The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4318-14T2
RUTGERS UNIVERSITY STUDENT
ASSEMBLY (RUSA), MATTHEW CODEIRO,
GABRIELA AGATA GRYZBOWSKI, BETH APPROVED FOR PUBLICATION
ROSE BRESLAW, EDWARD JAMES
VASCONCELLOS, III, BON-JIN KUN, July 1, 2016
ANNALEE SWITEK, LATINO LEADERSHIP
ALLIANCE OF NEW JERSEY (LLANJ), APPELLATE DIVISION
NEW JERSEY CITIZEN ACTION (NJCA),
and THE AMERICAN CIVIL LIBERTIES
UNION OF NEW JERSEY (ACLU-NJ),
Plaintiffs-Appellants,
v.
MIDDLESEX COUNTY BOARD OF
ELECTIONS and DANIEL FRANKEL,
COMMISSIONER OF REGISTRATIONS
OF MIDDLESEX COUNTY,
Defendants-Respondents.
___________________________________
Argued May 11, 2016 – Decided July 1, 2016
Before Judges Ostrer, Haas and Manahan
(Judge Ostrer concurring).
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. C-
85-11.
Renee Steinhagen and Amy Jane Agnew argued
the cause for appellants (Rutgers
Constitutional Litigation Clinic, American
Civil Liberties Union of New Jersey
Foundation, and Appleseed Public Interest Law
Center, attorneys; Frank Askin, Edward
Barocas, Ms. Steinhagen, and Ms. Agnew, on
the briefs).
George N. Cohen, Deputy Attorney General,
argued the cause for respondents (Robert
Lougy, Acting Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Mr. Cohen, on the brief).
Lowenstein Sandler, LLP, and Yael Bromberg,
attorneys for amicus curiae Common Cause
(Naomi D. Barrowclough, Ms. Bromberg, and
Paul A. Weissman, of the New York Bar,
admitted pro hac vice, on the brief).
The opinion of the court was delivered by
HAAS, J.A.D.
In this case, we address the constitutionality of N.J.S.A.
19:31-6.3(b), which requires all eligible persons to register to
vote no later than twenty-one days prior to an election.
Plaintiffs assert they should be permitted to register to vote on
election day, and that the twenty-one-day advance registration
requirement improperly infringes on their right to vote under
N.J. Const. art. II, § 1, ¶ 3(a). Based upon our review of the
record and applicable law, we conclude that the statute furthers
the fundamental State interest in preserving the integrity of New
Jersey's electoral process, while imposing no unreasonable burden
upon plaintiffs' right to vote. Therefore, we conclude that
N.J.S.A. 19:31-6.3(b) is constitutional, and we affirm the trial
2 A-4318-14T2
court's order granting defendants' motion for summary judgment
and dismissing plaintiffs' complaint.
I.
This case returns to us following a remand to permit the
trial judge to provide additional findings of fact and
conclusions of law concerning defendants' justification for
maintaining the twenty-one-day advance registration requirement.
Rutgers Univ. Student Assembly (RUSA) v. Middlesex Cty. Bd. of
Elections, 438 N.J. Super. 93, 107 (App. Div. 2014). We assume
familiarity with, and incorporate by reference, the underlying
procedural history and background facts contained in our prior
opinion. Id. at 95-101. We therefore recite only the most
salient facts here.
In order to vote in any election, an eligible voter must
register "in the manner" provided by law. N.J.S.A. 19:31-1. In
pertinent part, N.J.S.A. 19:31-6.3(b), states:
Any person entitled to register to vote
may register as a voter in the election
district in which that person resides at any
time prior to the [twenty-first] day
preceding any election by completing a
registration form . . . and submitting the
form to the commissioner of registration of
the county wherein the person resides or
alternatively, in the case of a registration
form provided by the employees or agents of a
public agency or a voter registration agency,
. . . to those employees or agents or to the
Attorney General.
3 A-4318-14T2
Plaintiffs1 are four voluntary associations and their present
or former presidents, and five current or former college
students. RUSA, supra, 438 N.J. Super. at 98. In their
complaint, plaintiffs alleged that, because of improvements in
the State's ability to combat voter fraud through the
implementation of a computerized "Statewide voter registration
system" (SVRS), there was no longer any need for an advance
registration requirement in New Jersey. Id. at 99-100. In light
of this advancement, "plaintiffs asserted that 'New Jersey's
[twenty-one]-day advance-registration requirement, embodied in
N.J.S.A. 19:31-6, severely burdens the right to vote of thousands
of New Jersey residents [and] prevents otherwise eligible
citizens from casting a ballot and having their ballot count.'"
Id. at 98-99.
In their motion for summary judgment, "plaintiffs argued
that only a system of permitting voters to register on the same
day as an election is constitutional and that pre-election day
registration requirements violate an individual's constitutional
right to vote." Id. at 99. In response, defendants asserted
that the twenty-one-day advance registration requirement imposes
1
In their complaint, plaintiffs named the board of elections and
the commissioner of registrations for the county in which the
students attended school as defendants. RUSA, supra, 438 N.J.
Super. at 99.
4 A-4318-14T2
no measurable burden upon the right to vote. Ibid. In addition,
"[d]efendants contended advance registration was needed 'to
prevent voter fraud and ensure public confidence in the integrity
of the electoral process.'" Ibid.
In granting defendants' motion for summary judgment, the
trial
judge rejected plaintiffs' contention that
[N.J.S.A. 19:31-6.3(b)] should be subjected
to a "strict scrutiny" standard in
determining its constitutionality.
Rather, the judge held that the
"balancing test" established by the United
States Supreme Court in Burdick v. Takushi,
504 U.S. 428, 433-34, 112 S. Ct. 2059, 2063,
119 L. Ed. 2d 245, 253 (1992) should be
applied. Under the Burdick test, the judge
stated that "the character and magnitude of
the asserted injury [to plaintiffs must] be
weighed against the State's interest in
burdening its citizen's right to vote."
[Id. at 101.]
In applying the Burdick balancing test, however, the judge
only considered the first prong, finding that New Jersey's
twenty-one-day advance registration requirement imposed only a
"minimal" burden upon plaintiffs. Ibid. "However, the judge did
not complete, or even discuss, the second part of the Burdick
balancing test." Ibid. Because the judge did not determine
whether "defendants' interest in the advance registration
requirement outweighed the burden imposed on plaintiffs' right to
5 A-4318-14T2
vote[,]" we remanded the matter so that the judge could address
this issue. Id. at 106.2
On remand, the judge again determined that the Burdick
balancing test was appropriate.3 The judge found that the burden
placed on plaintiffs by the advance registration requirement was
"minimal and slight and not unlike similar requirements required
of individuals, young and old, in the course of their everyday
lives."
Turning to the second part of the Burdick test, the judge
stated that there was no evidence in the record that advance
registration was necessary "to counteract fraud." However, the
judge found that N.J.S.A. 19:31-6.3(b) nevertheless served the
"legitimate [State] interest in ensuring public confidence in the
integrity of the electoral process." Pointing to the deposition
testimony of the chief clerk of the county board of elections,
the judge found that it took the board seven full days, with
thirty employees overtime, before it completed its review of 5617
provisional ballots filed on election day in 2008. Plaintiffs
contended that, if same-day registration were adopted,
approximately 250,000 unregistered individuals could appear at
2
We did not retain jurisdiction. Id. at 107.
3
In our decision remanding the matter to the trial court, we
"assume[d], without ruling, that the application of this test was
proper." Id. at 104.
6 A-4318-14T2
polling places in New Jersey at each election seeking to vote.
If that occurred, the judge concluded that "weeks would pass
before the provisional ballots [cast by previously unregistered
voters] could be properly processed and verified."
In addition to the dramatic increase in costs, the judge
found that delayed election results would "creat[e] uncertainty,
tension[,] and likely increased litigation as to election
outcomes." Accordingly, the judge concluded that "[t]he interest
in preserving the public's confidence in the integrity of the
electoral process is a compelling one. The proofs before the
court do not demonstrate that integrity can be preserved with
election day registration." This appeal followed.
II.
On appeal, plaintiffs argue that, in granting summary
judgment to defendants, the trial judge "erred in not applying
strict scrutiny as the standard of review." They also assert
that, even if a balancing test was applied to determine the
constitutionality of N.J.S.A. 19:31-6.3(b), the balance should
have been struck in their favor. We disagree.
Our review of a ruling on summary judgment is de novo,
applying the same legal standard as the trial court. Townsend v.
Pierre, 221 N.J. 36, 59 (2015). "Summary judgment must be
granted if 'the pleadings, depositions, answers to
7 A-4318-14T2
interrogatories and admissions on file, together with the
affidavits, if any, show . . . there is no genuine issue as to
any material fact challenged and that the moving party is
entitled to a judgment . . . as a matter of law.'" Town of
Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)).
Thus, we consider, as the trial judge did, whether "the
competent evidential materials presented, when viewed in the
light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed
issue in favor of the non-moving party." Ibid. (quoting Brill
v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995)). If there
is no genuine issue of material fact, we must then "decide
whether the trial court correctly interpreted the law." Massachi
v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007),
certif. denied, 195 N.J. 419 (2008). We accord no deference to
the trial judge's conclusions on issues of law and review issues
of law de novo. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
In determining the constitutionality of any statute, we bear
in mind the following fundamental principles. Statutes are
presumed to be constitutional. DePascale v. State, 211 N.J. 40,
63 (2012). This is because
[i]n our tripartite form of government
[judicial review of legislation] has always
been exercised with extreme self[-]restraint,
and with a deep awareness that the challenged
8 A-4318-14T2
enactment represents the considered action of
a body composed of popularly elected
representatives. As a result, judicial
decisions from the time of Chief Justice
Marshall reveal an unswerving acceptance of
the principle that every possible presumption
favors the validity of an act of the
Legislature. . . . [A]ll the relevant New
Jersey cases display faithful judicial
deference to the will of the lawmakers
whenever reasonable men [or women] might
differ as to whether the means devised by the
Legislature to serve a public purpose conform
to the Constitution.
[N.J. Sports & Exposition Auth. v. McCrane,
61 N.J. 1, 8, appeal dismissed sub nom.,
Borough of E. Rutherford v. N.J. Sports &
Exposition Auth., 409 U.S. 943, 93 S. Ct.
270, 34 L. Ed. 2d 215 (1972).]
For those reasons, a statute "will not be declared void
unless it is clearly repugnant to the Constitution." Trautmann
ex rel. Trautmann v. Christie, 211 N.J. 300, 307 (2012) (quoting
Newark Superior Officers Ass'n v. City of Newark, 98 N.J. 212,
222 (1985)). A party seeking to rebut "[t]he strong presumption
of constitutionality that attaches to a statute . . . [must]
show[] that the statute's 'repugnancy to the Constitution is
clear beyond a reasonable doubt.'" Hamilton Amusement Ctr. v.
Verniero, 156 N.J. 254, 285 (1998) (quoting Harvey v. Bd. of
Chosen Freeholders, 30 N.J. 381, 388 (1959)), cert. denied, 527
U.S. 1021, 119 S. Ct. 2365, 155 L. Ed. 2d 770 (1999). For the
reasons discussed below, we conclude plaintiffs have failed to
carry that heavy burden.
9 A-4318-14T2
A.
We first address plaintiffs' contention that the trial judge
"erred in not applying strict scrutiny as the standard of
review." Plaintiffs assert that because the advance registration
requirement established in N.J.S.A. 19:31-6.3(b) infringes upon
the right to vote of anyone who does not register to vote twenty-
one days prior to an election, a strict scrutiny standard must be
applied. However, as we implied, but did not hold, in our prior
decision, we are satisfied that the Burdick balancing test was
the appropriate method for determining the constitutionality of
N.J.S.A. 19:31-6.3(b). RUSA, supra, 438 N.J. Super. at 104.
As we noted in RUSA, "the right to vote is fundamental."
Id. at 102 (citing Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.
Ct. 1064, 1071, 30 L. Ed. 220, 226 (1886)). Indeed, our State
Constitution "devotes an entire article enumerating the rights
and duties associated with elections and suffrage." In re
Attorney Gen.'s "Directive on Exit Polling: Media & Non-Partisan
Pub. Interest Grps.", 200 N.J. 283, 302 (2009) (citing N.J.
Const. art. II).
However, states are entitled to broad leeway in regulating
elections to ensure they are carried out in a fair and efficient
manner. Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S. Ct.
1564, 1569, 75 L. Ed. 2d 547, 557 (1983). One of the ways this
10 A-4318-14T2
is done is through advance voter registration laws such as
N.J.S.A. 19:31-6.3(b). As our Supreme Court observed over fifty
years ago:
Registration is familiar in the area of
voting itself. It is not a qualification for
voting, for the Constitution exhausts that
subject in [N.J. Const. art. II]. Rather
registration is upheld as part of the
regulatory machinery intended to protect the
right to vote. The reason is that without a
suitable method to prepare an authentic list
of qualified voters in advance of election
day, the confusion at the polls and the
opportunity for fraudulent ballots might
jeopardize the election process.
[Gangemi v. Rosengard, 44 N.J. 166, 172-73
(1965).]
Indeed, when our 1947 Constitution was adopted, N.J.S.A.
19:31-6.3(b) included a forty-day advance registration
requirement. L. 1940, c. 135, § 2. The framers were obviously
aware of, but did nothing to disturb, this well-established
requirement when they adopted N.J. Const. art. II. Cf. Headen v.
Jersey City Bd. of Educ., 212 N.J. 437, 449 (2012) (noting that
courts "presume that the Legislature was aware of its own
enactments").
In determining whether advance registration laws similar to
N.J.S.A. 19:31-6.3(b) are valid, courts have consistently applied
the balancing test established in Burdick. In that case, the
United States Supreme Court considered "whether Hawaii's
11 A-4318-14T2
prohibition on write-in voting unreasonably infringe[d] upon its
citizens' rights under the First and Fourteenth Amendments."
Burdick, supra, 504 U.S. at 430, 112 S. Ct. at 2061, 119 L. Ed.
2d at 251. Acknowledging the fundamental right to vote, the
Court wrote:
The Constitution provides that States may
prescribe "[t]he Times, Places and Manner of
holding Elections for Senators and
Representatives," Art. I, § 4, cl. 1, and
the Court therefore has recognized that
States retain the power to regulate their own
elections. Sugarman v. Dougall, 413 U.S.
634, 647, 37 L. Ed. 2d 853, 93 S. Ct. 2842
(1973); Tashjian v. Republican Party of
Connecticut, 479 U.S. 208, 217, 93 L. Ed. 2d
514, 107 S. Ct. 544 (1986). Common sense, as
well as constitutional law, compels the
conclusion that government must play an
active role in structuring elections; "as a
practical matter, there must be a substantial
regulation of elections if they are to be
fair and honest and if some sort of order,
rather than chaos, is to accompany the
democratic processes." Storer v. Brown, 415
U.S. 724, 730, 39 L. Ed. 2d 714, 94 S. Ct.
1274 (1974).
[Id. at 433, 112 S. Ct. at 2063, 119 L. Ed.
2d at 252-53 (alteration in original).]
Thus, recognizing that "[e]lection laws will invariably
impose some burden upon individual voters[,]" id. at 433, 112 S.
Ct. at 2063, 119 L. Ed. 2d at 253, the Court held that a flexible
analytical approach, rather than strict scrutiny, was needed:
Consequently, to subject every voting
regulation to strict scrutiny and to require
that the regulation be narrowly tailored to
12 A-4318-14T2
advance a compelling state interest, as
petitioner suggests, would tie the hands of
States seeking to assure that elections are
operated equitably and efficiently.
Accordingly, the mere fact that a State's
system "creates barriers . . . does not of
itself compel close scrutiny." Bullock v.
Carter, 405 U.S. 134, 143, 31 L. Ed. 2d 92,
92 S. Ct. 849 (1972); Anderson, supra, at
788, 75 L. Ed. 2d 547, 103 S. Ct. 1564;
McDonald v. Board of Election Comm'rs of
Chicago, 394 U.S. 802, 22 L. Ed. 2d 739, 89
S. Ct. 1404 (1969).
Instead, as the full Court agreed in
Anderson, 460 U.S. at 788-789; id., at 808,
817 (REHNQUIST, J., dissenting), a more
flexible standard applies. A court
considering a challenge to a state election
law must weigh "the character and magnitude
of the asserted injury to the rights
protected by the First and Fourteenth
Amendments that the plaintiff seeks to
vindicate" against "the precise interests put
forward by the State as justifications for
the burden imposed by its rule," taking into
consideration "the extent to which those
interests make it necessary to burden the
plaintiff's rights." Id., at 789; Tashjian,
supra, at 213-214.
[Id. at 433-34, 112 S. Ct. at 2063, 119 L.
Ed. 2d at 253 (citation omitted).]
The Court continued:
Under this standard, the rigorousness of
our inquiry into the propriety of a state
election law depends upon the extent to which
a challenged regulation burdens First and
Fourteenth Amendment rights. Thus, as we
have recognized when those rights are
subjected to "severe" restrictions, the
regulation must be "narrowly drawn to advance
a state interest of compelling importance."
Norman v. Reed, 502 U.S. 279, 289, 116 L. Ed.
13 A-4318-14T2
2d 711, 112 S. Ct. 698 (1992). But when a
state election law provision imposes only
"reasonable, nondiscriminatory restrictions"
upon the First and Fourteenth Amendment
rights of voters, "the State's important
regulatory interests are generally sufficient
to justify" the restrictions. Anderson, 460
U.S. at 788; see also id., at 788-789, n. 9.
[Id. at 433-434, 112 S. Ct. at 2063, 119 L.
Ed. 2d at 253-54.]
Applying the Burdick standard, the District Court of the
Southern District of Florida upheld that state's twenty-nine-day
advance registration requirement. Diaz v. Cobb, 541 F. Supp. 2d
1319, 1329-33 (S.D. Fla. 2008). The court noted "[t]he Supreme
Court has not subjected registration guidelines to the strict
scrutiny test. Instead, it has consistently treated them as
reasonable, nondiscriminatory restrictions subject to a relaxed
standard of review." Id. at 1330. Under Burdick's balancing
test, the court held that Florida's advance registration
requirement, which was eight days longer than the twenty-one-day
requirement set in N.J.S.A. 19:31-6.3(b), did not impose a severe
burden on voters. Id. at 1333-35. The court stated:
The year-round nature of voter registration,
the liberal availability of voter
registration applications, the assistance
that election officials offer to applicants
and third-party groups, the numerous means of
submitting completed applications, and the
requirement of prompt notice to applicants
who submit incomplete applications refute any
suggestion that the registration deadline
practically burdens the ability of Floridians
14 A-4318-14T2
to vote. Florida law provides every
opportunity to applicants to effect their
registrations long before books close twenty-
nine days before an election.
[Id. at 1334-35.]
Similarly, in ACORN v. Bysiewicz, 413 F. Supp. 2d 119, 149
(D. Conn. 2005), the court upheld Connecticut's seven-day advance
registration deadline. In determining that the Burdick balancing
test was appropriate, the court noted "that such restrictions are
subject to differing levels of scrutiny depending upon the
severity of the burden imposed." Id. at 123. If the burden
imposed on voters is severe, then strict scrutiny applies. Ibid.
Conversely, "when a restriction on voting is reasonable and non-
discriminatory[,] . . . a state's important regulatory interests
ordinarily are sufficient to justify the requirement." Ibid.
In upholding Connecticut's advance registration requirement,
the court observed:
Although it may be true that registering
in advance is not as convenient as
registering on election day, requiring
citizens to take one or two minutes of their
time to register to vote seven days before a
general election cannot reasonably be
characterized as a severe burden on the right
to vote. Over thirty years ago, Justice
Stewart, writing for the Supreme Court,
upheld the constitutionality of a
registration requirement that was far more
onerous than Connecticut's, and his words in
that case aptly sum up this case as well. By
requiring voters to register in advance of
election day, Connecticut "does not prohibit
15 A-4318-14T2
the petitioners from voting . . . or from
associating with the political party of their
choice. It merely imposes a legitimate time
limitation on their enrollment, which
[unregistered voters] choose to disregard."
Rosario v. Rockefeller, 410 U.S. 752, 762, 93
S. Ct. 1245, 36 L. Ed. 2d 1 (1973)
[(upholding New York's requirement that a
person must enroll in a political party at
least thirty days before the November general
election in order to be eligible to vote in
the party's primary election held during the
following year)].
[Id. at 123 (first and second alterations in
original).]
Plaintiffs are unable to cite any precedent where a court
has applied a strict scrutiny test to determine the
constitutionality of an advance registration requirement. 4
Instead, as they did in their prior appeal, plaintiffs again
primarily rely upon Worden v. Mercer County Board of Elections,
61 N.J. 325, 327-30 (1972), where the Court applied a strict
scrutiny test in striking down a ruling by election officials
that college students could only register to vote in their home
towns rather than where their school was located. Plaintiffs
also cite to Dunn v. Blumstein, 405 U.S. 330, 360, 92 S. Ct. 995,
1012, 31 L. Ed. 2d 274, 294-95 (1972), where the Supreme Court
held that a twelve-month durational residency requirement was
4
Indeed, plaintiffs have not pointed to any case where a twenty-
one-day advance registration has ever been declared
unconstitutional.
16 A-4318-14T2
unconstitutional because the state failed to demonstrate that the
requirement was needed to promote a compelling governmental
interest.
However, both Worden and Dunn are readily distinguishable
from the case at hand because they both addressed regulations
where similarly situated citizens were treated differently,
resulting in the exclusion of a large number of otherwise
eligible voters. Worden, supra, 61 N.J. at 348; Dunn, supra, 405
U.S. at 360, 92 S. Ct. at 1012, 31 L. Ed. 2d at 294. Here, New
Jersey's twenty-one-day advance registration requirement subjects
all eligible persons to the same voter registration standards,
regardless of where they live.
Indeed, in Worden, the Court specifically noted that because
the students would be required to register in advance of the
election, like all other citizens of the municipality, the
State's interest in preventing fraudulent voting would be
protected. Worden, supra, 61 N.J. at 346-48. Similarly, in
Dunn, the Supreme Court found that Tennessee's thirty-day advance
registration requirement served the same purpose of ensuring the
integrity of the electoral process as that state's much lengthier
durational residency rule. Dunn, supra, 405 U.S. at 346, 92 S.
Ct. at 1005, 31 L. Ed. 2d at 286. Thus, both courts recognized
the importance of advance registration requirements to the
17 A-4318-14T2
electoral process and their applicability to all prospective
voters.
After fully considering the appropriate legal principles, we
conclude that New Jersey's twenty-one-day advance registration
requirement is the type of "reasonable, non-discriminatory
restriction[]" which warrants the application of the Burdick
balancing test. Burdick, supra, 504 U.S. at 434, 112 S. Ct. at
2063, 119 L. Ed. 2d at 254.
B.
Applying the first prong of the Burdick test, we agree with
the trial judge that the twenty-one-day advance registration
requirement established in N.J.S.A. 19:31-6.3(b) imposes no more
than a minimal burden upon plaintiffs' right to vote. As we
observed in our prior opinion, New Jersey statutes ensure that
our citizens have ample opportunities to register to vote in
order to comply with the statute:
An eligible person may register to vote
in person or by mail. N.J.S.A. 19:31-6.
Blank registration forms are available to be
downloaded from the internet. "A
registration form postmarked, stamped or
otherwise marked as having been received from
the registration applicant, on or before the
[twenty-first] day preceding any election
shall be deemed timely." N.J.S.A. 19:31-
6.3[(b)].
Individuals may register to vote at
numerous governmental offices, and
registration forms are available in English
18 A-4318-14T2
and a variety of other languages. All 565
municipal clerks and the twenty-one county
commissioners of registration are required to
provide individuals with voter registration
applications and information. N.J.S.A.
19:31-6.
"Public agencies"[] must also accept
voter registration applications. N.J.S.A.
19:31-6.3. In addition, many other
[]
governmental entities are designated as
"voter registration agencies" and are
required to engage in active voter
registration activity, which includes
displaying voter registration information and
providing registration application forms to
citizens. N.J.S.A. 19:31-6.11[(b)].
Individuals can also obtain forms through
voter registration drives conducted by
candidates, political parties, and non-
partisan groups. N.J.A.C. 13:17-1.4.
In addition, whenever an individual
completes a provisional ballot affirmation
statement at a polling place on the day of an
election, the provisional ballot will be
considered the voter registration for any
person later determined to be unregistered at
the time he or she submitted the provisional
ballot. N.J.S.A. 19:53C-1[(b)]. This
procedure ensures that these individuals are
registered to vote in future elections.
[RUSA, supra, 438 N.J. Super. at 95-97.]
In this case, each of the five plaintiffs certified that
they were able to register to vote more than twenty-one days in
advance of the election. Id. at 98 n.6.5 Therefore, the advance
5
Four of the students stated that, in spite of having registered
to vote more than twenty-one days prior to the election, their
names were not in the poll book when they arrived at the polling
(continued)
19 A-4318-14T2
registration requirement certainly did not present an
impermissible burden to them.6
C.
We now balance the minimal burden imposed upon plaintiffs by
N.J.S.A. 19:31-6.3(b) against defendants' interest in preventing
voter fraud and ensuring public confidence in the integrity of
the electoral process. For the following reasons, we conclude
that because the twenty-one-day advance registration requirement
(continued)
place. Ibid. However, none of the students took advantage of
the opportunity to go before a Superior Court judge on election
day to explain what happened and to seek an order permitting them
to vote based on their claim that they had complied with the
registration requirement. Ibid. The fifth student registered to
vote in her home municipality, but then attempted to vote on
election day at a different polling place. Ibid.
6
Perhaps recognizing this, plaintiffs assert that the
registration requirement of N.J.S.A. 19:31-6.3(b) imposes an
intolerable burden on individuals who become naturalized citizens
within twenty-one days of an election, and upon citizens who are
released from parole during this period, because they would have
no opportunity to register to vote in that particular election.
However, none of the five individual plaintiffs in this case fall
into either category, and plaintiffs provided only speculative
proofs as to the number of citizens in these groups, if any, that
might be affected. Moreover, the alleged burden placed on these
citizens is no different than the burden facing other citizens,
who because they do not meet the durational residency or age
requirements imposed by art. II, § 1, ¶ 3 of our Constitution,
are unable to vote until those requirements are met. As noted
above, "the mere fact that a State's system 'creates barriers . .
. does not of itself compel close scrutiny.'" Burdick, supra,
504 U.S. at 433, 112 S. Ct. at 2063, 119 L. Ed. 2d at 253
(quoting Bullock, supra, 405 U.S. at 143, 92 S. Ct. at 856, 31 L.
Ed. 2d at 100).
20 A-4318-14T2
imposes only a reasonable, non-discriminatory burden on
plaintiffs' right to vote, defendants' important regulatory
interests are more than sufficient to justify the restriction.
See Burdick, supra, 504 U.S. at 434, 112 S. Ct. at 2063, 119 L.
Ed. 2d at 254.
Since the adoption of our 1947 Constitution, courts have
recognized that
[t]he Legislature may . . . regulate the
exercise of the right to vote to [ensure] an
orderly contest and the integrity of the
outcome. Laws respecting registration are of
such character. They are designed to provide
for the establishment of the existence of the
voter's qualifications sufficiently in
advance of the election to prevent illegal
voting.
[In re Smock, 5 N.J. Super. 495, 501 (Law
Div. 1949).]
However, plaintiffs contend that due to the adoption of the
computerized SVRS in 2006, advance registration is unnecessary.
As noted in our prior opinion, "[t]he SVRS is 'the official
State repository for voter registration information for every
legally registered voter in this State, and . . . serve[s] as the
official voter registration system for the conduct of all
elections in the State.'" RUSA, supra, 438 N.J. Super. at 97
(quoting N.J.S.A. 19:31-31(a)). "An individual who appears at a
polling place to vote on election day but whose name is not in
the poll book, may be permitted to complete a provisional
21 A-4318-14T2
ballot." Id. at 98. After the election, board officials input
the information about the voter contained in the provisional
ballot into the SVRS. Id. at 97. "Within no more than twenty-
four hours after receiving the provisional ballot, the SVRS is
able to determine whether the person is an eligible, registered
voter." Id. at 98 (emphasis added).
Plaintiffs assert that the SVRS has rendered advance
registration obsolete. They propose that unregistered voters
should be permitted to simply appear at polling places on
election day and complete a provisional ballot. Plaintiffs
contend that defendants could then input the information about
the voter contained in the provisional ballot into the SVRS,
confirm the voter's identity, and determine if he or she has
already voted. If the individual was found qualified to vote,
the provisional ballot would be counted.
As the trial judge found, a major flaw in plaintiffs'
reasoning is their belief that the post-election day verification
process they propose can be accomplished within a mere twenty-
four hours. The record simply does not support this claim. 7 As
7
Plaintiffs complain that defendants did not submit
certifications in opposition to their motion for summary
judgment. However, defendants were entitled to rely upon
plaintiffs' own submissions, including the depositions plaintiffs
took of election officials, in support of their own motion for
summary judgment. Defendants also relied upon settled case law
(continued)
22 A-4318-14T2
the chief clerk of the county board of elections testified in her
deposition, it is not possible to input all of the information
contained in all of the provisional ballots within twenty-four
hours. In the 2008 election, the board assigned thirty employees
to process the provisional ballots after the election. Even
though the board required the employees to work overtime, it
still took them seven full days to review and input the
information contained in just 5617 provisional ballots.
As they did before the trial court, plaintiffs assert on
appeal "that advance registration potentially disenfranchises
250,000 eligible New Jersey voters at each election." Plaintiffs
speculate that "over 110,000 additional votes" would be cast if
unregistered individuals could appear at polling places and cast
provisional ballots. We agree with the trial judge's finding
that if anything approaching this number of unregistered voters
filed provisional ballots on election day,
weeks would pass before the provisional
ballots could be properly processed and
verified. . . . On the record before this
[c]ourt, without other facts to the contrary,
one envisions the proposal by plaintiffs
would cause delays in the reporting of
election results thus creating uncertainty,
tension, and likely increased litigation as
to election outcomes. . . . The interest in
(continued)
and New Jersey's election statutes to buttress their position
before the trial court.
23 A-4318-14T2
preserving the public's confidence in the
integrity of the electoral process is a
compelling one. The proofs before the court
do not demonstrate that integrity can be
preserved with election day registration.
Plaintiffs' claim that advance registration is not needed to
ensure the integrity of the electoral process also ignores the
fact that the twenty-one-day advance registration requirement
allows defendants to carry out critical tasks designed to protect
the integrity of the electoral process. The advance registration
requirement enables the commissioner of registration to send
voter registration confirmation cards to registered voters.
N.J.S.A. 19:31-6.5(a)(1). If the cards cannot be delivered in
two days, they are returned to the commissioner of registration.
Ibid. Through this process, election officials can determine
whether the voter actually lives at the address claimed in his or
her registration form.
This process can obviously not occur without advance
registration, and while a voter's identity can be confirmed once
the appropriate data is entered into the SVRS at some point after
the election, there is no way to use the SVRS to immediately
confirm the individual's current address without determining
whether mail can be delivered to the voter at that address. The
State has a strong interest in ensuring that all of its
registered voters meet the constitutional and statutory
24 A-4318-14T2
requirements to vote, namely having been "a resident of this
State and of the county in which he claims his [or her] vote [for
thirty] days" prior to the election. N.J. Const., art. II, § 1,
¶ 3. The advance registration requirement is therefore necessary
to enable the State to do so.
The record indicates that there have only been two cases of
confirmed voter fraud in recent years, both involving individuals
who attempted to vote from addresses other than their permanent
homes. As just discussed, this type of fraud can only be
detected with advance registration, which permits election
officials to check on a voter's residence before any vote is
cast.8 In addition to sending voter registration cards to the
voter's address prior to an election, election officials "have
full power and authority to visit and inspect any house,
dwelling," or other accommodation to ensure that the voter
actually lives at the address listed on his or her registration
8
Based on this evidence, we do not agree with the trial judge's
finding "that the State [did] not provide[] any evidence to
support its assertion of the necessity of the advance
registration requirement to counteract fraud." In any event, we
concur with the Ninth Circuit's observation that the State "is
not required to wait until fraud becomes rampant before taking
remedial action[.]" Barilla v. Ervin, 886 F.2d 1514, 1524 (9th
Cir. 1989) (upholding Oregon's twenty-day advance registration
requirement), overruled on other grounds, Simpson v. Lear
Astronics Corp., 77 F.3d 1170 (9th Cir. 1996).
25 A-4318-14T2
form. N.J.S.A. 19:32-5. This would not be possible without
advance registration.
Defendants also demonstrated that, absent advance
registration, official election district challengers would be
deprived of information that is critical to the performance of
their roles. See N.J.S.A. 19:7-5. Challengers typically review
public voter information during the twenty-one days prior to an
election so that, on election day, they are able to appropriately
challenge individuals who may not live in the district when they
appear at the polling place. Without advance registration, this
information would not be available to the challengers.
In addition, plaintiffs' proposed scheme would prevent
election officials from adequately planning for each election
because they would not be able to determine, in advance, how many
voting machines and provisional ballots should be allocated to
each polling place, and how many election workers should be
assigned. N.J.S.A. 19:14-34. If a large number of unregistered
citizens unexpectedly appeared at a polling place seeking to
vote, the officials at the polling place could easily be
overwhelmed, causing the very type of disorder the advance
registration requirement is designed to prevent.
In the three weeks leading up to an election, election
officials also perform a number of other important tasks designed
26 A-4318-14T2
to ensure that the election is conducted in an orderly manner.
Among other things, these officials review and process all voter
registration applications, N.J.S.A. 19:31-6.5; prepare polling
records for each election district not later than ten days before
an election, N.J.S.A. 19:31-3.3; update information in the SVRS,
N.J.S.A. 19:31-32; and prepare signature comparison, duplicate
registration, and voting forms for each election district in the
State. N.J.S.A. 19:31A-7. Without advance registration, which
provides election officials with information concerning all of
the voters who could be expected to appear at a polling place on
election day, these tasks could not be performed.
Defendants also demonstrated that advance registration
permits voters to receive sample ballots before the election,
which provides them with information about the election and
enhances their ability to vote. N.J.S.A. 19:14-21. Voters who
did not register in advance would not receive sample ballots. As
a result, they would not know "the street address or location of
the polling place in the election district, [or] the hours
between which the polls shall be open[.]" N.J.S.A. 19:14-22.
They would also not receive instructions prior to election day on
how to operate the voting machine, the names of the candidates,
and the text of any ballot questions.
27 A-4318-14T2
For all of these reasons, we conclude that defendants proved
that the State's important interests in preventing voter fraud,
ensuring public confidence in the integrity of the electoral
process, and enabling voters to cast their ballots in an orderly
fashion, are advanced by the registration requirement of N.J.S.A.
19:31-6.3(b). Because these compelling interests far outweigh
the minimal burden placed upon plaintiffs by the statute, the
twenty-one-day advance registration requirement does not
unconstitutionally burden plaintiffs' right to vote. See
Burdick, supra, 504 U.S. at 433-434, 112 S. Ct. at 2063, 119 L.
Ed. 2d at 253-54.
III.
Finally, plaintiffs argue that election day registration
systems have been adopted in other states, and that New Jersey
should do the same.9 However, the issue presented in this case is
9
According to the National Conference of State Legislatures, the
following states and the District of Columbia have some form of
election day registration: California, Colorado, Connecticut,
Hawaii, Idaho, Illinois, Iowa, Maine, Maryland, Minnesota,
Montana, New Hampshire, Utah, Vermont, Wisconsin, and Wyoming.
Same Day Voter Registration, NAT'L CONFERENCE OF STATE LEGISLATURES,
(Apr. 26, 2016), http://www.ncsl.org/research/elections-and-
campaigns/same-day-registration.aspx; see Cal. Elec. Code § 2170;
Col. Rev. Stat. § 1-2-217.7; D.C. Code § 1-1001.07(g)(5); H.B.
2590, 27th Leg. (Haw. 2014); Idaho Code Ann. § 34-408A; 10 Ill.
Comp. Stat. Ann. 5/4-50, 5/5-50, 5/6-50; Iowa Code § 48A.7A; Me.
Rev. Stat. Ann. tit. 21-A, § 122(4); Md. Code Ann., Elec. Law §
3-305 (2016) (allowing for same-day registration during an early
voting period); Minn. Stat. § 201.061 (Subd. 3); Mont. Code Ann.
(continued)
28 A-4318-14T2
whether N.J.S.A. 19:31-6.3(b) is constitutional, not whether an
alternate form of registration might be a better policy choice.
We note that, in July 2005, when the Legislature enacted
N.J.S.A. 19:31-31, which ordered the implementation of the SVRS
beginning in January 2006, it also amended N.J.S.A. 19:31-6.3(b)
to reduce the advance registration requirement from twenty-nine
to twenty-one days starting in January 2006. See L. 2005, c.
145, § 1 (establishing the SVRS) and L. 2005, c. 139, § 10
(reducing the advance registration requirement). Contemporaneous
enactments of the Legislature are to be read consistently and
harmoniously whenever possible. Boyle v. Riti, 175 N.J. Super.
158, 165 (App. Div. 1980). It is therefore appropriate to assume
that, when the Legislature created the SVRS, it made the policy
choice, based upon its review of the capabilities of the proposed
system, that advance registration was still required, but that
the period could be reduced by eight days.
We defer to the Legislature's policy decision in this area,
which has always been the subject of reasonable regulations
designed to protect the integrity of the electoral process. See
(continued)
§ 13-2-304(1)(a); N.H. Rev. Stat. Ann. § 654:7-a; Utah Code Ann.
§ 20A-4-108; Vt. Stat. Ann. tit. 17, § 2144; Wisc. Stat. § 6.55;
Wyo. Stat. Ann. § 22-3-104.
29 A-4318-14T2
Gangemi, supra, 44 N.J. 166 at 172-73. As the Supreme Court has
observed:
Judging whether a statute is effective is a
matter for policy makers. We do not pass
judgment on the wisdom of a law or render an
opinion on whether it represents sound social
policy. That is the prerogative of our
elected representatives. We must confine our
review to the constitutionality of the
statute.
[Caviglia v. Royal Tours of Am., 178 N.J.
460, 476 (2004) (citations omitted).]
Having determined that N.J.S.A. 19:31-6.3(b) passes
constitutional muster, our task is complete.
Affirmed.
30 A-4318-14T2
OSTRER, J.A.D., concurring
For the reasons cogently stated by Judge Haas, I agree that
Burdick v. Takushi, 504 U.S. 428, 433-34, 112 S. Ct. 2059, 2063,
119 L. Ed. 2d 245, 253-54 (1992), provides the standard by which
we should judge the twenty-one-day advance registration
requirement. Supra at __ (slip op. at 10-18). I also agree that
the advance registration requirement imposes "no more than a
minimal burden" upon plaintiffs' right to vote. Supra at __
(slip op. at 18-20).
But I do not believe that, in order to hold that this
requirement is constitutional, we must adopt as our own the
conclusions that advance registration preserves public confidence
in the electoral process and is essential to confirm voters'
addresses, or that "weeks would pass" before election results
could be reported if election day registration (EDR) were
adopted. Supra at __ (slip op. at 23-28). We need not agree
with the Legislature's policy choices in order to sustain them.
Given the minimal burden on the right to vote, it is sufficient
for us to conclude that there are reasonable, albeit debatable,
grounds for retaining an advance registration system. See
Burdick, supra, 504 U.S. at 440, 112 S. Ct. at 2067, 119 L. Ed.
2d at 257.
It is for the Legislature to decide whether EDR would be
beneficial, and to design and fund the system. If the
Legislature were to choose that path, it would follow at least
sixteen other states. Supra at ___ n.9 (slip op. at 28 n.9).
Those states evidently have concluded that EDR, rather than
undermining public confidence in elections, promotes it, by
increasing voter participation and assuring that election results
represent the will of a more inclusive electorate. The amicus
also compellingly describes the measures some of these states
have taken to address the practical difficulties of accommodating
unregistered voters on election day while assuring that only
eligible voters cast ballots. The Legislature may also opt for
other ways to expand participation, such as automatic
registration. See e.g. Or. Rev. Stat. § 247.017 (2016).1 Our
role is not to decide which is the best system, as that is left
to the Legislature's discretion. Gangemi v. Berry, 25 N.J. 1, 12
(1957).
We should be mindful of the history of the relevant
provisions of the 1844 and 1947 Constitutions. The 1844
Constitution, like our current Constitution, was silent on the
subject of registration. N.J. Const. of 1844 art. II, § 1; N.J.
1
Last year the New Jersey Legislature passed Assembly Bill 4613
authorizing automatic voter registration, but the bill was vetoed
by the Governor.
2 A-4318-14T2
Const. art. II, § 1, ¶ 3(a). However, debate at the 1844
Convention reflected an understanding that registration laws
enabled election officials to not only confirm voters'
identities, but also preserve order at the polls. Proceedings of
the New Jersey Constitutional Convention of 1844 at 87 (1942).
By the time of the 1947 Convention, the Legislature's power to
adopt registration laws under the 1844 Constitution was firmly
established. See In re Freeholders of Hudson Cty., 105 N.J.L. 57
(Sup. Ct. 1928) (en banc), motion for appeal denied, 106 N.J.L.
62 (E. & A. 1928). The delegates to the 1947 Convention were
urged not to expressly grant authority to enact voter
registration laws because doing so would unduly restrict the
Legislature's flexibility and "freedom of action." See 2
Proceedings of the New Jersey Constitutional Convention of 1947
at 1374-76. In light of this history, the Legislature has
considerable discretion in fashioning a system of registration to
achieve its policy goals, so long as the system does not
significantly burden voters.
I also agree with the majority that advance registration
does not impose an unconstitutional burden on the rights of
individuals who become naturalized citizens, or who are released
from parole or probationary supervision, less than twenty-one
days before an election. However, I reach this conclusion for a
3 A-4318-14T2
different reason. Our election laws already allow citizens to
register in advance as long as they will be eligible to vote on
election day, even if they are not eligible to vote at the time
that they register. See N.J.S.A. 19:4-1 ("A person who will have
on the day of the next general election the qualifications to
entitle him to vote shall have the right to be registered for and
vote at such general election . . . ."). I see no reason why a
soon-to-be naturalized citizen, or a soon-to-be released
offender, may not register in anticipation of his or her
scheduled naturalization ceremony or release from supervision.
In sum, "[w]hat the Constitution does not bar, either
expressly or by clear implication, is left to the Legislature to
address." State v. Buckner, 223 N.J. 1, 5 (2015). Under our
Constitution, it is the job of the Legislature to determine the
mode and manner of voting, and our role is limited to reviewing
the constitutionality of legislative policy judgments enacted
into law. See Gangemi, supra, 25 N.J. at 12. Because I would
find twenty-one-day advance registration constitutional without
adopting the policy judgments that support it, I respectfully
concur in the judgment.
4 A-4318-14T2