bonsanto's Application, 171 N.J. Super. 356, 360 (App. Div. 1979).
In undertaking this analysis our
courts [have] consider[ed] the nature of the irregularity, its materiality, the significance of its influence and consequential derivations in order to determine whether the digression or deviation from the prescribed statutory requisitions had in reasonable probability so imposing and so vital an influence on the election proceeding as to have repressed or contravened a full and free expression of the popular will. . . .
[In re Mallon, supra, 232 N.J. Super. at 270 (quoting Sharrock v. Borough of Keansburg, 15 N.J. Super. 11, 17 (App. Div. 1951).]
Although it would have been preferable to have more voters testify at the hearing, we recognize that concerns about privacy, embarrassment, and ridicule may prevent voters from coming forward to offer testimony that they did not vote because they could not understand the instructions. See id. at 225; In re Klayman, supra, 97 N.J. Super. at 299. Because Sturgis and Geiger would have lost by about only ten votes if the voided write-in votes were counted, only a small number of the missing votes would have changed the election. Accordingly, we conclude that Sturgis and Geiger also meet the statutory requirement for successfully contesting the results of the council election.See footnote 33
III
In light of all the circumstances, we cannot determine with reasonable certainty those candidates who received a majority of the votes for either the mayor or borough council seats. See In re Fifteen Votes, supra, 129 N.J. Super. at 302. Therefore, we declare the election for the offices of mayor and borough council null and void. A special election must be held to fill the resulting vacancies not less than 45 days nor more than 50 days from the effective date of this opinion. N.J.S.A. 40A:16-16. The Camden County Clerk must, at least thirty days preceding the election, make the necessary arrangements with the postmaster to have sample ballots mailed, and notify the commissioner of registration in writing to that effect. N.J.S.A. 19:49-4(c). The election must be conducted as it was on the original election day, except that there must be adequate instructions as outlined below and the election will be limited to the offices of mayor and borough council. N.J.S.A. 19:27-1. Petitioners' names will not appear on the face of the ballot and they will not have a new opportunity to petition to have their names placed on the ballot as they did not earlier comply with N.J.S.A. 19:13-3 or N.J.S.A. 19:14-2.1.
For the new election, and for all future elections throughout the state, explicit instructions on how to cast a write-in vote must be provided with the sample ballots sent to registered voters. The instructions must offer clear, step-by step directions that describe the mechanics of the voting machine, explain how to operate the windows and levers, and emphasize the need to cast write-in votes on the appropriate lines. Voters must be warned that an improperly cast vote will be deemed void.
Similarly clear and informative instructions must be provided at the polling place. Election officials must prominently display outside the voting machines a copy of the reformulated poster explaining personal choice that is located inside the voting booth. As a general rule, any of the instructions contained inside the voting machines should be displayed outside the voting machines so that voters have an opportunity to read the instructions in advance and pose any questions they may have to the election officials.
It is preferred that a mechanical model and/or demonstration voting machine be available to instruct voters, but unlike the voting instructions, they are not absolutely required. Although N.J.S.A. 19:48-1(l) states that all voting machines shall be provided with a mechanical model, illustrating the manner of voting on the machine, suitable for the instruction of voters, N.J.S.A. 19:50-3 adds that the model must be provided only if practicable. When interpreting different statutory provisions, we are obligated to make every effort to harmonize them, even if they are in apparent conflict. State v. Federanko, 26 N.J. 119, 130 (1958); Builders League, Inc. v. Pine Hill, 286 N.J. Super. 348, 352 (App. Div. 1996). Reading those provisions in pari materia, we conclude that the latter modifies the former to require the provision of a model only when it will not be a heavy burden on the locality. Consequently, if the Borough of Chesilhurst has difficulty in procuring either an accurate and complete mechanical model or a demonstration voting machine, it need not provide those aids.
For this election, however, there is only one polling place with two voting machines. Thus, providing an extra machine for instructional purposes is not likely to be an undue burden. Respondents concede that the extra machine is feasible here, but express concern about the cost of extra machines in future elections when multiple polling places are used. We do not require that there be an extra voting machine for future elections, but rather that an extra machine be provided when a mechanical model is unavailable and the extra machine would not be a great burden to obtain. Chesilhurst argues that Camden County should be responsible for the costs of the special election because the county breached its contract to provide Chesilhurst with legally compliant voting machines, election workers, and printed ballots. See N.J.S.A. 19:8-6, 19:48-3.17, 19:48-3.18 (providing that local municipalities rent voting machines, personnel, and ballots from the county). After oral argument we were informed by counsel for Camden County that a new election in Chesilhurst would cost approximately $9,000. We agree with the trial court that, in these circumstances, Camden County should fund the costs of the special election.
IV
The judgment of the Appellate Division is reversed. A special election is to be held in Chesilhurst for the offices of mayor and borough council as set forth herein. We defer the effective date of this opinion to July 31, 2000, to permit the scheduling of the special election in September 2000 pursuant to N.J.S.A. 40A:16-16.
JUSTICES O'HERN, STEIN, COLEMAN, LONG, VERNIERO and LaVECCHIA join in CHIEF JUSTICE PORITZ's opinion. SUPREME COURT OF NEW JERSEY
NO. A-97/103/104
SEPTEMBER TERM 1999ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
IN THE MATTER OF THE PETITION
OF KATI GRAY-SADLER, JOHN
STURGIS AND EDWARD GEIGER,
WRITE-IN CANDIDATES FOR THE
OFFICES OF MAYOR AND BOROUGH
COUNCIL OF CHESILHURST
BOROUGH, CONTESTING THE
RESULTS OF THE GENERAL
ELECTION OF NOVEMBER 2, 1999.
DECIDED June 30, 2000 Chief Justice Poritz
PRESIDINGOPINION BY Chief Justice Poritz
CONCURRING OPINION BY DISSENTING OPINION BY
CHECKLIST
REVERSE CHIEF JUSTICE PORITZ X JUSTICE O'HERN X JUSTICE STEIN X JUSTICE COLEMAN X JUSTICE LONG X JUSTICE VERNIERO X JUSTICE LaVECCHIA X TOTALS
7 Footnote: 1 1Respondents contend that the personal choice warning was only on the sample ballot and not on the face of the machine. However, the trial court found testimony that the warning was on the face of the machine to be credible. We have no basis for questioning that finding. Footnote: 2 2Under N.J.S.A. 19:52-3, a voter may not exit the voting booth and then re-enter; once the voter exits, his or her vote is cast and cannot be amended. Footnote: 3 3Since petitioners have demonstrated that legal votes [have been] rejected at the polls sufficient to change the result, N.J.S.A. 19:29-1(e), we need not decide whether further grounds exist to contest the election.
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