Hitchner v. Cumberland County Bd. of Elections
| Decision Date | 07 November 1978 |
| Citation | 163 N.J.Super. 560,395 A.2d 270 |
| Parties | Marvin K. HITCHNER, Jr., Petitioner, v. CUMBERLAND COUNTY BOARD OF ELECTIONS, Respondent. |
| Court | New Jersey County Court |
Walter F. Gavigan, Jr., Vineland, for petitioner (Thomas K. J. Tuso, Vineland, attorney).
MILLER, J. C. C.
This matter comes before the court on petitioner Marvin K. Hitchner's application for an order allowing him to vote pursuant to N.J.S.A. 19:32-41. It requires this court to determine whether a person who has been convicted of a criminal offense, but who is free on his own recognizance pending a future surrender date to the penitentiary, is within the class disenfranchised by N.J.S.A. 19:4-1(8).
Petitioner pled guilty to an information charging him with conspiring to defraud the United States and the Small Business Bureau. The United States District Court convicted petitioner and sentenced him to a term in the federal penitentiary. The surrender date to the penitentiary is November 20, 1978. Pending that surrender date petitioner remains free on his own recognizance.
On November 7, 1978 petitioner attempted to vote at the proper polling place but was not permitted to vote. The refusal by the election officials was based upon petitioner's conviction. At the time of the election he was not serving a sentence, on parole, nor on probation. Furthermore he was never served with any notice regarding this matter.
N.J.Const. (1947), Art. II, par. 7 provides:
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.
In 1948, acting pursuant to this provision, the Legislature enacted N.J.S.A. 19:4-1 which provided in pertinent part:
* * * No person shall have the right of suffrage
(1) Who is an idiot or is insane; or
(2) Who has been or shall be convicted of any of the following designated crimes * * *
(3) Who was convicted prior to * * *
(4) Who shall hereafter be convicted of * * *
(5) Who was convicted after * * *.
In Stephens v. Yeomans, 327 F.Supp. 1182 (D.N.J.1970), Judge Gibbons, writing for a three-judge District Court, held that the classifications set forth in N.J.S.A. 19:4-1(2) to (5) were violative of the Equal Protection Clause. The court found no rational basis for the classification in the statute of which crimes would result in disenfranchisement.
The Legislature, in response to Stephens, amended N.J.S.A. 19:4-1 by deleting subsecs. (2) to (5) and adding (8), which provides:
(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 state or another state or of the United States.
The change in the language contained in the amendment when compared to the language of the deleted portions is significant. While the now repealed subsecs. (2) to (5) spoke of one "who was convicted" of a crime, subsec. (8) includes only those who are serving a sentence or are on parole or probation. This narrowing of the class of those losing the right to suffrage is dispositive of the matter herein presented. Petitioner,...
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State v. Musto
...written, a sentenced federal prisoner who has not yet surrendered was not disenfranchised. Hitchner v. Cumberland Cty. Bd. of Elections, 163 N.J.Super. 560, 395 A.2d 270 (Cty.Ct.1978). Similarly, Musto as a sentenced federal prisoner whose sentence has been stayed pending appeal and is neit......
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McCann v. Superintendent of Elections of Hudson County
...with maintaining voter records to determine how they may have dealt with the issue, if at all.3 Hitchner v. Cumberland County Bd. Of Elections, 163 N.J.Super. 560, 395 A.2d 270 (Cty.Ct.1978) held that an offender sentenced to a term of imprisonment was permitted to vote at an election that ......