Appellate Division Rejects Challenge to Special Senatorial Election Process

Having agreed to review on an emergent basis an attack on Governor Christie’s decision to schedule a special primary in August and a general election in October to fill the United States Senate seat that had been held by Senator Lautenberg, the Appellate Division has rejected that challenge.  In a lengthy Order issued by Judges Grall, Koblitz, and Accurso, the Appellate Division determined that the statutory scheme calls for an election at the first or second scheduled general election, “unless the governor of this State shall deem it advisable to call a special election.”  This broad legislative delegation to the Governor means that Governor Christie’s writ of election “is reviewable only for constitutional and statutory violation.”  The panel declined to consider policy arguments such as the cost of the special election(s) and “the potential administrative practicalities of conducting a special election so close in time to a scheduled election.”

Though plaintiffs asserted that there was some potential conflict in the governing statutes, N.J.S.A. 19:3-26 and 19:27-6, the Appellate Division concluded that the Governor’s view of those statutes harmonized them and gave effect to each.  The Governor’s position also maximized voter participation, a principle in the interpretation of election laws, since plaintiffs’ view would have resulted in an appointed Senator for a longer period of time rather than a Senator elected sooner by the voters. 

The argument on the key issue of interpretation of the statutory language raised by plaintiffs came down to the meaning of a comma in one of the statutes at issue, thus again showing the importance of grammar and punctuation in statutory interpretation.  Citing prior cases, the panel agreed with Governor Christie about the effect of the comma.

Plaintiffs also argued that holding the special general election so close in time to the scheduled November election would “lead to voter confusion and generally burden the exercise of the right to vote, especially for voters on military duty and those with disabilities.”  The panel found those arguments lacked sufficient merit even to warrant discussion.  On a related issue, the alleged difficulty, or even impossibility, of reprogramming, retesting, and redeploying voting machines for the November election so soon after the October special Senatorial election, neither side submitted certifications.  Thus, the panel stated that while the issue “may be a significant one, invalidation of the writ on this ground is unwarranted.”  The Governor’s “policy decision and assessment of the feasibility of accomplishing it is not reviewable.”

It seems unlikely that the Supreme Court would overturn this ruling.  Wise or not as a matter of public policy or political considerations, the special primary election in August and the special general election in October appear likely to go forward.




2 Responses to “Appellate Division Rejects Challenge to Special Senatorial Election Process”

  1. […] States Senate seat held by Senator Lautenberg before his death.  The Appellate Division had ruled against plaintiffs.  The briefs of the challengers and the amici curiae are due at 10 A.M. […]

  2. David Wainwright says:

    Bruce, I expect that there is a very good chance that the NJ Supreme Court will reverse this decision. The appellate decision is very flawed in that it rejected both the plain-language and intent of NJSA 19:3-26. From the beginning, this dispute has been about two statutes in conflict. NJSA 19:3-26 calls for replacement of the senator at general election unless there is less than 70 days until the next general election in which case the governor may appoint a senator until the subsequent election or may call a special election. NJSA has similiar provisions except that the trigger for gubernatorial action is less than 70 days until the next primary election.

    I am uncertain which statute should take precedence since they have both existed since 1920, and both were last modified simultaneously in 2011. Over the last century, the number of days cited has been modified multiple times, but the remaining verbiage has remained the
    same. However, the appellate court ruled that both statutes supported the decision to call a special election, and more or less stated that the governor can call a special election in any circumstance. This interpretation is not supported by the language of the statutes, and allots extraordinary power to the governor with no evidence of the legislature’s intent to do so.

    Regardless of which statute the state supreme court believes takes precedence in this circumstance, I serious doubt that allow the appellate decision as it is currently written. The current decision us far too broad, and is based on faulty statutory interpretation. Furthermore, the appellants are presenting to the supreme court newly-found legislative history from a century ago that indicates the legislature’s desire to restrict special elections.

  3. Bruce Greenberg says:

    We should know the answer soon. Briefing in the Supreme Court was completed yesterday.

  4. […] is not the first recent case where a comma played a key role.  Nor, doubtless, will it be the […]

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