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Smith v. Penta

Decided: July 19, 1979.

MURIEL S. SMITH, PLAINTIFF-APPELLANT,
v.
ROSE PENTA, JUDGE OF BOARD OF ELECTIONS, DISTRICT ONE, BOROUGH OF HIGHLANDS, ALYNN TRACY HECK, SUPERINTENDENT OF ELECTIONS, COUNTY OF MONMOUTH, STATE OF NEW JERSEY, ANN FLYNN, MONMOUTH COUNTY BOARD OF ELECTIONS, STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



On Certification to Superior Court, Appellate Division.

For affirmance -- Chief Justice Hughes and Justices Mountain, Clifford, Schreiber and Handler. For reversal -- Justices Sullivan and Pashman. The opinion of the court was delivered by Mountain, J. Pashman, J., dissenting. Justice Sullivan joins in this dissenting opinion.

Mountain

A primary election was held June 7, 1977. On that day the plaintiff, a resident of the Borough of Highlands in Monmouth County and a registered Republican, sought to register as a Democrat in order that she might vote forthwith in that party's primary election. Her request to register was denied and she immediately filed a complaint and sought the issuance of an order to show cause why she should not be granted declaratory and injunctive relief. The trial judge dismissed the complaint and that same day the Appellate Division affirmed this ruling. We granted plaintiff's petition for certification, 76 N.J. 235 (1978), and now affirm.

The section of our Election Law with which we are here concerned, fixes certain of the requirements for voting in a primary election and reads as follows:

No voter shall be allowed to vote at the primary election unless his name appears in the signature copy register.

A voter who votes in a primary election of a political party or who signs and files with the municipal clerk or the county commissioner of registration a declaration that he desires to vote in the primary election of a political party shall be deemed to be a member of that party until he signs and files a declaration that he desires to vote in the primary election of another political party at which time he shall be deemed to be a member of such other political party. The Secretary of State shall cause to be prepared political party affiliation declaration forms and shall provide such forms to the commissioners of registration of the several counties and to the clerks of the municipalities within such counties.

No voter, except a newly registered voter at the first primary at which he is eligible to vote, or a voter who has not previously voted in a primary election, may vote in a primary election of a political party unless he was deemed to be a member of that party on the fiftieth day next preceding such primary election.

A member of the county committee of a political party and a public official or public employee holding any office or public employment to which he has been elected or appointed as a member of a political party shall be deemed a member of such political party.

Any person voting in the primary ballot box of any political party in any primary election in contravention of the election law shall be guilty of a

misdemeanor, and any person who aids or assists any such person in such violation by means of public proclamation or order, or by means of any public or private direction or suggestions, or by means of any help or assistance or cooperation, shall likewise be guilty of a misdemeanor. [ N.J.S.A. 19:23-45]

Implementation of the balloting regulations set forth in this statute results in a nominating procedure which is widely regarded as a "closed" primary. Where such an election scheme prevails -- as it does, in some form, in the great majority of states*fn1 -- only those who qualify as members of a particular political party may vote in that party's primary election. Except as noted, New Jersey has always adhered to the closed primary system.*fn2 As this Court has observed,

New Jersey has been described as "one of the most tightly closed of the closed primary states." Merriam and Overacher, Primary Elections, 71 (1928). [ Stevenson v. Gilfert, 13 N.J. 496, 499 (1953)]*fn3

A closed primary system generally includes, as is true in New Jersey, some kind of affiliation requirement designed to exclude certain types of voters.

Affiliation statutes might be designed to prevent four types of individuals from voting in party primaries: (1) voters generally affiliated with another party but wishing to cross over to a rival party's primary to support a weak candidate who is likely to lose in the general election to the nominee of the voters' preferred party (raiders); (2) voters generally affiliating with another party but wishing to cross over to support their preferred primary candidate in case the nominee of the voters' own party loses the general election (second choice supporters); (3) voters generally affiliating with another party but wishing to cross over to support a candidate preferred over any potential nominee of the voters' own party (crossovers); (4) voters generally not affiliating with any party but wishing to support a particular party candidate (independents). [ Developments, supra, 88 Harv.L.Rev. at 1164]

In order the more effectively to exclude such classes of persons, well over half the states "condition primary voting on party affiliation of a certain duration." Developments at 1169-70. As we have seen, in New Jersey the period is now 50 days. N.J.S.A. 19:23-45.

Plaintiff asserts that this statute is unconstitutional. The argument may be summarized as follows: The foregoing statutory provision requires, in all but the excepted cases, that a declaration of affiliation with a particular party be filed 50 days preceding the primary election. Another section of the Election Law, N.J.S.A. 19:23-14, stipulates that nominating petitions may be filed with designated public officials up to and including the fortieth day prior to the primary election. Thus, the argument concludes, a prospective voter is required to file a declaration of affiliation before he or she can know with certainty who all of the candidates for office may be. It is contended that this offends both Federal and State Constitutions in that it impairs a citizen's right to vote.

In Rosario v. Rockefeller, 410 U.S. 752, 93 S. Ct. 1245, 36 L. Ed. 2d 1 (1973), the Supreme Court sustained a New York statute

that conditioned an individual's right to vote in a particular party's primary on his having declared an affiliation with that party eight to eleven months before the date of the primary election. The Court found the state interest in preventing raiding sufficient to justify the exclusion. Raiding occurs when members of one party vote in the primary election of the other party with the intention of nominating a weak candidate who could probably be defeated by the candidate of their true party in the general election. Obviously, raiding will tend to weaken the political party attacked and if successful will result in a fraudulent candidacy.

[A] candidacy determined by the votes of nonparty members . . . . is, in practical effect, a fraudulent candidacy. [ Rosario v. Rockefeller, 458 F.2d 649, 652 (2d Cir. 1972), aff'd 410 U.S. 752, 93 S. Ct. 1245, 36 L. Ed. 2d 1 (1973)]

Among other points raised by the plaintiffs in Rosario was the issue before us here -- that the statutory scheme required "party enrollment before prospective voters ha[d] knowledge of the candidates or issues to be involved in the next primary election." 410 U.S. at 760, 93 S. Ct. at 1251, 36 L. Ed. 2d at 8. The Court apparently felt no need to address this point.

Following this unsuccessful challenge to New York's primary election system, certain aspects of Connecticut's primary system were challenged in Nader v. Schaffer, 417 F. Supp. 837 (D.Conn.1976) (3-judge court). The attack was upon a statutory provision which required an individual to register as a member of a particular party before voting in that party's primary election. In the course of his opinion sustaining the legislation, Circuit Judge Anderson emphasized two important interests which a closed primary seeks to protect. It was noted that the associational rights of the party's membership are shielded from intrusion by those with adverse political principles and aims, and furthermore, that

a state has a more general, but equally legitimate, interest in protecting the overall integrity of the historic electoral process. This includes preserving

parties as viable and identifiable interest groups; insuring that the results of primary elections, in a broad sense, accurately reflect the voting of party members. Parties should be able to avoid primary election outcomes which will confuse or mislead the general electorate to the extent it relies on party labels as representative of certain ideologies; and ...


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