Quaremba v. Allan

• Decision Date: 28 May 1974
• Citation: 128 N.J.Super. 570,321 A.2d 266
• Parties: James A. QUAREMBA et al., Plaintiffs-Appellants, v. Alexander ALLAN, County Clerk of Bergen County, Defendant-Respondent and Cross-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 570

128 N.J.Super. 570

321 A.2d 266

James A. QUAREMBA et al., Plaintiffs-Appellants, v. Alexander ALLAN, County Clerk of Bergen County Defendant-Respondent and Cross-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued April 30, 1974.

Decided May 28, 1974.

James A. Quaremba pro se.

Donald Horowitz, Hackensack, for plaintiffs-appellants James W. Ralph and Trifonio Rizzo (Cummins, Cummins, Dunn, Horowitz & Pashman, Hackensack, attorneys).

Michael J. Ferrara, County Counsel, Paramus, for defendant-respondent.

Joyce M. Usiskin, Deputy Atty. Gen., for the State of N.J. (William F. Hyland, Atty. Gen., attorney; George F. Kugler, Jr., former Atty. Gen., and Stephen Skillman, First Asst. Atty. Gen., on the brief).

William S. Singer, Highland Park, filed a brief on behalf of amicus curiae Common Cause. (Richard A. Zimmer of the New York bar, New York City, of counsel and on the brief).

Before Judes CARTON, LORA and SEIDMAN.

PER CURIAM.

In the June 1971 primary election plaintiffs James A. Quaremba and James W. Ralph unsuccessfully sought nomination as the Republican candidates for the office of state senator for the Thirteenth Senatorial District, and plaintiff Trifonio Rizzo was an unsuccessful candidate for nomination by the Republican party for the office of freeholder in Bergen County.

They thereafter filed a complaint for a declaratroy judgment that N.J.S.A. 19:23--24 requires 'the listing of all candidates for nomination or election to any given office in the primary election of a political party in a single column or row determined by drawing,' and that the county clerk should be directed to set up the form of the June 1972 primary ballot accordingly. On March 30, 1972, the return day of an order to show cause which they obtained, final judgment was entered in favor of defendant, the Bergen County Clerk. Plaintiffs appealed. The Appellate Division affirmed in an unreported opinion. The Supreme Court vacated the judgment and remanded the cause to the Law Division as an action for declaratory judgment.

The trial was held and judgment was again entered in favor of defendant, whereupon this appeal was filed.

Plaintiffs challenge the constitutionality of N.J.S.A. 19:49--2. They contend that their names should have been placed in the same column or line with other candidates for the same office, their respective positions to be determined by lot, but were assigned, instead, a separate column or line alongside the others. It is noted that the assignment of columns was by lot.

The principal thrust of their argument is that N.J.S.A. 19:49--2 arbitrarily favors primary candidates who file a joint petition with the county clerk, and those affiliated with them, and denies all others the drawing and placement rights prescribed by N.J.S.A. 19:23--24. Their complaint is that they are disadvantaged by not being in the same line or column as the 'organization' candidates or 'party regulars.' They assert that there is no rational basis or compelling state interest for what they conceive to be discrimination against unaffiliated candidates which violates the equal protection clause of the United States Constitution.

We are of the view that plaintiffs' contention that they have been unconstitutionally deprived of the equal protection of the laws is unfounded.

Procedures for arranging the positions of candidates on primary ballots are contained in N.J.S.A. 19:23--24 and N.J.S.A. 19:49--2. Under the former, the position of candidates for a given office is determined by a drawing of names by the county clerk or municipal clerk, or his deputy, depending upon whether the nominating petition is filed, provided that several candidates for an office (where more than one person is to be elected to that office) may request the bracketing of their names (N.J.S.A. 19:23--18), in which case the bracketed names are treated as one. Thus, under this procedure, all candidates for an office would be in the same column, with their respective positions established by a random drawing.

However, in counties where voting machines are used, N.J.S.A. 19:49--2 is applicable. It permits all candidates whose nominating petitions are required to be filed with the county clerk and who choose the same designation or slogan to file a joint petition. In such case they are entitled to have their names placed on the same line of the voting machine and, where a drawing is required, to be drawn for position on the ballot as a unit. In addition, candidates whose petitions are required to be filed with the municipal clerk or with the Secretary of State may request the county clerk, with the written consent of the campaign manager of those filing the joint petition, to place their names on the same line.

By its terms, N.J.S.A. 19:49--2, and not N.J.S.A. 19:23--24, applies to primary elections in counties which, like Bergen, have voting machines. Harrison v. Jones, 44 N.J.Super. 456, 462, 132 A.2d 887 (App.Div.1957). In the present case the arrangement of plaintiffs' names on the ballot was in accordance with N.J.S.A. 19:49--2. While candidates not affiliated with county candidates may be entitled to a drawing for position as among themselves, they are not entitled under that statute to have their names appear in the same column with jointly listed county candidates and those affiliated with them. See Farrington v. Falcey, 96 N.J.Super. 409, 412, 233 A.2d 185 (App.Div.1967); Moskowitz v. Grogan, 101 N.J.Super. 111, 116, 243 A.2d 280 (App.Div.1968), certif. den. 51 N.J. 575, 242 A.2d 379 (1968).

There can be no doubt that the Legislature has authority to adopt reasonable regulations for the conduct of primary and general elections, including the manner of preparation of the ballot, so long as they do not prevent a qualified elector from exercising his constitutional right to vote for any person he chooses. Sadloch v. Allan, 25 N.J. 118, 122, 135 A.2d 173 (1957). See also Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971); New York State Democratic Party v. Lomenzo, 460 F.2d 250, 251 (2 Cir. 1972). The wisdom of any constitutionally permissible regulation is not our concern. See Brown v. Heymann, 62 N.J. 1, 10--11, 297 A.2d 572 (1972).

We do not believe that N.J.S.A. 19:49--2 denies plaintiffs equal protection of the laws by establishing what they say is a preferred class of affiliated candidates within the county.

Since plaintiffs claim an equal protection violation, the burden is upon them to demonstrate a discrimination against them of some substance. American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974). The applicable principles are found in Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502:

* * * 'The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.' Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955). 'Legislatures are presumed to have acted constitutionally * * * and their statutory classifications will be set aside only if no grounds can be concerned to justify them * * *' The measure of equal protection has been...