The opinion of the court was delivered by: GIBBONS
The complaint in this action, filed on May 24, 1972, sought injunctive relief and class action treatment with respect to certain provisions of the New Jersey election laws. It alleged that N.J.Stat.Ann. § 19:31-6 (1964) and § 19:31-6.1 (Supp.1972) were illegal and void as violative of the Constitution of the United States and of the Federal Voting Rights Act, 42 U.S.C. § 1971 et seq. It requested the convening of a three-judge court. The allegedly invalid statute provides, in conformity with the New Jersey Constitution, art. II, para. 3, that voters who have not registered by the fortieth day prior to an election may not vote in that election. A primary election was scheduled on June 6, 1972. The plaintiffs, all residents of Camden County, were:
Balbino Cabrera, who registered on May 16, 1972; Ismael Varel, who registered on May 16, 1972; Ramon Felix Cruz, who registered on May 16, 1972; Mary Ann Ries, who registered on May 11, 1972; Melanie Sadofsky, who registered on May 22, 1972; Monica Talley, who had not yet registered; Mary Peterson, who had not yet registered.
The defendants are the members of the Camden County Board of Elections. The Attorney General of New Jersey received notice of the lawsuit and appeared for the defendants. Thereafter, by agreement between counsel, the matter was continued, without any action by the district court, until after the primary election. On September 1, 1972, the plaintiffs filed a motion for the convening of a three-judge court, a motion that the action be allowed to proceed as a class action, a motion for partial summary judgment, and a motion for an injunctive order. The district court judge to whom the case was originally assigned requested Chief Judge Seitz to convene a three-judge court, and by order dated September 29, 1972, this court was appointed. The court convened on October 5, 1972.
At the hearing on October 5, the court pointed out to the attorneys for the plaintiffs that whatever right to injunctive relief any of the parties had with respect to the June 6th primary election had now become moot. There is no prayer for damages. Compare Nixon v. Herndon, 273 U.S. 536, 47 S. Ct. 446, 71 L. Ed. 759 (1927) with the instant case. The court also pointed out that on the face of the complaint the matter had become moot with respect to injunctive relief for the November 7, 1972 general election, at least as to the five plaintiffs who had registered in May of 1972 and who were therefore eligible to vote in the general election. It inquired whether any plaintiff was before the court who had a justiciable claim with respect to the November 7, 1972 election. Counsel for the plaintiffs could make no representation as to the October, 1972 status of the plaintiffs Monica Talley and Mary Peterson who, as of May 24, 1972, were unregistered. Counsel had not been in touch with those clients, apparently, since May of 1972. Since it did not appear that any party was before the court with a justiciable claim with respect to the November 7, 1972 election, the court ruled that the three-judge court would be dissolved and the case remanded to a single district court judge for further proceedings.
To appreciate the significance of that ruling, it must be understood that the complaint posed three separate issues:
1. Selection of sites and times for registration on a racially-motivated basis.
2. Non-conformity of the New Jersey election law with the Federal Voting Rights Act.
3. Unconstitutionality of the New Jersey election law.
The first issue is clearly a single-judge issue, for the New Jersey statutes neither direct nor permit racially discriminatory site or time selection for registration. The second issue, if there is such an issue, is merely one of federal supremacy. That, too, is a single-judge issue. Swift & Co. v. Wickham, 382 U.S. 111, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965).
Moreover, the pertinent sections of the Federal Voting Rights Act apply only to registration for voting for presidential and vice-presidential electors. See 42 U.S.C. § 1973aa-1. At the hearing on October 5, 1972, it was made clear that, as to presidential and vice-presidential electors, New Jersey is now 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 ...