On appeal from the Superior Court of New Jersey, Law Division, Hudson County whose opinion is reported at 200 N.J. Super. 303.
Matthews, Furman and Havey.
Plaintiffs, who include a resident of Hudson County, but not of Jersey City, a land developer, and a retail business operating in parts of Hudson County other than Jersey City, and a nonprofit organization of Bergen and Hudson County retailers opposed to the Sunday Closing Law, challenged the validity of L. 1984, c. 160, an amendment and supplement to the Sunday Closing Law, N.J.S.A. 2A: 171-5.8 to -5.18. They named the Attorney General and Jersey City's clerk as defendants.
The operative facts involved in this appeal are set forth in the trial court's opinion which is reported at 200 N.J. Super. 303 (Law Div.1984). Plaintiffs contend that the amendment is unconstitutional "special" legislation and that it violates constitutional guarantees of equal protection. According to them, it interferes with the fundamental constitutional right to vote because it operates to dilute the voting power of non-Jersey City, Hudson County voters and of Jersey City voters who oppose Sunday sales. Because plaintiffs contend that a fundamental right is involved, they argue that the challenged enactment is subject to strict scrutiny and must serve a compelling state interest in order to be sustainable.
Some equal protection challenges to voting laws focus on the denial of a particular group's right to vote, while others concern improper apportionment, which enables equal numbers of constituents to vote for proportionately unequal numbers of constituents. The present case is different. Plaintiffs are not contending that non-Jersey City voters should be able to vote in the Jersey City referendum. Instead, they argue that one class of voters now enjoys a special privilege that it did not have before: the right to vote in a separate city-wide referendum in addition to the county referendum. It is reasonably arguable that exercise of that privilege may tend to dilute the voting strength of members of the remaining classes that were not singled out for special treatment. However, since the elections in question are referenda, in which each voter's expression of will is direct, the matter of equal representation of voters who
cannot decide matters directly is not at issue here, as it is in apportionment cases.
Cases concerning denial of qualification of the right to vote (rather than malapportionment) include, for example, Carrington v. Rash, 380 U.S. 89, 85 S. Ct. 775, 13 L. Ed. 2d 675 (1965), in which the United States Supreme Court invalidated a law prohibiting members of the military who moved to Texas from voting in state elections; Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972), in which it invalidated Tennessee's long-duration residency requirement for voting, and Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966), in which it invalidated Virginia's statute imposing a poll tax in state elections because it drew lines qualifying the right to vote based on affluence, a standard inconsistent with equal protection. In Harper the Court applied strict scrutiny because exercise of the "fundamental right" to vote had been restrained. (The classification was also highly suspect because it was based on wealth. In Dunn, the right to travel, as well as the right to vote, had been burdened.) Similarly, the New Jersey Supreme Court applied strict scrutiny in Worden, et al. v. Mercer Cty. Bd. of Elections, 61 N.J. 325, 346 (1972), when it invalidated the Mercer County election board practice of preventing college and university students residing in the county from registering to vote there.
Strict scrutiny is also usually applied to legislation limiting the right to vote in special-purpose elections to those voters who are deemed to have a particular interest or stake in the outcome. E.g., Cipriano v. Houma, 395 U.S. 701, 704, 89 S. Ct. 1897, 1900, 23 L. Ed. 2d 647, 651 (1969); Kramer v. Union Free School Dist., 395 U.S. 621, 627, 89 S. Ct. 1886, 1889-1890, 23 L. Ed. 2d 583, 589 (1969). But see Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 93 S. Ct. 1224, 35 L. Ed. 2d 659 (1973) (under the special circumstances of that case, only minimal scrutiny was required, and the vote restriction was upheld); accord, Ball v. James, 451 U.S. 355, 101 S. Ct. 1811, 68 L. Ed. 2d 150 (1981) (following Salyer). In Kramer,
for example, the Court invalidated a New York law permitting only parents of local public school pupils and owners of taxable realty in the district to vote in certain school district elections.
The Supreme Court explained in Kramer why the usual presumption of constitutionality could not apply. The presumption is "based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality." 395 U.S. at 628, 89 S. Ct. at 1890, 23 L. Ed. 2d at 590.
In both Cipriano and Kramer the Court subjected the challenged laws to strict scrutiny even though the elections they governed were not of the type in which there was a constitutional right to vote. The elections at issue in Cipriano were referenda. In Kramer the Court subjected the New York law to "exacting judicial scrutiny" even though "under a different statutory scheme, the offices subject to election might have been filled through appointment." 395 U.S. at 628-629, 89 S. Ct. at 1890, 23 L. Ed. 2d at 590. It emphasized that once the Legislature determined to enfranchise the electorate, it was obligated not to draw lines inconsistent with equal protection. Ibid. Plaintiffs rely on that principle in the present case. They acknowledge that there is no fundamental right to a referendum, Cafe Gallery, Inc. v. State, 189 N.J. Super. 468, 474 (Law Div.1983), but maintain that once the Legislature established a right to decide the Sunday ...