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Afran v. County of Somerset

Decided: November 1, 1990.

BRUCE I. AFRAN AND JOYCE G. AFRAN, PLAINTIFFS-APPELLANTS,
v.
COUNTY OF SOMERSET, COUNTY OF MERCER, DEFENDANTS-RESPONDENTS, STATE OF NEW JERSEY, DEFENDANT-INTERVENOR



On appeal from Superior Court, Law Division, Somerset County.

Pressler, Baime and Arnold M. Stein. The opinion of the court was delivered by Pressler, P.J.A.D.

Pressler

Plaintiffs appeal from the denial by the Law Division of their application for an order authorizing them to vote in the general election of November 6, 1990. We heard the appeal on an emergent basis and now reverse.

The facts are undisputed. Plaintiffs Bruce I. Afran and Joyce G. Afran resided for some time in Franklin Township in Somerset County where they were qualified and registered voters. On October 25, 1990, they moved to Princeton Borough in Mercer County. Their change of residence thus occurred within 30 days of the general election. Upon inquiry of the Somerset County Clerk, they were advised that they would not be permitted to vote in that County since they no longer resided there. They also correctly understood that they could not vote in Mercer County since they were not there registered and

could not be registered there in time to vote in the 1990 general election. Accordingly, they instituted this action in Somerset County by order to show cause seeking to enforce their franchise rights in either county. The Law Division, by order entered on October 29, 1990, dismissed their complaint and discharged the order to show cause. We reverse.

Article 2, para. 3(a) of the New Jersey Constitution of 1947 prescribes qualifications for voting. The franchise is accorded to every citizen of the United States of the age of 18 years or older "who shall have been a resident of this State and of the county in which he claims his vote 30 days, next before the election . . ." An exception is made in the case of election of President and Vice President of the United States: article 2, para. 3(c) provides that a person registered in any election district who has moved to another state or county after the time required for establishing a voting residence in the new place of residence may vote for these two offices by special absentee ballot cast in the county of the former residence. Defendants contend that the effect of the constitutional provision, except for presidential elections, is to disenfranchise absolutely otherwise qualified and registered residents of this State simply because they move from one county to another during the thirty-day pre-election period.

We agree with plaintiffs' argument that imposition of this durational requirement on qualified and registered voters and the consequent disenfranchisement of such persons would constitute a violation of the equal protection guarantees of the fourteenth amendment. We conclude not only that a state constitutional scheme so providing would violate federal constitutional mandate but furthermore that New Jersey's constitutional provision need not and should not be read to effect disenfranchisement in this situation.

We premise our holding upon the fundamental precept that "the exercise of the basic right of suffrage, a civil and political franchise . . . [is] of the very essence of our democratic

process." Gangemi v. Berry, 25 N.J. 1, 12, 134 A.2d 1 (1957). As Justice Francis noted in Asbury Park Press, Inc. v. Woolley, 33 N.J. 1, 11, 161 A.2d 705 (1960), "No man can boast of a higher privilege than the right granted to the citizens of our State and Nation of equal suffrage and thereby to equal representation in the making of the laws of the land." Because the right to vote is the bedrock upon which the entire structure of our system of government rests, our jurisprudence is steadfastly committed to the principle that election laws must be liberally construed to effectuate the overriding public policy in favor of the enfranchisement of voters. See, e.g., In re Atlantic County Bd. of Elections, 117 N.J. Super. 244, 284 A.2d 368 (App.Div.1971); In re Ross Petitions, 116 N.J. Super. 178, 281 A.2d 393 (App.Div.1971); Pritel v. Burris, 94 N.J. Super. 485, 229 A.2d 257 (App.Div.1967); Lebak v. Freck, 212 N.J. Super. 234, 514 A.2d 856 (Law Div.1986); In re 1984 Maple Shade General Election, 203 N.J. Super. 563, 497 A.2d 577 (Law Div.1985); Mays v. Penza, 179 N.J. Super. 185, 430 A.2d 1145 (Law Div.1981). This canon of construction is indeed so critical to the preservation of our democratic institutions that it has been applied to the state constitution itself. Gangemi v. Berry, supra. We point out too that the evolution of the organic law of this State has taken an undeviating path towards liberalization of the voting right. Thus, for example, art. 2, para. 3, sec. (a) was amended in 1957, 1963 and 1974 gradually to reduce the durational requirement from its original stipulation of a one-year state residency and a six-month county residency to the current stipulation of 30 days for each. Civilian absentee balloting was provided for by L. 1953, c. 211, codified as N.J.S.A. 19:57-1 to -40; the Presidential Ballot Law was added by L. 1964, c. 134, codified as N.J.S.A. 19:58-1 to -33; and the Overseas Residents Federal Election Absentee Voting Law, mandated by 42 U.S.C.A. ยง 1973ff was adopted by L. 1976, c. 23, codified as N.J.S.A. 19:59-1 to -13.

We regard the complex of relevant legislative enactments as instructive in our effort to construe art. 2, ...


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