On appeal from the Law Division of the Superior Court, certified by the Supreme Court on defendant's motion.
For affirmance -- Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Chief Justice Vanderbilt. The opinion of the court was delivered by Heher, J. Vanderbilt, C.J. (dissenting).
We have here a proceeding under R.S. 19:29-1 et seq., as amended by L. 1947, c. 6, p. 21, instituted by an unsuccessful candidate against the successful candidate for the gubernatorial nomination of the Democratic Party at the primary election held April 21, 1953.
Robert B. Meyner was declared the party's nominee for Governor by a state-wide plurality of 1506 votes over the contestant, Elmer H. Wene. In Warren County Mr. Meyner's total vote was 7,820, and Mr. Wene's 360; and in Hudson County the former received 58,883 votes, and the latter 28,908 votes. The petition invoking the statutory jurisdiction declares that in Warren and Hudson counties electors were allowed to vote in the Democratic primary "who had not voted for (sic) two subsequent annual primary elections," and "had not signed but were required to sign a declaration designating the political party in whose Primary Election they desired to vote": in Warren County some 2,000 in number, and in Hudson County 1,000 or more according to incomplete information then in hand, more than "sufficient to change the result of the election." There was attached to the petition a schedule naming 3,200 voters whom the contestant allegedly had "been able to presently ascertain as not having first signed a declaration as required by law"; and it was asserted that if a hearing were had the names
of other such voters "will be readily available." The prayer was for judgment declaring "illegal" and setting aside all votes cast in the Democratic primary "by persons who had so failed to vote in two subsequent annual primary elections and had failed to sign the necessary declaration as required by law," to the end that the contestant be declared the "winner of the Primary Election"; and a hearing was asked to determine the "exact number" of voters in the asserted illegal category.
The defendant nominee interposed a motion for a summary judgment on the ground that there was no genuine issue of fact, and the alleged statutory "violation, if any, does not affect the legality of the votes cast or the legality of the election." The motion was supported by affidavits, unchallenged by countervailing proof, tending to show a contrariety of view among election officers throughout the State as to the need under the statute for "any separate form of declaration" in circumstances such as we have here, and, at all events, a general disregard of the strict letter of the regulation in some of the counties, as serving "no practical purpose"; in some, a failure to return the signed declarations; and in Warren County, an insufficient supply of forms. Defendant reserved the right to "advance the same challenges" made by the contestant as to "the other counties," should "their legal sufficiency be sustained." Judge Joseph L. Smith granted the motion, after argument; and there was judgment accordingly for the nominee and against the contestant. The contestant's appeal to the Appellate Division of the Superior Court was by this court certified for decision at the instance of the nominee, on June 18, 1953.
The contention is that all such votes were cast in violation of R.S. 19:23-45, as amended by L. 1952, c. 158, p. 526, and "should not have been counted or certified in the official primary election tabulation."
The pertinent provisions of this act are: (a) a voter who votes in a primary election of a political party shall be deemed to be "a member of that party until two subsequent annual primary elections have elapsed after casting of such
party primary vote"; and (b) a voter "who has not voted in a primary election of a political party for two subsequent annual primary elections" shall not be permitted to vote "in any primary election of a political party" until he has "first signed and filed with the district board a declaration designating the political party in whose primary election he desires to vote."
It was conceded on the oral argument that none of the voters to whom this challenge is directed were wanting in the basic as distinguished from the procedural qualifications for participation in the Democratic primary. None were within the interdict of the statute that an elector who votes in a primary election of a political party shall be deemed to be a member of that party until two subsequent annual primary elections have been held, and therefore ineligible to cast a ballot in the primary of another political party. The insistence is that there must also be literal compliance with the companion provision of the statute that a voter who has not cast a ballot in a primary election of a political party for two subsequent annual primary elections shall not be allowed to vote in any primary election of a political party until he has made a signed declaration of the political party in whose primary he desires to vote. This is termed a peremptory statutory sine qua non, of the very essence of the right of primary participation, and thus the votes cast in disregard of the requirement are a nullity and of necessity to be excluded in determining the result.
The provision does not have such drastic sweep. Under the statute, party "membership" determines the right of primary participation; and a voter who casts a ballot in the primary election of a political party is deemed to be a member of that party until two subsequent annual primary elections have been held. He may change his party affiliation, but a formal signed declaration to that end is not of the real essence of the right. Unless it be expressed in clear and indubitable terms, a legislative requirement of a written declaration of the new allegiance is not so woven into the reality of the right as to void a ballot cast without that
formality. Such a declaration relates not to the substance, but rather the exercise of the right of franchise; and an irregularity or omission in the procedural function is not fatal, absent a change in the result of the election on the merits.
Primary elections are of public concern. They afford the means by which political parties choose their candidates for public office; and, since the purpose to be served is public in its nature, the proceedings attending the selection of candidates are subject to regulation in the exercise of the police power. It is the legislative province to limit the use of the selective process to those who have "practical affiliation" with the particular party and to repel interference from outsiders who are not bound by the common tie and do not share the common aim. Hopper v. Stack, 69 N.J.L. 562 (Sup. Ct. 1903); State v. Bienstock, 78 N.J.L. 256 (Sup. Ct. 1909). Genuine attachment to the party may be made a condition prerequisite to such participation in party affairs and function, for the protection of the party and its members in the fulfillment of a public service that is now generally deemed to attend the operation of the party system of political management. Kilmurray v. Gilfert, 10 N.J. 435 (1952). Thus, under our statute the right to take part in a primary depends upon party "membership," and the provisions under review are to be assessed in the context of a policy designed to provide the means to that end.
The political function of a political party and its members involves rights and interests which are subject to legislative regulation for their own protection. The Legislature may invoke measures reasonably appropriate to secure the integrity of the nominating process in the service of the community welfare. There is not in such course undue interference with the freedom and equality of elections or the constitutional right of suffrage. The same public interest is advanced in the regulation of the selective mechanism as in the protection of general elections. In fine, the Legislature may safeguard the right of individual voter-participation
in the choice of party candidates, in the common interest of the party membership, its concepts and ideals, and thus for the general good and welfare; and the statutory provisions under review are to be judged by that ...