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

[Fredric Woocher]

Another curious aspect of the opinion is that the court seems to have
opened the door for the Democratic party to immediately reinstate
Mosquera to the same seat as an interim appointee until another election
is held at the next general election, relying upon a New Jersey
constitutional provision that says that in the case of a vacancy in
office, the party of the prior "incumbent" gets to make the interim
appointment, and specifically noting that the one-year residency
requirement for that person would run from the date of the appointment.

Perhaps this made the court majority more comfortable not giving effect
to the federal court's earlier injunction:  Mosquera doesn't really get
harmed by the opinion; the voters who voted for her get to keep her in
office and can re-elect her in November if that's their preference; and
candidates in the future know that the NJ Constitution's one-year
residency requirement is going to be enforced by the state court.


Fredric D. Woocher
Strumwasser & Woocher LLP
10940 Wilshire Blvd., Ste. 2000
Los Angeles, CA 90024
fwoocher at strumwooch.com
(310) 576-1233

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Joey
Fishkin
Sent: Thursday, February 16, 2012 4:52 PM
To: law-election at uci.edu
Subject: [EL] A curious post-election challenge in New Jersey

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

http://www.judiciary.state.nj.us/opinions/supreme/A5811November8GeneralE
lection.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
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