## Facts

- New Jersey enacted the Absentee Voting Law (1953), authorizing absentee ballots for certain civilian voters who expected to be outside the state or could not appear at the polls due to illness, disability, or other specified reasons.
- Jersey City held an election on May 14, 1957, for five city commission seats.
- The certified results placed Bernard J. Berry fifth with 57,561 votes and Thomas Gangemi sixth with 57,405 votes, a 156-vote margin.
- The totals included 458 civilian absentee ballots; Berry received 328 of those ballots and Gangemi received 74.
- A recount confirmed the result, and Berry was certified, qualified, and assumed office.
- It was conceded that Berry’s margin depended on the civilian absentee ballots.

## Issues

1. Whether the 1953 statute authorizing civilian absentee voting was unconstitutional under the New Jersey Constitution because the Constitution expressly provided for absentee voting only for members of the armed forces.
2. If unconstitutional, whether civilian absentee ballots cast under the statute could lawfully be counted in determining the election’s outcome.

## Decision

- The New Jersey Supreme Court reversed the trial court’s summary judgment for defendants.
- The court held the 1953 civilian absentee voting statute unconstitutional under the New Jersey Constitution of 1947.
- The court determined that civilian absentee ballots could not lawfully be included in the election count where the election outcome depended on them.

## Legal Principles

- The Legislature has broad authority, but it may not enact election procedures that contravene constitutional requirements, whether by express limitation or necessary implication.
- The constitutionally prescribed method of voting is in-person voting by secret ballot at the polls on election day; departures from that method are exceptions that require constitutional authorization.
- When the Constitution specifically authorizes absentee voting for a defined class (members of the armed forces), that authorization operates as an exclusive exception, barring legislative extension of absentee voting to civilians absent a constitutional amendment.

## Conclusion

Because the New Jersey Constitution expressly permitted absentee voting only for military voters, the Legislature lacked authority to create a civilian absentee voting system by statute, and civilian absentee ballots could not lawfully determine the election result.


Gangemi v. Berry, 25 N.J. 1, 134 A.2d 1 (N.J. 1957)