Independent Voter Project

New Jersey

Overview

Over 47% of voters registered as unaffiliated with a political party in New Jersey. Due to its closed primary election process, those voters cannot participate in the primary election. There are pending legal challenges to the system. In 2013, New Jersey spent $11.9 million on its primary election.1 New Jersey adopted the direct primary in 1903.2

Primary System

New Jersey has a closed primary election process, meaning that only members of the political party holding the primary may vote.3

Political parties in New Jersey are required to hold primary elections.4 Due to the definition of “political party” under New Jersey law, only the Republican and Democratic parties have qualified.5 Therefore, only the Republican and Democratic parties and their members may participate in the primary election process.

New Jersey’s primaries are paid for by the state or its political subdivisions.6

Important Statistics7

Voter Registration8

New Jersey Voter Registration Statistics
2014 Congressional District Voter Registration Statistics

Election Turnout9

New Jersey Primary Election Turnout

Election Competitiveness10

New Jersey Election Competitiveness

There is a pending Petition for Writ of Certiorari in the United States Supreme Court challenging the constitutionality of New Jersey’s closed primary election system.11 The lawsuit claims that New Jersey’s current primary election system violates both the 1st and 14th amendments of the United States Constitution. Specifically, the lawsuit argues New Jersey’s closed primary violates freedom of association, the right to vote, and the equal protection clause.

Legislation

Legislature

Senate Bill 50 (“the Democracy Act”) has passed both houses.12 It would revise New Jersey’s voting and voter registration laws, allowing for things like early voting and online voter registration.

Voter Initiative/Referendum

New Jersey has no statewide voter initiative or referendum process.13

Relevant Law to State

I. Analysis

New Jersey’s laws create a system which bars over 47% of its electorate from participation in the primary election process. Based upon election competitiveness statistics, New Jersey’s primary is often the only election that has a material impact upon who ultimately gets elected. These elections are also paid for by tax dollars. Therefore, the system is questionable under both the U.S. and New Jersey Constitutions.

II. State Constitution

III. Statutes

IV. Cases

State

Federal

See also generally applicable federal law


N.J. Const. art. I, para. 2^

Relevant portion: “All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right at all times to alter or reform the same, whenever the public good may require it.”

Full Text: http://www.njleg.state.nj.us/lawsconstitution/constitution.asp

N.J. Const. art. II § 1, para. 3^

Relevant portion: “Every citizen of the United States, of the age of 18 years, who shall have been a resident of this State and of the county in which he claims his vote 30 days, next before the election, shall be entitled to vote for all officers that now are or hereafter may be elective by the people, and upon all questions which may be submitted to a vote of the people[.]”

Full Text: http://www.njleg.state.nj.us/lawsconstitution/constitution.asp

N.J. Const. art. VII § 3, para. 3^

Relevant portion: “No donation of land or appropriation of money shall be made by the State or any county or municipal corporation to or for the use of any society, association or corporation whatever.”

Full Text: http://www.njleg.state.nj.us/lawsconstitution/constitution.asp


N.J. Stat. Ann. § 10:6-2^

Relevant Portion: “Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief.”

Full Text: http://law.onecle.com/new-jersey/10-civil-rights/6-2.html

N.J. Stat. Ann. § 19:1-1^

Relevant Portion: “‘Primary election for the general election’ means the procedure whereby the members of a political party in this State or any political subdivision thereof nominate candidates to be voted for at general elections, or elect persons to fill party offices.”

"’Political party’ means a party which, at the election held for all of the members of the General Assembly next preceding the holding of any primary election held pursuant to this Title, polled for members of the General Assembly at least 10% of the total vote cast in this State.”

Full Text: http://www.nj.gov/state/dos_statutes-elections-1-29.shtml#ele_19_1_1

N.J. Stat. Ann. § 19:13-4^

Relevant Portion: “The petition shall also state in not more than three words the designation of the party or principles which the candidates therein named represent, but such designation shall not contain the designation name, derivative, or any part thereof as a noun or an adjective of any political party entitled to participate in the primary election...

The petition shall also include the request that the names of the candidates and their designations of party or principles be printed upon the ballots to be used at the ensuing general election.

No such petition shall undertake to nominate any candidate who has accepted the nomination for the primary for such position.”

Full Text: http://www.nj.gov/state/dos_statutes-elections-1-29.shtml#ele_19_13_4

N.J. Stat. Ann. § 19:13-5^

Relevant Portion: “The petition shall be signed by legally qualified voters of this State residing within the district or political division in and for which the officer or officers nominated are to be elected, equal in number to at least two per centum (2%) of the entire vote cast for members of the General Assembly at the last preceding general election, held for the election of all of the members of the General Assembly, in the State, county, district or other political division in and for which the nominations are made; except that when the nomination is for an office to be filled by the voters of the entire State eight hundred signatures in the aggregate for each candidate nominated in the petition shall be sufficient; and except that no more than one hundred signatures shall be required to any petition for any officers to be elected save only such as are to be voted for by the voters of the State at large.”

Full Text: http://www.nj.gov/state/dos_statutes-elections-1-29.shtml#ele_19_13_5

N.J. Stat. Ann. § 19:13-14^

Relevant Portion: “The nomination of candidates for the general election by means of the primary election shall be carried out in the manner hereinafter provided, and in such election the person having in the aggregate the highest number of votes shall be the candidate of his respective party for the office to be filled. In case more than one person is to be elected to the same or similar office, the persons having the highest number of votes to the extent of the number of offices to be filled shall be the candidates of their respective parties for such offices.”

Full Text: http://www.nj.gov/state/dos_statutes-elections-1-29.shtml#ele_19_13_14

N.J. Stat. Ann. § 19:23-45^

Relevant Portion: “No voter, except a newly registered voter at the first primary at which he is eligible to vote, or a voter who has not previously voted in a primary election, may vote in a primary election of a political party unless he was deemed to be a member of that party on the 55th day next preceding such primary election.”

Full Text: http://www.nj.gov/state/dos_statutes-elections-1-29.shtml#ele_19_23_45

N.J. Stat. Ann. § 19:45-1^

Relevant Portion: “All general elections, special elections, municipal elections, primary elections for general elections and primary elections for delegates and alternates to national conventions held in the state or in any of its political subdivisions shall be conducted at the expense of the state or its political subdivisions.”

Full Text: http://www.nj.gov/state/dos_statutes-elections-31-63.shtml#ele_19_45_1


Bryant v. City of Atlantic City, 707 A.2d 1072 (N.J. Super. Ct. App. Div. 1998)^

Basic Facts: Land was donated by a city to a resort corporation. Taxpayers brought suit challenging the donation.

Relevant Holding: NJ constitutional provision requires any private appropriation must be done for a public purpose with only incidental private benefits, but public purpose is broadly construed.

Full Text: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1212110.html

Council of Alternative Political Parties v. Div. of Elections, 781 A.2d 1041 (N.J. App. Div. 2001)^

Basic Facts: NJ’s voter affiliation scheme was challenged because of the inability for registered voters to declare an affiliation with an alternative political party. Voters claimed this violated their 1st and 14th amendment rights.

Relevant Holding: NJ’s affiliation scheme was unconstitutional because it unnecessarily burdened the 1st and 14th amendment rights to political association.

Full Text: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1085141.html

Friedland v. State, 374 A.2d 60 (1977)^

Basic Facts: Plaintiffs challenged NJ’s primary election law requiring party declaration for primary participation.

Relevant Holding The primary election law is constitutional was dismissed since the court held it served a legitimate interest in preventing “raiding”, so long as it doesn’t unreasonably encroach upon voter rights.

Full Text: http://www.leagle.com/decision/1977632149NJSuper483_1567.xml/FRIEDLAND%20v.%20STATE

Hill v. City of Summit, 166 A.2d 610 (N.J. Super. Ct. Law Div. 1960)^

Basic Facts: The city authorized a building be transferred to a private entity for essentially nothing. Plaintiff filed suit claiming this violated the NJ Constitution.

Relevant Holding: NJ constitution requires that any private appropriation be done for a public purpose with only incidental private benefits. Public purpose is broadly construed

Full Text: http://law.justia.com/cases/new-jersey/appellate-division-published/1960/64-n-j-super-522-0.html

In re Grant of the Charter Sch. Application of Englewood on the Pallisades Charter Sch., 753 A.2d 687 (N.J. 2000)^

Basic Facts: The NJ legislature allowed charter schools to become part of public education. School districts challenged the constitutionality of this.

Relevant Holding: NJ Constitution requires that any private appropriation be done for a public purpose with only incidental private benefits. Public purpose is broadly construed

Full Text: http://caselaw.findlaw.com/nj-supreme-court/1160521.html

Lesniak v. Budzash, 626 A.2d 1073 (N.J. 1993)^

Basic Facts: Plaintiff was an electoral candidate whose nomination petition was rejected because the Secretary of State found that it did not have the statutorily prescribed number of valid signatures. The signatures of unaffiliated voters being counted in two separate elections were also challenged.

Relevant Holding: Unregistered voters are not qualified to participate in elections, so their preclusion is constitutional as requiring registration is not an undue burden.

Full Text: http://law.justia.com/cases/new-jersey/supreme-court/1993/133-n-j-1.html

Mount Laurel v. Department of Public Advocate, 416 A.2d 886 (N.J. 1980)^

Basic Facts: Defendant, a public advocate, represented plaintiff’s adversaries and denied request to appoint outside council and rejected a claim for legal expenses when the PA thought plaintiff’s position was not in public interest. The claims for legal fees were dismissed.

Relevant Holding: Simply demonstrating some private benefit to a public expenditure does not make it unconstitutional, as incidental private benefits are allowed.

Full Text: http://www.leagle.com/decision/198060583NJ522_1574/

Regalado v. Curling, 64 A.3d 589 (N.J. Super. Ct. App. Div. 2013)^

Basic Facts: A candidate wanted to keep his name off the ballot for mayor and the municipal clerk refused because his withdrawal was after their deadline.

Relevant Holding: The right to vote guarantees a right to a meaningful vote, so public policy requires election laws do not disenfranchise voters.

Full Text: https://scholar.google.com/scholar_case?case=15024954011799169643&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Roe v. Kervick, 199 A.2d 834 (N.J. 1964)^

Basic Facts: The NJ State Treasurer wanted an act allowing public credit to be lent to private entities to be ruled unconstitutional under N.J. Const. art. VIII §§ 2(1), 3(2), and 3(3).

Relevant Holding: Expenditures for a public purpose with an incidental private benefit are not unconstitutional under the NJ constitution.

Full Text: http://law.justia.com/cases/new-jersey/supreme-court/1964/42-n-j-191-0.html

Vivani v. Borough of Bogota, 765 A.2d 1064 (N.J. App. Div. 2001)^

Basic Facts: Plaintiff brought an action challenging the elimination of his supervisor position within the government for good faith economic reasons.

Relevant Holding: Despite incidental private benefits, expenditures to private organizations are constitutional when a public purpose predominates. Public purpose is broadly construed as an activity that serves a benefit to the community as a whole and related to government functions.

Full Text: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1049063.html

Wilentz v. Hendrickson, 38 A.2d 199 (N.J. E. & A. 1944)^

Basic Facts: The NJ Attorney General challenged the constitutionality of legislation that remitted interest on unpaid taxes of private railroad companies

Relevant Holding: Both direct and indirect apportionment to private entities are unconstitutional

Full Text: https://casetext.com/case/wilentz-v-hendrickson-1

Witt v. Borough of Maywood, 746 A.2d 73 (N.J. Super. Ct. Law Div. 1998)^

Basic Facts: Plaintiffs claim that the development project of the municipality advanced private interests at the expense of public interests.

Relevant Holding: Expenditure is for a public purpose where it (1) benefits the community as a whole, and (2) directly relates to the function of government. This must be applied on a case-by-case basis and change according to changes in public needs.

Full Text: http://caselaw.findlaw.com/nj-superior-court/1010603.html

Wene v. Meyner, 98 A.2d 573 (N.J. 1953)^

Basic Facts: Plaintiff brought a suit seeking to have the primary declared illegal and all votes cast aside.

Relevant Holding: Primaries, as a whole, are of public concern.

Full Text: https://www.courtlistener.com/opinion/2315710/wene-v-meyner/


Balsam v. Guadagno, 2014 U.S. Dist. LEXIS 112709 (D.N.J. 2014)^

Basic Facts: Voters are required under NJ law to be affiliated with a party in order to participate in primaries. Voters brought suit for violation of 1st and 14th amendments.

Relevant Holding: The fundamental right to vote in a primary only applies to voters who register with a state-qualified major party, even when that primary is made an integral stage of the election process.

Full Text: http://law.justia.com/cases/federal/district-courts/new-jersey/njdce/2:2014cv01388/301000/25/

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209 (3d Cir. 2013)^

Basic Facts: A teacher filed suit against a public school district under the Fourteenth Amendment. The teacher claimed that the district’s failure to credit his out-of-state experience violated equal protection.

Relevant Holding: Where burdens are only incidental and the classification is to further a legitimate state interest, strict scrutiny is not required.

Full Text: https://casetext.com/case/connelly-v-steel-valley-school-district

Consumer Party v. Davis, 633 F. Supp. 877 (E.D. Pa. 1986)^

Basic Facts: Plaintiffs brought action challenging the constitutionality of the statutes governing ballot access for the primary, claiming that it deprived small parties of meaningful participation in the political process, since it effectively barred political parties with few registered members from the primary and the primary was the only route available to the general election ballot.

Relevant Holding: There is no constitutional right for candidates to participate in primaries.

Full Text: https://casetext.com/case/consumer-party-v-davis

Council of Alternative Political Parties v. Hooks, 179 F.3d 64 (3d Cir. 1999)^

Basic Facts: Plaintiffs sued claiming that the deadline for filing nominating petitions violated their rights under the 1st and 14th amendment. While the case was pending, the statute was amended.

Relevant Holding: The amended statute was a reasonable, nondiscriminatory regulation justified by important state interests.

Full Text: https://casetext.com/case/council-of-alternative-political-v-hooks

Maldonado v. Houstoun, 157 F.3d 179 (3d Cir. 1998)^

Basic Facts: A preliminary injunction was granted in favor of plaintiff, a newly arrived resident or Pennsylvania, who received substantially lower public assistance benefits than provided to similarly situated long-term residents.

Relevant Holding: State creation of a classification is not per se unconstitutional or subject to higher scrutiny as long as the classification does not burden a fundamental right, target a suspect class, and is rationally related to a legitimate end.

Full Text: http://caselaw.findlaw.com/us-3rd-circuit/1004825.html

Trinsey v. Pennsylvania, 941 F.2d 224 (3d Cir. 1991)^

Basic Facts: Suit was brought to have a PA law declared unconstitutional which allowed the political party, of which an incumbent who unexpectedly vacated was a member, to appoint a new senator, rather than to hold any primary election to select candidates.

Relevant Holding: The Constitution gives states wide discretion for formulating systems for electing representatives, and there is no guarantee of a primary election. PA’s system is constitutional.

Full Text: http://law.justia.com/cases/federal/district-courts/FSupp/766/1338/1646654/

 


1^ http://www.politico.com/story/2013/06/chris-christie-frank-lautenberg-special-election-92211.html

2^ Ralph Simpson Boots, The Direct Primary in New Jersey 17 (1917).

3^ N.J. Stat. Ann. § 19:23-45

4^ “‘Primary election for the general election’ means the procedure whereby the members of a political party in this State or any political subdivision thereof nominate candidates to be voted for at general elections, or elect persons to fill party offices.” N.J. Stat. Ann. § 19:1-1.

5^ “‘Political party’ means a party which, at the election held for all of the members of the General Assembly next preceding the holding of any primary election held pursuant to this Title, polled for members of the General Assembly at least 10% of the total vote cast in this State.” N.J. Stat. Ann. § 19:1-1

6^ N.J. Stat. Ann. § 19:45-1

7^ As of July 29, 2015.

8^ Source of Data: New Jersey Secretary of State, available at http://www.state.nj.us/state/elections/election-information-archive.html; DEM = Democratic Party, REP = Republican Party, UNA = Unaffiliated

9^ Source of Data: New Jersey Secretary of State, available at http://www.state.nj.us/state/elections/election-information-archive.html

10^  Source of Data: New Jersey Secretary of State, available at http://www.state.nj.us/state/elections/election-information-archive.html. Competitive elections are defined as elections with a margin of victory of less than 10%. James E. Campbell & Steve J. Jurek, Decline of Competition and Change in Congressional Elections, in Congress Responds to the Twentieth Century 43-72 (Sunil Ahuja & Robert E. Dewhirst eds., Ohio State Univ. Press 2003)

11^  http://ivn.us/2015/07/07/breaking-writ-to-scotus-says-closed-primaries-are-unconstitutional/

12^ http://www.njleg.state.nj.us/bills/BillView.asp

13^ http://www.ncsl.org/research/elections-and-campaigns/chart-of-the-initiative-states.aspx