The Attorney General's Office is preparing to argue before the U.S. Court of Appeals for the Third Circuit that a state Supreme Court ruling earlier this year has left election officials with contradictory court opinions that need to be reconciled or leave future elections open to litigation between candidates.
The push to resolve the legal standing of a state statute requiring legislative candidates to live in their district for a minimum time before their election -- one year for Assembly, two years for Senate -- follows the high-profile legal battle earlier this year to unseat Assemblywoman Gabriela Mosquera (D., Gloucester).
Despite a 2002 federal court opinion that New Jersey's residency rule was unconstitutional, Republicans ultimately convinced the state Supreme Court that Mosquera had violated state law when she ran for office less than a year after moving into the district. Mosquera is running in a special election Nov. 6 to determine who finishes her term.
The Attorney General's Office declined to comment on the current case, as did the New Jersey Republican Party, citing the pending litigation.
Democrats and their allies oppose the attorney general's decision to appeal, arguing that reinstituting the residency requirement would result in many being barred from running for the office in redistricting years, when legislative districts are redrawn to adjust for population shifts.
"I don't understand the whole thing," said Adam Gordon, the lawyer representing the state Democratic Party and aligned political groups in the case. "What do you want the rule to be? That someone can use the process of gerrymandering to move someone to another district. It's crazy."
The original lawsuit was filed in 2001 by former Passaic County Republican State Sen. Norman Robertson, who argued that his civil rights were violated when his residence was placed in a Democratic-held district.
U.S. District Judge Dickinson R. Debevoise agreed with him, ruled the residency statute unconstitutional, and ordered New Jersey officials not to enforce it -- despite their arguments that it was necessary to protect against carpetbagging.
The ruling remained in effect until last summer when the Attorney General's Office asked Debevoise to reconsider it in light of the Supreme Court ruling. He declined, but he did adjust his order to apply only to redistricting years, which occur once every 10 years.
That leaves the contradiction between the federal order and the Supreme Court ruling. In such cases, it is up to the state to try to resolve the differences, said Kermit Roosevelt, a constitutional-law professor at the University of Pennsylvania.
"If the federal courts say you cannot enforce the rule, you must follow it," he said. "The state's choices are to try and reconcile or follow the federal order."
New Jersey's candidate residency requirements, though not unique, have been frequent targets of lawsuits, most famously last year when Republicans successfully sued to keep former track star and Olympian Carl Lewis from running for state Senate in Burlington County over questions about how long he had lived in the state.
For now, political strategists in both parties are left to wait and see what happens when the attorney general's case goes before the Third Circuit court; arguments are expected to begin in the spring.
Should the appellate court overturn the 2002 ruling, Democrats predict more gamesmanship in the already politically charged redistricting process.
But that is unlikely, said Patrick Murrary, a political science professor at Monmouth University.
He explained that redistricting is carried out by a committee with equal representation by Democrats and Republicans with a nonpartisan official -- last year it was Rutgers public policy professor Alan Rosenthal -- brought in as a tie-breaker.
"Very few [incumbents] tend to get redistricted out," Murray said. "Though it has caused a problem for a few."
(c)2012 The Philadelphia Inquirer
