Cottingham v. VogtCottingham v. Vogt
Because of the necessity of preparing ballots for the impending primary election, this court specially scheduled oral argument of this appeal from a Law Division judgment ordering defendant County Clerk Giuliano to remove the names of defendants Carey, Dunn and Miller, candidates for the office of county committeeman,
Plaintiffs filed their nomination petitions for county committeeman with defendant Vogt, City Clerk of East Orange, on March 9, 1960. Defendants Carey, Dunn and Miller filed their petitions the next day. Plaintiffs thereupon duly filed their written objections to the nominations of these defendants with the city clerk, in accordance with R.S. 19:13-10, claiming that they had failed to vote for a majority of the candidates of their political party at the last general election in 1959. The city clerk proceeded to pass upon the validity of the objections,
Plaintiffs then instituted an action in the Superior Court, Law Division, seeking a reversal of the city clerk‘s determination. The trial judge concluded that the clerk had erred because defendants had failed to vote in the last general election, and accordingly entered the judgment under appeal.
The position taken by plaintiffs in the Law Division was that the requirements for candidacy in a primary election, set out in
“Accompanying the petition each person indorsed therein shall file a certificate, stating that he is qualified for the office mentioned in the petition, that he is a member of the political party named therein; that he consents to stand as a candidate for nomination at the ensuing primary election of such political party, and that, if nominated, he consents to accept the nomination, to which shall be annexed the oath of allegiance prescribed in section 41:1-1 of the Revised Statutes duly taken and subscribed by him before an officer authorized to take oaths in this State.”
And
“Accompanying the petition and attached thereto each person indorsed therein shall file a certificate, stating that he is qualified for the office mentioned in the petition; that he consents to stand as a candidate for nomination at the ensuing primary election, and that if nominated, he agrees to accept the nomination. Such acceptance shall certify that the candidate is a resident of and a legal voter in the jurisdiction of the office for which the nomination is to be made and there shall be annexed thereto the oath of allegiance prescribed in section 41:1-1 of the Revised Statutes duly taken and subscribed by the person so nominated before an officer authorized to take oaths in this State.”
Admittedly, the only ground for the result reached by the Law Division was that defendant candidates had not voted in the 1959 election. There is no such requirement in either of the above-quoted sections of the Election Act. It is entirely reasonable to say that had it been the legislative intention that a candidate must have voted in the last general election in order to qualify as a nominee, the Legislature would have explicitly manifested that intention. As it is, the only requirements under the quoted sections are that the candidate is qualified for the office mentioned in the petition; he is a member of the political party named therein; he consents to stand as a candidate for nomination at the ensuing primary election of such political party and, if nominated, consents to accept the
In Dvorken the only question was whether the candidate was a member of the Democratic Party and therefore entitled to have his name printed on the primary ballot of that party. Justice Case determined that Dvorken was a bona fide Democrat. In the course of a short opinion he stated it was “reasonable to suppose that the Legislature in requiring, in paragraph 272, supra [of the Election Act, Revision of 1930; L. 1930, c. 187; now
In the George case, decided by this court, the sole question was whether defendant was a Republican entitled to have his name appear upon the primary ballot. In concluding that he was we made passing reference to the Dvorken case, stating that the construction given by it to
The right to run for and hold public office is a valuable one, and its exercise should not be declared prohibited or curtailed except by the plainest provisions of the law, whether embodied in constitution or statute. As noted, neither
To say that an otherwise qualified person may not stand as candidate at the primary of his party because he did not vote the preceding November would amount to an unreasonable impairment of civil and political rights. While it was held in Stevenson v. Gilfert, 13 N.J. 496 (1953), that the right to participate in a party primary was subject to regulation by the Legislature to prevent improper manipulation of party affairs by outsiders, the court stressed that such regulation must be reasonable. We are of the firm conviction that it is not reasonable to debar a citizen from candidacy for nomination by his party at a primary election merely because he failed to vote at the prior general election, and that the Legislature had no such intent in enacting the statute here involved.
For example, one can readily imagine a situation where a candidate did not vote because he was suddenly taken ill
We therefore hold that it is not a qualification for candidacy in a primary election that the nominee should have voted at the last general election. The judgment under review is reversed. No costs.