On appeal from Superior Court, Chancery Division, certified to this court on its own motion.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by William J. Brennan, Jr., J. Heher, Oliphant and Burling, JJ., concurring in result.
We here consider the procedures governing the purging of voters' registration lists pursuant to N.J.S.A. 19:31-15 when paralysis of the function is threatened by a deadlock vote in a four-member county board of elections.
The deadlock problem cannot arise in first-class counties nor in certain second- and fifth-class counties where a superintendent of elections is provided and that official alone administers the procedure. N.J.S.A. 19:32-1; N.J.S.A. 19:32-26, L. 1953, 1 st Sp. Sess., c. 444, p. 2433. Cape May County, however, is a county of the sixth class where the duty is charged to a county board of elections composed of two members from each of the two political parties receiving the largest and next largest number of votes in the State at the last preceding general election held for the election of the members of the General Assembly. The members of the board are appointed by the Governor upon nomination by the respective chairmen of the state committees of such parties. N.J.S.A. 19:6-17, 18.
The question here arises from the inability of the members of the Cape May board to agree upon a date for the publication
of a list of approximately 3,450 out of 26,000 registered voters notifying said registrants of the contemplated removal of their names from the voting registry by reason of disqualification, non-residence, or other improper registration. The Democratic members favored publication of the list before primary election day, April 19, 1955, while the Republican members favored publication after primary election day, namely, on April 25.
The chairman of the board, a Democratic member, announced at the board's meeting of March 24 (the third meeting at which the board tried unsuccessfully to resolve the deadlock) that he was advised that he had the authority to direct publication despite the deadlock. He arranged to do so in newspapers published March 31 and April 1, the last dates this could be done to purge the registry of such names before primary election day.
On March 29 the plaintiff, Mayor of the Borough of Avalon and a candidate for reelection at a municipal election to be held on May 10, filed her verified complaint in the Superior Court, Chancery Division, and obtained an order to show cause why the publication should not be restrained as illegal and void because not authorized by majority vote of the board. An interim restraint against publication was allowed but this was modified two days later, March 31, to permit publication on condition that the matter published include notice to the persons listed of their right to be heard by the board on April 1, 2 and 4, and upon the further condition that if on the trial the publication was adjudged illegal the names of any persons removed from the registry in the board's proceedings should be restored.
The trial was held and concluded on April 11. The trial judge announced an oral opinion at the end of the day, expressing the view that publication was authorized only upon majority vote of the board and that in the absence of evidence that the Republican members "had arbitrarily refused to consent to the publication of the list" in time to complete the proceeding before primary election day, the publication was without authority and was illegal. He made an express finding
of fact that the opposition of the Republican members to publication before primary election day was asserted in good faith because based upon the honest belief that insufficient time was allowed them to study the lists "and eliminate therefrom the names of such persons as they were positive were properly registered voters."
The lists were prepared by 12 canvassers employed temporarily by the board in September 1954 when the board by unanimous vote ordered a house-to-house canvass in compliance with the provisions of N.J.S.A. 19:31-15 that the county board "shall * * * at least once during every four years and as often as the * * * county board * * * may deem necessary, cause the entire registry list to be investigated by house-to-house ...