Quaremba v. AllanQuaremba v. Allan
Mr. Michael J. Ferrara, County Counsel, argued the cause for respondent County Clerk of Bergen County.
Mr. Stephen Skillman, First Assistant Attorney General, argued the cause for respondent State of New Jersey (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
The opinion of the Court was delivered by KOLOVSKY, P.J.A.D., Temporarily Assigned.
This appeal is before us on certification granted, 66 N.J. 312 (1974), after the Appellate Division, in a reported opinion, 128 N.J. Super. 570 (App. Div. 1974), had affirmed the judgment in favor of defendant County Clerk entered in the trial court after a trial of plaintiffs’ action for a declaratory judgment.1
Plaintiffs had been unsuccessful candidates at a primary election held on June 8, 1971 in Bergen County for the Republican nominations for State Senator (Quaremba and Ralph) and member of the Board of Chosen Freeholders (Rizzo). Three principal contentions are advanced by them in this action, instituted on March 28, 1972, in anticipation of the 1972 primary election at which they, respectively, proposed to seek the Republican nominations for county
First, they challenge as unconstitutional the provisions of
We start with an analysis of the two sections of the Election Law to which plaintiffs refer.
(Such has been the uniform interpretation of
So much of
On its face, the effect of that amendment was to limit the application of the pertinent provisions of
In cases to which
The county clerk in certifying to the municipal clerk the offices to be filled and the names of candidates to be printed upon the primary election ballots, shall certify them in the order as drawn in accordance with the above described procedure, and the municipal clerk shall print the names upon the ballots as so certified and in addition shall print the names of such candidates as have filed petitions with him in the order as determined as a result of the drawing as above described. [Emphasis supplied].
Thus,
Plaintiffs’ attack on the constitutionality of
We are satisfied that there is no merit to any of plaintiffs’ constitutional arguments.
As we said in Sadloch v. Allan, 25 N.J. 118, 122 (1957):
Since the exhaustive and instructive opinions in Wene v. Meyner, 13 N.J. 185 (1953), and Stevenson v. Gilfert, 13 N.J. 496 (1953), there can be no doubt about the authority of the Legislature to adopt reasonable regulations for the conduct of primary and general elections. Such regulations, of course, may control the manner of preparation of the ballot, so long as they do not prevent a qualified elector from exercising his constitutional right to vote for any person he chooses. Rose v. Parker, 91 N.J.L. 84, 86 (Sup. Ct. 1917). [Emphasis supplied].
Nothing in the challenged section inhibits any voter from voting for any person he chooses or limits the right of any candidate to run for office. The fact that different procedures are provided governing the positioning of the names of candidates when voting machines are used than when paper ballots are used does not result in a denial, either to the voters or the candidates, of the equal protection of the laws.
Apposite are the comments recently made by the United States Supreme Court in rejecting an attack on the constitutionality of a Texas statute which provided that “small parties” must choose their candidates at conventions and permitted major parties to choose their candidates by primary election:
* * * If claiming an equal protection violation, the appellants’ burden was to demonstrate in the first instance a discrimination against them of some substance. “Statutes create many classifications which do not deny equal protection; it is only `invidious discrimination’ which offends the Constitution.” Ferguson v. Skrupa, 372 U.S. 726, 732, 83 S.Ct. 1028, 1032, 10 L.Ed.2d 93 (1963) (footnote omitted). Appellants’ burden is not satisfied by mere assertions that small parties must proceed by convention when major parties are permitted to choose their candidates by primary election. The procedures are different, but the Equal Protection Clause does not necessarily forbid the one in preference to the other. [American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 1306, 39 L.Ed.2d 744 (1974), reh. den. 416 U.S. 1000, 94 S.Ct. 2414, 40 L.Ed.2d 777 (1974).]
Even if we were to disregard the presumption of validity which attaches to
When paper ballots are used in primary elections, separate ballots are provided for each political party and the size and length of the ballot may be expanded if the number of candidates seeking nomination to the several offices requires it. The contrary is true where voting machines are used.
In such case, the names of candidates for nomination by all parties appear on the one face of the machine which is equipped with a device by which the election officials “can lock out all rows except those of the voter‘s party.”
Of even greater significance is that a paper ballot is much easier to read than is the face of a voting machine, a factor which alone furnishes adequate support for the Legislature‘s determination that different provisions should govern the preparation of the face of the voting machine than govern the preparation of a paper ballot.
As we said in Richardson v. Caputo, supra, a case involving a general election:
The purpose of a ballot is to permit voters to record their will, and one must assume the Legislature intended a ballot so arranged that all voters may find their candidates with the least difficulty the total content of the ballot will permit. Here we can find no reason, and no one suggests a reason, to deny plaintiffs the benefit of their joint candidacy or to deny a voter who wants to advance the party
or the principles of the candidates an easy opportunity to find all of them. * * * [46 N.J. at 9]. * * *
* * * whereas with respect to the paper ballot a voter wishing to vote for the candidates of a “party” would have no difficulty in finding all of them by simply running down the column, the voting machine ballot is not designed to permit such ease in voting. Rather one might have to follow a number of lines or columns to search out the candidates of his party, and this could be a considerable feat for a voter in the booth conscious of a queue on the other side of the curtain. [46 N.J. at 12-13].
Our comments in Richardson with reference to “candidates of a party” in a general election would be equally applicable to a voter in a primary election seeking the names of candidates who have filed a joint petition and candidates affiliated with them if the statute did not require, as it does, that they be placed on the same line of the voting machine.
Plaintiffs further argue that an unaffiliated candidate would draw more votes if his opponent‘s name were not grouped with those of candidates for other offices. Even if that be true, it affords no basis for invalidating, as unreasonable, the legislative determination that whatever the effect on an unaffiliated candidate, the public interest is better served by permitting a grouping of candidates having common aims or principles and authorizing those candidates “to have this fact brought to the attention of the voter in a primary election with the additional effectiveness produced by alignment of their names on the machine ballot * * *.” Harrison v. Jones, 44 N.J. Super. 456, 461 (App. Div. 1957).
Finally, contrary to what plaintiffs suggest, it is of no constitutional moment that the section does not apply in the six counties which do not use voting machines. Inganamort, et al. v. Bor. of Fort Lee, et al., 62 N.J. 521, 529 (1973); Mason v. Missouri ex rel. McCaffery, 179 U.S. 328, 21 S.Ct. 125, 45 L.Ed. 214 (1900).
We find no substance to plaintiffs’ second contention — that the county clerk in counties using voting machines also must comply with the provisions of
There is no warrant for ignoring the express statement embodied in
* * * In construing a statute it is to be assumed that the Legislature is thoroughly conversant with its own legislation and the judicial construction placed thereon. Barringer v. Miele, 6 N.J. 139, 144 (1951). And the construction of a statute by the courts, supported by long acquiescence on the part of the Legislature or by continued use of the same language or failure to amend the statute, is evidence that such construction is in accord with the legislative intent. Egan v. Erie R. Co., 29 N.J. 243, 250 (1959); Barringer v. Miele, supra. We think these rules of statutory construction are particularly applicable to the election laws, a subject matter with which the Legislature is intimately concerned. [In re Keogh-Dwyer, 45 N.J. 117, 120 (1965)].
Even more reason exists for applying the stated rule when, as here, the statute has been amended in other particulars, without change in the phraseology construed in prior judicial decisions. D.L. & W.R. Co. v. Division of Tax Appeals, 3 N.J. 27, 37-38 (1949), app. dism. 338 U.S. 946, 70 S.Ct. 488, 94 L.Ed. 583 (1950); Missouri v. Ross, 299 U.S. 72, 75, 57 S.Ct. 60, 62, 81 L.Ed. 46 (1936).
Plaintiffs’ final contention requires a consideration of the scope of judicial review of the discretionary action of a county clerk in situations governed by
Except for Farrington v. Falcey, supra, none of the cases cited above — Hawkes v. Gates, In re Hoffman, Bado v. Gilfert, Harrison v. Jones, Farrington v. Falcey and Moskowitz v. Grogan (all of which are briefly digested in the appendix attached hereto) — involved the issue of abuse of discretion. In none of them had the unsuccessful party asserted that the county clerk had abused his discretion. Rather the claim asserted, unsuccessfully in each case, was that the county clerk had no discretion and was compelled to take, by reason of
In Farrington v. Falcey, supra, decided subsequent to the filing of our opinion in Robinson v. Caputo, 46 N.J. 3 (1965), the abuse of discretion issue was one of those raised by plaintiff but the court found as a fact that there had been no abuse of discretion.
Richardson v. Caputo, supra, dissipated whatever doubt theretofore may have existed with respect to the power of the courts to review a county clerk‘s exercise of discretion under the election laws. In Richardson, after noting that a county clerk‘s discretionary action was not “beyond judicial disapproval,” we said:
Discretion, of course, is never the plaything of office. Rather it imports responsibility, a duty to act with reason. True, it is not for a court to choose one of several reasonable courses, for that choice is precisely what the Legislature left to another, United Hunters Ass‘n v. Adams, 36 N.J. 288 (1962), but if it clearly appears the course taken is not rooted in reason, the bounds of the delegated authority have been exceeded and it is the duty of the court to say so. [46 N.J. at 9].
Whether or not a particular course taken by a county clerk in the exercise of the discretion vested in him by
It is obvious that the county clerk must act in good faith and may not intentionally discriminate against any candidate or group of candidates.
In this case plaintiffs charged defendant with intentional and purposeful discrimination against non-organization candidates. However, as the trial court found and as the Appellate Division agreed, the evidence adduced did not furnish adequate support either for the charge of intentional discrimination or for plaintiffs’ challenge to the good faith of defendant county clerk. Adequate basis for such charges is not to be found in plaintiffs’ criticism of several of the 517 different forms of ballot defendant was called upon to prepare for the primary election. (The differing forms of ballot were required because not all candidates were to be voted for throughout the county; some were to be voted for only in one district or one municipality.)
Aside from the charge of intentional discrimination, plaintiffs’ principal criticism was of the county clerk‘s refusal to structure the ballot in the form of a single column with the names of the candidates for each office, affiliated and non-affiliated, following each other in the sequence determined by a drawing and these in turn followed by a similar listing of candidates for the next office and so on.
Under that proposal, the names of those who had filed a joint petition for different offices and those who had affiliated with them, although appearing in a single column, would be separated from each other by the names of unaffiliated candidates seeking the same offices.
There is no merit to plaintiffs’ contention that the ballots should be structured as they suggest. Indeed such a separation of the names of those affiliated candidates — unless they consent thereto — would be contrary to the legislative
Nor is it an abuse of discretion for a county clerk to accord affiliated candidates a line of their own. “On the contrary he should [place them on a line of their own] if that course is feasible and if in the context of the whole ballot it would afford all the voters a clearer opportunity to find the candidates of their choice.” Richardson v. Caputo, supra, 46 N.J. at 8; see also Farrington v. Falcey, supra, 96 N.J. Super. at 413-414. In such case, the assigned line should normally be exclusively that of the affiliated candidates. Unless space requirements dictate otherwise, unaffiliated candidates for the same or other offices should not be added to the line allocated to the affiliated candidates.
As we have noted,
The same course normally should be followed as between unaffiliated candidates for a particular office without, of course, affecting the inclusion of the affiliated candidate for that office with his group. Cf. Moskowitz v. Grogan, supra, 101 N.J. Super. at 116.
Finally, unless impossible because of the physical limitations of the voting machine at a particular primary election, the county clerk must “give effect on the ballot to a consensual arrangement whereby all of the candidates at a given level agree to run on a line of their own for any given office with no other candidate * * *.” [Alaimo v. Burdge, 63 N.J. 574, 575 (1973)].
As modified by this opinion, the judgment is affirmed. No costs to either party.
In Hawkes v. Gates, 129 N.J.L. 5 (Sup. Ct. 1942), an unaffiliated candidate for the Republican nomination for United States Senator sought: (a) to compel a drawing among all six candidates for that office even though one of them, by reason of the consent given the campaign manager of a group of candidates for county offices, was, pursuant to
Deeming that the actions of the County Clerk of Essex County, by his deputy, were discretionary, this court will not undertake to direct how that discretion shall be exercised. [at 11].
In In re Hoffman, 134 N.J.L. 155 (Sup. Ct. 1946), Chief Justice Case, giving controlling effect to
In Bado v. Gilfert, 13 N.J. Super. 363 (App. Div. 1951), it appeared that no joint petitions had been filed with the county clerk. The court ruled that
In Harrison v. Jones, 44 N.J. Super. 456 (App. Div. 1957), the court upheld the power of the county clerk to accept, where the delay was excusable, a belated consent by
In Farrington v. Falcey, 96 N.J. Super. 409 (App. Div. 1967), it appeared that the campaign manager4 of a group of Democratic candidates for county office had consented to the affiliation with that group of two candidates for the Democratic nominations for State Senators. The campaign manager had refused a request for such affiliation by Farrington, who was also a candidate for nomination as State Senator.
Nevertheless the trial court, in an action instituted by Farrington, ordered the county clerk to place Farrington‘s name on the same line as that of the group. The Appellate Division reversed, ruling (1) that
In Moskowitz v. Grogan, 101 N.J. Super. 111 (App. Div. 1968), certif. den. 51 N.J. 575 (1968), the court, again relying on
For affirmance as modified — Chief Justice HUGHES, Justices MOUNTAIN, SULLIVAN and CLIFFORD and Judge KOLOVSKY — 5.
For reversal — None.