in full conformity with the federal statute. All persons who register in New Jersey between the fortieth day and the thirtieth day prior to the general election are given the equivalent of an absentee ballot by means of which they are permitted to vote for presidential and vice-presidential electors. They are not permitted to vote at the regular polling places, where voting machines are used, because there is no practical way of differentiating, on the voting machines, between those eligible to vote only for presidential electors and those eligible to vote for state and local offices as well. Since the residency and registration sections of the Federal Voting Rights Act deal only with the right to vote for presidential electors, and it appears that New Jersey is in full compliance, there is no supremacy issue.
That left for consideration by the three-judge court a very narrow issue. Congress set a thirty-day cut-off period for registration prior to a presidential election; the attorney for the plaintiffs conceded that the fourteenth amendment did not compel the states to adopt a shorter period. The constitutional contention, then, narrowed down to whether those persons who registered between the fortieth and the thirtieth day before the November 7, 1972 election should be permitted to vote not only for presidential electors, but also for the offices of senator, congressman, county freeholder and other county offices, and local municipal offices. Since it could not be established that anyone was before the court falling within this narrow class, and since this was the single viable three-judge court issue, the court concluded that it should dissolve, and requested the parties to prepare an order to that effect.
Before an order dissolving the three-judge court was filed, however, the attorney for the plaintiffs on October 11, 1972, returned to court with a motion to reconvene supported by an affidavit from the theretofore elusive Monica Talley. That affidavit disclosed that Miss Talley had registered on the afternoon of October 6, 1972, had been told that she could vote for the electors for president and vice-president, and that she desired to vote for senator, congressman, and local government officials.
Thereupon the three-judge court was reconvened and took testimony on October 17, 1972, on the plaintiffs' application for an injunction. At the hearing Miss Talley's attorney urged: (1) that she had standing to raise the constitutional issue of her inability to vote for offices other than presidential and vice-presidential electors; (2) that she is a proper class representative for all other voter registrants in New Jersey similarly situated; (3) that the New Jersey forty-day cut-off period for registration could not be justified by any compelling state interest; and (4) that the compelling state interest standard was applicable. For the fourth point he relied upon Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972).
The Attorney General, on the other hand, contended: (1) that class action treatment was inappropriate in view of the late date, the enormous administrative burden which any order might impose, and the inadequacy of the class representative; (2) that Miss Talley, who was a plaintiff in this action since May of 1972, but having waited to register until October 6, 1972, presented no equitable claim for injunctive relief; (3) that the state statute should be judged by the standard whether it bore any rational relationship to the purposes of the legislation, see McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S. Ct. 1404, 22 L. Ed. 2d 739 (1969); Goosby v. Osser, 452 F.2d 39 (3d Cir. 1971); and (4) that even measured by the compelling state interest test the state's forty-day period for cutting off registration for a subsequent election must be sustained.
Were we to reach the merits we would be inclined to hold that this case involves not a selective distribution of the franchise, as in Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S. Ct.. 1079, 16 L. Ed. 2d 169 (1966), but a regulation of the mechanics of controlling the exercise of the franchise, as in McDonald v. Board of Election Commissioners, supra, and Goosby v. Osser, supra, and requires only a rational relationship to the purposes of the legislation. We would be inclined, moreover, to find that in any event there is a compelling state interest in cutting off eligibility forty days before the election. Congress has recognized that the integrity of the electoral process requires some cut-off period. The problem of elections for presidential and vice-presidential electors is not the same as that for the remaining offices being contested in the November 7, 1972 election. With the exception of the senatorial election, each of the other offices involves districts within the state, and hence a local residency qualification. The New Jersey statutes impose a duty on election officials to compile a list of eligible voters by districts, N.J.Stat.Ann. § 19:31-18.1 (Supp.1972). These lists are made available to candidates for purposes of canvassing. They are used in some counties as mailing lists for the sample ballot. See, N.J.Stat.Ann. §§ 19:14-21, 25; 19:23-30, 33-35 (1964) and § 19:49-4(b) (Supp.1972). In some counties the returned sample ballots are used to compile a list of voters who should be challenged as ineligible. See N.J.Stat.Ann. §§ 19:14-23, 26; 19:23-32, 37; 19:32-10 (1964) and § 19:49-4(b)(1) and (2) (Supp.1972). We resist the temptation to decide the case on the merits, however.
First, we conclude that this action should not be maintained as a class action. See Rule 23(c)(1), Fed.R.Civ.P. The dismal history of the litigation set forth above convinces us that Monica Talley, the only member of the class of registrants who registered between the fortieth and thirtieth days prior to the general election, is not an adequate class representative.
Next, we conclude that Miss Talley's delay in registering between May 1972, when she became a party to this lawsuit, and October 6, 1972, after we had already concluded that the three-judge court should be dissolved, displays such disinterest in the subject matter as to disentitle her from invoking the equitable remedy of injunctive relief. And since a declaratory judgment would have essentially the same effect, we decline to issue a declaratory judgment as well. See Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 (1971).
The application for an injunction is denied. The hearing on that application, as to Monica Talley, shall be treated as a final hearing on the merits and her case will be dismissed. Rule 65(a)(2), Fed.R.Civ.P. Since Monica Talley is the only plaintiff before us presenting a justiciable issue for a district court of three judges, we hereby direct that a final judgment be entered as to her pursuant to Rule 54(b), Fed.R.Civ.P., since we find that there is no reason for delaying the entry of judgment as to her.
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