Before Judges Kleiner and Braithwaite.
The opinion of the court was delivered by: Braithwaite, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued August 27, 1999
On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County.
On August 5, 1999, plaintiffs New Jersey Conservative Party and three of its individual members who are candidates for elective office in the 1999 general election,*fn1 filed a certified complaint for declaratory and injunctive relief seeking to enjoin defendants, county clerks, from drawing separate political party columns for the Democratic and Republican parties on the official ballot for the 1999 general election. See N.J.S.A. 19:5-1. Defendant John J. Farmer, Jr., the Attorney General, was sued in his official capacity because the functions, powers, and duties of the Secretary of State under the election laws were transferred by the Governor to the Department of Law and Public Safety under the Executive Reorganization Act, N.J.S.A. 52:14C-1 to -11. Plaintiffs sought a declaration that neither the Republican nor Democratic party qualified as a political party for purposes of "a party column on the official ballot" at the 1999 general election. N.J.S.A. 19:5-1.
Plaintiffs' complaint was accompanied by an order to show cause that sought to restrain the county clerks from performing the statutorily required drawing "to determine which columns the political parties" would occupy on the 1999 general election ballot. N.J.S.A. 19:14-12. The Chancery Division Judge denied plaintiffs' requests for restraints on August 9, 1999. The Judge, however, scheduled a subsequent hearing on the merits of plaintiffs' claim for declaratory relief for August 23, 1999. Defendants were granted an opportunity to submit additional written opposition and to move for affirmative relief such as dismissal of plaintiffs' complaint.
The Attorney General moved to transfer venue and, in the alternative, moved for summary judgment dismissing plaintiffs' complaint. The motion for change of venue was adjourned until October 10, 1999 and the motion for summary judgment was denied. The Judge, however, granted partial summary judgment to plaintiffs declaring:
(1) that the votes cast at the Republican 1999 primary for candidates for the General Assembly did not exceed 10% of the total votes cast for candidates for the General Assembly in the 1997 general election; (2) that the votes cast at the Democratic 1999 primary for candidates for the General Assembly did not exceed 10% of the total votes cast for candidates for the General Assembly in the 1997 general election; (3) that, as a result of paragraphs (1) and (2) above, and in accordance with N.J.S.A. 19:5-1, neither the Democratic nor Republican Parties are entitled to have a party column but shall be referred to in the ballots for the 1999 general election in accordance with the following provision of N.J.S.A. 19:5-1: In such cases the names of the candidates nominated at the primary election shall be printed in the column or columns designated "Nomination by Petition" on the official ballot under the respective titles of office for which the nominations have been made, followed by the designation of the political party of which the candidates are members.
Further, the Judge declared that any action taken by the county clerks inconsistent with his order was void and enjoined the clerks from taking any further action with respect to preparing the 1999 general elections ballot that was inconsistent with his order.
The defendants moved for leave to appeal, which we granted. We summarily reversed the partial declaratory judgment and reserved the right to prepare a written opinion.
The parties and the Chancery Judge agreed that the resolution of the issue raised by plaintiffs rested on the interpretation of N.J.S.A. 19:5-1, which provides as follows:
A political party may nominate candidates for public office at primary elections provided for in this Title, elect committees for the party within the State, county or municipality, as the case may be, and in every other respect may exercise the rights and shall be subject to the restrictions herein provided for political parties; except that no political party which fails to poll at any primary election for a general election at least ten per centum (10%) of the votes cast in the State for members of the General Assembly at the next preceding general election, held for the election of all of the members of the General Assembly, shall be entitled to have a party column on the official ballot at the general election for which the primary election has been held. In such case the names of the candidates so nominated at the primary election shall be printed in the column or columns designated "Nomination by Petition" on the official ballot under the respective titles of office for which the nominations have been made, followed by the designation of the political party of which the candidates are members. [Emphasis added.]
The parties agree that the 1997 general election for the General Assembly is the relevant election for purposes of arriving at the "ten per centum (10%) of the votes cast in the State," which is the target that must be met in the 1999 primary election for purposes of a party column on the official ballot for the 1999 general election. Ibid. The total votes cast in the State in the 1997 General Assembly election was 4,283,042. Ten percent of that total is 428,304.
The question raised by plaintiffs is what primary elections are to be considered in determining whether a political party achieved the ten percent target. Plaintiffs urge that the only primary elections to be considered are those for the General Assembly. Because both the Republican and Democratic parties polled less than 428,304 votes in the 1999 General Assembly primary elections, plaintiffs claim that these parties are not entitled to have a party column on the 1999 official ballot for the general election. Plaintiffs assert that because the text of N.J.S.A. 19:5-1 mentions only the General Assembly, the General Assembly primary elections are the only elections to be considered in determining whether the ten percent target had been met. As noted, the target for both the Democratic and Republican parties is 428,304 votes. The total votes cast for the Democratic and ...