This is a suit involving an interpretation of the New Jersey election laws, Title 19, and their effect upon a fortuitous recipient of write-in votes in a primary election. The issue is novel in that the victorious write-in recipient was also an unsuccessful formal candidate for the opposing party's primary nomination.
Plaintiff Alfred J. Riecker was an unsuccessful candidate for the Republican mayoral nomination in the Borough of Alpine. He filed the necessary petitions and certificates, as required by N.J.S.A. 19:23-5 et seq., and was entered on the ballot for the June 4, 1974 Republican primary. No candidate appeared on the Democratic ballot for the mayoral nomination of that party. Plaintiff was close but unsuccessful in his bid for the Republican nomination. He did, however, receive four write-in votes for mayor in the Democratic primary from four registered Democratic voters, and these votes were sufficient to win the Democratic nomination. Defendant County Clerk Carl R. Hartmann, upon receipt of Riecker's acceptance of the Democratic nomination and an objection filed by plaintiff's successful Republican primary opponent, first determined that plaintiff did not qualify as
the Democratic nominee. Defendant county clerk, in a letter dated June 13, 1974, stated that he based his decision upon an interpretation of N.J.S.A. 19:13-8 and N.J.S.A. 19:49-5.
Subsequently, the Alpine Democratic Municipal Committee met and selected Riecker to fill the "presumed" vacancy, pursuant to N.J.S.A. 19:13-20. Thereafter, by letter dated July 8, 1974, defendant Hartmann advised the said Democratic Municipal Committee that Riecker was a qualified Democratic candidate and that his name would be placed on the ballot. However, upon the receipt of further objections and after consultation with the county counsel, the county clerk made his ultimate determination that the plaintiff was not qualified and removed his name from the ballot on August 20, 1974. That action precipitated this litigation.
At the time of the hearing Lawrence Feroli, president of the Alpine Republican Club, was permitted to intervene as an individual and taxpayer in support of the position taken by defendant county clerk. Feroli appeared and argued through counsel before this court.
Defendants argue that N.J.S.A. 19:13-8, 19:49-5 and 19:13-20*fn1 preclude plaintiff from appearing on the November ballot.
It is first argued that plaintiff, having signed an "acceptance" for the Republican nomination, is barred from running as a Democrat, since he would, of necessity, have to sign a second acceptance in violation of N.J.S.A. 19:13-8. The statute is inapplicable since plaintiff is not a petitioner by direct petition of nomination.
Next, it is argued that the Democratic Committee could not fill the "vacancy" with an unsuccessful Republican candidate, based upon N.J.S.A. 19:13-20. This statute is also inapplicable, since there never existed a vacancy as described in the statute. Since there was no Democratic nominee for mayor on the Democratic ballot and since the plaintiff received the largest number of write-in votes, plaintiff was properly nominated. Therefore, no vacancy in the Democratic mayoral nomination occurred which might require the application of the cited statute.
Finally, it is argued that N.J.S.A. 19:49-5 precludes plaintiff from running as a Democratic candidate nominated by "irregular ballots" (write-in votes) because his name is printed on the ballot as a candidate for the Republican nomination. The statute provides that any irregular ballots cast for a candidate whose name appears on the ballot shall not be counted.
Logic dictates to the contrary. In the primary election in question a Democratic voter in the booth was faced with only the Democratic ballot. The Republican lines were "locked out." To that Democratic voter plaintiff's name did not appear on the ballot. His only opportunity to vote for the plaintiff was by a write-in vote, and four such Democratic voters availed themselves of that opportunity. The question is whether ...