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Township of New Hanover v. Kelly

Decided: November 2, 1972.

TOWNSHIP OF NEW HANOVER ET AL., PLAINTIFFS,
v.
EDWARD A. KELLY, JR., BURLINGTON COUNTY CLERK, ET AL, DEFENDANTS



Martino, A.j.s.c.

Martino

[121 NJSuper Page 246] Fort Dix and McGuire Air Force Base extend into five separate municipalities located in Burlington County. These municipalities are New Hanover Township, North Hanover Township, Pemberton Township, Springfield Township and Wrightstown Borough. The plaintiff, New Hanover Township, has registered to vote in the 1972 General Election 241 voters. The population according to the 1970 Census is 27,410. It must be assumed that the major portion of its population consists of military personnel. The disparity between the number of registered

voters and the population may be caused by many factors which do not necessarily indicate a lack of voting interest.

On September 5, 1972 the Attorney General of the State indicated to the county boards of elections of this State that military service voters as defined in N.J.S.A. 19:57-2, who were in the armed forces or working for the military, must be allowed, if they wish, to register and vote for all elective offices in the municipality in which they physically reside. That it was immaterial whether the individual lives in a dwelling located on the government reservation or in an adjacent community. That registration for voting for President and Vice-President closes 30 days before the November 7, 1972 election, while registration for voting for all other candidates closes 40 days before the election. The Attorney General made it clear that persons in the military service or civilians living on Federal Government reservations must be allowed to participate in the state and local elections of the area in which they resided as long as they were bona fide residents of that area.

Plaintiff New Hanover Township has raised several arguments as reasons for this court to declare that the directive of the Attorney General is arbitrary and capricious; that it has no rational connection to any legitimate interest of residents of Fort Dix and the McGuire Air Force Base in the affairs of government in said municipality; that it violates the right of the individual plaintiffs, namely Patrick Malloy and Benjamin Hance, to the equal protection of the law as guaranteed by the Fourteenth Amendment to the Constitution of the United States; that plaintiffs have an overriding interest to restrict the right to vote in New Hanover Township local elections to those who are primarily or substantially interested and affected by electoral decisions at the local level; that military personnel do not have a stake equal to those residents in the operation of the local government; that the power to tax does not exist over military personnel, nor can it enforce its ordinances upon the military personnel;

that Art. II, par. 5 of the New Jersey Constitution (1947) does not permit military personnel stationed in the military reservation to be considered as residents of this State.

However, it must be conceded that if elected representatives enact new state criminal laws or sanctions, or make changes in those presently in effect, the changes apply equally to persons within the federal enclave. Under the Federal Assimilative Crimes Act, 18 U.S.C. § 13, "Acts not punishable by any enactment of Congress are punishable by the then effective laws of the State in which the enclave is situated." United States v. Sharpnack , 355 U.S. 286, 287, 78 S. Ct. 291, 292, 2 L. Ed. 2d 282 (1958). Congress has permitted the states to levy and collect their income tax, gasoline, sales and use taxes -- the major sources of state revenue -- on Federal enclaves. 4 U.S.C. §§ 104-110. State unemployment laws and workmen's compensation laws likewise apply to persons who live and work in federal areas. 26 U.S.C. § 3305; 40 U.S.C. § 290.

It is impossible to predict at this time the extent of the effect of the directive on the number of persons who will be eligible to vote in future elections in New Hanover Township. While those qualified to vote in the 1972 election is 241, it must be conceded that if the directive is upheld the township should expect a greater increase in elections to come. What portion of the population can qualify in the future will have to be conjectural. It has been stipulated that of the 241 registered voters, 17 reside on the military reservations of Fort Dix or McGuire Air Force Base.

It must be conceded that the directive could create a problem which plaintiffs never conceived would arise in view of the interpretation that was placed upon the status of military voters in the past.

Efforts to prevent residents of federal enclaves from voting in states in which they are geographically located are not new. See Adams v. Londeree , 139 W. Va. 748; 83 S.E. 2 d

127 (Sup. Ct. 1954); Rothfels v. Southworth , 11 Utah 2d 169, 356 P. 2 d 612 (Sup. Ct. 1960); Evans v. Cornman , 398 U.S. 419, 90 S. ...


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