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McCann v. Superintendent of Elections of Hudson County

April 4, 1997

GERALD MCCANN, PLAINTIFF,
v.
SUPERINTENDENT OF ELECTIONS OF HUDSON COUNTY AND CLERK OF THE CITY OF JERSEY CITY, DEFENDANTS.



Arthur N. D'italia, A.j.s.c.

The opinion of the court was delivered by: D'italia

OPINION

D'ITALIA, A.J.S.C.

The issue before the Court is whether N.J.S.A. 19:4-1(8), which denies suffrage to any person "who is serving a sentence or is on parole or probation as the result of any indictable offense under the laws of this or another state or of the United States" applies to a person on "supervised release" pursuant to the sentence of a federal court.

This action was instituted by Gerald McCann, a former mayor and current candidate for Mayor of the City of Jersey City. In December 1991, McCann was convicted in the United States District Court for the District of New Jersey on fifteen counts of mail fraud, wire fraud, false statements to a bank, false statements to the Internal Revenue Service, income tax evasion and failure to file a tax return.

As a result of his conviction, McCann could not complete his term as Mayor. By order of this court dated February 7, 1992, on motion of the Attorney General of New Jersey, his position as Mayor was declared forfeit pursuant to N.J.S.A. 2C:51-2(a)(1). That statute provides for the forfeiture of any public office in this state upon conviction of an offense involving dishonesty or a crime of the third degree or above or the conviction of an equivalent offense under federal law.

McCann was sentenced by the Hon. John C. Lifland, U.S.D.J., on June 24, 1992. On several counts, he was sentenced under the pre-1987 federal guidelines to concurrent terms of thirty-three months each. With respect to these counts, he was eligible for parole after eleven months. On four counts, McCann was sentenced under the 1987 federal sentencing guidelines, pursuant to which parole was inapplicable, having been abolished. McCann was sentenced on each of these four counts to thirty-three months imprisonment and, upon release from imprisonment, supervised release for a term of three years, all sentences to run concurrently. McCann actually served twenty eight and one-half months imprisonment and was released to a halfway house in October 1994. In February 1995, he was released from imprisonment and commenced to serve the supervised release part of his sentence. His supervised release will terminate in about February 1998.

McCann had originally registered to vote in Hudson County on September 26, 1973. As a result of his conviction and sentence, McCann's registration was removed from the active file by the Hudson County Superintendent of Elections. See, N.J.S.A. 19:31-17. McCann re-registered as a Hudson County voter on September 19, 1995. The Superintendent has certified that McCann's re-registration was accepted without objection because she was unaware of his status as a supervised releasee. Since then, McCann has voted in the November 1995 County Executive election, the April 1996 Jersey City School Board election, the June 1996 presidential primary, and the November 1996 presidential election.

In February 1997, McCann announced that he was running for Mayor of Jersey City. On March 24, 1997, McCann was advised by the City Clerk that his nominating petitions included the required number of signatures and that his name would appear on the ballot for the May 13, 1997 election. In the interim, the Superintendent had come into possession of a copy of McCann's judgment of conviction and learned that he was serving the supervised release term of his sentence. She sought the advice of the Attorney General. By letter dated March 24, 1997, the Attorney General advised the Superintendent that the federal supervised release program "is substantially equivalent to parole" and is, therefore, "a criminal disqualification barring eligibility for voter registration and the exercise of the franchise." The letter concluded that "McCann is neither entitled to register to vote nor eligible to vote and that his registration records should be removed from active status", citing N.J.S.A. 19:4-1 and 19:31-17.

On about March 31, 1997, the Superintendent complied with the Attorney General's direction. N.J.S.A. 10:1.1 provides that the right of a citizen of this State to hold office is coextensive with the right to vote. *fn1 Thus, the removal of McCann's registration disqualified him as a mayoral candidate. The drawing for ballot positions for the mayoral election was scheduled for April 1, 1997. On March 31, 1997, McCann instituted this action to retain his status as a registered voter. This court entered an order of temporary restraint restoring McCann to the list of registered voters and delaying the drawing for ballot positions until today.

The denial of suffrage is a matter of extreme gravity, made more so in this case because of its consequential effect of disqualifying McCann in his bid to be reelected as mayor and denying the voters of the City the opportunity to cast their ballots for him. More significantly, the position taken by the Attorney General disenfranchises all those persons otherwise qualified to vote who are now or will in the future be under sentence for a term of supervised release. The record is silent regarding how supervised releasees have been treated by voter registration authorities for the near decade that the program has been in existence. *fn2

The issue before the Court is one of statutory construction: whether serving a term of supervised release constitutes "serving a sentence" or being "on parole" within the contemplation of N.J.S.A. 19:4-1(8). The issue cannot be addressed without explicit recognition of the importance of the right abrogated by the election law. In Gangemi v. Rosengard, 44 N.J. 166, 170, 207 A.2d 665 (1965), Chief Justice Weintraub wrote:

Thus, despite an impoverished beginning, the right to vote has taken its place among our great values. Indeed the fact that the voting franchise was hoarded so many years testifies to its exalted position in the real scheme of things. It is the citizen's sword and shield. 'Other rights, even the most basic, are illusory if the right to ...


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