For affirmance as modified -- Chief Justice Hughes, Justices Mountain, Sullivan and Clifford and Judge Kolovsky. For reversal -- None. The opinion of the Court was delivered by Kolovsky, P.J.A.D., Temporarily Assigned.
This appeal is before us on certification granted, 66 N.J. 312 (1974), after the Appellate Division, in a reported opinion, 128 N.J. Super. 570 (App. Div. 1974), had affirmed the judgment in favor of defendant County Clerk entered in the trial court after a trial of plaintiffs' action for a declaratory judgment.*fn1
Plaintiffs had been unsuccessful candidates at a primary election held on June 8, 1971 in Bergen County for the Republican nominations for State Senator (Quaremba and Ralph) and member of the Board of Chosen Freeholders (Rizzo). Three principal contentions are advanced by them in this action, instituted on March 28, 1972, in anticipation of the 1972 primary election at which they, respectively, proposed to seek the Republican nominations for county
committeeman, presidential delegate at large and county freeholder.
First, they challenge as unconstitutional the provisions of N.J.S.A. 19:49-2 which regulate the positioning on the lines of a voting machine of the names of candidates for nomination at a primary election. Secondly, they contend that even though N.J.S.A. 19:23-24 expressly excepts from its provisions "counties where section 19:49-2 of the Revised Statutes applies," still the county clerk of such county should and must comply with the provisions of N.J.S.A. 19:23-24 and list all candidates for nomination to any given office, in the order determined by lot, in a single column or row. Finally, they assert that although defendant County Clerk of Bergen County purports to follow the provisions of N.J.S.A. 19:49-2, in fact he has abused his discretion and discriminated against candidates -- such as plaintiffs -- who are not affiliated with the Bergen County Republican organization.
We start with an analysis of the two sections of the Election Law to which plaintiffs refer.
N.J.S.A. 19:49-2, by its express terms, applies "in all counties where voting machines are or shall be used" and thus includes Bergen County. It provides that candidates for offices whose petitions are required to be filed with the county clerk and who file a joint petition and choose "the same designation or slogan" (county candidates) "shall be drawn for position on the ballot as a unit and shall have their names placed on the same line of the voting machine." Candidates for municipal or party office in any of the county's municipalities whose petition, filed with the municipal clerk, bears the same designation or slogan, and candidates whose petitions are filed with the Secretary of State, see N.J.S.A. 19:23-6, may, upon request and if the campaign manager of the county candidates consents thereto, have his or her name placed on the same line of the voting machine with those county candidates.
The section thus mandates that members of a group who have filed a joint petition be "placed on the same line of the voting machine" and that if there be more than one such group, a drawing be held between each group as a unit to determine the group's position on the voting machine. The section makes no other provisions for a drawing for the primary election, nor does it contain any directions governing the allotment to positions on the voting machines of candidates who are not part of such a group. Under the usual rule applicable to the construction of election laws, the absence of such legislative directions results in the leaving of the decisions as to those matters to the reasonable discretion of the county clerk. Richardson v. Caputo, 46 N.J. 3 (1965); see also Perry v. Giuliano, 46 N.J. Super. 550, 556 (App. Div. 1957).
(Such has been the uniform interpretation of N.J.S.A. 19:49-2 adopted in a series of decisions of the Appellate Division and the former Supreme Court. We leave for later consideration plaintiffs' argument that we should overrule those cases and hold that county clerks in counties having voting machines do not have such discretion and must also comply with the provisions of N.J.S.A. 19:23-24.)
So much of N.J.S.A. 19:49-2 as refers to primary elections had its genesis in L. 1941, c. 163, that section theretofore having referred only to the use of voting machines in general elections. A year later, by L. 1942, c. 50, the Legislature amended N.J.S.A. 19:23-24, the only then existing statute dealing with the positioning of candidates on ballots used in a primary election, to except from those provisions "counties where section 19:49-2 of the Revised Statutes applies."
On its face, the effect of that amendment was to limit the application of the pertinent provisions of N.J.S.A. 19:23-24 to counties where paper ballots were used,*fn2 in
which case the statute mandated "separate ballots for each political party." N.J.S.A. 19:23-23.*fn3
In cases to which N.J.S.A. 19:23-24 applies, the section requires that the county clerk -- or the municipal clerk in cases where the nomination involves an office or party position to be filled only by the voters of that municipality -- hold a drawing to determine the sequence in which the names of the candidates for nomination to a particular office are to be listed on their party's primary ballot. Where more than one person are to be nominated for a particular office and candidates therefor have asked to be bracketed, see N.J.S.A. 19:23-18, the bracketed names are to be treated as one.
Finally, in recognition of other provisions of the Election Law requiring the municipal clerks to cause the official primary ballots to be printed (except in counties falling within the population classification of N.J.S.A. 19:23-22.4 and 22.5, where the county clerk is to have the ballots printed and then be reimbursed for the cost thereof by the municipalities), the section concludes:
The county clerk in certifying to the municipal clerk the offices to be filled and the names of candidates to be printed upon the primary election ballots, shall certify them in the order as drawn in accordance with the above described procedure, and the municipal clerk shall print the names upon the ballots as so certified and in addition shall print the names of such candidates as have filed petitions with him in the order as determined as a result of the drawing as above described. [Emphasis supplied].
Thus, N.J.S.A. 19:23-24 makes no provision for grouping of candidates for different offices even though they may have chosen the same designation or slogan; what the section requires is that all candidates for a particular office be placed together on the ballot in the sequence determined by a drawing.
Plaintiffs' attack on the constitutionality of N.J.S.A. 19:49-2 is bottomed on the claim that those affected by its provisions are denied the equal protection of the laws because, allegedly, the statute improperly: (1) "creates preferred classes of primary candidates"; (2) favors "candidates and voters in rural counties which use paper ballots * * * over candidates and voters in populous counties which use voting machines"; (3) favors "candidates in counties using voting machines * * * who file a joint petition and those who affiliate with them * * * over all other candidates"; and (4) imposes an unequal burden on unaffiliated candidates and thus denies them their constitutional rights.
We are satisfied that there is no merit to any of plaintiffs' ...