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Hawkes v. Gates

Decided: August 28, 1942.

ALBERT W. HAWKES, RELATOR,
v.
RUSSELL C. GATES AND ARTHUR TENCH, RESPONDENTS



On application for writ of mandamus, or in the alternative for writ of certiorari.

For the relator, Theodore McCurdy Marsh.

For the respondents, Russell C. Gates and Arthur Tench, Arthur T. Vanderbilt (G. Dixon Speakman).

For George H. Becker, Jacob Glickenhaus.

Colie

COLIE, J. Albert W. Hawkes, a Republican candidate for nomination for the office of United States Senator for New Jersey in the primary election to be held on September 15th, 1942, has been allowed a rule to show cause why "the drawing

of the names of the several candidates for the nomination in the Republican Primary" and the order "providing for the arrangement of the said names on the primary ballot of the Republican Party (should not) be set aside" and further "that a writ of mandamus out of and under the seal of this Court be issued, or an order be made by this Court, directing and requiring that Russell C. Gates as County Clerk of the County of Essex, or Arthur Tench, as Deputy Clerk of said County, conduct a new drawing of the names of the candidates for the Republican Nomination to the office of United States Senator, in which cards for each of the several candidates, including Gill Robb Wilson be placed in the box, and that the candidates be placed on the primary Republican ballot in the order in which their names be drawn, or that the said Russell C. Gates or Arthur Tench be directed and required to first place the names of the several candidates for nomination of United States Senator on the Republican Primary Ballot on separate lines in the order in which the names were drawn on August 13th, 1942, as hereinbefore set forth, and that thereafter the candidates for the subordinate offices including the bracketed groups hereinbefore referred to, be placd upon the ballot in the order of the drawing of their names as required by the Statute" or, in the alternative, that a writ of certiorari issue to review the aforementioned proceedings and order.

Relator, Albert W. Hawkes, together with Franklin W. Kielb, George O. Pullen, Joseph A. Bower, George Biehl and Gill Robb Wilson are all candidates for the Republican nomination for United States Senator for the State of New Jersey.

A faction of the Republican party has filed a joint petition on behalf of its candidates for the sixteen county offices to be filled. This group petitioned requesting that it be bracketed together under the designation "Clean Government Republican." Another faction of the Republican party has taken the same course but under the designation "Republican Smash Bossism." Gill Robb Wilson has adopted the slogan of "Republican -- United War Effort." Mr. Wilson, whose

petition is filed with the Secretary of State, has requested that his name be placed on the same line of the voting machine with those who filed a joint petition and chose the designation or slogan of "Clean Government Republican." The request was consented to by the campaign manager of that group. Cf. R.S. 19:49-2.

On August 13th, 1942, the defendant Arthur Tench, deputy to Russell C. Gates, county clerk of Essex County, also a defendant, proceeded to draw for the positions of the candidates on the Republican primary ballot. The procedure which he adopted was to place in a box a card bearing the name of Dominic A. Cavicchia and a card bearing the name of John J. Berry, Jr., as respectively representing the two bracketed groups of "Clean Government Republican" and "Republican Smash Bossism." The deputy then drew forth a card which bore Mr. Cavicchia's name; the next card drawn bore Mr. Berry's name. The announcement was then made by the deputy that the group bracketed under the slogan "Republican Smash Bossism" would be placed on the first line of the ballot; the group bracketed under the slogan "Clean Government Republican" on the second line. The deputy then placed the name of each candidate for United States Senator on a card, excepting that no card bearing Mr. Wilson's name was included, placed the five cards in the box and drew them forth in the following order: 1, George Biehl; 2, Albert W. Hawkes; 3, Franklin W. Kielb; 4, George O. Pullen; 5, Joseph A. Bowers. The affidavit of J. Branton Wallace states: "That Arthur Tench then declared that the candidates for nomination in the Republican primary would be arranged on the ballot as follows:

"First Line: Republican Smash Bossism.

Second Line: Clean Government Republican -- including ...


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