Thoughts on the Mosquera decision

While the legislature undoubtedly made the biggest news of the day by finally passing marriage equality, the New Jersey Supreme Court handed down an important decision of its own this morning. By a narrow 4-3 margin, the court invalidated Gabriela Mosquera’s election to the State Assembly in the 4th district, because Mosquera did not live in the district for a year before election day as required by the state constitution. Nevertheless, the court ruled that the Democratic committee members will get to pick her replacement. Virtually everyone expects them to name the now-qualified Mosquera to fill the seat her disqualification left open, as she was just two months shy of the one year mark in November.

New Jersey election officials haven’t enforced the residency requirement since a federal court declared it unconstitutional and enjoined its enforcement in the 2001 case Robertson v. Bartels. But the federal injunction stops only state election officials from enforcing the requirement; it does not prevent private individuals, including disgruntled, litigation-minded runners-up, from doing so. So after Shelley Lovett lost at the ballot box by over 5,500 votes, she sued in state court seeking to have the election set aside. The case quickly worked its way up to the Supreme Court, which heard arguments late last month. In the meantime, the seat to which voters elected Mosquera in November has remained vacant.

To summarize, the court held:

  1. New Jersey’s requirement that a legislator seeking election in a legislative district at least one year prior to running there does not violate the Fourteenth Amendment’s Equal Protection Clause, either on its face or as applied to Gabriela Mosquera. While Robertson applied “strict scrutiny” to the residency requirement, the court only applied “intermediate scrutiny,” because the rationale for applying strict scrutiny-protecting the fundamental liberty interest in interstate travel-did not apply to a distinction that classifies state residents based on when they last moved within the state.
  2. This rule applies not only prospectively (to future cases), but also retrospectively, so Mosquera’s election was invalid and must be set aside. The default course of action is to apply a rule announced in a case to the facts of that case. That the state was enjoined from enforcing it on its terms does not change things here, because a federal district court’s reasoning is not binding on state courts, which are free to reach their own conclusions about the meaning of ambiguous constitutional provisions.
  3. Mosquera is nevertheless the “incumbent” whose disqualification caused the vacancy, so her party gets to pick the “replacement” according to the familiar statutory process.

The dissent disagrees with the majority’s equal protection analysis, particularly the way it handled facial challenge to the residency requirement, and also argues that the majority should have paid more heed to the consequences of conflicting decisions of the Federal District court in Robertson v. Bartels and its decision. But it directs its strongest criticism at retroactivity. Because the state had not enforced the residency requirement and had represented to candidates that it no longer applied, the majority’s decision effectively “change[s] the rules after the game has ended.” Applying its new rule to this completed election disenfranchises nearly 20,000 voters and violates an “elementary principle of fairness.”

A lot of things may be said about this decision; for lack of time, I’ll note just two.

First, the court at addressed the problem of two conflicting decisions on the constitutionality of the residency requirement by asking the parties to fix it:

The parties should apply to the federal district court or file a petition for a writ of certiorari to the United States Supreme Court to resolve the lingering principled conflict that exists between our declaration of the constitutionality of Article IV, Section 1, Paragraph 2 of the New Jersey Constitution and the federal injunction, as well as the practical effects of the differing conclusions.

I anticipate that the first chapter of any federal court sequel to this decision will begin with the Attorney General or Secretary of State asking the federal District Court to set aside the Robertson injunction. In other words, I do not think this case is bound for the Supreme Court. Mosquera appears to be the only party that clearly has any chance of getting certiorari (Lovett prevailed on federal equal protection issues and any federal questions the state might raise over the conflicting decisions and the Robertson injunction are better dealt with before the federal district court) the state might raise ). But New Jersey’s seat-filling mechanism moves much faster than the U.S. Supreme Court, so if what matters to Mosquera is getting seated, she need not litigate any further.

Second, the court’s opinion casts a cloud of uncertainty over post-election challenges to candidates in the first cycle after redistricting. Fortunately, the statutory time for challenges has passed. But if it hadn’t, someone like Reed Gusciora, who moved from Princeton to Trenton last summer so he could continue to represent the 15th district, would likely have faced a similar challenge to the one against Mosquera. While the court does suggest that it might be more sympathetic to a future candidate “actually affected by reapportionment,” potential candidates deserve to know more definitively where and when they may and may not run for office.

The legislature needs to clear up this cloud by defining a narrow, pre-election route that all post-redistricting, residency-based challenges to a candidate’s eligibility must follow. Currently, New Jersey law (NJSA 19:29-3) permits losing candidates to bring eligibility challenges up to 30 days after an election is over. If Lovett had to bring her challenge before the election, judicial nullfication of 20,000 votes would have been avoided.

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