                NOT FOR PUBLICATION WITHOUT THE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
