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Axtell v. Caputo

Decided: October 5, 1964.

ANDREW C. AXTELL, PHILIP LINDERMAN, DON CETRULO AND DOMINICK A. CAVICCHIA, PLAINTIFFS-RESPONDENTS,
v.
NICHOLAS V. CAPUTO, CLERK, ESSEX COUNTY, DEFENDANT-APPELLANT



Goldmann, Sullivan and Labrecque.

Per Curiam

Defendant County Clerk of Essex County appeals from a Law Division judgment directing him to place the Republican Party candidates on line "B," the second column or line on the ballot to be used at the November 3, 1964 general election.

At a drawing of lots to determine the positions of the political parties on the general election ballot, conducted pursuant to N.J.S.A. 19:14-12, the county clerk first drew the name of the Democratic Party and next drew the name of the Republican Party, subsequent drawings determining the positions of candidates nominated by petition. Essex County uses what is commonly described as the horizontal-line voting machine, with successive lines labeled "A," "B," "C," etc., fixed by the very nature of the machine's construction. At the drawing for position, the county clerk announced that the Democratic Party would occupy line "A" on the machine and the Republican Party line "C," and that he would skip line "B" -- this over the objection of the Republican Party representatives present. The result was a complaint in lieu of prerogative writ demanding that defendant comply with the provisions of N.J.S.A. 19:14-12 so that Republican Party candidates will occupy the second column or line on the November ballot. Plaintiff Axtell is the chairman of the Republican County Committee for Essex County, and the other three plaintiffs are the Republican candidates for the office of freeholder.

Defendant's principal contention is that N.J.S.A. 19:49-2 expressly gives him authority to draw the specifications for the arrangement of the voting machine ballot, and he therefore has the power to determine the spacing between the lines respectively assigned to the Democratic and Republican Party candidates. Specifically, he has the right to skip line "B" by

leaving it blank and locking the levers on that line. The matter, he says, is one which has been left to the discretion of the county clerk, and those sections of the Election Act which provide for the form and description of paper ballots (R.S. 19:14-1 through 20) are not applicable because inconsistent with the provisions of N.J.S.A. 19:49-2.

The Law Division judge recognized that a prerogative writ in lieu of mandamus is available only where the statutory duty of the county clerk is clear, and not discretionary. Gallena v. Scott , 11 N.J. 231, 238 (1953); Perry v. Giuliano , 46 N.J. Super. 550, 556 (App. Div. 1957); Hawkes v. Gates , 129 N.J.L. 5, 11 (Sup. Ct. 1942).

After reviewing the provisions of N.J.S.A. 19:14-12 and N.J.S.A. 19:49-2, examining certain exhibits of voting machine ballots and inspecting voting machines regularly used in Essex County, the trial judge found that the Legislature, by N.J.S.A. 19:14-12, gave a clear direction as to what lines were to be used and made it incumbent upon the county clerk to use the lines in the precise order in which they appeared on the machine. We agree with that conclusion.

N.J.S.A. 19:14-12 reads, in pertinent part:

"The county clerk shall draw lots in his county to determine which columns the political parties which made nominations at the next preceding primary election shall occupy on the ballot in the county. The name of the party first drawn shall occupy the first column at the left of the ballot, and the name of the party next drawn shall occupy the second column , and so forth." (Italics ours)

N.J.S.A. 19:49-2 reads, in pertinent part:

"All official ballots shall be printed on clear white paper or cardboard of such form and size as will fit the ballot frames of the machines, printed in black ink in type as large as the space will reasonably permit; provided, however , that any public question which shall be placed on the ballot shall be printed in red ink and above any public question to be voted upon by the voters of the entire State there shall be printed, also in red ink, a description of the public question, which description shall not exceed six words and shall be printed in type as large as is practicable. ...


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