By Donald Scarinci | June 4th, 2013 - 12:52pm
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While New Jersey mourns the passing of a great statesman who dedicated his life to public service and philanthropy, lawyers and elected officials huddle to figure out what will happen to Frank Lautenberg’s seat in the United States Senate.  An out-of-date law may cause taxpayers to foot the bill for litigation that is most likely to have only one result—a November 2013 election to fill the vacancy.

Unlike vacancies in the U.S. House of Representatives, the United States Constitution delegates the power to the states when filling a vacancy in the U.S. Senate. Under XVII Amendment, “the executive authority of such State shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

States have adopted a number of different procedures for filling vacancies, including gubernatorial appointment and special election. In New Jersey, there are two election statutes that govern how the state must fill Senator Lautenberg’s Senate seat. Both allow for gubernatorial appointment of a temporary successor prior to a general or special election. However, they have conflicting language regarding when the election must be held—November 2013 or November 2014.

Under N.J.S.A.19:3-26, “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.”

Under this statute, Christie would appoint a successor to Lautenberg who would serve for the next 6 months until the next general election--November 2013.  N.J.S.A 19:27-6 addresses the timetable regarding primary elections and the Secretary of State would simply count days and schedule the special primary election so the political parties can select their candidates.

However, a portion of N.J.S.A.19:27-6 puts a wrinkle in the timing of the general election. It states: “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.”

Since the Senator died two days before the primary election instead of one day after the primary election, some lawyers argue that an appointed United States Senator can serve for 18 months instead of 6 months.  These lawyers ignore the nonsensical application of this statute and they ignore the balance of the language in N.J.S.A. 19:27-6 which establishes a workable timeframe for a primary election.  They also ignore legislative construction and gloss over the fact that the vacancy statute, N.J.S.A. 19:3-26, was amended just two years ago to revise the general election window.

Fortunately, the Governor has the power to save New Jersey taxpayers from needless litigation and simply file a writ of election within the next two weeks.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.


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