of the Democratic, Republican and Independent candidates. N.J.S.A. 19:14-12. Thereafter it becomes the responsibility of the County Clerks to arrange for the adjustment of voting machines, the printing and distribution of sample ballots, the printing of absentee ballots, and the printing of federal overseas ballots under N.J.S.A. 19:59-1 through 13.
The drawing for positions on the ballots this year was held on August 13th, 1984. After the drawing and the other details are taken care of there follows the General Election which this year will take place on November 6th, 1984.
Acting pursuant to these various statutory duties, the various County Clerks have held the drawings for ballot positions and have arranged their ballots and voting machines consistently with the drawings. Seventeen counties use voting machines which are of two kinds, ABM or Shoup types. Four counties use electronic punch card ballots. Various counties are in different stages of preparing the ballots and voting machines. Only the federal overseas ballots are in some cases prepared beyond recall. As to the others, some have not yet gone to the printer. Some are in first proof. Some have been reviewed and are at the printers in final form. It would require various amounts of effort and expense to add the names of LaRouche and Davis to the ballots, but it could be physically accomplished in time for the November 6th election.
More difficult, however, is the effect of adding the new names on the general layouts of the ballots. In some cases little difference would result from adding the names at the bottom or end of an existing list of names of independent candidates. In other cases substantial reorganization of ballots would be required.
Further, LaRouche and Davis did not participate in the drawing process in which all of the other candidates participated and their position at this date would have to be determined by the Clerk on whatever basis he or she deemed appropriate.
It is the common practice of candidates to ascertain their position on the ballot and to prepare campaign literature directing voters' attention to their position. County Clerks have received inquiry from candidates as to their positions for the November 6th election and it seems reasonable to conclude that campaign literature has been or is being prepared on the basis of this information by some candidates.
Conclusions of Law
The Court has federal question jurisdiction.
The merits of the case are governed by Anderson v. Celebrezze, 460 U.S. 780, 75 Lawyers Edition 2d 547, 103 S. Ct. 1564 (1983.) There the Supreme Court held unconstitutional an Ohio statute which required an independent presidential candidate to file a nominating petition on or before March 20, 1980, when a General Election would be held in November. The Court required acceptance of a petition tendered on May 16. The Court reasoned that the statute had the impermissible effect of impeding the voters' choice of presidential and vice-presidential candidates. Such early filing requirements prevented voters from nominating candidates in light of changes in domestic and international developments; it prevented voters from acting after the major parties had selected their presidential candidates; early filing was not necessary to allow petitioners' signatures to be counted and verified or to permit General Election ballots to be printed.
I conclude under the rationale of Anderson v. Celebrezze supra, that New Jersey statute setting a deadline for filing petitions for independent candidates for President and Vice President of the United States is unconstitutional for all the reasons set forth in that case.
However, I also conclude that plaintiffs in the present case have not shown a likelihood of success on the merits, as I believe they have delayed unconscionably their application to be placed on the ballot. Anderson v. Celebrezze was decided in 1983 so that LaRouche and Davis were well aware of any rights they may have had.
The 86-day certification provision, the time for drawing ballot positions, the time for printing ballots are eminently reasonable regulations ensuring fairness among the candidates, notice to the public and administrative ease in conducting the elections. Plaintiffs either did or should have known of these provisions. Yet, plaintiffs waited until September even to make inquiry of the Secretary of State several weeks after the certification of candidates and the drawing for ballot positions of all candidates. Then and even now plaintiffs have not commenced collecting signatures for their petition. There is no excuse for this delay and to grant the relief plaintiffs request would obstruct the voting process as to other candidates, all of whom have participated in the August drawing procedure and some of whom have begun preparing literature on the basis of the structure of the ballot.
If it were not for plaintiffs' own dilatoriness, the additional expenditures of public time and money required to redo the ballots would not be controlling. However, in view of plaintiffs' dilatoriness these are factors to consider.
In short, plaintiffs in my opinion will not ultimately prevail on the merits upon the application of the equitable doctrine of laches. Having thus failed to establish one of the prerequisites of injunctive relief their application for preliminary injunction will be denied.
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