For affirmance -- Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Chief Justice Vanderbilt, and Justice Oliphant. The opinion of the court was delivered by Jacobs, J.
[13 NJ Page 497] At the primary election held in Hudson County on April 21, 1953 Republican candidates for State Senate, General Assembly and Board of Freeholders were duly nominated. R.S. 19:13-14. On September 23, 1953 the chairman and secretary of the Hudson County Republican Committee sent notices to members of the committee that a special meeting would be held in Jersey City on September 28, 1953. Under date of September 25, 1953 the Republican candidates signed resignations and at the meeting of September 28, 1953 candidates for the resulting vacancies were selected. R.S. 19:13-20. These new candidates were not members of the Republican party; they were members of the Democratic party and had voted as such in the primary held on April 21, 1953. Although they
tendered certificates consenting to stand as candidates of the Republican party in the November 1953 election, they could not and did not certify that they were members of the Republican party as required by R.S. 19:13-20. Because of this, the county clerk refused to accept their certificates and declined to place their names on the ballot as the Republican candidates.
Thereafter, the plaintiffs instituted their action in the Law Division of the Superior Court to compel the defendant county clerk to accept the certificates and place the names on the ballot as Republican candidates. A motion to intervene by several members of the Hudson County Republican Committee was granted and cross-motions for summary judgment were presented and heard. Judge McGeehan, sitting in the Law Division, upheld the constitutionality of the requirement in R.S. 19:13-20 that a candidate selected by the county committee to fill a vacancy resulting from the resignation of a person nominated at a primary election as a party candidate must be a member of the same political party. In addition, he expressed the view that the meeting at which the vacancies were filled was not a legal meeting "because the notice of the meeting was sent out two days before the vacancies occurred and the members of the county committee had no proper notice or legal notice that at such meeting the county committee would consider the selection of candidates to fill vacancies which had not occurred at the time the notice was sent out or received." On October 6, 1953 Judge McGeehan ordered that summary judgment be entered against the plaintiffs and in favor of the defendant and the intervenors. An appeal was duly taken to the Appellate Division, was certified to this court, and was heard on October 13, 1953. After argument of the appeal we affirmed the summary judgment entered below and announced that this opinion would be prepared and filed in due course. Cf. Ray v. Blair, 343 U.S. 214, 216, 72 S. Ct. 654, 96 L. Ed. 894, 897 (1952).
In the Blair case Justice Reed in viewing the matter from its national aspect, properly noted that political parties were
not born with the Republic but were created by necessity; that originally nominees for public office were designated by self-appointed individuals; that this system was early succeeded by party conventions; and that because of public dissatisfaction with the political manipulation of conventions they have been largely superseded by direct party primaries. Our own state history has followed the same course. Prior to 1789 we had no statewide parties although there were county and sectional alignments. Nominations for office could readily be made by individuals and groups of individuals. However, following the first Congressional elections statewide political parties came into full being, conventions were held for the selection of party candidates, and party slates began to appear. Throughout most of the 19th Century party candidates were selected at conventions which were conducted without any state regulation whatever. In 1878 our Legislature passed its first enactments which related to party primaries and conventions. L. 1878, cc. 113, 204; Boots, The Direct Primary in New Jersey (1917), 15. There were later enactments and in 1898 a comprehensive revision of the election laws was adopted; they embodied only relatively minor provisions bearing upon primaries and conventions. However, in 1903 the Legislature adopted a supplement (L. 1903, c. 248) which dealt extensively with the subject and launched our now long-standing state policy of having fully regulated closed primaries. Indeed, New Jersey has been described as "one of the most tightly closed of the closed primary states." Merriam and Overacher, Primary Elections, 71 (1928).
The 1903 act contained provisions for direct nominations for certain offices at primaries and for the selection at primaries of convention delegates authorized to nominate for other offices. The primary elections were to be conducted at public expense and official ballots, ballot boxes, registry lists and polling booths were to be used. Voters of any political party could file "a petition endorsing any member of their political party" as a candidate. A voter, if challenged, was required to take oath that he was a member of
the political party and had voted for a majority of its candidates at the last election. And any voter who voted as a member of one political party could not "vote in the ballot box of any other political party at the next thereafter succeeding primary election." The act contained numerous other regulatory provisions which need not be detailed here. They represented full legislative recognition that primary elections were no longer matters of private concern to be dealt with by party managers in any manner they chose but, on the contrary, were of public concern and required regulation in the public interest. See Wene v. Meyner, 13 N.J. 185, 192 (1953).
In Hopper v. Stack, 69 N.J.L. 562 (Sup. Ct. 1903), Justices Garrison, Garretson and Swayze were called upon to determine the constitutionality of the 1903 act. In sustaining it they expressed the view that primary elections "are so far matters of public concern that they are proper objects of legislative oversight" and that "the question of their reasonable regulation presents a problem in legislative discretion, the solution of which is solely a legislative function, which in the present instance has been legitimately exercised." The provisions designed to confine participation in the party primary to party members were specifically upheld and authorities elsewhere were generally in accord. Merriam and Overacher, supra, 124. In the earlier case of Commonwealth v. Rogers, 181 Mass. 184, 188, 63 N.E. 421, 423 (Sup. Jud. Ct. 1902), Justice Holmes had remarked that such restrictions were not unreasonable precautions "against the fraudulent intrusion of members of a different party for sinister purposes." And there is no foundation for the notion that they add to the qualification of voters as set forth in the Constitution. Voters have the right to vote as individuals at the general election so long as they meet the reasonable procedural requirements embodied in the election laws. They have no right to vote in the primary of any particular political party unless they are members of that political party as reasonably defined by the Legislature. In the language of Professor Mechem, the voter
"has no constitutional right as a non-partisan to participate in partisan proceedings." Mechem, Constitutional Limitations on Primary Election Legislation, 3 Mich. L. Rev. 364, 377 (1905). A fortiori a voter who is a member of one political party may be excluded from participating in the party primaries of other parties espousing adverse political principles. See Wene v. Meyner, supra, where this court, through Justice Heher, recently stated that it was within the proper legislative province to restrict primary participation 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." In ...