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New Jersey Supreme Court Chief Justice Stuart Rabner. (Photo: Twitter).

With five days left to pick congressional redistricting tiebreaker, just three options remain

It’s increasingly looking as though the New Jersey Supreme Court will have to vote for a Democrat or a Republican

By David Wildstein, August 05 2021 1:30 pm

The New Jersey Supreme Court has just five days to decide who will serve as tiebreaker on the Congressional Redistricting Commission that will draw House districts for the next decade.

The panel was unable to agree on a consensus candidate to serve as the independent 13th member of the commission.  Democrats picked John Wallace, a former Supreme Court Justice, and Republicans chose former Superior Court Judge Marina Corodemus.

The State Constitution requires the top court to choose only from the two top vote-getters, something Chief Justice Stuart Rabner had sought to avoid.

Rabner sent a letter to the commission asking that they make another attempt to agree on a candidate.  Democrats added a second candidate to their list – former Chief Justice Deborah Poritz, a registered Republican – and Republicans stuck with Corodemus.  The GOP said the Constitution was clear and that the July 15 deadline to replace candidates had ended.

The Supreme Court now has until August 10 to make a politically charged decision by casting their votes in what is ostensibly an election between a Democrat and a Republican.  While the vote must be held in five days, the court has until August 15 to file their pick with the Secretary of State.

The tiebreaker vote could have national implications in President Joe Biden’s mid-term elections, where Republicans are just five seats away from controlling the U.S. House of Representatives.

The GOP is looking to flip the 7th district, where Rep. Tom Malinowski (D-Ringoes) faces Senate Majority Leader Tom Kean, Jr. in a rematch of an extraordinarily close 2020 race.  Republicans would also like to compete for seats currently held by Reps. Andy Kim (D-Moorestown), Josh Gottheimer (D-Wyckoff) and Mikie Sherrill (D-Montclair).

Some Democrats are holding out for gains in New Jersey to offset losses of red state House seats, pushing for a more competitive district for Rep. Jeff Van Drew (R-Dennis).

Multiple insiders from both parties – all who asked not to be identified and none of whom have spoken to any Supreme Court Justices – appear to agree that the Rabner Court has three options:

1. Choose: The Supreme Court can pick either Wallace or Corodemus and simply accept whatever criticism comes their way from the losing side.  “That’s their job,” one lawmaker told the New Jersey Globe.  “They should do their job and just pick somebody.”

2. Remand: Rabner can still ask two parties to try again, unlikely as that may be.  Five days have passed since the parties returned his punt, but there is still time for the chief justice to make another run at a consensus.

3.  Withdrawal: One or both of the candidates could withdraw from the race, giving the court an easy out on having to choose between two ex-judges.  But that would require some delicate backchanneling through the enigmatic judicial network.

Wallace, who was reluctant to take part in the process to begin with, may be in a tough spot.  He’s got a reputation for integrity – no one is questioning that – but Republicans (and some progressive Democrats) say that his ties to a politically active South Jersey law firm that represents powerbroker George Norcross creates an optics problem for the former justice and for the Supreme Court.

That could backfire on Democrats, if Wallace were to become tiebreaker and then try to hard to avoid the appearance of helping one party that he inadvertently helps the other.

Wallace and Corodemus are not overtly political and it’s possible that both might try to help the Supreme Court avoid a partisan vote.  In those uncharted waters, Rabner could hit the reset button.

The other issue facing the vote is recusals.  Three of the justices – Jaynee LaVecchia, Barry Albin and Rabner – served with Wallace.  A fourth, Fabiana Pierre-Louis, was his law clerk.  Justices don’t announce recusals in advance, but it’s possible that the Supreme Court could get around criticism of making partisan pick by having a majority of the bench recused.  If that happens, senior appellate court judges would be elevated on a temporary basis to give the Supreme Court a full compliment of seven.

Four justices did not participate in a 2010 Supreme Court case involving Johnson & Johnson, necessitating the temporary elevation of four appellate court judges.  With two vacancies,   LaVecchia was the only actual Supreme Court justice to hear the case.

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