The New Jersey Supreme Court has granted Libertarian congressional candidate Lana Leguía permission to file an expedited petition seeking to return to the general election ballot in the state’s highly competitive 7th district.
Leguía was removed from the ballot on July 31 after a two-judge Appellate Division panel ruled that Secretary of State Dale Caldwell exceeded his authority when he declined to enforce a state law requiring circulators of general election nominating petitions to be New Jersey residents.
The Supreme Court has not yet agreed to hear Leguía’s appeal or decided whether she should be restored to the ballot. But Justice Douglas Fasciale granted her permission to file an emergent petition for certification and ordered an accelerated schedule that could produce a decision before ballots are prepared.
Leguía was directed to file her petition by 4 PM Wednesday. The New Jersey Republican State Committee and other parties that participated before the Appellate Division must respond by noon Friday, with Leguía permitted to file a reply by 4 PM. that day.
The court directed the parties to address two questions: whether New Jersey’s residency requirement for petition circulators is constitutional and when a decision must be issued to permit ballots to be prepared and mailed before the November 3 general election.
Leguía’s attorney, Joseph Fortunato, told the court a decision is needed no later than August 31, the statutory deadline for preparation of the official general election ballot for printing. Mail-in ballots are scheduled to begin going out September 19.
Her attorney did not mention the drawing for ballot position is scheduled for August 10.
In her 13-page petition, Leguía argues that the residency restriction violates the First and Fourteenth Amendments by limiting petition circulation, which courts have recognized as core political speech.
“This case will determine whether New Jersey may exclude an otherwise qualified congressional candidate from the general-election ballot because her nominating petitions were circulated by nonresidents,” Fortunato said in the filing.
Leguía submitted 759 signatures to run as the Libertarian candidate, and the Division of Elections accepted 755. But three New York residents collected 670 of them. Without those signatures, Leguía has just 85 valid signatures, far short of the 250 needed to qualify.
The New Jersey Republican State Committee challenged her petitions, citing a state law that requires circulators to be eligible New Jersey voters.
Administrative Law Judge William Courtney initially invalidated the 670 signatures, but Caldwell reversed that decision on June 11. Caldwell concluded 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.
The Appellate Division ruled that Caldwell could not disregard the statute without evidence that he had received and relied upon advice from the attorney general that the law was unconstitutional.
Deputy Attorney General Steven Gleeson, invited by the appellate court to address the issue, declined to say the statute was unconstitutional or confirm that Caldwell had received such 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,” Judges Jessica Mayer and Robert Vinci said.
The panel did not decide whether the residency requirement itself was constitutional.
Leguía is now asking the Supreme Court to answer that question. Her petition relies heavily on Arsenault v. Way, the 2021 federal ruling that invalidated the residency requirement for circulators of major-party primary petitions.
She argues that the state accepted nonresident circulators for five years following Arsenault and that independent and alternative-party candidates reasonably relied on that practice.
Had the state announced before the June 2 filing deadline that it intended to enforce the residency requirement, Fortunato said, Leguía could have recruited New Jersey circulators or gathered replacement signatures. By the time the state’s position changed, the deadline had passed, and compliance was impossible.
“The rule changed only after the petition deadline, when compliance had become impossible,” Leguía’s petition states.
She is asking the Supreme Court to declare the residency requirement unconstitutional as applied to her campaign, reverse the Appellate Division and restore her to the ballot. Alternatively, she wants the case returned for immediate development of the record concerning the state’s post-Arsenault practices and any legal guidance provided by the attorney general.
Unless Leguía prevails, the 7th district ballot will include two-term Republican Rep. Tom Kean Jr. (R-Westfield), Democrat Rebecca Bennett, and independent candidate Seamus Patrick O’Toole.