On petition pursuant to N.J.S.A. 19:29-2.
In the Republican primary election of June 3, 1969 Douglas Gimson, Robert Littell and Walter C. Keogh-Dwyer each sought one of the two Republican nominations for member of the General Assembly from the Fifteenth Assembly District. Each appeared on the primary ballot be virtue of regular, proper and timely petitions filed on or before the fortieth day next preceding the day of the primary election, pursuant to N.J.S.A. 19:23-14. The Fifteenth Assembly District is constituted by the counties of Hunterdon, Sussex and Warren, and its two assemblymen are elected at large from the district.
Gimson, whose residence was in Hunterdon County, and Littell, whose residence is in Sussex County, the incumbent assemblymen, were bracketed pursuant to N.J.S.A. 19:14-12. Gimson polled 11,477 votes, Littell 11,266, and Keogh-Dwyer 4,870. The latter is a Sussex County resident.
The petition herein was filed by Keogh-Dwyer, presumably under the warrant of N.J.S.A. 19:29-1(b). The petition asserts, as is the fact, that Gimson died on May 15, 1969, 19 days before the primary election. The petitioner seeks a declaration of nullity as to Gimson's nomination, and a determination that Keogh-Dwyer is a "lawful nominee."
Following the election the Republican State Committee on June 30, 1969 filed with the Secretary of State, ostensibly pursuant to N.J.S.A. 19:13-20, a statement of selection appointing Republican Walter E. Foran to fill the vacancy in the nomination for the general election produced by virtue of Gimson's death.
The foregoing facts are the subject of no significant dispute.
While statutory regulation may make the fact irrelevant (see N.J.S.A. 19:23-12), it does not appear that any effort was made by anyone between the time of Gimson's death and the primary election to remove his name from the ballot
or to replace it with the name of any other candidate. Additionally, it is likely that a large portion of the electorate was well aware of Gimson's death prior to the primary, and it is more probable than not that many, if not most, of those casting a vote for him did it fully cognizant of the fact he was dead. Gimson was an incumbent assemblyman; it can be reasonably inferred he was politically active in his district. Beyond this, it is evident from the proof that letters were addressed to many of the electorate in Hunterdon and Sussex Counties, at least, advising the voters of Gimson's death and urging that they vote for him, thereby creating a vacancy which might be filled by party committee selection of a Hunterdon County resident.
Succinctly stated, the novel question thus presented is what situation results when a candidate for party nomination dies prior to the primary election but at a time too late to substitute another in his place, and such candidate polls enough votes to nominate him for the office. Stated in other terms, the inquiry is whether in such circumstances a vacancy results or whether the purported nomination is null and void. This distinction between a vacancy and a void nomination is significant because the Legislature has provided clear, certain and different remedies in each of these cases. If a vacancy exists, a party committee certificate shall fill it. N.J.S.A. 19:13-20. If the nomination is void, the candidate receiving the next highest number of votes shall succeed to the nomination. N.J.S.A. 19:3-10. The provisions of N.J.S.A. 19:3-25, and especially the first paragraph thereof declaring an office to be vacant if a nomination or election has been declared null and void, do not intrude upon this rationale, or else there would be an insoluble conflict between N.J.S.A. 19:3-10 and 19:13-20. It is to be noted that the latter statute speaks of a "vacancy, however created."
Determinations of the issue in other jurisdictions suggest a collateral inquiry: what is the effect of votes knowingly cast for a dead candidate, ...