Twenty One Day Advance Voter Registration Requirement is Held Constitutional

Rutgers University Student Assembly v. Middlesex Cty. Bd. of Elections, 446 N.J. Super. 221 (App. Div. 2016).  This appeal involved the constitutionality of N.J.S.A. 19:31-6.3b, which requires eligible voters to register at least twenty one days before an election in order to be able to vote.  This case came before the Appellate Division in 2014, at which time the panel, in an opinion by Judge Haas that was discussed here, could not address the merits due to insufficient findings by the trial court.  The panel thus remanded the case for further consideration.  On remand, the trial court ruled, on cross-motions for summary judgment, that the statute was constitutional.  Plaintiffs appealed, and today the Appellate Division affirmed.  Judge Haas once again wrote the opinion.  Judge Ostrer filed a concurring opinion.

Judge Haas invoked the de novo standard of review in this summary judgment context, while also noting that “[s]tatutes are presumed to be constitutional” and will not be voided unless their “repugnancy to the Constitution is clear beyond a reasonable doubt.”  Plaintiffs failed to make such a clear showing here.

As on the prior appeal, plaintiffs argued that strict scrutiny should have been applied in the trial court’s evaluation of the statute.  That court had disagreed, instead employing the balancing test of Burdick v. Takushi, 504 U.S. 428 (1992), was the proper standard of review.  Judge Haas agreed, citing a number of cases from other jurisdictions that had used the Burdick test in evaluating advance registration laws.  He noted that plaintiffs were “unable to cite any precedent where a court has applied a strict scrutiny test to determine the constitutionality of an advance registration requirement,” or any case where a twenty one day advance registration requirement was found unconstitutional on any basis.

The two cases that plaintiffs did cite were distinguishable, since they involved “regulations where similarly situated citizens were treated differently, resulting in the exclusion of a large number of otherwise eligible voters.”  Here, the statute applied equally to everyone.

Proceeding to apply the Burdick balancing test, Judge Haas agreed with the trial court’s analysis.  The advance registration requirement posed “no more than a minimal burden” on plaintiffs’ right to vote.  Registration can be accomplished in person, at numerous locations, or by mail.  Registration forms can be downloaded from the internet.  Indeed, all of the plaintiffs had certified that they were able to register to vote more than twenty one days before the election.

Compared with that minimal burden, the State’s interest in advance registration was far more weighty.  Among other things, advance registration allows election officials to verify that voters live at the addresses that they claim, and to determine how many voting machines and poll workers are needed at a given polling place.  Advance registration also enables the sending of sample ballots before an election, as well as facilitating review of voting lists in advance by those who might act as challengers at the polls on election day.

Plaintiffs also argued that since other states had adopted same-day registration, New Jersey should do so too.  But Judge Haas observed that the issue here was whether the advance registration statute was constitutional, “not whether an alternative form of registration might be a better choice.”

Plaintiffs contended that the adoption of a computerized statewide voter registration system (“SVRS”) in 2006 meant that there was no longer any valid reason for advance registration.  The panel disagreed.  Apart from the reasons in favor of advance registration that Judge Haas had already cited, he pointed out that, in 2005, when the Legislature had enacted a statute that had mandated the implementation of the SVRS, the Legislature also reduced the advance registration period from twenty nine days to twenty one days.  Since contemporaneous actions of the Legislature are to be read together, “[i]t 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.”  The court deferred to that policy decision.

Judge Ostrer’s concurrence would have found the statute constitutional, but “without adopting the policy judgments that support it.”  The panel was unanimous, however, that the advance registration requirement is constitutional, as it indeed appears to be.



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