Is New Jersey?s State Constitution Unconstitutional? Campaign to Recall Senator Menendez Turns Into Battle of the Constitutions
New Jersey’s State Constitution is unconstitutional.? That’s apparently what one New Jersey election official seems to think.
A committee seeking approval from the state to petition registered voters on whether to move forward with a special election to recall US Senator Robert Menendez was denied that request, in a letter on January 11th which stated that the US Constitution does not provide for such a proceeding.
But in 1993, the people of New Jersey overwhelmingly voted to reserve for themselves “the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress” (emphasis added), and in 1995 made this amendment to their state constitution under Article I, 2b.
This has left many New Jersey voters wondering why Secretary of State Nina Mitchell Wells, a member of the Executive Branch, not the Judicial Branch, would take it upon herself and her position to declare the NJ state Constitution unconstitutional.? After reviewing the committee’s preliminary appeal statement, a judge in the Superior Court of NJ Appellate Division has just issued an order allowing a motion to accelerate the appeal.
Appointed to her post in January 2006 by outgoing Democratic Governor Jon Corzine, Wells was a key democratic fundraiser and close friend to Corzine.? She has been called one of the Garden State’s 101 most influential people, and NJ Monthly profiled her and high-profile attorney husband Ted Wells in its Power Issue.? Daughter Teresa worked on Senator John Edwards? presidential campaign and as Corzine?s traveling press secretary, prior to accepting a position at the Rockefeller Foundation as chief media strategist. In her capacity as Secretary of State, Ms. Wells is perhaps best known for the Obama birth certificate case, Donofrio v. Wells. ?But Wells has faced more plausible scrutiny, such as fallout after a Princeton University professor’s successful hacking attempts on NJ voting machines, and a multitude of indictments of Vote-by-Mail voter fraud, including forgery of messenger ballots, on her watch (see here, here, here, here, and Dem. State Committee lawyer Josephson letter here). In 2008, Wells also overlooked a state law prohibiting candidates from running for President and US Senate in the same election, and improperly certified candidate Jeff Boss for both offices.? (who on an unrelated note runs on a 9/11 truther platform).
On September 25, 2009, a Notice of Intention was filed in the Secretary of State’s office by a recall committee formed by members of the Sussex County Tea Party, a local grass-roots group and member of the statewide coalition, NJ Tea Parties United. The group seeks to initiate a special election in NJ to recall Senator Robert Menendez.? In accordance with NJ election law, the first steps in that process are for the interested parties to form a committee to sponsor a recall petition, and file a Notice of Intent with the Secretary of State’s office.? The Secretary of State is then required to determine whether the submitted notice and proposed petition conform to the statute’s requirements and either approve or deny the notice within three days. If denied, the reasons must be stated and the committee permitted to amend and resubmit the filing.? Once approved, the committee then circulates the petition amongst registered voters in the state, collecting the signatures of those in support of calling for a recall election.? Only if and when the committee collects the necessary number of signatures – 25% of the total registered voters in the general election that preceded the filing of the notice ? can a recall election be scheduled.
All else up until and including the recall election itself could be considered political speech, which is entitled to the most strenuous protection against governmental suppression.
Yet, on January 11th, 2010, by her written response to the recall committee, Secretary of State Nina Wells seemingly violated the Constitutional rights of the Committee, its members, and those who want to sign the petition, when she wrote:
“It has been determined that the qualifications and election of a Member of the United States Senate is a matter of exclusive jurisdiction of federal authority and that neither the United States Constitution nor federal statute provide for a recall proceeding for a federally-elected official.
Therefore, in my capacity as the Chief Election Official of the State of New Jersey, I hereby determine that neither the Notice of Intention to Recall nor the proposed Petition can be accepted for filing or review.”
This statement presents quite a quandary, and a series of interesting questions that I discussed in detail with Dan Silberstein, co-counsel for the recall committee.
Does the Final Determination Violate The Committee?s Constitutional Rights?
“Pursuant to Article I, paragraph 2b. of the New Jersey Constitution, the people of this State shall have the power to recall, after at least one year of service in the person’s current term of office, any United States Senator or Representative elected from this State or any State or local elected official in the manner provided herein.”
The law further defines “elected official” as
“any person holding the office of United States Senator or member of the United States House of Representatives elected from this State, or any person holding a State or local government office which, under the State Constitution or by law, is filled by the registered voters of a jurisdiction at an election, including a person appointed, selected or otherwise designated to fill a vacancy in such office, but does not mean an official of a political party.”
Not only does New Jersey’s state constitution include the provision, but what’s more interesting is that the language specific to federal officials is actually relatively recent.? In a 1997 recall election case, The Committee to Recall Theresa Casagrande v Casagrande, which challenged the actions of a Borough Clerk, presiding Judge Alexander D. Lehrer happened to reference the very amendment that also encompasses federal officials. That portion of the opinion reads in part:
“On November 2, 1993, the citizens of the State of New Jersey overwhelmingly voted to amend Article I, Paragraph 2 of the New Jersey Constitution to establish the right to recall local, state and federal elected officials.
“The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress. The Legislature shall enact laws to provide for such recall elections. Any such laws shall include a provision that a recall election shall be held upon petition of at least 25% of the registered voters in the electoral district of the official sought to be recalled.”
On May 17, 1995, the Legislature of the State of New Jersey enacted the “Uniform Recall Election Law”, N.J.S.A. 19:27A-1 et seq. implementing this amendment to the Constitution. See: N.J.S.A. 19:27A-2.”? Read the remainder here.
The recall committee had not yet even begun collecting petition signatures before the Secretary of State sent its “final determination”. As the supporting documentation for the committee’s appeal points out:
“The U.S. Constitution clearly does not prevent the formation of a Recall Committee.? It does not prevent the collection of signatures of those who demand the recall of an elected official.? It does not prevent the citizens from expressing their will, individually or collectively, by demanding that the State roll out its election machines to take a vote on anything it wants to vote on, including a vote on whether Menendez should be recalled.”
By refusing to comply with the NJ State Constitution and the NJ Uniform Recall Election Law, rendering an opinion that these violate the Supremacy Clause of the United States Constitution and declaring them as unconstitutional, have the Secretary of State and the Director of the Division of Elections violated the committee’s rights (and those of the people of NJ)?
Does the NJ Secretary of State even have the power to make such a declaration?
Further, as clearly outlined in detail in 19:27A-7, the duties of the Secretary of State are very limited and merely clerical in nature.
The Secretary of State and Director of Division of Elections are positions within the Executive branch of NJ state government, not the Judicial branch.? As such, they would not have any authority to declare any part of the New Jersey Constitution or any Statute unconstitutional.? Only a judge could make such a determination.
Also, as Mr. Silberstein noted, there is no discretion vested in the Secretary to delay this simple clerical task for ?legal review?, nor does the statute ask the Secretary to render an opinion on the Constitutionality of the statute.? This leaves one to wonder why such action was taken and why such an opinion rendered in the first place.
Timeline of Events:
- September 25, 2009: Notice of Intent filed with the office of the Secretary of State and Division of Elections.
- October 5, 2009: Robert F. Giles, Director of the Division of Elections, acknowledged in a letter receipt of Notice stating it was “under legal review.”
- November 10, 2009:? Second Notice is filed, indicating a change in committee chairperson for health reasons. Officials have still failed to respond within three days as is required by NJ law.
- December 2, 2009:? After months without a response, the committee files a legal motion for summary judgment against the New Jersey Division of Elections, asking a judge to order that defendants immediately issue a response to the Committee?s Notice of Intention.
- January 11, 2010: ?Secretary of State sends a “final determination” indicating that neither the Notice of Intention to Recall nor the proposed Petition will be accepted for filing or review, declaring the current recall provisions in the NJ state Constitution and the NJ Uniform Recall Election Law to be in violation of the United States Constitution, rather than simply approving the Notices.
- January 13, 2010:? An application to File Appeal on an Emergent Basis is filed with the Superior Court of New Jersey Appellate Division; in Committee to Recall Robert Menendez v. Nina Wells, Secretary of State, et al., the appeal requests reversal of the ?final determination? and an order directing the Secretary of State to approve the Notice of Intention to permit the Committee to begin the collections of signatures.
- January 14, 2010: ?the Superior Court of New Jersey Appellate Division issued an order allowing a motion to accelerate the appeal.
- January 15, 2010: ?Notice of Appeal and Case Information Statement filed.
- Currently waiting to be heard by the court
The Recall Committee, The Sussex County Tea Party, and the NJ Tea Parties United all view this recall election campaign as a critical tool in their pursuit to correct what some NJ citizens view as a deterioration of the democratic process on Capitol Hill, and a disconnect between the lawmakers and their constituents back home in NJ.? With no Senatorial mid-term elections confirmed for NJ in 2010, and considering the fundamental significance of the legislation being considered, the group emphasizes the importance of having senators who will support open debate, offer transparency, and cease the abuse of cloture, all things the groups say Senator Robert Menendez has failed to do.? Even if the recall itself is unsuccessful, or should the petition fall short of the required minimum of signatures, they are hoping that by obtaining any large number of signatures on the petition, it will send a clear message to Senator Menendez that he must engage with his constituents, and remind him that he represents all of the voters in NJ and not just special interests.
Regardless of one’s political views, and whether or not one agrees with the use of or the reasons given to support a recall election, the aspects of this particular case are undeniably paramount.? NJ citizens should not be denied constitutional rights.? The US Constitution and NJ Constitution both guarantee the rights of free speech, to petition for redress of grievances, and the right to peacefully assemble.? Is the New Jersey state Constitution actually unconstitutional?? And if so, where are the boundaries in declaring such as a reason for denying, or granting, state citizens certain rights?? Is petitioning fellow citizens not considered political speech?? And why not allow the recall election to move forward anyway, pursuant with the state Constitution?
As Mr. Silberstein and I discussed these very questions, he ended the conversation with a very interesting viewpoint, much of which is included in his and co-counsel Rich Luzzi’s appeal to the court:
Let the petition go forward.? If enough signatures are collected, roll out the voting machines. Let the people vote.? If the majority vote to recall the Senator, their voices should be heard and the Secretary of State should issue the recall order.? If an official thinks it might be unconstitutional for the state to recall a US Senator, so what?? Let the courts determine that, as they should.? If the recall turns out to be unenforceable under the Supremacy Clause, then so be it.? Even without legal effect under the law, the recall order would still have significant value as a political statement, amounting to a non-binding vote of no-confidence.? The people’s voices will still be heard.? And really, isn’t that the most important point?