Tuesday, March 16, 2010

Appellate Court Rules Tea Party Recall of Menendez Can Proceed

Sen. Bob Menendez (D-NJ) will get an opportunity to appeal the decision before it is implemented, but the New Jersey Appellate Division found that a group of Tea Party organizations can go forward with a recall petition and the Secretary of State must accept it.

A copy of the ruling is here.  The key issue is that New Jersey law and the state constitution permit a recall, but the Secretary of State says that the provisions are unconstitutional pursuant to federal law - that the federal law supersedes.
The New Jersey Constitution, art. I, ¶ 2b, and its
implementing statute, the Uniform Recall Election Law, permit such a petition, but the Secretary of State declined to accept the filing because "the qualifications and election of a Member of the United States Senate is a matter of exclusive
jurisdiction of federal authority and . . . neither the United States Constitution nor federal statute provide for a recall proceeding for a federally-elected official." Plaintiff argues that the Secretary of State erred in refusing to file the notice of intention because the notice met the State's statutory requirements and the Secretary of State had "no authority to unilaterally determine which provisions of the New Jersey Constitution are valid."
The Secretary of State is being put in a most curious position of claiming that the State Constitution is itself unconstitutional as to the US Constitution, while the Tea Party plaintiffs argue that the Secretary of State impermissibly denied the recall petition pursuant to state law and the Secretary was required to accept the petition.

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