[EL] A curious post-election challenge in New Jersey

[Joey Fishkin]

Some of you may be interested in this opinion of the New Jersey Supreme Court,

http://www.judiciary.state.nj.us/opinions/supreme/A5811November8GeneralElection.pdf

in which a losing candidate has just successfully overturned the
election last November of a New Jersey state representative, Gabriela
Mosquera, on the ground that Mosquera was ineligible to run.  (She did
not meet the state's one-year durational residency requirement.)

A friend involved in the litigation brought it to my attention.  There
are two curious features of the case:

(1) unlike in the case of Carl Lewis, whose ineligibility under a
different durational residency requirement was resolved _before_ last
November's election, nobody challenged Mosquera's candidacy until
after the election was over and she had been certified as the winner.

(2) Mosquera agrees that she did not meet the durational residency
requirement.  However she says she relied on a federal district court
order from 2001 declaring the requirement unconstitutional under the
Fourteenth Amendment and enjoining its enforcement -- an injunction
that remains in place today, and on the basis of which the state AG
advised Mosquera that she could run, the Secretary of State certified
her candidacy, and she in fact campaigned and won. (see Robertson v.
Bartels, 150 F. Supp. 2d 691 (D.N.J. 2001)).

The NJ Supreme Court held that the federal district court got it wrong
and requirement does not violate the Fourteenth Amendment -- which
left the majority in the odd position of holding that although the
federal injunction remains in place, it "enjoins only the Attorney
General and the Secretary of State, and their agents, leaving every
other person -- including candidates, voters, and the courts of the
State -- entirely free to disregard it..." (p64)  The majority
recognized that it does not have the power to "modify or dissolve that
injunction in any fashion," and concludes that "the parties should
apply to the federal district court or file a petition for a writ of
certiorari to the United States Supreme Court to resolve the lingering
principled conflict" between their ruling today and the federal
injunction (p65).


Joey


--
Joseph Fishkin
Assistant Professor
University of Texas School of Law
727 E. Dean Keeton St., Austin, TX 78705
jfishkin at law.utexas.edu