On certification to the Superior Court, Appellate Division.
For reversal -- Chief Justice Wilentz and Justices Sullivan, Pashman, Schreiber and Handler. For affirmance -- Justices Clifford and Pollock. The opinion of the Court was delivered by Pashman, J. Sullivan, J. (concurring in result). Clifford, J., dissenting. Justice Pollock joins in this dissenting opinion. Sullivan, J., concurring in the result.
[84 NJ Page 155] The Commission Form of Government Law, N.J.S.A. 40:70-1 et seq., also known as the Walsh Act, L. 1911, c. 221 (as amended), provides that in an applicable municipality a member of the board of commissioners, the elected governing body, "shall have been a citizen and resident of the municipality for at least two years immediately preceding his election." N.J.S.A. 40:72-1; see N.J.S.A. 40:72-2. The question presented is whether this restriction on eligibility for public office violates the Equal Protection Clause of the federal constitution, U.S. Const., Amend. XIV. Although we recognize that the Legislature has the power to impose durational residency requirements
on candidates for local elective office, we conclude that a two-year residency requirement substantially infringes upon the voter's right to exercise his franchise. Regardless of whether the State could impose such a requirement on elective officers in all municipalities, it has not justified its unequal treatment of candidates under the Walsh Act. We therefore declare the residency requirement unconstitutional.
The facts are not in dispute. Plaintiff became a resident of defendant Atlantic City in November or December of 1979, and registered to vote in the city on December 31, 1979. He was formerly a resident of Linwood, another Atlantic County municipality. In April 1980, Matthews filed with the city a "petition of nomination," N.J.S.A. 40:75-3, for the office of city commissioner.*fn1 He also commenced the present action, seeking a declaration that the two-year residency requirement for the office, N.J.S.A. 40:72-1, was unconstitutional.*fn2 The relief requested by
plaintiff would permit his name to be placed on the ballot for the May 13 municipal election.*fn3
After the trial court issued an order to show cause, Thomas Budnick and Vincent Granese, residents and taxpayers of Atlantic City, petitioned for and received leave to intervene in the action. The trial court heard arguments on April 16, 1980, and in a written opinion dated April 18 held the residency requirement constitutional. It rejected Matthews' argument that conditioning eligibility for local office on two years' residence violated the Equal Protection Clause. Noting that in Stothers v. Martini, 6 N.J. 560 (1951), this Court had upheld N.J.S.A. 40:72-1 against a similar attack, the trial court found no basis for departing from the reasoning or the result in that case. Plaintiff appealed and the Appellate Division affirmed substantially for the reasons expressed by the trial court. We granted certification.*fn4 84 N.J. 152 (1980). We reverse.
In Stothers v. Martini, supra, this Court rejected an equal protection challenge to the durational residency requirement involved here. The Court noted that because the Legislature was empowered to prescribe qualifications for elective office, the statute would be presumed to be valid and would be "upheld unless it is shown to be arbitrary, capricious or unreasonable." 6 N.J. at 567. Applying that standard, the Court concluded that the two-year requirement was a proper measure for "insur[ing]
that city commissioners have at least a rudimentary understanding of local affairs." Id.
Plaintiff contends that an examination of developments in constitutional law since Stothers leads to a result contrary to that reached in 1951. Specifically, he urges that the United States Supreme Court decisions in Bullock v. Carter, 405 U.S. 134, 92 S. Ct. 849, 31 L. Ed. 2d 92 (1972), and Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972), require application of a more stringent standard of review to the statute in question -- a standard which plaintiff claims N.J.S.A. 40:72-1 cannot meet. Accordingly, we begin our inquiry by considering those two decisions.
In Bullock the Supreme Court addressed the validity of Texas' requirement of filing fees in primary elections. The fees were set sufficiently high so that primary elections would be financed by the candidates instead of the state. According to the Court, the "threshold question" was
whether the filing-fee system should be sustained if it can be shown to have some rational basis, or whether it must withstand a more rigid standard of review. [405 U.S. at 142, 92 S. Ct. at 855, 31 L. Ed. 2d at 99 (footnote omitted)]
The Court noted that prior decisions had established that direct restrictions on the right to vote required the closest judicial scrutiny. Id.; see Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966). Rejecting traditional strict scrutiny, the Court explained that the "problem presented by candidate filing fees is not the same * * *." Bullock, 405 U.S. at 142, 92 S. Ct. at 855, 31 L. Ed. 2d at 99. The difference was that "[t]he initial and direct impact of filing fees is felt by aspirants for office, rather than voters * * *." Id. This was significant for the Bullock Court because it had never "attached such fundamental status to candidacy as to invoke a rigorous standard of review." Id. at 142-143, 92 S. Ct. at 855, 31 L. Ed. 2d at 99.
However, the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. Of course, not every limitation or
incidental burden on the exercise of voting rights is subject to a stringent standard of review. * * * In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters. [ Id. at 143, 92 S. Ct. at 855, 31 L. Ed. 2d at 99-100 (footnotes and citations omitted)]
The Court concluded that the barrier to the ballot created by the filing-fee system had affected voters in ways "neither incidental nor remote." Id. at 144, 92 S. Ct. at 856, 31 L. Ed. 2d at 100. "[T]his system falls with an unequal weight on voters, as well as candidates, according to their economic status." Id. This observation was sufficient to trigger a more exacting standard of review than the "rational basis" standard:
Because the Texas filing-fee scheme has a real and appreciable impact on the exercise of the franchise, and because this impact is related to the resources of the voters supporting a particular candidate, we conclude, as in Harper [v. Virginia Bd. of Elections ], that the laws must be "closely scrutinized" and found reasonably necessary to the accomplishment of legitimate state objectives in order to pass constitutional muster. [ Id. (quoting Harper, 383 U.S. at 670, 86 S. Ct. at 1083)]
Applying this standard, the Bullock Court found that the state's interests in regulating the ballot and relieving its treasury of the cost of conducting primary elections were insufficient to justify the "resulting incursion on the prerogatives of voters." 405 U.S. at 149, 92 S. Ct. at 859, 31 L. Ed. 2d at 103. It accordingly declared the scheme of filing fees unconstitutional.
Dunn v. Blumstein involved provisions of Tennessee law that extended the right to vote only to those citizens who had resided within the state for one year and within the county in which they would vote for three months. 405 U.S. at 331, 92 S. Ct. at 997, 31 L. Ed. 2d at 278. The Court held that the restriction implicated two fundamental rights: the right to vote and the right to travel. In regard to the former, the Court noted that "it is certainly clear now that a more exacting test [than minimal scrutiny] is required for any statute that 'place[s] a condition on the exercise of the right to vote.'" Id. at 337, 92 S. Ct. at 1000, 31 L. Ed. 2d at 281 (quoting Bullock, 405 U.S. at 143, 92 S. Ct. at 855, 31 L. Ed. 2d at 99). It therefore concluded that it "must determine whether the exclusions are necessary to promote a compelling state interest." Id. (quoting Kramer v. Union Free Sch. Dist., 395 U.S. 621, 627, 89 S. Ct. 1886, 1889, 28
L. Ed. 2d 583, 589 (1969) (emphasis in original)). Since the durational residency requirement penalized certain residents on the basis of recent travel, the Court held strict scrutiny was also necessary to sustain the requirement as an infringement of the fundamental right to travel. 405 U.S. at 342, 92 S. Ct. at 1003, 31 L. Ed. 2d at 284.
Applying strict scrutiny, the Dunn Court examined the state's proffered justifications for the residency requirement -- preventing fraudulent voting and assuring the knowledgeable exercise of the franchise. They were held inadequate. Since the durational residency requirement prevented voting by newly arrived yet bona fide residents as well as non-residents, the Court considered it an "all too imprecise" means of preventing fraud. 405 U.S. at 351, 92 S. Ct. at 1007, 31 L. Ed. 2d at 289. The Court also found the requirement was "much too crude" a device for promoting knowledgeable voting. The state showed no necessity for requiring a year's residency to insure that voters were adequately informed. Id. at 360, 92 S. Ct. at 1012, 31 L. Ed. 2d at 294. New residents could not vote regardless of the level of their awareness about community affairs; long-time residents were permitted to vote regardless of the lack of such awareness. Id. at 357-358, 92 S. Ct. at 1010-1011, 31 L. Ed. 2d at 293-294. The Court rejected as impermissible the state's asserted objective of insuring that a voter has a "'common interest in all matters pertaining to [the community's] government . . ..'" Id. at 355, 92 S. Ct. at 1009, 31 L. Ed. 2d at 291-292. "'[D]ifferences of opinion' may not be the basis for excluding any group or person from the franchise." Id. (quoting Cipriano v. City of Houma, 395 U.S. 701, 705-706, 89 S. Ct. 1897, 1900, 23 L. Ed. 2d 647 (1969). Since none of the state's purported justifications for the residency requirement was found sufficiently compelling, the Court declared it unconstitutional.
We agree with plaintiff that since this Court decided Stothers, state legislation affecting the electoral process has been subjected to closer constitutional scrutiny. We should therefore reassess
the reasoning and result of Stothers in the light of contemporary approaches to issues of equal protection. This reassessment requires both a fresh analysis of the competing interests involved and a reconsideration of the proper standard ...