N.J. SUPREME COURT

In re Contest of November 8, 2011 General Election of Office of the New Jersey General Assembly, Fourth Legislative District

ELECTION LAW

New Jersey Law Journal

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In re Contest of November 8, 2011 General Election of Office of the New Jersey General Assembly, Fourth Legislative District, A-58 September Term 2011; Supreme Court; opinion by LaVecchia, J.; dissent by Rabner, C.J.; decided February 16, 2012. On certification to the Appellate Division. [Sat below: Judge Leone in the Law Division.] DDS No. 21-1-5274 [95 pp.]

In the Nov. 8, 2011, election for the New Jersey General Assembly representatives for the Fourth Legislative District, Gabriela Mosquera received the second highest number of votes. Her election was challenged, in timely fashion under the election statutes, by Shelley Lovett, the candidate who had the third highest number of votes. Lovett alleged that Mosquera was ineligible because she failed to meet Article IV, Section 1, Paragraph 2 of the New Jersey Constitution's one-year durational residency requirement for the office.

Mosquera has lived in New Jersey since early childhood but she did not become a resident of the Fourth District until she closed on a house there in late December 2010 and moved in immediately thereafter. In January 2010, she had begun employment as an assistant to the mayor of Gloucester Township, a municipality in the Fourth District.

Complicating this matter was Robertson v. Bartels, 150 F. Supp. 2d 691 (D.N.J. 2001), in which a federal trial court concluded that Article IV, Section 1, Paragraph 2 violates the Fourteenth Amendment of the U.S. Constitution and enjoined the New Jersey attorney general and secretary of state from enforcing the durational residency requirement.

Before the state trial court, all parties agreed that state courts were not bound by Robertson and therefore were not precluded from considering the election contest on the eligibility grounds raised. Mosquera stipulated that she did not meet the residency requirement but she contends that the requirement violates the Equal Protection Clause of the Fourteenth Amendment. The attorney general represented that she considered herself enjoined by Robertson from enforcing Article IV, Section 1, Paragraph 2.

The trial court concluded that the residency requirement withstood both facial and as-applied constitutional challenges. It declared Mosquera's election null and void because she was not a resident of the district for one year prior to her election, declared a vacancy in the seat, and directed that, pursuant to Article IV, Section 4, Paragraph 1 of the New Jersey Constitution and its implementing legislation, N.J.S.A. 19:27-11.2, the county committee of Mosquera's political party select an interim successor to fill the seat until a special election for the office is held at the next general election.

The Appellate Division granted Mosquera's emergent application for a stay of the trial court's order. The Supreme Court vacated the Appellate Division's order, temporarily reinstated the relief granted by the trial court, and certified the case on its own motion.

Held: The New Jersey Constitution's durational residency requirement to run for the General Assembly does not violate the Equal Protection Clause of the Fourteenth Amendment. This decision is not a "new" ruling and, therefore, its effect is not limited to prospective application. Mosquera's election is null and void. The position is now vacant and because Mosquera was the incumbent at the time of the vacancy, the county committee of the party with which she was affiliated must select an interim successor to fill the seat until a special election for the office at the next general election. The attorney general and the secretary of state will not violate the injunction issued in Robertson in performing the tasks associated with filling the seat but action must be taken to resolve the lingering conflicts between this decision and the federal injunction.

The Court says the fundamental issue here is the validity of the durational residence requirement. It determines that that requirement is to be tested in accordance with the intermediate scrutiny standard, not the strict scrutiny analysis used in Robertson, noting that the courts that have applied strict scrutiny to residency requirements have done so only when the requirements imposed a burden on the right to interstate travel, which is not the case here.

The Court then looks to whether the residency requirement is reasonably and suitably tailored to further legitimate governmental objectives. It identifies three objectives: the requirement ensures that voters have time to develop a familiarity with the candidate, it ensures that the candidate can become familiar with the constituency and the issues facing the people to be represented, and it operates as a curb on carpetbagging. The Court's independent analysis leads it to conclude that the durational residency requirement advances these interests more than sufficiently to surpass a facial constitutional challenge, a conclusion that, it says, is fully in accord with case law around the country that has recognized the validity of durational residency requirements.

The Court also rejects Mosquera's as-applied challenge to the requirement, which she bases exclusively on her demonstration of familiarity with district constituents and issues as a result of her work in the district, for the reasons expressed in Lewis v. Guadagno, — F. Supp. 2d — (D.N.J. 2011), which noted the difficulties inherent in the judiciary making a case-by-case determination of whether a candidate's knowledge of the district meets some undefined and undefinable standard.

The Court then concludes that its decision is not a "new" ruling as there has never been a state court judgment finding that the requirement violates equal protection and the requirement has been in every version of the state constitution since the first constitution of 1776. That Robertson reached a contrary conclusion does not render the judgment "new." The Court therefore declines to limit the effect to only prospective application.

As to a remedy, the Court concludes that the position is vacant and that Mosquera was the incumbent at the time of the vacancy. Therefore, under Article 4, Paragraph 4, Section 1, and N.J.S.A. 19:27-11.2, the Democratic Party — the party with which Mosquera was affiliated during her election — must select an interim appointee for the seat until a special election is conducted at the general election in November 2012. The Court notes that Mosquera meets the eligibility requirements for appointment as the interim successor.

Finally, the Court is satisfied that the attorney general and the secretary of state will not run afoul of the Robertson injunction when performing the tasks associated with filling the seat declared vacant.

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