For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J. Hall, J., concurring in result.
The issue is whether in preparing the ballot for the general election of November 2, 1965, the County Clerk of Essex County erred in his allocation of positions to candidates of "The United-Political Freedom Party." The ballot as prepared by the County Clerk is reproduced in the addendum to this opinion. The trial court upheld the County Clerk. We certified the ensuing appeal before argument in the Appellate Division. Because of the time factor, we announced the result of our decision immediately following argument, adding that this opinion would follow.
Involved is a voting machine ballot upon which party nominations are to be placed in horizontal rows or lines. Across the top of the ballot are the offices to be filled. They total 19, the numbers being allocated to the offices in this order: the office of Governor, four offices of Senator, nine offices of Assemblyman, the office of County Clerk, the office of Register of Deeds and Mortgages, and three offices of Chosen Freeholder.
After lines A and B were allocated by draw to the Democratic and Republican parties, the County Clerk by further draw assigned the remaining candidates for Governor to the first positions on lines C through F. None of those candidates for Governor was tied with candidates for other offices.
The United-Political Freedom Party fielded candidates for all offices other than Governor, but prior to the statutory date for drawing for ballot position, all of those candidates withdrew except one of the four for Senator. Thereupon, there was no need for a further draw because no more than one candidate remained for any one ballot position. Accordingly the County Clerk assigned all of those candidates to line C. Thus the one United-Political Freedom candidate for Senator received position 2C; the lone candidate for the General Assembly received 6C; the candidates for Register and Freeholder received respectively 16C and 17C.
After the statutory date for drawing had passed, all of the vacancies in the United-Political Freedom slate were filled.
The County Clerk thereupon assigned the three substitute candidates for Senator to line C where they joined their fourth candidate already placed in that line on the day of the draw. The nine candidates for the General Assembly were placed in line D (as noted earlier, one General Assembly position in line C was already occupied by another candidate). The position on line C for County Clerk being open, the United-Political Freedom candidate for that office was placed in that position. The remaining candidates of that party were placed in line D. Thus the County Clerk placed in line C all of the candidates who could be put there without breaking the bracketing for an office for which more than one were to be elected, i.e., Senator, Assemblyman, and Freeholder.
We ordered the United-Political Freedom candidates moved from line C to line D, to the end that all of the United-Political Freedom candidates would appear on the same line. Our reasons follow.
The county clerk relied upon Perry v. Giuliano, 46 N.J. Super. 550 (App. Div. 1957), and Axtell v. Caputo, 85 N.J. Super. 80 (App. Div. 1964). He contends that Perry holds he has discretion in this matter and that his exercise of it is beyond judicial review. He adds that in any event Axtell prevented his doing anything but what he did. Specifically, he says that Axtell holds that no row or line may be skipped, and hence he was required to fill line C even though to do so would break the slate of a party.
In Axtell the County Clerk left an open line between the Democratic slate and the Republican slate. The Appellate Division held that N.J.S.A. 19:14-12 required that the slates of "political parties," as defined by statute, shall appear in successive rows or lines and hence a whole line could not be left between them. Axtell dealt with the precise situation we have just described, and did not hold that every position on every line must be filled before a position in the next line is assigned. Indeed, the County Clerk here did not follow so literal a view of Axtell for as we have said he did not fill all of the positions in line C where to do so would destroy
the bracketing of candidates for an office to which more than one were to be elected, i.e., Assemblyman and Freeholder. In that respect the County Clerk was correct, but for the reason that Axtell dealt only with the skipping of a whole line and did not lay down an inexorable rule that all positions on a line must be filled before a succeeding line may be used.
In any event, although the County Clerk claims to have discretion in arranging the ballot, here he did not in fact exercise it but rather acted pursuant to a mistaken view of what Axtell compelled. His action could have been set aside on that ground alone and the matter remanded to him for reconsideration, but since we were satisfied that a proper exercise of discretion required that all of the complaining candidates be placed on the same line, and since we felt the lateness of the hour left no practical choice as to how that result should be reached, we directed that all of the complaining candidates be placed on line D. In so doing, we should not be understood to say a county clerk should not accord candidates so affiliated a line exclusively their own. On the contrary he should, if that course is feasible and if in the context of the whole ballot it would afford all the voters a clearer opportunity to find the candidates of their choice.
We referred above to the County Clerk's reliance upon Perry v. Giuliano. In that case the County Clerk placed the gubernatorial candidate of the Conservative Party in line E pursuant to a statutory draw for position, but placed that party's candidates for the General Assembly in line C. The Appellate Division said as to the Assembly candidates that "Mechanically, room exists on that line [E] for their inclusion, and the clerk might well, in his ...