Law School Case Brief
In re Mallon - 232 N.J. Super. 249, 556 A.2d 1271 (Super. Ct. App. Div. 1989)
The courts consider 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 have in reasonable probability so imposing and so vital an influence on the election proceedings as to repress or contravene a full and free expression of the popular will. Mere irregularities in failing to comply with a procedural requirements will generally not be sufficient to void any votes. It is only where the irregularities at an election are such that the court cannot with reasonable certainty determine who received the majority of the legal vote, that an election will be set aside.
In a contested election for one of two full-term seats on the municipal council, respondent Democratic candidate Mallon obtained a recount of the votes cast. After the recount, respondent instituted a suit challenging the election results and, in particular, the seat won by appellant Republican candidate Fream. The trial judge set aside the election as to the disputed municipal council seat, finding that certain irregularities and illegal votes gave rise to sufficient misconduct to challenge the election results for the council position. Republican candidate Fream argued on appeal that the evidence before the trial court was insufficient to warrant a finding of malconduct by election officials sufficient to challenge the result, and that the evidence at trial was sufficient to find that his margin of victory should be increased to three votes.
Did the trial judge err in finding malconduct by the county clerk during an election?
The Superior Court of New Jersey reversed the order that set aside the election of appellant Republican candidate. The Court held that, while neither the county clerk nor the board of elections had effectively carried out the checks required by N.J. Stat. Ann. §§ 19:57-10 and 19:57-24, and there were other irregularities in connection with the voting, such procedural irregularities alone or in combination did not meet the standard of misconduct required under N.J. Stat. Ann. § 19:29-1a. The Court held that the evidence supported the finding that challenged voters intended to maintain residence in the municipality, and their votes were valid. The Court also found that valid ballots that were marked with extraneous markings were also valid. The Court also held that the trial judge erred in finding malconduct by the County Clerk within the meaning of the state law. petitioner clearly failed to carry his burden of establishing the person for whom the other challenged absentee ballots were cast, or that circumstances prevented such proofs. As to the improper coding on the absentee ballot applications, these irregularities and conceded errors did not rise to the level of "malconduct" sufficient to void the election.
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