concurring in judgment.
This is a touchy case. The circumstances disclosed by this record must shock even the most cynical observer of the public scene. But the delicacy of the subject — a public election matter and the courts’ legitimate function in respect thereof — should not cause us to mute our voice. I presume to write because I fear the Court’s message is muffled and its “resolution” of the *127dispute creates unwarranted risks. The response to the situation should be a clarion call for reform rather than a tranquilizing message of appeasement delivered in dulcet tones.
I concur in the judgment because the Court reaches the right result: it concludes that under the circumstances the trial court properly denied a redrawing for ballot positions. I part company with the majority, however, because of its reluctance to interpret the pertinent statute, N.J.S.A. 19:14-12, so as to impose on election officials certain minimum requirements for fair procedures in ballot-position drawings. Especially do I disagree with the invitation to parties in a contested election to resolve those procedures for themselves. In that respect the Court’s opinion runs counter to the existing statutory framework in this area and tends to cloud, rather than clear, the issue of the County Clerk’s responsibilities in conducting such drawings. By taking that approach the Court ignores its obligation to define what is involved in “witnessing” the drawing as contemplated by N.J.S.A. 19:14-12, and foregoes an opportunity to further the intent of the legislature by imposing minimum safeguards that would materially improve the procedures for those drawings.
I
Plaintiffs, all Republicans, are former candidates for statewide, county, and municipal offices, along with the Republican county chairman. Defendants are Nicholas Caputo, a registered Democrat who has served as Essex County Clerk for twenty-four years, and Raymond Durkin, Democratic county chairman, who did not appear in the action.
The dispute centers around the August 13, 1984 drawing by Mr. Caputo for various positions on the ballot for the upcoming November election. The political party that “wins” the drawing is placed on “line A” on the November ballot. Those “in the know” — even those who know precious little about these things — agree that the conventional wisdom indeed has it accu*128rately: line A represents the preferred ballot position. And as fate, or whatever, would have it, at the August Thirteenth drawing, line A went to the Democratic party, the fortieth time that this same phenomenon had emerged in forty-one drawings during Mr. Caputo’s tenure as County Clerk.
Under the pertinent statute, N.J.S.A. 19:14-12, “[a]ny legal voter of the county or municipality * * * shall have the privilege of witnessing the drawing.” Plaintiffs Thomas and Wild-stein were in the group that attended the drawing, and neither they nor any other member of the group raised any question or otherwise complained about the manner in which the proceedings were conducted, as set forth in detail in the Court’s opinion, ante at 121-122. Plaintiffs now contend, however, that they are entitled to a redrawing because there was not compliance with the statutory provision for “witnessing the drawing.” Specifically they contend that “witnessing” should include all sensory perceptions — particularly touching — that might be helpful in confirming the legitimacy of the ballot-position drawing.
II
The statute in question, N.J.S.A. 19:14-12, provides a detailed set of procedures to be followed in a drawing for ballot positions. Ante at 122-123. Once the specific requirements of the statute have been met, the County Clerk is vested with a degree of discretion in the conduct of the drawing. Put differently, discretion does not come into play until all the mandates of the statute have been met. See Quaremba v. Allan, 67 N.J. 1, 8 (1975).
Although it reaches the unadorned conclusion that in this case there was not full compliance with the statute, ante at 124, the Court leaves us in suspense by not providing any specific example of non-compliance or infractions. This adds little to anyone’s understanding of the case. It does, however, reinforce the idea that a Clerk may violate the statute and do so *129with impunity. The fact of the matter is that the most meticulous review of this slim record will uncover no act of nonconformity, because on the face of things Caputo complied with the express statutory directives as they apparently have been understood to date. Moreover, there has been no demonstration of fraud.
But despite the County Clerk’s apparent compliance with the statute in this instance, one cannot help being struck by the marvel, the otherworldly coincidence, of one party “winning” the drawing forty out of forty-one times. That the record supports this numerical result is not open to question. Nor is it open to any doubt whatsoever that assuming a fair and random selection of one item out of a possibility of two, the odds on drawing line A forty times out of forty-one draws are about one in fifty billion. Get that? ONE in FIFTY BILLION!
It understates the case to suggest that this extraordinary state of affairs should act as a challenge to anyone and everyone concerned with the preservation of voter confidence. The finger does not point at Mr. Caputo, who did not conduct all of the forty-one drawings himself — it points at the system. And a system that produces the results recited above has to excite some skepticism about whether it is on the “up-and-up.” That kind of skepticism is a symptom of a diseased system, one that should no longer be tolerated.
Ill
If such a system is not to be suffered henceforth, corrective measures must be imposed. This is not to say, however, that they must or should be imposed on the parties to this litigation, inasmuch as the case started with a ballot drawing conducted almost one year ago, followed by a general election and the subsequent seating of various public officials who have served their respective constituencies for about half a year. We cannot unscramble that egg. Moreover, we should be mindful of the fact that until this case no court has been called upon to *130interpret the word “witnessing” as used in N.J.S.A. 19:14-12. For that reason, as well as because of the apparent acquiescence of plaintiffs at the time of the drawing, it would be unfair — to say nothing of impolitic and unrealistic — to let any “new” meaning affect the result in this case. Cf. State v. Galati, 64 N.J. 572 (1974) (“This Court on occasion, for the sake of essential fairness, has forebome or modified action it would otherwise take, or intends to take in the future * * *. These have included instances * * * ‘where the Court had no reported opinion touching the immediate subject * * *.’ ” Id. at 578, quoting In re Abrams, 56 N.J. 271, 278 (1978)).
What, then, should be done for the future? I would commence with the proposition that the legislative purpose underlying the “witnessing” requirement of N.J.S.A. 19:14-12 is to maintain public confidence in the election process by ensuring that a fair and impartial drawing is held. To ensure that confidence I would pour some content into “witnessing.” Whatever else the statutory privilege of “witnessing” may imply, it surely must include a reasonable opportunity to observe — to see, to watch — the drawing. Accordingly, I would hold that henceforth, for a “witnessing” to meet the bare minimum requirement of the statute, it should include, in addition to the replacing of the tiny capsules used in this contest with a more substantial and perceptible version, all of the specific steps listed by the Court, ante at 125. My difference with my colleagues is that whereas they view those measures as desirable — “steps [that] can be taken to strengthen voter confidence,” id. — I would declare them to be indispensable ingredients of a fair drawing. I would mandate them, as part of the statutory right of witnessing.
As for plaintiffs’ contention that the privilege of witnessing should include the right to inspect the capsules by touching them, it is unclear whether the ordinary and well-understood meaning of the word “witness” includes the sensory perception of touch. As observed by the trial court, allowing people other than the Clerk to touch the capsules could very well create as *131much apprehension as it would alleviate. It is arguable that allowing others to touch the capsules transforms witnesses into participants. Moreover, N.J.S.A. 19:14-12 provides that “[a]ny legal voter * * * shall have the privilege of witnessing the drawing” (emphasis added), so that requiring the opportunity to touch as an essential statutory element of witnessing could produce an awkward, even chaotic, situation as the number of witnesses increases. Accordingly, it seems to me that requiring the opportunity to touch as a component of the privilege to witness would be a substantial change in the method of selection that should come from the legislature rather than from this Court.
Nonetheless, although the statutory privilege of witnessing does not compel an opportunity to touch the paraphernalia, it does not follow that the statute prevents the Clerk from allowing certain representatives to touch the capsules. Here we reach the area of the Clerk’s discretion. I would encourage the practice of touching when, in the reasonable exercise of his discretion, the official conducting the drawing perceives that no practical difficulties will result. In addition, it may be that the legislature’s curiosity will be piqued by the startling history of ballot position drawings in Essex County. That body might wish to consider the advisability of amending N.J.S.A. 19:14-12 to build in a safeguard that would allow one representative from each political party to inspect the drawing paraphernalia by touching the capsules.
IV
In my view the foregoing amount to straightforward and concrete improvements. My colleagues likewise recognize most of them as such, as the Court’s excellent list of available steps, ante at 125 demonstrates; but instead of imposing them or some other requirements as a matter of statutory interpretation, the Court is content to assume an avuncular role, offering precatory phrases in the place of mandates. My fear is that *132because the Court does not offer a concrete remedy to future plaintiffs nor provide guidance to lower court judges who may have to address these same or similar problems in forthcoming elections, the majority opinion may actually encourage future abuses by conveying the image that the Court is powerless to act in this area. I can readily accept the notion that members of this Court may very well disagree as to what steps are necessary to do justice to the legislature’s purpose in providing that a privilege shall exist to witness the ballot position drawing; but there should be no difference of opinion that the responsibility of giving meaning to the statute lies with this Court, not with some future set of litigants.
That is where the real rub lies. The Court would have the “parties” — a group left undefined in the majority opinion — resolve these matters on their own at some unspecified time before the drawing. That approach is little short of abandonment of our responsibility to define the statutory term “witnessing.” By setting out a detailed procedure to be followed in conducting the ballot-position drawing, N.J.S.A. 19:14-12 undoubtedly contemplates a certain uniformity in the process to be followed. To the extent practicable this Court should continue the legislature’s call for consistent standards by defining the statutory privilege to witness the drawing. Providing minimum required procedures furthers this objective. Simply making suggestions — no matter how sensible, as the ones floated by the Court surely are — does not. And delegating those important decisions to the parties does not. Moreover, the Court’s approach intimates that the privilege of witnessing is available only on the demand of those citizens who are in a position to negotiate for it. The process of ensuring that which every citizen has come to expect as a matter of fundamental right — a fair election, and one that appears to be fair — has now become a product of the marketplace.
By not determining what standards are required by the statute, the Court has all but guaranteed future litigation on *133this identical issue. Aside from a number of nonbinding suggestions, the Court has provided no guidance at all to those who will need to know what the statute demands. The parties are left on their own to fill the gaps in the statutory directions — an invitation to confusion. A likely scenario is that future parties, unable to agree, will turn to the courts for the statutory interpretation that should be, but regrettably is not, a part of today’s opinion. In short, we will be back to square one.
IV
The importance of this case should not be overlooked. It is not extravagant to say that the problem confronting us goes to the heart of the democratic system. Failure to address it head-on can only foster disrespect for processes of free elections. The random drawing of ballot positions is a major safeguard against election fraud, and “[njothing is as dangerous in a democracy as a safeguard which appears to be adequate but is really a facade.” A. Vanderbilt, The Challenge of Law Reform (1955), quoting E. Wilkerson, M.P., in Committee on Members’ Powers Report at 138 (1936).
Sir Winston Churchill reminded us that “[a]t the bottom of all the tributes paid to democracy is the little man, walking into the little booth * * *.” F. Czarnoski, The Wisdom of Winston Churchill at 99 (1956). Only if the little man walks with confidence in and respect for the system can the promise implicit in the precious right to cast his ballot be fully realized.
CLIFFORD, J., concurring in result.
For affirmance — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN and GARIBALDI — 6.
For reversal —None.