Appellate Court removes Libertarian candidate from NJ-7 ballot after deputy attorney general declines to back constitutional claim

A two-judge state appellate court panel has removed Libertarian Lana Leguía from the general election ballot in the state’s highly competitive 7th district congressional race, ruling that Secretary of State Dale Caldwell exceeded his authority when he refused to enforce a state residency requirement for circulators of nominating petitions.

The decision appeared to turn largely on a filing by Deputy Attorney General Steven Gleeson, who declined to confirm that Caldwell had received and relied on the attorney general’s constitutional advice before refusing to enforce the residency requirement.

Judges Jessica Mayer and Robert Vinci vacated Caldwell’s June 11 decision accepting Leguía’s petitions and directed him to uphold a challenge brought by the New Jersey Republican State Committee.

The decision could have consequences in a race expected to be decided by a narrow margin. Gleeson’s refusal to confirm that Caldwell relied on constitutional advice proved damaging to the state’s position, while Jason Sena, the Republican State Committee’s attorney, prevailed on the narrow issue he urged the court to decide.

The court continued its temporary stay until 4 PM on August 4, giving Leguía an opportunity to seek emergency relief from the New Jersey Supreme Court.  If she files an emergent application, the stay will remain in place until the state’s highest court acts.

Leguía submitted 759 signatures to run in the 7th district, with the Division of Elections accepting 755.  But three New York residents collected 670 of those signatures, even though state law requires circulators of general election nominating petitions to be New Jersey residents.

Without those signatures, Leguía has only 85 valid signatures, far short of the 250 needed to qualify for the ballot.

Administrative Law Judge William Courtney initially sided with Republicans, invalidating the 670 signatures and ordering Leguía removed.  Caldwell reversed Courtney after concluding that a 2021 federal court ruling striking down a nearly identical residency requirement for primary election petitions should also apply to independent and third-party candidates.

Republicans argued that Caldwell had effectively declared the general election statute unconstitutional, a decision they said only a court could make.

The Appellate Division agreed that Caldwell could not unilaterally refuse to enforce the law. The judges said statutes are presumed constitutional and that a state official questioning a law’s constitutionality should seek guidance from the attorney general.

But the court found no evidence that Caldwell received or relied upon that advice.

“There is nothing in the Secretary’s June 11 final decision to indicate he relied on any advice from the AG in reaching his determination regarding the validity of Leguía’s nominating petition,” Mayer and Vinci found. “Neither the Secretary nor the AG assert the Secretary received and relied on legal advice in their briefs before us.”

That finding undercut separate arguments advanced by Caldwell’s office and Leguía’s attorney, Joseph Fortunato.

Deputy Attorney General Gordon Estes, representing Caldwell, told the court that the Department of State had stopped enforcing residency requirements for primary and general election petitions “in consultation with the Office of the Attorney General.”

Fortunato went further, saying the attorney general specifically advised Caldwell that applying the residency requirement against Leguía would violate the First Amendment and Equal Protection Clause.

“The Attorney General advised that application of (the statute) against Respondent would violate federal constitutional First Amendment and Equal Protection protections,” Fortunato said.

But Gleeson, responding on behalf of the attorney general after the appellate court invited the office to participate, did not confirm Fortunato’s account that Caldwell had received and relied on constitutional advice.

Instead, Gleeson said Caldwell reasonably applied the 2021 federal ruling, known as Arsenault v. Way, to place major-party and third-party candidates on equal footing.  He then expressly declined to state whether the general election residency requirement was unconstitutional.

“And since the constitutionality … is not at issue, the Attorney General respectfully declines to opine on the constitutionality of that statute or intervene in this matter,” Gleeson said.

The appellate judges cited that refusal directly.

“In fact, the AG expressly declined to opine that (the statute) is unconstitutional,” they said.

The court did not decide whether the residency requirement violates the Constitution.  Instead, it answered the narrower question it had posed to the parties: whether Caldwell had the authority to disregard an existing statute without evidence that he acted on the attorney general’s advice.

The ruling leaves open the possibility of a separate constitutional challenge by Leguía, although election deadlines are rapidly approaching.

Unless the Supreme Court intervenes, the 7th district ballot will include Democratic nominee Rebecca Bennett, Republican Rep. Tom Kean Jr. (R-Westfield), and independent candidate Seamus Patrick O’Toole.