Will the New Jersey Special Senate Election Survive Judicial Review?

Update: the answer to this question is apparently yes, as the New Jersey Supreme Court has declined to hear the challenge.

A three-judge panel of the New Jersey Superior Court Appellate Division has issued this opinion rejecting a legal challenge to Governor Christie’s writ of election setting an October 16, 2013 date for the special election to fill the Senate seat that became vacant as the result of Senator Lautenberg’s death. The case, however, has been set for a fast track review by the New Jersey Supreme Court (hat tip: Rick Hasen), with briefs challenging the writ to be filed on Monday, June 17, and the Governor’s response due on Tuesday, June 18.

The appellate division opinion does not do a whole lot to clarify the meaning of the relevant New Jersey law, IMHO, but it does raise what appears to be another significant legal and practical problem with holding two elections in such a short period.

The court begins its analysis with the proposition that “[b]ecause Senator Lautenberg died on the day prior to the primary election, N.J.S.A. 19:27-6 governs.” Under this provision, the vacancy would be filled at the “second succeeding election” (i.e., in November 2014) unless the Governor calls a special election. The court states that “[w]ithout question, the Governor was authorized to call a special election in this circumstance, where the vacancy occurred one day prior to the primary.”

But what about N.J.S.A. 19:3-26, which appears to require that the vacancy be filled at the next general election (i.e., in November 2013) unless the vacancy occurred less than 70 days before that general election (which it did not)? The court does not attempt to reconcile this provision with 27-6 nor to explain how one would resolve the conflict between the two provisions if the Governor did not call a special election. It does state at one point that “[w]ithout a special election, this seat would be filled by an appointee for the remainder of the term.” That suggests that 27-6 would control (although, even then, the appointee would only serve until November 2014, not until the expiration of the term in January 2015). But the court offers no explanation as to why that would be the case.

The court also rejects the plaintiffs’ argument that 3-26 precludes the Governor from calling a special election. It evinces some sympathy for the Governor’s position that 3-26 permits the calling of a special election under any circumstances, not merely where the vacancy occurs less than 70 days before the general election. The Governor relied on the punctuation in 3-26, which (you may recall) provides:

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

According to the Governor, “the comma preceding the authorizing clause” (i.e., the comma immediately preceding the second “unless”) demonstrates “the Legislature’s intention to authorize a special election whether the vacancy occurs fewer or more than seventy days before the general election.” Maybe this is right, although it seems to me that the Legislature would have more clearly expressed this intention if it had used the word “or” instead of the comma, but I suppose this might have created an ambiguity as to which “unless” clause governs if both apply.

In any event, the court did not seem to be completely convinced by the Governor’s argument because it stressed that it was limiting its holding to the situation in which the Governor was already authorized to call a special election under 27-6: “In this circumstance, it would be wholly absurd to conclude that the Legislature intended to authorize a special election in N.J.S.A. 19:27-6 and preclude it in N.J.S.A. 19:3-26, even if the punctuation the Legislature chose did not support a contrary reading, as the punctuation used plainly does.” In other words, if Lautenberg had died the day after the primary election, instead of the day before, the court is not deciding whether Christie would have had the authority to call a special election under 3-26, although it seems to be leaning toward the conclusion that he would.

As for the timing of the special election, the court held that this was a matter within the Governor’s discretion. Although 27-6 tightly constricts the Governor’s discretion as to dates for the special primary and special elections once he issues the writ, there is no specific time set for issuing the writ. According to the court, the Legislature therefore must have intended the Governor to have a wide discretion in selecting the date of the special election:

Without question, the Legislature has authorized the Governor to select the date of the special elections, which can be accomplished by assigning the statutory dates backward from the date for a special general election that the Governor deems advisable before issuing the writ.¬† The Legislature could have, but did not, limit that discretion, and its breadth must have been as obvious to the Legislature at the time it was written as it is now. Because of the date of Senator Lautenberg’s death, this special election could have been scheduled for the same date as the general election.

The court seems to be saying that the Governor can indefinitely delay the issuance of the writ of election in order to set whatever date he wants for the special election. This seems to me to be a less than obvious conclusion. An equally if not more plausible inference from the legislature’s failure to specify a date for issuing the writ is that the legislature intended that it be issued either forthwith or within a reasonable time of the occurrence of the vacancy. In this case that might have allowed the Governor to set the special election on the same date as the general election. But the court’s assumption that the legislature intended for the Governor to have a broad discretion in choosing when to issue the writ seems to be in some tension with the very limited discretion it gave him once the writ issues.

Finally, the court declined to second guess the Governor’s decision to hold the special election on October 16, rather than on the date of this year’s general election, November 5. The issue of the cost of holding a separate election was a policy issue, the court sensibly concluded, that was not for judges to decide. However, the court did express a serious concern with the logistical difficulties involved in using the same voting machines in two statewide elections in such close proximity. It noted that the machines by law must be impounded for a 15 day period after the October 16 election, which would seem to make it extremely difficult to have them ready in time for their use in the November 5 general election. Although the court did not believe that the evidence provided by the plaintiffs warranted invalidating the writ, it left open the possibility of future challenges on this ground:

We view the potential for problems it may create in conducting the general election at this point as a matter committed to the Governor and relevant to his determination as to whether the date of this special election, dictated by his writ, is “advisable.” In our view, there is no question of statutory or constitutional violation that is ripe, and, as the State’s Chief Executive Officer, the Governor’s policy decision and assessment of the feasibility of accomplishing it is not reviewable.

(emphasis added).

This issue strikes me as raising a greater danger, both legal and practical, to the viability of Christie’s action than the attack on his authority to call a special election in the first place. But I guess we will see what the New Jersey Supreme Court thinks.