New Jersey Law In Conflict On Timing Of Special Elections After Senate Vacancies

Conflicting provisions in New Jersey law could turn scheduling a Special Election to replace Frank Lautenberg into a big legal battle.

law-gavel-lights

 Ian Millihiser and Jennifer Duffy are among those asserting that there is a conflict in New Jersey law regarding the timing of a Special Election in the event of a Senate vacancy. Specifically, they’re pointing to this statute:

 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.

This conflicts with the law I noted in my previous post which says:

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.

The governor of this State may make a temporary appointment of a senator of the United States from this State whenever a vacancy shall occur by reason of any cause other than the expiration of the term; and such appointee shall serve as such senator until a special election or general election shall have been held pursuant to law and the Board of State Canvassers can deliver to his successor a certificate of election.

The first law quoted in this post says that if the vacancy happens within 70 days before the primary election, then the Special Election would occur not at the next General Election, but at the one after it. The second statute says that the election would take place at the next General Election unless the vacancy occurred within 70 days prior to that General Election, in which case it would occur at the following General Election. Both statutes contain similar language regarding the authority of the Governor to set a Special Election on some other day. Under the second statute, absent a special date selected by the Governor, the election would take place this November. Oddly both of the statutes indicate that they were last amended in 2011, although it’s difficult to tell what changes were made. At the very least, it would appear that nobody seemed to notice what appears to be a rather obvious conflict.

New Jersey’s next primary election before a General Election is tomorrow. If the  first quoted statute applies then, obviously, that would mean that the Special Election could not occur in November 2013 and would take place either in November 2014, or on a date selected by the Governor. If the second quoted statute applies, then the election would have to occur in November 2013, or on a date selected by the Governor. Of course, both statutes cannot be right. I’m not an expert in New Jersey Election Law so, I’m not going to hazard a guess as to how this will be resolved, but it seems quite apparent that the scheduling of this Special Election could be left up to the Courts, which means that it may be some time before a date is selected. Of course, one possible solution would be for Governor Christie to select a date for a Special Election, hopefully with the agreement of the legislature’s Democratic leadership. If, however, state Democrats insist on trying to get the Special Election on the November 2013 then it will be up to the Courts to figure this one out.

One other thing, though. New Jersey Legislature, fix this conflict, which you obviously missed when you amended the law in 2011.

FILED UNDER: Law and the Courts, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. Jeremy says:

    Wait wait wait. You say this:

    The first law quoted in this post says that if the vacancy happens within 70 days before the primary election, then the Special Election would occur not at the next General Election, but at the one after it.

    Wouldn’t this mean that the special election to fill the seat could only be held in November 2020? Because it’s not happening at the next General Election, but the one after that General Election, if I’ve read you correctly. I hope I haven’t.

  2. No, it would mean that it would happen at the next General Election after November 2013, that General Election will take place in November 2014

  3. Dave Schuler says:

    Remember: according to the New Jersey state constitution a general election takes place every November:

    General elections shall be held annually on the first Tuesday after the first Monday in November; but the time of holding such elections may be altered by law.

  4. @Dave Schuler:

    Right, but given the conflict in the two statutes it seems unclear whether a Special Election would happen in November 2013 or November 2014

  5. Caj says:

    No problem. Leave it to Darrell Issa. He’ll hold another investigation to make sure that things go in Chris Christie’s favour of getting a Republican!

  6. Dave Schuler says:

    @Doug Mataconis:

    I was more responding to the 2020 suggestion above. I had guessed that general elections were being confused.

  7. @Dave Schuler:

    Ah okay. Yea I think that may have just been the commenter misinterpreting what I was saying

  8. steveegg says:

    Given there is a statute (19:27-10.1) that deals with long-term vacancies in the House that happen between 70 days before the primary and 70 days before the general (no special primary as candidates are chosen by the parties’ leaderships, special general election held with the general that year), I’d have to say the 70 days before the primary statute is the controlling one regarding the timing of the election. Strangely, there is no 19:27-10, which I presume had dealt with the same situation on the US Senate side.

    That said, there is still barely time for Christie to get a special election on the same day as the general this year. The law requires a minimum of 134 days, and a maximum of 146 days, from proclamation to general election, though that would put the primary on Labor Day. More likely, he would chose Tuesday, 8/27 as the primary, which would make the proclamation date sometime between 6/12 and 6/18.

  9. steveegg says:

    As for the changes, they’re timing changes. 19:27-6 (the “before the primary” statute) changed from 65 days prior to the primary to 70, and 19:3-26 (the “before the general” statute) changed from 30 days prior to the general to 70.

  10. I’m sure the New Jersey courts will follow the current precedent of letting the Democrat candidate decide which date he prefers and then making up a bunch of BS why that’s the proper interpretation of the law.

  11. steveegg says:

    @Stormy Dragon:

    It’s all dependent on the party from which Christie chooses the interim Senator. If that person is a Democrat, they’ll want the election next year to avoid having that seat up with Christie at the top of the ticket. If that person is a Republican, they’ll want it this year to have the chance to get the seat back ASAP.

  12. David Wainwright says:

    The first statute, NJSA 19:27-6, which implies that the special election should be held in 2014, was modified in 1952, 1981, 1985, and 2011. The second statute, NJSA 19:3-26, which implies that the special election should be held in 2013, was modified in 2011. Attached are the chapter laws showing the modifications.

    Although the language discussing the number of days before an election has been modified several times, the inherent conflict between the two statutes predates 1981. Furthermore, both statutes were modified at the same time in the 2011 bill, so neither is more recent than the other.

    I expect that this case will go to the New Jersey Supreme Court, and I suspect that they may go for the 2013 election. The NJ Supreme Court has long taken a expansive interpretation of election laws, and there are a number of cases where they have stated that the rights of the voters trumps the strict construction of the election laws.

    http://law.njstatelib.org/law_files/njlh/lh1981/L1981c429.pdf
    http://law.njstatelib.org/law_files/njlh/lh1985/L1985c92.pdf
    http://www.njleg.state.nj.us/2010/Bills/AL11/37_.PDF

  13. Jeff says:

    I agree with David Wainwright. If the two statutes are in conflict, the preferred interpretation should be the one that gives the choice to the voters sooner rather than later.

  14. James Joyner says:

    The solution is obvious: appoint Robert Torricelli.

  15. Ed Seaver says:

    @David Wainwright: 19:3-26 seems to deal with situations where the candidate was not validly elected, or is removed from office for cause. All of the vacancies defined in the previous section, 19:3-25 captioned as “what constitutes vacancy” go to removal from office for cause, or because they were never qualified for office in the first place. None of the descriptions or definition of vacancy there speak to a valid, sworn in candidate who subsequently dies during their term of office.