Review of case briefs, case law research, and consultation with a number of attorneys, judges, and legal professionals contributed to the writing of this article.

Tea Party activists might be smarter than some would like to think.  And depending upon the outcome of a court case later this month, they might also play a role in setting legal precedent.

When New Jersey state election officials denied their submission to initiate a recall effort against U.S. Senator Robert Menendez, calling it unconstitutional, a grass-roots recall committee’s constitutional instincts kicked into full gear.  Attorneys for the committee, themselves Tea Party activists, filed to appeal the agency decision and began writing their supporting brief.

Meanwhile, seemingly everyone was now weighing in as a legal expert.  Some insist the decision is simple:  NJ has no constitutional authority to recall a US Senator; despite what its state constitution says, that authority is reserved for the federal government alone.  For weeks now, legal scholars, political pundits and the media have been chattering online about the case, now before the Appellate Division in the Superior Court of New Jersey, some treating it more like a sideshow and an outlet to take pot shots at Tea Partiers than a legitimate court proceeding with real constitutional significance.

But Dan Silberstein and Richard Luzzi, attorneys for the Committee to Recall Robert Menendez, a committee initiated by members of the Sussex County Tea Party, see this case in an entirely different light.  They insist this case is not about whether a recall order from the state is judicially enforceable against a United States Senator, rather, it’s all about protecting the first amendment right to free speech. And they are taking the matter very seriously.  Based upon recent developments in the case, apparently so are several others, including some high profile legal experts and the courts.

In a two-part order just issued Thursday, February 4^th, Judge Edwin Stern granted the committee’s motion to accelerate their appeal and scheduled oral argument for 10:00am on Friday, February 26^th in a Mercer County, NJ courtroom.  In addition, the American Civil Rights Union (ACRU), has taken interest in the case and had filed an emergent application requesting approval to participate in the appeal as amicus curiae (friend of the court), given the broader constitutional implications of the case. In the same order, Judge Stern also granted the ACRU’s emergent application and approved the organization’s participation in the appeal.

NOTE:  For a complete history of this case leading up to the appeal, including the constitutionality issue between the NJ state versus federal constitutions, please refer to my prior article on the topic, entitled “Is New Jersey’s State Constitution Unconstitutional? Campaign to Recall Senator Menendez Turns Into Battle of the Constitutions.”

The Constitutional Question

When the parties present their oral arguments on February 26^th, much of the case may come down to how it is framed.  Attorneys for both Senator Menendez and for NJ state election officials have focused their briefs solidly on one key constitutional point:

“As the US Constitution reserves to the United States Senate the power to expel and determine the qualifications of its own members, New Jersey has no authority to recall a US Senator.”

While this is a premise that has agreement among legal scholars, it is also largely debated – because it has never actually been definitively ruled in a court of law.  Many loosely related rulings or references to debate at the Constitutional Convention are often cited, though, as the NJ State Attorney General herself concedes, “there are no federal decisions squarely on point.”   Most importantly, NJ actually changed its state Constitution in to specifically permit the recall of a US Senator after a ballot vote in 1993. In the absence of any definitive ruling that renders the state’s recall law unconstitutional, other legal experts maintain that the Committee may very well have a legitimate case to plead.

The Committee’s attorneys argue that the constitutional issue raised by the state and Menendez attorneys is not ripe anyway.  Since the recall notice was denied before the petition could circulate, before it could be certified that the petition met the minimum number of signatures required, before a recall election could be conducted, and before an election result could even be certified, no one has even made any demand yet that a recall order be issued against Senator Menendez.

They contend that the State is focused on the wrong issue:

“The State, asserting only that it has no power to issue a judicially enforceable order to recall a U.S. Senator, argues the Committee has failed to demonstrate a likelihood of success on the merits. However, the State focuses on the wrong issue.

This issue before this Court concerns the State’s content-based restriction on the Committee’s right to freely exercise core political speech, not the dispute over whether a recall order issued by the Secretary of State is judicially enforceable as against Senator Menendez or the United States Senate.

The Committee has clearly shown a likelihood of its ultimate success on the sole ripe Constitutional issue before the Court, i.e., the right to freely engage in core political speech.”

So, while the attorneys for the state and for Senator Menendez are primarily focused on the Constitutional question of who has the right to recall a US Senator, attorneys for the committee are focused on the constitutional question of First Amendment rights.

Not only do they maintain that denying the committee the right to petition for signatures violates their first amendment rights, but that doing so based upon the premise that the end result of a recall effort might not be enforceable amounts to a content-based restriction on free speech. In other words, the fact that the recall target is a US Senator should be treated no differently than that against a state Senator – the state cannot deny the petition based upon who is targeted or what it thinks the outcome might be  . Whether it conflicts with the US Constitution or not, NJ’s state Constitution specifically permits the recall of a US Senator; that language was added to the state constitution and the NJ Uniform Recall Election Law enacted in 1995.  And no decisive court ruling has ever been made otherwise to definitively declare NJ’s recall provisions unconstitutional.  Unless and until that is challenged and decided, officials in NJ have a duty to abide by the state Constitution.

Attorneys for Menendez maintain that “While the citizens of New Jersey are unquestionably free to assemble, speak their minds, and petition their government, they are not entitled to state action certifying those activities in violation of the US Constitution.”

The Committee’s attorneys take issue with this.  At the heart of the recall committee’s appeal is this question:

“Can the State, after amending its Constitution and passing legislation to guarantee its citizens access to a formal, State-endorsed mechanism to foster collective “core political speech”, deny its citizens access to that mechanism because of the content of their political message?”

“The answer is no. Neither the State nor Federal Constitutions prohibit the citizens of New Jersey from adopting a formal, State-endorsed mechanism to foster collective “core political speech”. To the contrary, both Constitutions prohibit the State and Federal Governments from enforcing content-based restrictions on access to those mechanisms once put in place.

New Jersey citizens have the constitutionally guaranteed right to select the subject matter of an election. Just as they are free to speak on any political matter, and to assemble for any political matter, and petition on any political matter, the citizens of New Jersey have the right to roll out the voting apparatus of the State to vote upon any political matter they choose, irrespective of whether the vote results in a legally enforceable certification. The election apparatus is the property of the People of New Jersey, and nobody (including Senator Menendez, the United States Senate, or the State or Federal governments) may restrict access to that apparatus based upon the content of the message.

Regardless of whether it would be judicially enforceable against the United States Senate or Senator Menendez, certification of a successful recall election, and all efforts to obtain it, remain “core political speech” and are entitled to the Court’s most strident protection.”

Many, including Menendez attorneys, will argue that the courts have a duty to uphold the NJ Secretary of State’s decision to deny the recall notice of intention in its entirety.  They maintain that deferring the constitutional issues until a successful recall order is achieved and then challenged in court would “inflict uncertainty on the parties and the public”, suggesting a judge is compelled to ban the effort sooner rather than later.  Menendez attorneys rely pointedly on the following reasoning in their brief,

“The US Constitution reserves to the US Senate the exclusive power to expel, seat, and determine the qualifications of its own members. Accordingly, NJ has no authority to recall a US Senator despite the provisions of constitution and statutes.”

Attorneys for the Committee reiterate in their brief that the question before the court is not that of recall authority.  That issue is not ripe.  But if the issue must be argued, they would contend that a court has yet to rule on this issue in NJ.  Where the vehicle of federal recall is concerned, there is more than one school of thought in the legal community on this one.

Constitutional History of the Recall

Even at the federal level, the issue of recall is not necessarily as black and white as some would insist.  When citing the power to recall, legal professionals typically refer to Article 1, Section 5 of the US Constitution.  That exact wording is as follows:

“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.”

While it is generally agreed that recall authority is the jurisdiction of the Congress by way of the language “expel a member”, the reality is that the language regarding recall specifically is not actually mentioned anywhere in the US Constitution.  To this day, many believe it should have been.  Prior to the ratification of the US Constitution, federal officials were in fact subject to recall by their states under the Article V of the Articles of Confederation.

During the Ratifying Convention in New York, the power of the states to recall was a hotly debated issue over the course of several days.  Some wanted states to retain the power of recall in the new Constitution and expand it to Senators, others feared that such power would tie senators too strongly to their states’ interests and away from serving the interests of the union. In the end, it was left out of the Constitution altogether as a compromise to gaining consensus from all the states. This is perhaps why the power to recall is neither specifically granted nor prohibited in writing.  This became a driving issue for some founders, like Thomas Jefferson, who as an anti-federalist believed in states’ rights and wanted to see more of Congress’ own powers specifically limited in writing, such as the recall of US Senators.

(In 1913, the 17^th Amendment of course then transferred the power to elect US Senators from the state legislatures to the people of the states.  While this was intended to put Senators closer to their constituents, it probably only disconnected them even more.)

For decades, legal researchers engaged in the debate on who has the power to recall have relied on the interpretation of Article I, Sections 2 though 5 and on assumptions about the intent of the framers; some reliance is also placed on case law, which is sparse on this subject.  To that end, there is no definitive ruling on a case out there that directly addresses the question.  References are often made in part to cases like US Term Limits, Inc. v. Thornton, which might apply only indirectly; all are silent on the specific issue of the state’s power to recall a US Senator.

While the Committee to Recall Menendez and their attorneys recognized from the start that the Constitutional question of recall jurisdiction could be a potential hurdle, their argument today is resolutely focused on their First Amendment right to free speech.

It’s precisely the type of argument that caught the attention of the American Civil Rights Union, which recently joined the appeal as a friend of the court to represent the public’s interest. Peter Ferrara, General Counsel for the ACRU, recently sought approval to participate in the appeal as amicus curiae from Silberstein and Luzzi, who were happy to oblige.  Ferrara and his organization recently participated in the Citizens United v. FEC case that was favorably decided by the Supreme Court. The addition of the ACRU as a supporter to the appeal lends additional credibility to the cause of protecting first amendment rights.

The ACRU was founded in 1998 by Robert B. Carleson, long time policy advisor to President Reagan, as a non-partisan, non-profit 501(C)(3), legal/educational policy organization dedicated to defending constitutional rights. Its policy board includes former US Attorney General Edwin Meese III; Pepperdine Law School Dean, Kenneth Starr; former Assistant Attorney General for Civil Rights, William Bradford Reynolds; and Judge Robert H. Bork, among many others.  Its experts are established professionals in their legal field.  In addition to the public interest in this matter regarding the functioning of our democracy and the constitutional rights of the citizens of NJ, the ACRU also maintains that the recall of US Senators is a matter of broad, national public interest across the entire country. It plans to file a brief addressing the right of recall in NJ under the law of the state of NJ, the Constitution of NJ, and the US Constitution.

Consider what the committee’s appeal is requesting.  It does not ask a court to enforce a recall order against a US Senator. It does not demand a recall election.  The Committee is merely seeking an order directing the Secretary to apply her stamp to its Notice of Intent to Recall, marking it “Approved” as per the NJ’s law.  The burden of gathering the signatures of 25% of the registered voters across the State rests solely upon the Committee.  If it’s unsuccessful in doing so, the issue ends there.

The petition is one preliminary step in the overall recall process. To deny the Committee its right to free speech, the powers that be should be unquestionably sure that precedent supports such an action.  The Constitution of NJ may very well be unconstitutional.  But no court has ever ruled that the recall provisions added to the NJ state Constitution are unconstitutional under the federal Constitution.  Nor has any court ever squarely ruled that it is unconstitutional for a state to recall a federal official.  Until these issues actually make their way to a competent court for a definitive ruling one way or the other, they will continue to be disputed, unsettled federal Constitutional issues that muddy up the democratic electoral process.

Ironically, it was the Progressives who artfully perfected the use of recall at the local and state levels in the early 1900’s, but never moved into federal recalls.  Who knows?  Perhaps it will be the Tea Party movement that will finally bring a restless constitutional issue to rest.

American Civil Rights Union’s “Recall Congress” project and the provisions for recall in NJ and eight other states, visit www.recallcongressnow.org.
Also read “The Right to Recall the Rascals“, John Armour; “We Really CAN Throw the Bums Out“, Peter Ferrara.

Organizations working with the recall committee in NJ, visit the Sussex County Tea Party, NJ Recall Now or New Jersey Tea Parties United.

View press release and download briefs for the case, Committee to Recall Robert Menendez v. Nina Wells, Secretary of State, et al., Docket A-2254-09T1

A committee seeking approval from the state to petition registered voters on whether to move forward with a special election to recall US Senator Robert Menendez was denied that request, in a letter on January 11^th which stated that the US Constitution does not provide for such a proceeding.

But in 1993, the people of New Jersey overwhelmingly voted to reserve for themselves “the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress” (emphasis added), and in 1995 made this amendment to their state constitution under Article I, 2b.

This has left many New Jersey voters wondering why Secretary of State Nina Mitchell Wells, a member of the Executive Branch, not the Judicial Branch, would take it upon herself and her position to declare the NJ state Constitution unconstitutional.  After reviewing the committee’s preliminary appeal statement, a judge in the Superior Court of NJ Appellate Division has just issued an order allowing a motion to accelerate the appeal.

Appointed to her post in January 2006 by outgoing Democratic Governor Jon Corzine, Wells was a key democratic fundraiser and close friend to Corzine.  She has been called one of the Garden State’s 101 most influential people, and NJ Monthly profiled her and high-profile attorney husband Ted Wells in its Power Issue.  Daughter Teresa worked on Senator John Edwards’ presidential campaign and as Corzine’s traveling press secretary, prior to accepting a position at the Rockefeller Foundation as chief media strategist. In her capacity as Secretary of State, Ms. Wells is perhaps best known for the Obama birth certificate case, Donofrio v. Wells.  But Wells has faced more plausible scrutiny, such as fallout after a Princeton University professor’s successful hacking attempts on NJ voting machines, and a multitude of indictments of Vote-by-Mail voter fraud, including forgery of messenger ballots, on her watch (see here, here, here, here, and Dem. State Committee lawyer Josephson letter here). In 2008, Wells also overlooked a state law prohibiting candidates from running for President and US Senate in the same election, and improperly certified candidate Jeff Boss for both offices.  (who on an unrelated note runs on a 9/11 truther platform).

On September 25, 2009, a Notice of Intention was filed in the Secretary of State’s office by a recall committee formed by members of the Sussex County Tea Party, a local grass-roots group and member of the statewide coalition, NJ Tea Parties United. The group seeks to initiate a special election in NJ to recall Senator Robert Menendez.  In accordance with NJ election law, the first steps in that process are for the interested parties to form a committee to sponsor a recall petition, and file a Notice of Intent with the Secretary of State’s office.  The Secretary of State is then required to determine whether the submitted notice and proposed petition conform to the statute’s requirements and either approve or deny the notice within three days. If denied, the reasons must be stated and the committee permitted to amend and resubmit the filing.  Once approved, the committee then circulates the petition amongst registered voters in the state, collecting the signatures of those in support of calling for a recall election.  Only if and when the committee collects the necessary number of signatures – 25% of the total registered voters in the general election that preceded the filing of the notice – can a recall election be scheduled.

All else up until and including the recall election itself could be considered political speech, which is entitled to the most strenuous protection against governmental suppression.

Yet, on January 11^th, 2010, by her written response to the recall committee, Secretary of State Nina Wells seemingly violated the Constitutional rights of the Committee, its members, and those who want to sign the petition, when she wrote:

“It has been determined that the qualifications and election of a Member of the United States Senate is a matter of exclusive jurisdiction of federal authority and that neither the United States Constitution nor federal statute provide for a recall proceeding for a federally-elected official.

Therefore, in my capacity as the Chief Election Official of the State of New Jersey, I hereby determine that neither the Notice of Intention to Recall nor the proposed Petition can be accepted for filing or review.”

This statement presents quite a quandary, and a series of interesting questions that I discussed in detail with Dan Silberstein, co-counsel for the recall committee.

Does the Final Determination Violate The Committee’s Constitutional Rights?

Pursuant to the New Jersey Constitution (Article I, 2b) and statute 19:27A-2, it is undeniably clear that the people of NJ do have the power to recall any United States Senator or Representative.

“Pursuant to Article I, paragraph 2b. of the New Jersey Constitution, the people of this State shall have the power to recall, after at least one year of service in the person’s current term of office, any United States Senator or Representative elected from this State or any State or local elected official in the manner provided herein.”

The law further defines “elected official” as

“any person holding the office of United States Senator or member of the United States House of Representatives elected from this State, or any person holding a State or local government office which, under the State Constitution or by law, is filled by the registered voters of a jurisdiction at an election, including a person appointed, selected or otherwise designated to fill a vacancy in such office, but does not mean an official of a political party.”

Not only does New Jersey’s state constitution include the provision, but what’s more interesting is that the language specific to federal officials is actually relatively recent.  In a 1997 recall election case, The Committee to Recall Theresa Casagrande v Casagrande, which challenged the actions of a Borough Clerk, presiding Judge Alexander D. Lehrer happened to reference the very amendment that also encompasses federal officials. That portion of the opinion reads in part:

“On November 2, 1993, the citizens of the State of New Jersey overwhelmingly voted to amend Article I, Paragraph 2 of the New Jersey Constitution to establish the right to recall local, state and federal elected officials.

“The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress. The Legislature shall enact laws to provide for such recall elections. Any such laws shall include a provision that a recall election shall be held upon petition of at least 25% of the registered voters in the electoral district of the official sought to be recalled.”

On May 17, 1995, the Legislature of the State of New Jersey enacted the “Uniform Recall Election Law”, N.J.S.A. 19:27A-1 et seq. implementing this amendment to the Constitution. See: N.J.S.A. 19:27A-2.”  Read the remainder here.

The recall committee had not yet even begun collecting petition signatures before the Secretary of State sent its “final determination”. As the supporting documentation for the committee’s appeal points out:

“The U.S. Constitution clearly does not prevent the formation of a Recall Committee.  It does not prevent the collection of signatures of those who demand the recall of an elected official.  It does not prevent the citizens from expressing their will, individually or collectively, by demanding that the State roll out its election machines to take a vote on anything it wants to vote on, including a vote on whether Menendez should be recalled.”

By refusing to comply with the NJ State Constitution and the NJ Uniform Recall Election Law, rendering an opinion that these violate the Supremacy Clause of the United States Constitution and declaring them as unconstitutional, have the Secretary of State and the Director of the Division of Elections violated the committee’s rights (and those of the people of NJ)?

Does the NJ Secretary of State even have the power to make such a declaration?

Further, as clearly outlined in detail in 19:27A-7, the duties of the Secretary of State are very limited and merely clerical in nature.

The Secretary of State and Director of Division of Elections are positions within the Executive branch of NJ state government, not the Judicial branch.  As such, they would not have any authority to declare any part of the New Jersey Constitution or any Statute unconstitutional.  Only a judge could make such a determination.

Also, as Mr. Silberstein noted, there is no discretion vested in the Secretary to delay this simple clerical task for “legal review”, nor does the statute ask the Secretary to render an opinion on the Constitutionality of the statute.  This leaves one to wonder why such action was taken and why such an opinion rendered in the first place.

Timeline of Events:

• September 25, 2009: Notice of Intent filed with the office of the Secretary of State and Division of Elections.
• October 5, 2009: Robert F. Giles, Director of the Division of Elections, acknowledged in a letter receipt of Notice stating it was “under legal review.”
• November 10, 2009:  Second Notice is filed, indicating a change in committee chairperson for health reasons. Officials have still failed to respond within three days as is required by NJ law.
• December 2, 2009:  After months without a response, the committee files a legal motion for summary judgment against the New Jersey Division of Elections, asking a judge to order that defendants immediately issue a response to the Committee’s Notice of Intention.
• January 11, 2010:  Secretary of State sends a “final determination” indicating that neither the Notice of Intention to Recall nor the proposed Petition will be accepted for filing or review, declaring the current recall provisions in the NJ state Constitution and the NJ Uniform Recall Election Law to be in violation of the United States Constitution, rather than simply approving the Notices.
• January 13, 2010:  An application to File Appeal on an Emergent Basis is filed with the Superior Court of New Jersey Appellate Division; in Committee to Recall Robert Menendez v. Nina Wells, Secretary of State, et al., the appeal requests reversal of the “final determination” and an order directing the Secretary of State to approve the Notice of Intention to permit the Committee to begin the collections of signatures.
• January 14^, 2010:  the Superior Court of New Jersey Appellate Division issued an order allowing a motion to accelerate the appeal.
• January 15^, 2010:  Notice of Appeal and Case Information Statement filed.
• Currently waiting to be heard by the court

The Recall Committee, The Sussex County Tea Party, and the NJ Tea Parties United all view this recall election campaign as a critical tool in their pursuit to correct what some NJ citizens view as a deterioration of the democratic process on Capitol Hill, and a disconnect between the lawmakers and their constituents back home in NJ.  With no Senatorial mid-term elections confirmed for NJ in 2010, and considering the fundamental significance of the legislation being considered, the group emphasizes the importance of having senators who will support open debate, offer transparency, and cease the abuse of cloture, all things the groups say Senator Robert Menendez has failed to do.  Even if the recall itself is unsuccessful, or should the petition fall short of the required minimum of signatures, they are hoping that by obtaining any large number of signatures on the petition, it will send a clear message to Senator Menendez that he must engage with his constituents, and remind him that he represents all of the voters in NJ and not just special interests.

Regardless of one’s political views, and whether or not one agrees with the use of or the reasons given to support a recall election, the aspects of this particular case are undeniably paramount.  NJ citizens should not be denied constitutional rights.  The US Constitution and NJ Constitution both guarantee the rights of free speech, to petition for redress of grievances, and the right to peacefully assemble.  Is the New Jersey state Constitution actually unconstitutional?  And if so, where are the boundaries in declaring such as a reason for denying, or granting, state citizens certain rights?  Is petitioning fellow citizens not considered political speech?  And why not allow the recall election to move forward anyway, pursuant with the state Constitution?

As Mr. Silberstein and I discussed these very questions, he ended the conversation with a very interesting viewpoint, much of which is included in his and co-counsel Rich Luzzi’s appeal to the court:

Let the petition go forward.  If enough signatures are collected, roll out the voting machines. Let the people vote.  If the majority vote to recall the Senator, their voices should be heard and the Secretary of State should issue the recall order.  If an official thinks it might be unconstitutional for the state to recall a US Senator, so what?  Let the courts determine that, as they should.  If the recall turns out to be unenforceable under the Supremacy Clause, then so be it.  Even without legal effect under the law, the recall order would still have significant value as a political statement, amounting to a non-binding vote of no-confidence.  The people’s voices will still be heard.  And really, isn’t that the most important point?

Follow NJ Recall Now, Sussex County Tea Party, or  NJ Tea Parties United for more on this case.