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In re I/M/O Absentee Ballots Cast by Five Residents of Trenton Psychiatric Hospital

May 15, 2000


Before Judges Keefe, A. A. Rodr¡guez and Lintner.

The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.


Argued: December 6, 1999

On appeal from the Superior Court of New Jersey, Law Division, Mercer County.

The opinion of the court was delivered by

In this appeal, we hold that voters who are involuntarily committed residents of a psychiatric hospital pursuant to N.J.S.A. 30:4-24 to -80 are presumed competent to vote. Therefore, they cannot be challenged as voters nor their ballots segregated, absent a particularized showing of incompetence.

On November 3, 1998, a general election day, the attorney for the Mercer County Republican Committee wrote a letter to the Mercer County Board of Elections (Board) challenging any absentee ballot cast by residents of Trenton Psychiatric Hospital. The attorney asserted that he had became aware that "there was an organized effort to register voters that have been committed by a judge to Trenton Psychiatric Hospital." The attorney for the Mercer County Democratic Committee joined the challenge. Seven absentee ballots were identified as being cast by residents of the hospital. The Attorney General advised the Board that, absent an adjudication of insanity or other documentary evidence of insanity or incompetency, the ballots should be counted. The Board rejected two of the ballots on grounds other than competency. However, the Board was deadlocked regarding the remaining five absentee ballots. *fn1 The Board referred the challenge of these ballots to the Law Division. In the Law Division, there was a hearing at which attorneys for both political committees and New Jersey Protection and Advocacy, Inc. (NJPA) participated. The Attorney General appeared, but did not represent the Board because the Board was evenly divided. No evidence as to the competency of the individual voters was presented.

The judge decided that the ballots should remain unopened and segregated. The judge reasoned that the "safe approach" was to segregate the ballots now, and only allow the ballots to be opened if the voter was later determined competent. The ballots were ordered returned to the Board office and placed under lock. The following day, the judge ordered that the ballots remain segregated until further order of the court.

NJAP appeals on behalf of the five voters. The Attorney General moved to intervene and we granted that application. *fn2 The Mercer County Democratic Committee did not file an appellate brief. On appeal, NJAP contended that: (1) a challenge based on residency at the psychiatric hospital alone is illegal; (2) the voters were deprived of their fundamental right to vote because their ballots were segregated; and (3) the judge erred by not placing the burden on the challengers to show by clear and convincing evidence that the voters were ineligible to vote. We agree with all three contentions.

The first contention is that a showing that a voter resides at a psychiatric hospital by itself is insufficient to sustain a challenge to the right to vote. We agree. A review of authorities regarding the right to vote, the procedure for challenging a voter and the civil rights of voters receiving treatment for mental illness, is helpful. The New Jersey Constitution sets forth the qualifications for being a voter. A voter must be a United States citizen, eighteen years old or older, and satisfy a thirty-day State or County residency requirement. N.J. Const. Art. 2, § 1, ¶ 3. However, "[n]o idiots or insane person shall enjoy the right of suffrage." Id. at Art. 2, § 1, ¶6. This prohibition is also reflected in N.J.S.A. 19:4-1, which provides that "[n]o person shall have the right to suffrage - (1) Who is an idiot or insane." However, there is no statutory definition of the terms "idiot" or "insane."

Generally, a voter may be subject to a challenge of his or her right to vote. N.J.S.A. 19:7-5. Nonetheless, there are specific limitations on the powers of challengers in order to effectuate the overriding public policy in favor of enfranchisement. See Afran v. County of Somerset, 244 N.J. Super. 229, 232 (App. Div. 1990) (citing cases that demonstrate New Jersey's jurisprudential commitment to liberal construction of election laws). Such policy derives from the basic precept that the right to vote is quintessential to our democratic process. Gangemi v. Berry, 25 N.J. 1, 12 (1957). It follows, then, that all challenges to an individual's right to vote be carefully scrutinized.

New Jersey's commitment statute sets forth the framework for involuntary commitment of mentally-ill, and mentally retarded persons to state institutions designed for their care. However, the legislature specifically guaranteed that the right of suffrage not be deprived to an individual receiving treatment in psychiatric hospitals. Specifically, N.J.S.A. 30:4-24.2a provides:

Subject to any provisions of law and the Constitution of New Jersey and the United States, no patient shall be deprived of any civil right solely by reason of his receiving treatment under the provision of this Title nor shall such treatment modify or vary any legal or civil right of any such patient including but not limited to the right to register and to vote at elections . . . .

[N.J.S.A. 30:4-24.2a] Moreover, N.J.S.A. 30:4-24.2c provides in part that "[n]o patient may be presumed to be incompetent because he has been examined or treated for mental illness, regardless of whether such evaluation ...

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