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New Jersey’s Vacant Expression

Note to self- do not make casual observations about state statutes you know nothing about. Because it turns out that the New Jersey election law I cited in my last post is only one of two (or, who knows, maybe more) provisions that the New Jersey legislature, in its wisdom, has seen fit to enact on the subject of filling vacancies in the office of U.S. Senator. The section I cited (section 3-26) appeared to require that a vacancy be filled at the next general election unless the vacancy happened within the 70 days before that general election, in which case it would be filled at the second succeeding general election. However, another section states:

Congressional vacancies.

19:27-6.  In the case of a vacancy in the representation of this State in the United States Senate or House of Representatives, the writ may designate the next general election day for the election, but if a special day is designated, it shall specify the cause and purpose of such election, the name of the officer in whose office the vacancy has occurred, the day on which a special primary election shall be held, which shall be not less than 70 days nor more than 76 days following the date of such proclamation, and the day on which the special election shall be held, which shall be not less than 64 nor more than 70 days following the day of the special primary election.  The writ shall also specify the day or days when the district boards shall meet for the purpose of making, revising or correcting the registers of voters to be used at such special election.

If the vacancy happens in the representation of this State in the United States Senate the election shall take place at the general election next succeeding the happening thereof, unless the vacancy shall happen within 70 days next preceding the primary election prior to the general election, in which case it shall be filled by election at the second succeeding election, unless the Governor shall deem it advisable to call a special election therefor, which he is authorized hereby to do.

Because the vacancy occurred more than 70 days before the next general election, section 3-26 appears to require that it be filled at that general election (which will be in November 2013). But under section 27-6, the default rule for determining the time for filling the vacancy turns on whether the vacancy happens within 70 days before the primary election, rather than the general election. Here the vacancy happened exactly one day before the primary, so section 27-6 appears to require that the election be held at the “second succeeding election,” which presumably would be in November 2014. Note, however, that even this is not clear because section 27-6 uses the phrase “second succeeding election,” as compared to section 3-26, which refers to the “second succeeding general election.” Is there a difference? Darned if I know.

It would seem impossible to reconcile these statutory provisions. Unless the vacancy occurs more than 70 days before both the primary and the general election (or within 70 days prior to both), or the Governor exercises his authority to call a special election, one of these provisions would have to be violated. I suppose one could construe the law as actually requiring the Governor to call a special election to avoid a violation of either section, but this construction would conflict with the apparent legislative intent that the calling of a special election be discretionary with the Governor.

If these two provisions had been enacted at different times, the later one would control. Incredibly, however, it appears that they were both enacted at the same time (in 2011). Presumably there was some sort of mistake in drafting the bill, but it is not obvious what the legislature actually intended. If one assumes that it wanted there to be sufficient time for a primary, then section 27-6 makes more sense. But, if 27-6 stood alone, then a vacancy that occurred after the primary, but before the general election, would have to be filled at that general election (even if it occurred a few days before the general election). Obviously that cannot be what the legislature intended. On the other hand, if 3-26 stood alone, then there might be as few as 71 days to hold both a primary and a general election, which is considerably shorter than the minimum 134 days provided for holding a special election in the first paragraph of section 27-6. Finally, it doesn’t make a lot of sense to read the two provisions as alternatives (apart from the fact that they are not phrased that way) because they would treat a vacancy that occurs after a primary, but more than 70 days before the general election, differently than either one that occurs earlier (i.e., within 70 days before the primary) or later (i.e., within 70 days before the general).

Although apparently not relevant to the current situation, it is also unclear to me that the Governor’s authority to set a special election applies if the vacancy occurs more than 70 days before the general election (in the case of 3-26) or the primary (in the case of 27-6). In other words, it seems that the second “unless” in these provisions may modify only the first “unless” clause, rather than the principal clause that applies when the vacancy occurs more than 70 days before the relevant election.

Finally, the law is also unclear as to the scope of the Governor’s discretion to set a date for a special election. Section 27-6 tightly confines the Governor’s discretion with regard to choosing dates for both the special primary election and the special election. The calculation of these dates, however, is based on the date of the Governor’s issuance of the writ of election. Although the Governor is required both by statute (section 27-4) and the Seventeenth Amendment to issue the writ of the election when a vacancy “happens,” the legislature has not provided a specific deadline as to when the writ must issue. One could argue that the Governor has a duty to issue the writ immediately, and that any unreasonable delay violates his constitutional and statutory duty, but one could also argue that in the absence of any specific deadline he has a measure of discretion in determining when to issue the writ.

This latter argument will be made by those who criticize Governor Christie’s decision today to set a special primary date of August 13 and a special election date of October 16 to fill the vacancy created by Senator Lautenberg’s death. These dates are based on the minimum number of days established for both the primary and special election periods by 27-6. Had Christie used the maximum periods, he could have scheduled the special election for October 28, a mere 8 days before the general election.

Although it would seem difficult to argue that Christie lacked the legal authority to take this action, there is a plausible argument that he could have waited for a few days before issuing the writ. In the case of a House vacancy that arose in 2012, for example, Christie issued the writ of election 22 days after the vacancy occurred. If he had delayed the issuance of the writ for another 8 days here, he could have set the special election for November 5 (the date of the general election) while still complying with the time frames set forth in 27-6. This, of course, would have saved the taxpayers the substantial cost of holding a separate election.

However, there are significant legal objections that could be raised to this course of action. In the first place, although the term “special election” is normally used to refer to any election to fill a vacant seat, the New Jersey statute appears to use it in a more specialized way to refer to an election held on a date other than that of the general election. Thus, it is arguable that a special election cannot be set on the date of the general election. (In the case of the House vacancy, Christie did not exercise the power to set a special election, but simply followed the statutory rule for filling a vacancy at the general election). Second, the fact that the legislature so tightly limited the Governor’s discretion to determine the time frames for a special election suggests that it did not intend for him to exercise any discretion beyond choosing the day of the week on which the special primary and special elections would be held. Thus, it arguably would have violated the spirit if not the letter of the law for Christie to have delayed issuance of the writ in order to extend the time frames set forth in the statute.

Of course, if you ask me for a sensible reason why the New Jersey legislature would have forbidden the Governor from setting the special election on the general election date in the circumstances presented here, I am not sure I can think of one. Then again, common sense appears to have played little role in the drafting of this statute. It seems more reflective of heavy drinking.

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