On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. For reversal -- None. Clifford, J., concurring in judgment. Clifford, J., concurring in result.
[100 NJ Page 120] The issue in this appeal concerns the manner in which voters should be assured of absolute fairness in the choice of ballot positions for candidates of political parties. The controversy is moot because a general election involving the candidates has already occurred. Nonetheless we believe that the issues are
recurrent and warrant our consideration. See McGlynn v. New Jersey Public Broadcasting Authority, 88 N.J. 112 (1981). We therefore granted plaintiffs' petition for certification. 99 N.J. 174 (1984).
The appeal concerns the drawing for ballot positions for the 1984 general election in Essex County. Plaintiff Mary Mochary was the Republican Party candidate for the United States Senate for the State of New Jersey. Plaintiffs, Barbara Thomas and David Wildstein were, respectively, vice-chair of the Essex County Republican Party and the campaign manager for Republican candidates in the county. They attended the drawing for ballot position at the Essex County Clerk's office on August 13, 1984.
According to their contentions, the drawing was conducted in a room that had a counter running its length. The counter was approximately four feet high. Above it was a glass partition. The plaintiffs, Wildstein and Thomas, were on the public side of the counter and on the Clerk's side were several desks. A reporter and various other public employees were also in the room on the public side of the counter. The Clerk read a prepared statement describing the procedure and the names and offices to be drawn. He then demonstrated the materials to be used in the draw. These materials consisted of plastic capsules that were located in an ashtray and the papers with the names of the respective political parties that were to be inserted into the capsules. Prior to the drawing, he slid an ashtray containing several open capsules through an opening in the glass partition, cautioning the witnesses not to touch the capsules; he permitted the plaintiff Barbara Thomas to look inside the juror selection box that was employed to contain the capsules; and he also showed the witnesses the paper strips upon which Wildstein was able to read the typewritten words designating each party. Plaintiffs contend that the Clerk then put the box, the papers, and the capsules on a desk behind him. At the desk, he folded the papers and inserted them into the capsules that he selected. Plaintiffs assert that as a result of
the way in which the Clerk turned his body and the distance between them, they were unable to see close-up and in detail what had been done. The capsules are about three-quarters of an inch in length and are approximately the size of a cold-remedy capsule.
Still standing at the desk behind the counter, the Clerk inserted the capsules into the box, shook the box, and then put his hand into the box and took out one capsule at a time. He opened the first capsule and said "Democrat" and then took out the second and said "Republican".
According to plaintiffs, this result had occurred on 40 out of the last 41 times that the draw in Essex County had been made. They sued to set aside the draw. Although the statistical odds of such an occurrence are calculable, neither side offered proof of the odds. At oral argument before us, the Court suggested, and thereafter plaintiffs concurred, that the odds were less than one in 50 billion. Defendant disputes the basis for the statistics (but not the certainty of the calculation), preferring to consider only the period from 1968 to 1984 and excluding three years when deputies made the draw. (Prior to the 1968 amendment, "paper cards, of the same size, substance and thickness * * *" were drawn from the box.) During this shorter period, defendant drew 14 Democratic slips first in 14 attempts. Defendant's expert does not essay a numerical statistic, reporting only that the odds for such consistency are "much lower" than "not negligible." Although the record is not clear as to defendant's exact role in the twenty-four years of his tenure, defendant's expert does not in any way contradict plaintiff's position on the statistical odds of drawing one party first forty out of forty-one times, as the defendant had stated in a deposition that was introduced at the trial below.
Suffice it to say that most would feel, as the trial court did, that the evidence "screams for some conclusion on an emotional basis" that more than coincidence is involved. It is not emotion at all, however. Confronted with these odds, few persons of
reason will accept the explanation of blind chance. Given these circumstances, even a limited judicial role in election matters should not tolerate any further loss of public confidence in the integrity of the electoral process by allowing such "coincidence" to continue without a judicial effort at resolution.
N.J.S.A. 19:14-12 controls the procedure that is to be followed when drawing for positions on the ballot:
The manner of drawing the lots shall be as follows: paper slips with the names of each political party written thereon, shall be placed in capsules of the same size, shape, color and substance and then placed in a covered box with an aperture in the top large enough to admit a man's hand and to allow the capsules to be drawn therefrom. The box shall be well shaken and turned over to thoroughly intermingle the capsules. The county clerk or his deputy shall at his office, draw from the box each capsule separately without knowledge on his part as to which capsule he is drawing.
The person making the drawing shall open the capsule and shall make public announcement at the drawing of each name, the order in which name is drawn and the office for which the drawing is made.
Any legal voter of the county or municipality, as the case may be, shall have the privilege of witnessing the drawing.
We are satisfied that in the context of this case the trial court correctly held that since the electoral draw had occurred, and the court had not had the opportunity to resolve the dispute before the drawing, the court's reviewing role was restrained. If these issues had arisen in a way that would have permitted the court to fashion a timely remedy, the result of this suit would undoubtedly have been different. In these circumstances, however, the court concluded that there had been substantial facial compliance with the procedure described in the statute and found no evidence that there had been frustration of the underlying and overriding objectives of the Legislature in setting forth the procedure to be used in conducting the drawing. The court found that the Clerk did follow, as far as the evidence disclosed, exactly the procedure set forth in the statute in question, having put the names of the parties on paper slips; inserted the slips in capsules of the same size, shape,
color, and substance; placed them in a suitable box; and literally allowed the choice to be witnessed. It concluded that in the totality of the circumstances the course followed by the Clerk was reasonable, and that since there was no evidence of fraud, it declined to set aside the draw. In an unreported decision, the Appellate Division affirmed substantially for the reasons expressed by the trial court. We do not agree that there was full compliance, ...