On certification to the Superior Court, Law Division, Middlesex County.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
On September 30, 2002, Senator Robert G. Torricelli announced his withdrawal as the New Jersey Democratic Party's candidate for the United States Senate in the November 5, 2002, general election. On October 1, 2002, the New Jersey Democratic Party, with other related plaintiffs, filed a Complaint in Lieu of Prerogative Writs and Order to Show Cause seeking temporary restraints. The Complaint was filed in the Superior Court, Law Division, Middlesex County. Contemporaneously, plaintiffs moved before this Court for direct certification of the matter.
Plaintiffs sought to have Senator Torricelli's name removed from the ballot and the Democratic State Committee authorized to name a replacement. A stay of the printing and distribution of all ballots was also sought. The Law Division granted a stay and issued an Order to Show Cause. Before that court held its hearing, the Supreme Court certified the matter on its own motion pursuant to Rule 2:12-1. The Court continued the stay ordered by the Law Division and directed the parties to appear for argument on October 2, 2002.
After hearing the arguments of the parties and reviewing the record before it, the Supreme Court issued an Order on October 2, 2002, that granted the relief sought by plaintiffs. The Court appointed Assignment Judge Linda R. Feinberg, J.S.A.J. (Mercer County) to supervise the preparation and distribution of revised ballots. Costs attendant to the preparation and mailing of revised ballots were directed to be paid by plaintiffs. The Order also noted that the Court's formal opinion in the matter would be filed in due course.
HELD: In the absence of explicit direction from the Legislature, the Court has construed N.J.S.A. 19:13-20 to promote the goals underlying our election laws -- to ensure an opportunity for voters to exercise their right of choice in the November 2002 senatorial election consonant with an orderly process for the handling of ballots. To that end, the Court has granted the relief sought by plaintiffs.
1. Fifty years ago, Chief Justice Arthur Vanderbilt restated the principles that guide the Court's decision in this case:"Election laws are to be liberally construed so as to effectuate their purpose. They should not be construed so as to deprive voters of their franchise or so as to render an election void for technical reasons." In 1965, Chief Justice Joseph Weintraub stated that:"The right to vote would be empty indeed if it did not include the right of choice for whom to vote." He went on to quote from the United States Supreme Court,"The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government." (pp. 9-11)
2. Over the past fifty years, the Court has interpreted New Jersey's election laws in a variety of factual contexts. As Chief Justice Robert Wilentz said in Catania v. Haberle,"The general rule applied to the interpretation of our election laws is that absent some public interest sufficiently strong to permit the conclusion that the Legislature intended strict enforcement, statutes providing requirements for a candidate's name to appear on the ballot will not be construed so as to deprive the voters of the opportunity to make a choice." When the Court has before it a case concerning the election laws, it is directed by principle and precedent to construe those laws to preserve the paramount right of the voters to exercise the franchise. (pp. 12-17)
3. Other states have explicitly dealt with the consequences when a vacancy occurs outside the window of time provided in the relevant statute. That other state legislatures have spoken clearly on this question highlights the lack of a legislative declaration in the New Jersey statute. (pp. 17-20)
4. The parties present contrary views on what the Legislature must have intended when a vacancy occurs outside the statutory time frame. The Court agrees with plaintiffs that the statute simply does not contain a legislative declaration that the filling of a vacancy within forty-eight days of the election is prohibited. In the absence of that declaration, the Court must consider the"fundamental purpose" of the statute, construing it in a manner that is consistent with the probable intent of the draftsman. (pp. 20-22)
5. The Court does not believe that the Legislature intended to limit voters' choice in a case where there is sufficient time to place a new candidate on the ballot and to conduct the election in an orderly manner. The Attorney General argued that the Court must consider"whether the dual interests of full voter choice and an orderly administration of the election can be effectuated if the requested relief were to be granted." In adopting that approach, the Court notes that it reconciles apparently conflicting goals in a practical manner. If the Court's action is not what the Legislature intended, it anticipates that the Legislature will amend the statute accordingly (pp. 22-24)
6. On the record before it, and with due regard for the representations at oral argument of the Attorney General and counsel for the county clerks, the Court finds that there is sufficient time before the general election to place a new candidate's name on the ballot. Furthermo re, the Court is convinced that absentee ballots, using express mailing for both outgoing and returns, can be handled in a manner that will not disenfranchise absentee voters. Judge Linda Feinberg is overseeing that process, which will be orderly and expeditious. The end result will be that all voters will be able to cast their ballots for a candidate of their choice in the general election. (pp. 24-26)
7. Defendants argued that by adopting the position the Court has taken, electoral chaos will result because any candidate who fears losing at the polls can withdraw to allow someone else to run instead. The Court assumes, however, that it is difficult for any party, logistically, politically, and financially, to replace a candidate closer than forty-eight days to an election. Defendants' failure to present any evidence of a rush of withdrawals in states that allow substitutions close to the election is telling. Most important, if the Legislature credits defendants'"parade of horribles," it can amend the statute expressly to preclude or otherwise condition ballot substitutions after the fortyeighth day. (pp. 26-28)
8. Title 19 reflects the significant role of the two parties in the electoral system. Plaintiffs' remedy does not, however, preclude voters from casting ballots in favor of any one of the third-party candidates who have qualified to seek election to the United States Senate. (pp. 28-29)
9. The expeditious handling of amended absentee ballots will assure that overseas military and civilian voters will have their votes counted in the election. If Judge Feinberg concludes at some point that it is necessary to extend the time for certifying the election to allow absentee ballots to be calculated, that remedy is available. (pp. 29-30)
The relief sought by plaintiffs is GRANTED.
JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI, and ALBIN join in CHIEF JUSTICE PORITZ's opinion.
The opinion of the court was delivered by: Poritz, C.J.
(Opinion Filed October 8, 2002)
By order dated October 2, 2002, we granted relief permitting the New Jersey Democratic State Committee to select a candidate to replace Senator Robert G. Torricelli on the November 2002 ballot. We issued the Order without opinion because, in our view, "the interests of justice require[d] the immediate issuance of an Order disposition with the Court's opinion to follow in due course." New Jersey Democratic Party v. Samson, ___ N.J. ___, at ___ (slip op. at 5). This opinion sets forth the basis for our disposition.
On September 30, 2002, Senator Robert G. Torricelli announced his withdrawal as the New Jersey Democratic Party's candidate for the United States Senate in the November 5, 2002, general election. On October 1, 2002, the New Jersey Democratic Party, with other related plaintiffs*fn1 (generally plaintiffs), filed a Complaint in Lieu of Prerogative Writs and Order to Show Cause seeking temporary restraints in the Superior Court, Law Division, Middlesex County. Simultaneously, plaintiffs filed a Motion for Direct Certification with this Court pursuant to New Jersey Court Rule 2:12-1, which permits the Supreme Court, on its own motion, to certify any action or class of actions for direct appeal. As described in our subsequent Order of October 2, 2002, plaintiffs asked this Court for an injunction prohibiting Robert G. Torricelli's name from appearing on the November 5, 2002, general election ballot, declaring that the New Jersey Democratic State Committee (State Committee) may proceed to select a candidate to fill the vacancy created by Senator Torricelli's withdrawal, and permitting Senator Torricelli's name to be replaced on the general election ballot with the name of the candidate to be selected by the State Committee. New Jersey Democratic Party, supra, at ___ (slip op. at 3). Plaintiffs further requested that an order be issued directing the twenty-one county clerks to substitute the new candidate's name "on all ballots, whether absentee, military, provisional, emergency, voting machine, ballot card, or otherwise." Id. at ___ (slip op. at 3).
Also on October 1, 2002, the trial court issued an Order to Show Cause and stayed the printing of the ballots for the general election. Later that day, this Court directly certified the matter on its own motion and dismissed plaintiffs' application for direct certification as moot. At the same time, the Court declared moot the Order to Show Cause issued by the Law Division, and ordered that the stay of the printing of the ballots imposed by the lower court remain in effect until our further order. The parties were required to file supplemental briefs and the matter was set down for oral argument at 10:00 a.m. on October 2, 2002.
Subsequent to argument on October 2, 2002, the Court unanimously granted plaintiffs' application for the removal of Senator Torricelli's name from the ballot for the general election of November 5, 2002, and ordered that his name be replaced by the name of the candidate selected by the State Committee. Id. at ____ (slip op. at 5-6). The Court further required that the "preparation of revised ballots... proceed forthwith under the direction of the Attorney General of New Jersey and the supervision of Superior Court Judge Linda R. Feinberg, A.J.S.C. (Mercer County), who [was] empowered... to exercise statewide jurisdiction over the process." Id. at ___ (slip op. at 6). The parties were ordered to meet with Judge Feinberg on the following day, October 3, 2002, in order "to expedite the implementation of [the Court's] Order." Id. at ___ (slip op. at 6).
More specifically, the Court focused on military and overseas ballots and required that those ballots "be given precedence in preparation and mailing." Id. at ___ (slip op. at 6). "All of the costs related to the preparation and, when necessary, the mailing of revised ballots" were ordered to "be borne by plaintiffs and paid under the supervision of Judge Feinberg." Id. at ___ (slip op. at 6). To facilitate such payment, plaintiffs were further required to deposit "$800,000, or such other sum as Judge Feinberg may find to be necessary and appropriate to meet the costs of implementing [the Court's] Order, said deposit to be made in full or in such installments as Judge Feinberg shall determine, beginning no later than Friday, October 4, 2002." Id. at ___ (slip op. at 6-7). The Attorney General was ordered to oversee the described election activities "pursuant to his authority as the chief election official of the State of New Jersey;" to "take all steps necessary to avoid voter confusion, including, but not limited to the preparation of an explanatory letter to all voters to whom a revised ballot [is] sent;" and to report to Judge Feinberg in respect of ...