
    Bergen County Circuit Court.
    IN THE MATTER OF THE PETITION OF DOUGLAS G. HERTZ, THEODORE ELTONHEAD AND ARTHUR DELLAVA TO CONTEST THE NOMINATIONS OF NICHOLAS HARING, L. AMELIA GALLAGHER, GERTRUDE HUTCHEON AND MARIETTA SNEDEN AS DEMOCRATIC CANDIDATES FOR MEMBERS OF THE COUNCIL OF THE BOROUGH OF ROCKLEIGH.
    Decided October 14, 1943.
    For the contestants, Vincent F. X. (Jarisen.
    
    For the incumbents, George 8. Freeman.
    
   Lbydkn, C. C. J.

The question presented in this election contest is the eligibility of five residents of the Borough of Bockleigh to vote as members of the Democratic party in the primary election held on Tuesday, September 21st, 1943.

The undisputed facts as gathered from the stipulation of the parties and the evidence produced at the hearing are that Gordon Hutciieon, Eileen M. Parsells, Buth J. Van Strum, Mildred Carlson and L. Amelia Gallagher were admittedly members of the Democratic party, having consistently voted Re Democratic ticket for some years past, including the primary election now in question. Eileen M. Parsells voted the Democratic ticket in the primary of 1941. The other four failed to vote in the two prior annual primary elections. Thus if Eileen M. Parsells voted in the primary of 1943 she was compelled to vote the Democratic ticket while the others normally would have had the choice of voting any ticket.

However, in August of this year the five above mentioned whose votes are now contested signed petitions nominating candidates to be voted for by the voters of the Republican party for the office of councilman of the Borough of Rockleigh. Each such petition set forth that the signers thereof were qualified voters in the election district; that they were members of the Republican party; that at the last election for members of the general assembly preceding the execution of the petition they voted for a majority of the candidates of the Republican party and that they intended to affiliate with the Republican party at the ensuing election; and that they requested the names of the persons mentioned in the petition be printed on the official primary ballots of the Republican party as the candidates of that party for the office of councilman.

Thus by so signing they declared themselves to be members of the Republican party, a political organization, and likewise espoused the cause of the Republican candidates. Eileen M. Parsells, by so signing, disqualified herself as a voter for either the Republican or Democratic ticket. The others could legally vote only the Republican ticket. All five became ineligible to vote the Democratic ticket for the legislature in regulating balloting enacted, among others, the following provision of the election' law: "A member of any political organization espousing the cause of a candidate or candidates of any political party shall be ineligible to vote in the primary of another political party while such membership is in force or within one year thereafter; such person shall be deemed for all intents and purposes a member of the political party whose candidate or candidates such organization is espousing.” R. S. 19 :23-45; N. J. S. A. 19 :23-45.

The conclusion inevitably is that Gordon Hutcheon, Eileen M. Parsells, Ruth J. Yan Strum, Mildred Carlson and L. Amelia Gallagher were ineligible to vote in the primary ballot box of the Democratic party, and that their votes cast therein were illegal and should not have been counted.  