(dissenting). I differ from the majority in their construction of R. S. 19 :23-45 as amended by L. 1952, a. 158, p. 526, which provides in part:
“A voter who has not voted in a primary election of a political party for two subsequent annual primary elections shall not hex permitted to vote in any primary election of a political party until he has first signed and filed with the district board a declaration designating the political party in whose primary election he desires to vote.” (Emphasis supplied)
Clearly this requirement of the statute is directed both to the prospective voter and the district election board. The words “shall not be permitted to vote” are obviously directed to the district election board; the provision with respect to signing and filing a declaration is manifestly aimed at the prospective voter. It is difficult to conceive of language more apt to express the legislative intent that the signing and filing of the declaration is a condition precedent to the right of the prospective voter to cast his vote at a primary election. I cannot escape the conclusion that compliance with the statutory provision was intended by the Legislature to be mandatory on both the prospective voter and the district election board and that failure to enforce it will subject the district election board and failure to comply with it will subject the voter to criminal prosecution. The provisions of the election law on this point are not only clear *199but time honored. They stem from the statutes as far back as L. 1898, c. 139, and-have been adjudicated and construed many times, notably in the eases of Woodruff v. State, 68 N. J. L. 89 (Sup. Ct. 1902); State v. Nixon, 86 N. J. L. 371 (E. & A. 1914); State v. Caprio, 98 N. J. L. 13 (Sup. Ct. 1922), affirmed 99 N. J. L. 292 (E. & A. 1923); Petition of Clee, 119 N. J. L. 310 (Sup. Ct. 1938); State v. Tulenko, 133 N. J. L. 385 (E. & A. 1945); State v. Larison, 134 N. J. L. 126 (Sup. Ct. 1946), affirmed 134 N. J. L. 604 (E. & A. 1946). The sanctions of the present election law are set forth in R. S. 19:34-48 which provides:
“'Every person charged with the performance of any duty under the provisions of any law of this state relating to elections who willfully neglects or refuses to perform it, or who, in his official capacity, knowingly and fraudulently acts in contravention or violation of any of the provisions of such laws, shall be guilty of a misdemeanor.”
and in R. S. 19:23-45 which further provides:
“Any person voting in the primary ballot-box of any political party in any primary election in contravention of the election law shall be guilty of a misdemeanor, and any person who aids or assists any such person in such violation by means of public proclamation or order, or by means of any public or private direction or suggestions, or by means of any help or assistance or cooperation, shall likewise be guilty of a misdemeanor.”
There can be no doubt of the legislative intent to use the resources of the criminal law to enforce compliance with the provisions of the election law.
The language of the statute requiring the prospective voter who has not voted for two preceding primary elections to sign a declaration and file it with the board is clear and unambiguous. The provisions for a declaration which came into the statute first quoted in this opinion by L. 1952, c. 158, takes the place of the affidavit that had been required in our election law since the enactment of section 310 of chapter 187 of the Laws of 1930. Manifestly some kind of a document, whether it be an affidavit or a declaration, is necessary *200if both the prospective voter and the members of the district election board are to be readily subjected to the penalty hereinbefore set forth and the public thereby protected from any wrongdoing on their part. See also B. S. 19 :34-l, as further indicating a definite legislative intent to make every violation of the provision of the election law mandatory and an infraction thereof a criminal offense if done “willfully” or “knowingly.” The object of the primary election law is to insure that the choice of the voters in each party should prevail and that anything done by the district election board or any member thereof or by any voter knowingly and willfully to distort the expression of the will of the members . of either party as reflected in their ballots shall be a criminal offense and punishable accordingly.
In requiring a declaration instead of an affidavit the Legislature did 'not intend to have the provision for a declaration become a nullity, as it does under the construction of the statute accepted by the majority, for the danger to the sanctity of primary elections is too obvious and too great. If the statute required an affidavit as it formerly did instead of a declaration, no one would question the right of the Legislature to' prescribe an affidavit. We see no more ground for the court questioning the Legislature’s right to prescribe a declaration as the means whereby the prospective voter signifies his choice of a party in a solemn manner. It is for the Legislature to determine whether a simple declaration affords as effective a safeguard as an affidavit. Where it has determined that a declaration does furnish a sufficient safeguard, as it has here, we cannot avoid the conclusion that the signing and filing of such a declaration is as much a condition precedent to the right to vote as the taking of an affidavit formerly was.
The majority opinion proceeds on the ground that the statutory provisions for the permanent registration of the voter and the conduct of an election as set forth in R. S. 19:31-1 et seq.; N. J. S. A. 19:31A-7 and 8; R. S. 19:23-46 are a substitute for signing and filing the declaration as required by R. S. 19 :23-45 as amended by L. 1952, c. 158, *201here under discussion. The answer to this line of reasoning by the majority is simple; L. 1952, c. 158 is the latest expression of the legislative intent. If the Legislature had intended that the provisions of the permanent registration act and the comparing of signatures at the polls was to take the place of the earlier affidavit or the present declaration b3r the prospective voter it could easily have said so. We eannot assume that the Legislature was unmindful of the statutory provisions relied upon by the majority and that it enacted L. 1952, c. 158 inadvertently. Setting up the prerequisites for voting in a primary election are peculiarly within the province of the Legislature, whose duty it is to provide the essential safeguards to prevent a voter from jumping from party to party at successive primaries. The Legislature has wisely prescribed that a voter’s indication of the party of his choice should not be left to a mere oral statement to be noted by a member of the district election board, but that it should be by the solemn written declaration of the voter himself duly filed with the election board.
The wisdom of this procedure is the more readily appreciated when we look at the practical consequences of the statute in action. If a voter should fraudulently vote contrary to the provisions of the statute in a political party in which he had no right to vote, he could always contend, if reliance was had in proceeding against him solely on the clerk’s notation on the election board records, that the clerk had made a mistake in noting on such records what the voter had orally told him. On the other hand, such excuse would not be available where the voter has signed and filed the written declaration required by the statute. In short, under the construction of the statute by the majority flimsy defenses might well be asserted by a fraudulent voter, which would not be available to him in the face of his own signed declaration. The Legislature doubtless had this in mind in enacting L. 1952, a. 158. The other statutory requirements relied on by the majority are not a sufficient substitute for the signing and filing of the written declaration when one is confronted with actual fraud. While no fraud is alleged here, we are *202bound to construe the act in such a way as to prevent fraud. The fact that the state has been quite free in recent years from scandals at the polls should not lull us into any false sense of security. If the safeguards set up by the Legislature are broken down there will be nothing to prevent the abuse of the right of suffrage. We were told at the oral argument that there are counties in the State in which not a single declaration had been filed at the recent primary election despite the fact that they were printed and distributed to the members of the district election boards. This is a matter which may well engage the attention of the law enforcement officers of the State. Prospective voters in the primary elections and members of the district election board should clearly understand that a voter by failing to sign and file a declaration in the circumstances where the statute requires it and the election board members by failing to require a declaration in such cases may render themselves subject to criminal prosecution.
While the election laws are not to be construed so as to render an election void for technical reasons, Kilmurray v. Gilfert, 10 N. J. 435 (1952) they must at the same timé be interpreted and enforced so as to protect the sanctity of the ballot, which is the foundation on which popular government necessarily rests.
In this case in a statewide primary election the difference between the appellant’s recorded vote and the respondent’s is only 1,506. The disputed votes in Hudson and Warren counties alone numbered over 3,000, sufficient to turn the result of the election if the appellant’s position is factually sound. In my view of the proper construction of the statute the present proceeding cannot be disposed of on a motion for summary judgment. There must be a complete investigation into the facts and on a statewide basis, if necessary.
I would reverse the judgment below.
For affirmance—Justices Heher, Oliphant, Wacheneeld, Burling, Jacobs and Brennan—6. For reversal—Chief Justice Vanderbilt—1.