On appeal from the Superior Court of New Jersey, Chancery Division, Union County, UNN-C-4-04.
The opinion of the court was delivered by: Coburn, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 27, 2005
Before Judges Coburn, Collester, and Lisa
Relying solely on the New Jersey Constitution, plaintiffs filed a complaint in the Chancery Division seeking to invalidate a statute on the ground that it denied African-Americans and Hispanics equal protection of the law. The statute, which plaintiffs properly concede is specifically authorized in Article II of the New Jersey Constitution, prohibits from voting all people on parole or probation for indictable offenses. The complaint does not allege that the statute was enacted with the invidious purpose of discriminating against African-Americans or Hispanics. Instead, it asserts that the criminal justice system in New Jersey discriminates against African-Americans and Hispanics, thereby disproportionately increasing their population among parolees and probationers and diluting their political power. This, they say, results in a denial of equal protection under the state Constitution.
The Attorney General moved to dismiss the complaint for "failure to state a claim upon which relief can be granted."
R. 4:6-2(e). Judge Miriam M. Span filed a thorough and well-reasoned opinion in support of her order dismissing the complaint, and plaintiffs appealed. Because the statute in question is specifically authorized by the New Jersey Constitution, we affirm.
The right to vote in New Jersey is granted and limited by Article II of the state Constitution in the following manner. First it gives all United States citizens the right to vote if they satisfy certain age and residency requirements. N.J. Const. art. II, § 1, ¶ 3. Next it guarantees the right to vote to all military personnel absent from their election districts during a time of war, and empowers the Legislature to provide for absentee voting by members of the armed forces of the United States in time of peace. N.J. Const. art. II, § 1, ¶ 4. Next it provides that no member of the armed forces of the United States "shall be considered a resident of this State by being stationed . . . within this State." N.J. Const. art. II, § 1, ¶ 5. Next it denies the right of suffrage to "idiot or insane person[s]." N.J. Const. art. II, § 1, ¶ 6. And finally in the paragraph directly implicated in this case, it says this:
The Legislature may pass laws to deprive persons of the right of suffrage who shall be convicted of such crimes as it may designate. Any person so deprived, when pardoned or otherwise restored by law to the right of suffrage, shall again enjoy that right.
[N.J. Const. art. II, § 1, ¶ 7.]
Pursuant to that authority, the Legislature enacted the statute at issue, which, in pertinent part, says this:
No person shall have the right of suffrage-
(8) Who is serving a sentence or is on parole or probation as the result of a conviction of any indictable offense under the laws of this or ...