For reversal -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock and Garibaldi. For affirmance -- Justice Stein. The opinion of the Court was delivered by Clifford, Justice. Stein, J., dissenting.
By Order dated October 22, 1986, we permitted the name of plaintiff, Edward W. Fields, to be placed on the 1986 general election ballot as a Democratic party candidate for Borough Council in the Borough of Clayton. We issued the Order without opinion because of the need for expeditious resolution of this election dispute, inasmuch as the election was scheduled for November 4, 1986. Plaintiff's name did in fact appear on the general election ballot, and we have since been informed that plaintiff was elected to office.
This opinion sets forth the basis for our decision to permit plaintiff's name to be placed before the electorate.
This action was commenced by the filing of a Verified Complaint in lieu of Prerogative Writ and an Order to Show Cause, seeking a judgment directing defendant, the County Clerk of Gloucester County, to include the name of plaintiff, Edward W. Fields, on the 1986 Borough of Clayton general election ballot
as a Democrat candidate for Borough Council. The Complaint made reference to pertinent sections of the statutes dealing with nomination of candidates, N.J.S.A. 19:13-1 to -23, ballots, N.J.S.A. 19:14-1 to -35, and primary elections, N.J.S.A. 19:23-1 to -58, and recited the following facts, none of which (except, of course, for the import and effect of the cited statutes) is in dispute:
1. Two seats for membership on Borough Council of the Borough of Clayton, Gloucester County, are up for election in the 1986 General Election.
2. In the 1986 primary election, the official ballot for the Democratic party in the Borough of Clayton provided for voting for two candidates to run for those seats in the general election.
3. One candidate, whose name appeared on the primary ballot by virtue of a petition previously filed, received 132 votes. No other name appeared on the ballot, but approximately thirty write-in votes were cast for various candidates for the other available position. No candidate received more than six votes. Two candidates, not including plaintiff, received six votes each; plaintiff received none.
4. Pursuant to N.J.S.A. 19:13-14, the person receiving the highest number of votes in the primary election shall be the candidate of his party for the office to be filled, and in case more than one person is to be elected to the same office, "the persons having the highest number of votes to the extent of the number of offices to be filled" shall be the candidates of their party for such offices in the general election.
5. N.J.S.A. 19:14-2.1 provides that the name of a person for whom votes are cast by write-in vote in a primary election shall not be included on the general election ballot unless he received the number of votes at least equal to the minimum number of signatures required on a petition to place on the primary ballot the name of a candidate for that office. That required minimum number is yielded by a calculation set forth in N.J.S.A.
19:23-8: "at least 5% in number of the total vote cast by the voters of that political party at the last preceding primary election held for the election of that party's candidates for the General Assembly."
6. In the last election in which the General Assembly was up for election, i.e., 1985, 176 votes were cast in Clayton in the Democratic primary election. The formula prescribed by statute, i.e., five per cent of 176, yields 8.8 as the required minimum number of signatures on a petition to place a name on the primary ballot, and hence the minimum number of primary election write-in votes required to permit one to have one's name placed on the general election ballot.
7. The candidate who received 132 votes in the primary election was selected as the Democratic candidate in the general election for one of the Borough Council positions; but because of the tie for second place and because none of the other candidates received at least 8.8 write-in votes, which would have entitled him automatically to be included on the general election ballot, a vacancy resulted in respect of the other position.
8. The vacancy thus created was filled by selection of plaintiff under the provisions of N.J.S.A. 19:13-20, which reads in part as follows:
In the event of a vacancy, howsoever caused, among candidates nominated at primaries, which vacancy shall occur not later than the 51st day before the general election, or in the event of inability to select a candidate because of a tie vote at such primary, a candidate shall be selected in the following manner:
(4) In the case of an office to be filled by the voters of a portion of a single county, the candidate shall be selected by those members of the county committee of the party wherein the vacancy has occurred who represent those portions of the county which are comprised in the district from which the candidate is to be elected.
On September 15, 1986, plaintiff delivered to defendant the requisite documents to fill the vacancy with the name of plaintiff. Those documents included a Report of the Meeting of the Executive Committee of the Democratic County Committee at
which plaintiff was selected "by unanimous voice vote;" a Certificate Filling Vacancy; and a Certificate of Acceptance to Fill Vacancy, executed by plaintiff. The submission of the documents accompanied plaintiff's request that defendant place his name on the general election ballot.
9. By letter dated September 16, 1986, defendant rejected plaintiff's request and refused to include his name on the general election ballot. Defendant's explanation for his refusal was that "there is no vacancy to fill" because "[n]o write-in ...