State ex rel. Higgins v. Lockwood
64 A. 184
N.J.
1906
Check Treatment

The opinion of the court was delivered by

Reed, J.

The relator is a citizen of New Jersey and a. legal voter in Hudson county. Frank T. Lockwood is clerk of the Hudson county board of elections, which board is composed of four citizens of Hudson county. The testimony taken to be used upon the return of this rule clearly discloses that the relator was refused permission to inspect and make copies of the registration lists in the custody of the Hudson county board of elections, after another person had been directed to cease making copies by order of one of the members of the board. The intention of at least two members of .this board of four to forbid such inspection and copying is too *159manifest for further discussion. Thе question is then presented whether Mr. Higgins, as a citizen and voter, has a right to make such inspection and take copies of the said registry lists.

Section 15 of the “'Act to regulate elections” (Pamph. L. 1898, pp. 237, 242) directs that the county board of еlections in each county shall cause to be made a complete register of all the legal voters of the respective counties. Section 22 of this aсt respects the registration in cities of over forty thousand people, and provides that on the day after the completion ‍​​​​‌‌‌‌‌​​‌​‌‌​​‌​‌​‌‌​‌‌‌‌‌​​​‌‌​​‌​‌​‌‌​‌‌‌‌‌‍of the registration of voters onе copy shall be delivered by the chairman to the county board of elections, to be filed by them; one copy shall be posted in said district for- public inspection, аnd one copy shall be retained by the judge for use by the district board on the day of election.

In the registration in districts outside of cities of over forty thousand population a copy of the completed register is to be filed with the clerk of the township, city or other municipality within which such election district may be situated; and on the day succeeding the completion of the register a copy is to be delivered to the county board of elections, to be filed by them, as mentioned in respect to the рreceding registration.

So in respect to the registration in other municipalities. The provision is that a copy of the revised and corrected register shall be filed with the county board of elections. The registration under the act of 1898 contained the names and residences of the eligible voters of the election district.

In 1903 (Pamph. L., p. 603) there was рassed a supplement to the preceding statute, which supplement is known as the Primary Election act. This act provides that primaries of all political partiеs shall be held at the same time; that the elections shall be held substantially as general elections for members ‍​​​​‌‌‌‌‌​​‌​‌‌​​‌​‌​‌‌​‌‌‌‌‌​​​‌‌​​‌​‌​‌‌​‌‌‌‌‌‍of assembly are conducted, with ballot-boxes, official ballots, registry lists and polling-booths. Section 13 of this act enacts that any voter who shall vote in ballot-boxes for one political party at any primary election held under the act shall not he allowed to vote in ballot-*160boxes of another political party at the next thereafter succeeding primary election. It further providеs that said board of registry and election shall indicate on the registry-book the first letter of the name of the political party — as, for example, writing the letter “D” for the Democratic party, the letter “R” for the Republican party and the letter “P” for the Prohibition party. So it is perceived that since this act of 1903 came into existencе the registry list, in addition to the names and residences of the eligible voters, has also opposite the name of such of these persons as voted at the primary held on the first day of the meeting for registration, a letter indicating for what party delegate or candidate he voted at the primary.

The purpose of the required registratiоn of voters is,- of course, to prevent fraudulent voting, and the purpose of the feature, last named is clearly manifest. The purpose is to prevent persons not аffiliated with a political party from assisting in foisting upon such party undesirable candidates or candidates not the choice of the party itself.

That the whole scheme for registration, including this feature, is a matter of concern to every citizen, seems too obvious for discussion. It seems impossible to think of a matter which interests every citizеn of a representative government more profoundly than this. And this transcript, for the preservation of which the legislature has provided, is one upon which the entire plаn of foiling the attempt to vote illegally, either at a general or a primary election, rests. The contents of this filed ‍​​​​‌‌‌‌‌​​‌​‌‌​​‌​‌​‌‌​‌‌‌‌‌​​​‌‌​​‌​‌​‌‌​‌‌‌‌‌‍paper is of the highest public interest. That evеry citizen and voter of Hudson county is concerned in the manner in which candidates shall be voted for in that county, and in which candidates shall be selected for populаr election, is manifest. The citizen and voter has certainly quite as much interest in the contents of these registration lists as any citizen has an interest in the filed applicatiоns for licenses to sell liquor, the right of a citizen to inspect which was adjudged in Ferry v. Williams, 12 Vroom 332.

The public character of registration lists and the right of a citizen to inspect them, when moved by proper motives, *161has been, adjudged wherever the question has been mooted. State, ex rel. Thomas, v. Hoblitzelle, 85 Mo. 620; Clay v. Ballard, 87 Va. 787.

But it is said that while this may be true as a general rule, yet the relator here, under the policy of our election laws, has no standing to ask for leave to inspect and copy these lists, because the only purpose disclosed is to enable the relator, or someone for him, to challenge the right of those proposing to vote at the next primary. It is pointed out that no one can challenge but members of the election boards or agents appointed by the chairman of thе county committee of each political party. Sections 13 and 25 of the act of 1903, supra.

But- it is to be observed that aside from the right of any voter to equip the challengеr with information by which the challenges can be more readily and accurately made, there are other features of the act- which require the vigilance of the voter. Eor instance, section 21 of the act. just mentioned provides ‍​​​​‌‌‌‌‌​​‌​‌‌​​‌​‌​‌‌​‌‌‌‌‌​​​‌‌​​‌​‌​‌‌​‌‌‌‌‌‍that a member of one party shall not sign a petition pm-porting to endorse any person fox delegate ox candidate fox another party. The detection of such an act is not only open to, but a duty cast upon every citizen, and the information offered by thе filed registration is an instrument for such detection.

It is also objected that the number of names upon all the registry lists on file with the county board is so numerous that it is impracticable to make copies of them all. So far as appears, however, there does not exist any other copy of the registration lists which can be inspected and сopied with less interference with the public service than can those lodged with the respondents. The copy which section 22 of the act of 1898 directs to be posted for public inspection in the place of registration was to be used only for the purpose of the ensuing election, and no provision was made for its preservаtion after serving that purpose. So of the other copy directed to be retained by the judge of elections for the use of the district board on election day. Thе only copy directed to be filed is that delivered by the chairman of the election districts to the county board of elections.

*162It is again objected that the right of the relator or others named by him to inspect and copy the registry lists may result in the alteration of that list by the change of a letter indicating the party. Such danger, however, which еxists in some degree when any public record is open to examination by the public, cannot be permitted to defeat the right of inspection. It will, however, induce the сourt to minimize the danger of any such tampering with this record by surrounding the times and places of inspection with reasonable surveillance.

We think the relator’s right to inspect аnd make ‍​​​​‌‌‌‌‌​​‌​‌‌​​‌​‌​‌‌​‌‌‌‌‌​​​‌‌​​‌​‌​‌‌​‌‌‌‌‌‍copies is entirely clear, but under reasonable regulations — first, the inspection and copying should be between the hours of nine o’clock in the morning and five o’cloсk in the evening, and at times when the boards of election axe not in session actually using the bodies; second, that the county board has a right to place some person to guard thе books while being copied or inspected, or, if more than three persons are copying, to employ two persons to guard the books, and that the relators shall pay each of the persons so appointed the sum of $3 per day.

The rule to show cause is made absolute.