*1 SMITH, MURIEL S. PLAINTIFF-APPELLANT, PENTA, v. ROSE JUDGE OF ELECTIONS, BOARD OF ONE, DISTRICT BOR- HIGHLANDS, OUGH OF HECK, ALYNN TRACY SUPERIN- ELECTIONS, TENDENT OF MONMOUTH, COUNTY OF STATE JERSEY, OF NEW FLYNN, ANN MONMOUTH COUNTY ELECTIONS, BOARD OF JERSEY, STATE OF NEW DEFEND- ANTS-RESPONDENTS. 16, 1978 Argued July October Decided 1979. *3 argued appellant.
Mr. William the cause for E. Wilson Stephen (Mr. argued respondents Mr. the cause for Skillman Degnan, J. Attorney Jersey, attorney; John General of New Ms. counsel; General, Conley, Deputy Attorney L. of Mr. Erminie Edelstein, General, Deputy Attorney brief). M. on Nathan opinion The of the was delivered court MOUNTAIN, J. day the June 1977. On that
A was held primary election Borough Highlands Monmouth of the of plaintiff, a resident registered Republican, sought register a County a and party’s might vote forthwith in that Democrat in order she register was denied and she request Her primary election. of an sought complaint filed issuance immediately declaratory granted should not be why order to cause she show injunctive judge complaint trial dismissed the relief. The ruling. this day Appellate and that same Division affirmed 76 N.J. certification, for granted plaintiff’s petition We (1978), and now affirm. here
The section of our Law with which we are Election concerned, in a requirements voting fixes certain of the primary election and reads as follows: his name No vote at the election unless voter shall be allowed to primary signature register. in the appears copy signs of who A voter votes in a or who primary political party registration a files commissioner of with the clerk or municipal county election of party
declaration that he desires to vote a political signs he and files shall be to be a of that until deemed member party election of another declaration that he desires to vote political other which time he shall deemed to a member such political be be shall cause to party. Secretary prepared political forms the commissioners affiliation declaration forms and shall such provide registration and to the clerks the municipalities several counties within such counties. *4 registered No which he is voter the first at voter, at except newly primary eligible in a election, or a voter not voted vote, who has previously primary vote he to be a in a unless was deemed may election of a political primary party preceding member of that on such election. the fiftieth next day primary A and a official or member of the committee of a county political party public holding he has been or which office public employee public employment any be a member elected or as a of a shall deemed member appointed political party of such political party. voting in ballot in box of Any person any political any primary guilty of the shall of a election contravention election law primary
69 and who aids or assists such misdemeanor, such any person any person violation of or order, means means of or proclamation public by any public or suggestions, direction or or means of or assistance or private any help guilty shall likewise be of a misdemeanor. cooperation, [N.J.S.A. 19:23-45] Implementation balloting regulations set forth in this nominating procedure widely statute results in a which is re garded primary. as a “closed” Where such an election scheme does, form, prevails—as great majority in some who —only qualify particular states1 those as members of a political party may party’s vote in that election. Ex primary noted, cept Jersey always New has adhered to the closed observed, As this has primary system.2 Court tightly of the closed as “one of the most closed New has been described Jersey (1928). Overacher, Elections, states.” Merriam Primary [Ste primary (1953)] v. N.J. Gilfert, 496, venson (1975) Law-Elections, 88 Harv.L.Rev. 1Developments (hereinafter Developments); Note, Elections: The Real Party Primary Elections). (1974) (hereinafter Rutgers Interest, 27 L.Rev. 298 Primary attack, formerly provided here under the enactment 19:23-45, 2N.J.S.A. voting change must abstain from his political wished to a voter who Nagler Stiles, 343 F.Supp. In elections. consecutive primary in two court), (3-judge was held unconstitutional (D.N.J.1972) this requirement subject did to this Another statute directed stricken. 19:23^5 was N.J.S.A. from May c. 260. Thus L.1975, 12, 1975, December effect until not take the effective Nagier 12, 1975, December decision, until the date of unregulated an or had statute, Jersey “open” New last mentioned date of the state. primary as an “open” in fact was classified election system n. 90. 65, 1170, n. Developments, supra a concise Gilfert, contains supra, in Stevenson 3This opinion Court’s legislation To the authorities in New Jersey. history now be added McCor makes reference which Justice Jacobs’ opinion Voting of the Development Jersey-A Study in New mick, History (1664-1911) et seq. Machinery Election *5 A closed primary system generally includes, as is true in New Jersey, some kind of requirement designed to exclude certain types of voters. might designed Affiliation statutes four of individuals prevent types voting (1) from generally voters party primaries: affiliated with another wishing but to cross over party to a rival a weak party’s primary support general candidate who is to lose in the likely election to the nominee of the (raiders); (2) voters’ generally affiliating voters preferred party with another wishing but to cross party over to support candidate in preferred primary case general the nominee of the (second voters’ own loses the party supporters); (3) generally affiliating choice voters with another but wishing to cross over to a candidate over support preferred any potential (crossovers); nominee (4) generally voters’ own voters affiliat- not
ing wishing with but (indepen- any party candidate support particular party dents). 88 Harv.L.Rev. [Developments, supra, 1164] In order the more effectively to exclude such persons, classes of well over half the states “condition voting on party affiliation of a Developments certain duration.” at 1169-70. seen, As we have Jersey period in New days. is now 50 N.J.S.A. 19:23-45.
Plaintiff asserts this statute is unconstitutional. argument may The be summarized as follows: foregoing statutory provision requires, cases, in all excepted but the that a declaration of particular party affiliation with a days be filed 50 preceding election. Another section of the Election Law, 19:23—14,stipulates N.J.S.A. that nominating petitions may be designated public filed with up officials to and including day prior Thus, fortieth to the primary election. argu concludes, ment prospective required voter is to file a declara tion of affiliation before he or she can know certainty with who all the candidates for office be. It is contended that this offends both Federal and State impairs Constitutions that it citizen’s to vote. Rockefeller,
In Rosario v. 410 U.S. 36 L.Ed. S.Ct. (1973), 2d 1 the Supreme Court sustained a New York statute *6 an particular that conditioned individual’s to vote in party’s primary having on his declared an affiliation with that party eight primary to eleven months before the date of the preventing election. The Court found the state interest raiding justify Raiding sufficient to the exclusion. occurs when primary vote in the election of the other party members one nominating with the intention of a weak candidate who party by party be defeated the candidate of their true probably could general Obviously, raiding election. will tend to weaken political party the attacked and if successful will result in a candidacy. fraudulent determined the votes of members . . is, [A] candidacy by nonparty a fraudulent effect, Rockefeller, F.2d
practical
candidacy.
[Rosario
649,
(2d
1972),
(1973)]
Cir.
aff’d 410
752,
U.S.
S.Ct.
Following this
challenge
primary
unsuccessful
to New York’s
system,
aspects
election
certain
primary system
of Connecticut’s
Schaffer,
challenged
(D.Conn.
were
in Nader v.
a state has a more equally preserving This includes integrity historic electoral process. overall insuring groups; results oí the viable and identifiable interest parties voting of reflect the sense, party in a broad elections, accurately primary outcomes which will avoid Parties should be able to members. labels as general it relies on electorate to the extent confuse or mislead ideologies; preventing and fraudulent deceptive certain representative nominating F.Supp. 845] conduct which mars process. [417 say, went on to The court integrity of the electoral As we have noted, “preservation phrase nominating the assurance that context, process” contemplates, the votes of will of undistorted members,
election results reflect the
to,
if not
hostile
with,
principles, philosophies,
those unconcerned
actually
goals
of fraud in
phrase contemplates
prevention
party.
nominating
determined
the votes of
candidacy
non-party
process,
*7
arguably
458 F.
Rockefeller,
a fraudulent
See Rosario v.
members is
candidacy.
(1973).
(2
1972),
36
1
1245,
652
410 U.S.
93 S.Ct.
L.Ed.2d
649,
aff’d,
752,
2d
Cir.
[Id.
846—47]
989,
U.S.
429
by
Supreme
The decision
Court.
was affirmed
516,
97 S.Ct.
Before the durational out that had she fulfilled point let us first registered days 50 or more before requirement time, points she election, voted. But at that she could have were to might out, known who all of the candidates she not have during the might qualify as a nominee be, because someone has failed to demon period. plaintiff ensuing ten-day Since occurred, alleged we find this actually event strate that such an be de minimis procedure imperfection of her character to overcome self-inflicted and insufficient is of Only because the matter so-called “disenfranchisement.” proceed we to the substantive public consequence, some do her contention. aspects of
73
Elections,
County
L.Ed.2d 506 right (1972) requiring as that a denial of the L.Ed.2d compelling state interest. Convinced justified by to vote be that, as a approach, the federal we announced soundness of law, showing of the same constitutional matter of state justify any restriction required be in order magnitude would II, Jersey Art. 3 of the New guaranteed franchise as § on the however, test, in this case. inappropriate That Constitution. demonstrated, say that a will it is inaccurate amply As a member of plaintiff, registered who is person such as the participate and who desires to political party one right been denied the to vote. party, election of another has vote, by Arti secured constitutional The State Constitution, consists II, Jersey the New cle 3 of § following: (a) age citizen the United Every States, of 18 who shall have years, been a resident of this State and of the in which he claims his vote 30 county next before the shall election, be entitled to vote for
days, all officers that now are or hereafter be elective may all which people, upon questions *8 be submitted to a vote of the people; and plaintiff dissenting colleagues, Unlike the our we fail to see how the entitlement “to vote for all officers that now are or people” could may by possibly hereafter be elective the be read encompassing right participate particular party’s as the to in a vote, right guaranteed by The to process. candidate selection Constitution, plain language the of our does not subsume State right party’s an unfettered to be involved in a internal decision- making process, which is all that a election is. In this
state, the participate political in a party’s primary election is a statutory one.
aWhen state statute on challenged is state constitu grounds, tional government the nature of state and the distribu of sovereign power tion plaintiff’s within it make the burden a heavy Constitution, one. the the Federal State Con “[U]nlike stitution grant is powers.” Gangemi not but limitation of Berry, (1957). 25 N.J. government possesses The federal only powers those the in by ceded states the Federal Constitution; possess the powers government. states other of all powers government These reserved of repose people but Legislature are exercised the as the of the representative people. N.J.Const., 4, 1, ¶ repository Art. 1. As such of these § reserved powers Legislature (1) the except is free to act respect of powers delegated government by to the federal the States, (2) Constitution of the may United such exercise as' be limited the state are constitution. There no other re straints upon legislative power. state paragraph Article section By 1 of IV, Constitution, people sovereign Legislature, vested full authority save as therein otherwise Adjustment, Schmidt v. Board of 9 N.J. Newark, provided. sovereignty our theory the ultimate political system is in the people, springs legitimate (1) legislative “from whom all authority"; authority in the States consists of full “the as it rests complete power in, and may sovereign exercised subject by, power any country, such restric- only tions as have seen fit and to they the limitations impose, which are legislative
contained Constitution States,” United and the depart- ment agency “is not made a exercise special defined specifically legislative general but is intrusted with powers, to make laws at authority [Gangemi discretion” . . . . 25 N.J. Berry, supra, 8-9] expanse governmental power Because of vast reposing statute, the legislature, challenging one a state on other than federal constitutional grounds, heavy indeed bears burden. *9 under the state unconstitutionality test for The established one. rigorous constitution is is in the against the exercise of particular power A constitutional prohibition judicial in this is the rule of policy and it settled nature of an exception; void unless its legislative will not be declared
jurisdiction
enactment
that a
no room for reasonable
manifest as to leave
repugnancy
is so
to the Constitution
legislative
the exercise of
power
limitation
must
The constitutional
upon
doubt.
engrafted
limitation
upon
This is a well defined
be clear
imperative.
a statute
state,
federal and
courts,
nullify
function assumed by
Milk
Co.,
v. Newark
Board of Milk Control
State
unconstitutionality.
v.
369; Sexton
346,
78 N.J.L.
McGuinness,
v.
504; Attorney-General
N.J.Eq.
Bott v.
Telegraph
701;
86 N.J.L.
85; affirmed,
N.J.L.
Co.,
Newark District
v.
See, also,
L.R.A. 251.
Marbury
N.J.L.
289, 302,
State,
Secretary
or unnatural
is to be no forced
As was indicated in Nader v. there are at significant protected by least two interests that are a closed primary system require with a durational election First, system supports rights ment. such a the associational regular party members. and term of art which describes the formation “Association” is a constitutional advancing goals for the and beliefs of collectivities purpose
perpetuation Elections expressing [Primary 302] attitudes philosophies. association, must admit an which is such political party, If a election, there would in its to vote and all who wish any regard legislatures “have the same unlimited power 4That American state legislation where are they resides in the British parliament except which lightly. See A. constitutions,” should not be treated written restrained (6th 1902) (“ ed. ‘It is a fundamen- The Law Constitution 40-41 Dicey, everything English Parliament can do but with lawyers, tal principle ”). a man a woman.’ man, make a woman a partisanship an certainly then most ensue erosion cohesive political party’s strength. that is basic A insofar purely public than event as something other philosophy some political an to adherents of opportunity affords their and seek to goals, proselytize to advance their beliefs or These interests—and others acquire perpetuate power. legislation which well—are associational values state properly protect. nominating If the all voters courts without successfully open process *11 strong
regard to the well be the decline of price party competi Right to tive The Vote and Restrictions on Primaries, Crossover parties. [Note, (1973)] 40 U.Chi.L.Rev. mentioned, the state has Secondly, already as we have the the elector- public maintaining integrity in of strong interest designed by legislation fostered process. significantly al This is “[rjaiders recognized It that prevent “raiding.” to has been opportunity vote . will not want foreclose fairly outcome certain. primary their own until the party’s themselves not wish to commit independents will Crossovers clearly Devel- party until the candidates are identified.” to one Kentz Judge 1169. As ob- 88 Harv.L.Rev. at opments, supra, the presented was Law issue now before us served when the State, (Law Div. N.J.Super. Division in Friedland 1977): urge amend requirement court to strike down or the declaration Plaintiffs this filing of candidate after primary
so that affiliation required only argument This election. before primary which occurs days petitions, voters to ignores that to commit restriction, is, purposes principal minimizes opportunities at a cut-off point effectively party philosophies “preserving legitimate as viable “raiding.” has a interest parties The State insuring groups; elections, results of and identifiable interest Nader, voting members.” supra. in a broad reflect sense, accurately [149 N.J.Super. 493] entirely We concur with this statement. the electoral
Against integrity interest the State’s political must be rights parties process the associational weighed the harm that is done to an individual who allegedly is denied the right to vote in election. We are per- suaded, as was the Supreme Rockefeller, Court in Rosario v. supra, that these interests are substantial enough to justify the modest restrictions which placed have been plaintiff on what the contends should be an individual’s partici- unfettered pate in a primary.
Plaintiff’s position is essentially a point reflection of a view—said to be widely held—that voters are more interested in candidates than in parties. Whether or not this is so we do not know. say Suffice it to that the two-party system, including a closed primary with durational affiliation requirements such as we have in Jersey, New characterizes governments of most states. If it is changed, to be change must come from the legislature or from the people. It cannot come from the courts. judgment of the Appellate Division is affirmed.
PASHMAN, J., dissenting.
I respectfully law, dissent. present Under those who wish to vote in political primary cannot obtain a complete list of candidates until 34 days before the election. See N.J.S.A. *12 Nonetheless, 19:23-14. they required are to declare affiliation and thus limit the individuals for they whom can cast their ballot at least days prior, to the date of the primary. N.J.S.A. 19:23-45. Voters deprived are thus of the opportunity to make an informed decision as to affiliation in light of the available candidates.
This system apparently permissible
is
under the federal consti-
tution,
Rockefeller,
see
Rosario v.
410 U.S.
93 S.Ct.
(1973).
established, however,
L.Ed.2d 1
It is well
that we are
entirely free
interpret
provisions
the
of our State Constitu-
provide
tion so as
greater protection
rights
of individual
than
that
See,
offered
its federal counterpart.
g.,
e.
State v.
Slockbower,
(1979);
Burlington Cty.
Tp.
The Tenth government to the federal powers delegated those not vides that powers in repose It not these are reserved to the states. does Rather, these remain to distribute legislatures. states free state legislative they among fit the executive powers as see entity to exercise or not to allow either government, branches of them.2 II, pertinent part: provides par.
1Art. States, years, age (a) Every who shall of 18 of the United citizen county in which he claims this and of have been a resident of election, days, vote for all shall be entitled to his next before the vote upon people, may be elective now are or hereafter officers that * * people questions *. to a vote of all which be submitted provides fact, “[a]ll own Constitution 2In should noted our ** I, (1947), people Art. political power N.J.Const. is inherent par. 2. *13 80 state, people—through adoption
In this of the 1947 legislature that the ability Constitution—have determined types to enact various shall laws be limited. One such by plaintiff—is one upon limitation—the relied contained in Art. II, 79, par. (supra 1). 3 n. If the scheme statutory here at provision, issue has violated this constitutional that statutory so, regardless scheme fall. And is must this whether a violation of the federal constitution has occurred.
It therefore makes no
to say
plaintiff
sense
that a
must bear a
heavier burden in order to
overturn
statute
state
on
constitu-
than
grounds
tional
it as
repugnant
invalidate
the federal
constitution. Whether a law is challenged on state or federal
grounds,
constitutional
plaintiff
bears the same burden. In
order to
all he
prevail,
need
in enacting
do
demonstrate that
law,
Legislature
imposed by
has exceeded the limits
particular
provision.
constitutional
majority’s
the contrary represents
conclusion to
a serious
departure
precedent.
from
have not
past
We
hesitated in the
legislation
strike down
state
has contravened our
constitu
tion,
See,
regardless
validity
of its
under federal
g.,
law.
e.
Baker,
Celmer,
81
(1979);
State v.
N.J. 99
State v.
81 Brennan, (1972). generally, 296 See “State Constitutions and Rights,” (1977). the Protection of Individual 90 Harv.L.Rev. 489
II
cherished
franchise
one of our most fundamental and
The
is
“keystone
the vote to be the
proclaimed
This
has
rights.
Court
Rosengard,
v.
44 N.J.
truly
society.” Gangemi
of a
democratic
basic,
illusory
are
166,
(1965).
rights, “even the most
170
Other
Sanders,
Wesberry v.
376
is undermined.”
right
if the
vote
526, 535,
481,
(1964).
1, 17,
11
492
More
84
L.Ed.2d
S.Ct.
U.S.
general
over,
applicable to both
elections
right
equally
this
is
1,
See,
Allan,
g., Quaremba
e.
v.
67 N.J.
primaries.
political
849,
Carter,
134, 146-147,
405
92
(1975);
v.
U.S.
S.Ct.
11
Bullock
Sanders,
v.
857-858,
92,
(1972); Gray
372
31
101-102
L.Ed.2d
Adams,
v.
345
368,
801,
(1963); Terry
821
83
9 L.Ed.2d
S.Ct.
U.S.
Carey,
809,
(1953);
1152
Echevarria v.
461,
97 L.Ed.
73 S.Ct.
U.S.
aff’d,
(2d Cir.),
(1964) on any restrictions society, of a democratic is of the essence government.”). representative heart of at the strike choose, practi- the vote itself devoid option Without freedom to this respect is with significance. It cal current statutory scheme unnecessarily infringes upon the exer- cise of the franchise. noted,
As previously persons interested in voting political in a must, with exceptions certain relevant, not here declare their party they affiliation before are able to ascertain the complete list running of those for office. Once having declared affiliation, they may change not light it in of a new *15 candidacy announced after the 50-day Thus, deadline. a voter may precluded be supporting from the candidate of his And, choice.3 unless that candidate election, wins the primary the voter will never have the opportunity to cast his ballot for the preferred officer 50-day seeker. The deadline therefore results in a serious incursion upon the voting rights of our citizenry. importance
Because of the critical of the vote to the function ing society, of our in order not to transcend constitutional bounds, upon be, substantial restrictions its exercise must neces sary promote a compelling governmental See, g., interest. e. Blumstein, 330,342, Dunn 995, 1003, v. 92 U.S. S.Ct. 31 L.Ed. (1972); 2d Echevarria Carey, supra, F.Supp. 187; Wurtzel v. Falcey, (1976); 69 N.J. Worden Elections, Mercer County Bd. of is, 61 N.J. That such restrictions must paramount both serve a governmental goal and impinge upon the franchise to a lesser extent than any other feasible attaining means of that goal. majority identifies two State interests which it concludes
justify the present First, restriction upon voter freedom. “integrity asserts that the of process” preserved the is electoral majority points actually 3The out that in this case no candidate filed after 50-day correct, Although the affiliation deadline. this is it is irrelevant to the legal analysis gravamen plaintiffs complaint involved. The of is that she intelligently being could not complete choose a without certain of the quandary way list of candidates. Her was in no affected occurrences—or place passed. non-occurrences—which took after the deadline had Second, it emphasizes is that the “raiding” that deterred. political parties enables to maintain their dis- present scheme ideologies. this list might tinct and identities and To separate I efficiency. Although be added for a concern administrative legitimate, goals of are nevertheless I agree all three these adequately each could be effectuated less am convinced that Consequently, present statutory the restrictive measures. imperative of voter freedom and scheme violates must stricken. justification for durational frequently
The most offered affili- is, “raiding”—that of requirements ation deterrence of a rival practice registering of likely weak purpose nominating for the candidate lose outset, At it should be noted that the general election. majority’s frequency “raiding” appears with to be concern imagination reality. product judicial more a than See “De- Law-Elections,” 88 velopments in the Harv.L.Rev.
(1975) suggests (noting that evidence likelihood overstated). large number of our sister states “raiding” is A citizens vote “open” primaries have or “blanket” which *16 either Id. at 1163 n.65. Several primaries. or both but allow them to require other declarations of affiliation states at including made and the date of the election. Id. up Surely any experience their belies contention n.66. necessary “raiding.” prevent are lengthy deadlines Thus, voters to know a deadline—one which would allow shorter adequately a opting party—would the before for candidates deterring any speculative further the interest in “raid- State’s ing” might otherwise occur. identity can party simi- preserving
The
concern with
State’s
through
par-
restrictions. Political
larly be assured
less severe
knit,
were,
static
not,
tightly
organi-
are
probably
ties
never
Rather, as
of
individuals.
Justice
ideologically
zations
identical
noted,
fluidity
they
characterized
Powell has
“have been
v. Rocke-
membership.”
Rosario
overlap
philosophy
feller,
at
Even identity, is difficult to preservation party it of some aid the deadline, example, 30-day that a accept proposition present 50-day than the fully protect that interest would less moreover, would not 30-day filing requirement, A limitation. an choice as to making a voter from informed preclude represents available It thus light affiliation in candidates. legitimate goal. achieving method of the State’s more reasonable support present regis- majority attempt does not Yet, efficiency. of administrative grounds tration scheme on processing party registrations is clear that the mechanics of a reasonable deadline for submit- justify imposition would However,' limitation ting 30-day a declaration of affiliation. satisfy this need. appear adequate would more than reasons, I conclude that the interests foregoing For the outweigh significant here involved are insufficient to incur- their upon right sion of our citizens to vote for candidates of precluded from choosing. own unfettered Voters should not be altering response promising affiliation in to a candi- important system, by compelling an issue. The current date or party membership, voters to make an uninformed choice as to severely thereby impermissibly that freedom. It bur- curtails to exercise the franchise and hence violates dens II, (1947), par. Art. 3. N.J.Const. majority 4The states that plaintiff’s case is bottomed on the belief “that voters are more interested in candidates than in See ante parties.” at 78.
This overstates clearly Instead, case. claim plaintiffs is based upon *17 changing true conclusion that will undeniably some be desirous people light their affiliation in aof candidate who new particular raises issues or takes a new stance on old issues. it requirement, 50-day durational Although Constitution, neverthe- stands, contravenes State presently to invalidate the necessary it is not argued it less could be Rather, might be in toto. scheme statutory registration action—for legislative pending measure an interim possible—as In this before the election. days to 30 us to reduce the deadline the voters would way the interests of both able to exer- our citizens would be reasonably effectuated and manner. and effective in a more informed cise their franchise statutory has concluded majority Inasmuch as the constitutional, necessary to consider it is not wholly scheme is proposal. merits of such a Appellate judgment Accordingly, I would reverse is unconstitutional. 19:23-45 Division and hold that N.J.S.A. dissenting opinion. joins in this Justice SULLIVAN and Justices Justice HUGHES For affirmance—Chief CLIFFORD, and HANDLER—5. MOUNTAIN, SCHREIBER and PASHMAN—2. For reversal—Justices SULLIVAN KAZIN, v. MICHAEL PLAINTIFF-APPELLANT, CLARA KAZIN, DEFENDANT-RESPONDENT. 1979. Argued Decided 6, 1979 July February