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Hitchner v. Cumberland County Board of Elections

November 7, 1978

MARVIN K. HITCHNER, JR., PETITIONER,
v.
CUMBERLAND COUNTY BOARD OF ELECTIONS, RESPONDENT



Miller, J.c.c.

Miller

This matter comes before the court on petitioner Marvin K. Hitchner's application for an order allowing him to vote pursuant to N.J.S.A. 19:32-41. It requires this court to determine whether a person who has been convicted of a criminal offense, but who is free on his own recognizance pending a future surrender date to the penitentiary, is within the class disenfranchised by N.J.S.A. 19:4-1(8).

Petitioner pled guilty to an information charging him with conspiring to defraud the United States and the Small Business Bureau. The United States District Court convicted petitioner and sentenced him to a term in the federal penitentiary. The surrender date to the penitentiary is November 20, 1978. Pending that surrender date petitioner remains free on his own recognizance.

On November 7, 1978 petitioner attempted to vote at the proper polling place but was not permitted to vote. The refusal by the election officials was based upon petitioner's conviction. At the time of the election he was not serving a sentence, on parole, or on probation. Furthermore he was never served with any notice regarding this matter.

N.J. Const. (1947), Art. II, par. 7 provides:

The Legislature may pass laws to deprive persons of the right of suffrage who shall be convicted of such crimes as it may designate. Any person so deprived, when pardoned or otherwise restored by law to the right of suffrage, shall again enjoy that right.

In 1948, acting pursuant to this provision, the Legislature enacted N.J.S.A. 19:4-1 which provided in pertinent part:

(1) Who is an idiot or is insane; or

(2) Who has been or shall be convicted of any of the following designated crimes * * *

(3) Who was convicted prior to * * *

(4) Who shall hereafter be convicted of * * *

(5) Who was convicted after * * *.


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