Deputy Attorney General sidesteps constitutional question in NJ-7 ballot dispute

An appellate court fight over whether Libertarian Lana Leguía can remain on the general election ballot in New Jersey’s hugely competitive 7th district congressional race has produced an unusual position from the state attorney general’s office:  Secretary of State Dale Caldwell was justified in refusing to enforce a residency requirement for petition circulators, but his own attorney won’t say whether the law is unconstitutional.

A filing today by Deputy Attorney General Steven Gleeson does not directly contradict an earlier view by Deputy Attorney General Gordon Estes, but it avoids the constitutional conclusion underlying the state’s case.  Estes said the Department of State, in consultation with the attorney general’s office, stopped enforcing the state residency requirement for circulators of nominating petitions.

Leguía’s attorney, Joseph Fortunato, went further, saying the attorney general specifically advised Caldwell that enforcing the law against Leguía would violate the First Amendment and Equal Protection Clause.

But when the Appellate Division asked the attorney general to address the issue directly, Gleeson declined.

He said Caldwell, who also serves as lieutenant governor, did not declare the state law that says only New Jersey residents can circulate petitions, but instead made a reasonable decision to implement a 2021 Third Circuit U.S. Court of Appeals decision that the state law infringed upon out-of-state circulators’ First Amendment rights in a primary election.

Gleeson said the constitutionality of the law was not before the court.

“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,” he said.

The distinction is at the center of the case: Did Caldwell merely apply an existing federal court ruling to a nearly identical law, or did he make a constitutional ruling that only a court has the power to make?

Leguía submitted 759 signatures to run as an independent candidate in the 7th district.  The Division of Elections accepted 755, well above the 250 required for independent and third-party congressional candidates.

The New Jersey Republican State Committee challenged 670 signatures because three New York residents collected them.  State law requires general election petition circulators to be New Jersey residents.

Without those signatures, Leguía would have only 85 valid signatures and would not qualify for the ballot.

Administrative Law Judge William Courtney sided with Republicans.  He found that an administrative agency could not declare the residency requirement unconstitutional, invalidated the 670 signatures, and ordered Leguía removed from the ballot.

Relying on the 2021 federal court decision, Caldwell reversed Courtney on June 11.

Republicans argue that Caldwell effectively declared the law unconstitutional and then refused to enforce it.

“The Secretary of State improperly determined that the statute governing petition circulator requirements for direct nominating petitions was facially unconstitutional,” GOP attorney Jason Sena said.  “In doing so, the Secretary of State exceeded his authority as the agency head of the Department of State.”

Sena also said the constitutional question had been decided without the attorney general’s participation.

“As far as petitioner is aware, the attorney general was never notified of respondent’s facial constitutional challenge to (the statute), nor did the attorney general participate,” he said.

The Appellate Division temporarily blocked Caldwell’s decision and ordered accelerated briefing because deadlines for preparing general election ballots are approaching.

Judges Jessica Mayer and Robert Vinci did not immediately ask the parties to decide whether the residency law is constitutional.  Instead, they posed a narrower question: Did Caldwell exceed his authority by treating the law as unconstitutional and refusing to enforce it?

Estes, representing Caldwell, responded that the secretary had not declared the law unconstitutional.  He had applied the 2021 case to two statutes containing essentially the same residency requirement.

He also revealed that the attorney general’s office had been involved in the Department of State’s decision to stop enforcing the requirement.

“The Department of State — in consultation with the Office of the Attorney General — has implemented Arsenault by discontinuing the residency requirement for nomination petitions submitted under both N.J.S.A. 19:13-7 and under 19:23-11,” Estes wrote.

According to Estes, the Department has followed that policy for five years. During that period, election officials have told independent candidates they may use out-of-state circulators and have accepted otherwise valid petitions collected by nonresidents.

Estes acknowledged Caldwell’s “decision not to enforce N.J.S.A. 19:13-7,” but denied that Caldwell had declared the law facially unconstitutional.

He argues that the legislature enacted nearly identical residency requirements for primary and general election petitions.  Once a federal court struck down the primary election requirement, continuing to enforce the general election requirement would create a “lopsided scheme” that placed a greater burden on independent and third-party candidates than on major-party candidates.

Fortunato offered a different and more expansive defense of Caldwell.

Rather than avoiding the constitutional issue, he said the Attorney General had advised Caldwell that enforcing the law against Leguía would violate her constitutional rights.

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

Fortunato said the Attorney General has the statutory authority to interpret laws and provide constitutional advice to state officials.  Those officials may follow the advice, he argued, as long as their decisions remain subject to review by the courts.

“The narrow question is not whether the attorney general may bind the courts or finally invalidate legislation. He may not,” Fortunato wrote. “The question is whether the Attorney General — the officer whom the Legislature designated as the State’s sole legal adviser — may interpret a statute, advise the Secretary of State that a proposed application would violate the Federal or State Constitution, and permit the Secretary to act on that advice subject to prompt judicial review.  New Jersey law answers yes.”

Fortunato relied on the New Jersey Supreme Court’s 2010 decision in Committee to Recall Robert Menendez v. Wells.  In that case, the Secretary of State followed the Attorney General’s advice that New Jersey’s recall provisions could not constitutionally be enforced against a United States senator.

The Supreme Court said the secretary had “properly sought counsel from the State’s chief legal advisor.” The court then made the final decision on the constitutional question.

Fortunato said the same process occurred in Leguía’s case.

“That is what occurred here,” Fortunato said. “The Attorney General did not repeal (the statute), enter a declaratory judgment, or purport to bind this court.  The attorney general gave legal advice; the Secretary issued a reviewable final agency decision; and the Judiciary now retains the final word.”

He said Republicans were treating two different government actions as if they were the same.

“A judicial declaration finally resolves the parties’ legal rights and binds the Executive,” he said. “An attorney general’s opinion guides executive conduct unless and until a court rules otherwise.”

The three state-aligned filings therefore reach the same desired result through different routes.

Estes says Caldwell did not declare the law unconstitutional; he applied (the federal ruling) to a nearly identical statute.  Fortunato says Caldwell was entitled to follow the Attorney General’s constitutional advice.  Gleeson says Caldwell reasonably applied Arsenault, but declines to confirm Fortunato’s account or say whether the law itself is unconstitutional.

Fortunato urged the court to dissolve its stay and return Leguía to the ballot.

“If upon review, the Court reverses the secretary of state’s decision, the election can be invalidated,” he wrote.  “Ms. Leguía is the one with irreparable harm if she is not permitted to appear on the ballot, not the Republican candidate.”

The ruling will determine whether Leguía joins Democrat Rebecca Bennett, Republican Rep. Tom Kean Jr. (R-Westfield) and independent candidate Seamus Patrick O’Toole in the 7th district contest.