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NAGLER v. STILES

May 26, 1972

Stephen M. NAGLER et al., Plaintiffs,
v.
Beatrice M. STILES et al., Defendants. Karen GROSSMANN et al., Plaintiffs, v. William F. YEOMANS, Superintendent of Elections of Essex County, et al., Defendants



The opinion of the court was delivered by: FISHER

CLARKSON S. FISHER, District Judge.

These two actions, both seeking the same relief, challenge certain provisions of the New Jersey election law, specifically N.J.S. 19:23-45 and 19:23-46, alleging that these provisions are an unconstitutional burden on the right to vote and the right of association. We heard and decide them together.

 The specific sections of N.J.S. 19:23-45 and 19:23-46 under attack in this action are those which require a voter who wishes to change his political affiliation to abstain from voting in two consecutive primary elections. The specific sections in question are as follows:

 
N.J.S. 19:23-45 Balloting regulations
 
* * *
 
"A member of any political organization espousing the cause of a candidate or candidates of any political party shall be ineligible to vote in the primary of another political party while such membership is in force or within one year thereafter; such person shall be deemed for all intents and purposes a member of the political party whose candidate or candidates such organization is espousing.
 
A voter who votes in the primary election of a political party shall be deemed to be a member of that party until two subsequent annual primary elections have elapsed after casting of such party primary vote."

 N.J.S. 19:23-46 Determination of right to vote

 
"Each voter offering to vote shall announce his name and the party primary in which he wishes to vote. The district board shall thereupon ascertain by reference to the signature copy register or the primary election registry book required by this title . . . that such voter is registered as required by this title and also that he is not ineligible or otherwise disqualified by the provisions of Section 19:23-45 of this title in which event he shall be allowed to vote."

 Plaintiffs argue that the above sections inhibit their free choice as voters; that it is impossible to know which party in the future will be espousing issues important to a particular voter or which party will have primary contests which will enable a voter to register his preference on an issue or a candidate. The State, on the other hand, argues that the statutes in question serve a legitimate and worthwhile purpose in preventing what is known as "raiding". "Raiding" occurs when members of one party vote in the primary of another party for the sole purpose of bringing about the nomination of the weakest candidate, so as to give their own cause or candidate greater strength in the general election. Preventing this helps to uphold the integrity of the electoral process.

 Primary elections, as well as general elections, are subject to state control but are also subject to constitutional scrutiny by Federal Courts. United States v. Classic, 313 U.S. 299, 61 S. Ct. 1031, 85 L. Ed. 1368 (1941). When it is claimed that the State's control infringes upon the right to vote and the right of association, the burden is then on the State to show that such infringement is the result of the State's enforcement of a compelling interest, Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274; Williams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1967); and that the State's interest could not be protected through less restrictive means. Dunn, supra; Pontikes v. Kusper, 345 F. Supp. 1104 (N.D. Ill., 1972).

 Other Federal Courts have recently been confronted by the same issues as those before this Court, that is, is the prevention of "raiding" a compelling state interest and are the means used in accomplishing this end minimally restrictive of the right to vote and the right of association? After reviewing the decisions reached in those cases we are persuaded that the New Jersey law in question is unconstitutional.


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