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.
