Goldmann, Lewis and Leonard.
Defendant county clerk appeals from a Law Division judgment directing that he include plaintiff Farrington's name in the same column with the names of Democratic Party candidates Ridolfi and Coffee for nomination for the office of state senator, Senate District No. 6 (Mercer County), on the ballot for the Democratic primary election to be held September 12, 1967.
Messrs. Ridolfi and Coffee are the regularly designated candidates of the Democratic Party organization of Mercer County. They filed their joint nominating petitions for the Democratic primary election with the Secretary of State (L. 1967, c. 22) together with their request that they be bracketed and use the slogan "Regular Democratic Organization." This slogan will also be used by the Assembly and freeholder candidates duly recognized by the Democratic Party of Mercer County. All of these candidates, like Messrs. Ridolfi and Coffee, have the same campaign manager.
Plaintiff has for many years been a loyal and active member of the Democratic Party of Mercer County and its candidate for public office. Indeed, he has five times been elected as a Democrat for the office of assemblyman from that county, an office he presently holds. Although the regular Democratic Party organization again designated him as its candidate for Assembly, plaintiff declined the honor and chose to run for the Senate: he filed his separate petition, designating his own campaign manager and choosing the slogan "Regular Organization Democrat."
Plaintiff made a written request of defendant to include his name in the same column on the primary election ballot as the bracketed senatorial candidates Ridolfi and Coffee. This request was forwarded to the latter's campaign manager
who, on the same day, refused to consent thereto. Plaintiff at once filed a complaint in the Law Division, together with an order to show cause why his name should not appear in the same column as Messrs. Ridolfi and Coffee. The complaint demanded judgment restraining defendant from drawing for position of candidates' names on the primary ballot unless plaintiff's name was included in the same column as Messrs. Ridolfi and Coffee, and further directing defendant to include plaintiff's name in that column. The trial judge having ruled in plaintiff's favor, this appeal followed and was heard on an emergency basis in view of the urgent necessity to prepare the sample ballots for mailing to resident voters as well as absentee voters, both military and civil.
Following the trial judge's determination the county clerk filed an affidavit for consideration by this court, stating that upon the advice of counsel as to the meaning and intent of N.J.S.A. 19:49-2 he had intended to place all candidates for all offices using the slogan "Regular Democratic Organization" in one column on the voting machine, this column being headed on lines 1 and 2 by the bracketed candidates for the office of state senator, and to place plaintiff's name on the first line of the column immediately adjacent. In his view this was the only way the ballot could be arranged to conform to the law and still give plaintiff a position which would enable the voters to see his name and slogan readily and thus assist them in registering their choice. Plaintiff has raised no objection to our considering the county clerk's affidavit in the exercise of our original jurisdiction, R.R. 1:5-4(a), 2:5.
It may be observed that plaintiff's argument in the trial court, as well as here on appeal, was based on the invalidity of the county clerk's proposed procedure.
The spirit, if not the letter, of N.J.S.A. 19:49-2, as well as the decisions of our courts, lead to the conclusion that the trial judge was in error and that plaintiff is not entitled to have his name appear in the same column with the bracketed senatorial candidates recognized by the Democratic
Party of Mercer County. We note, incidentally, that the use of the words "line of the voting machine" in the cited statute, as well as elsewhere in the Election Act, has the same significance and application as "column of the voting machine" in the type of machine used in Mercer County, where the names of candidates appear in vertical columns rather than on horizontal lines, as in some other counties. See Axtell v. ...