TRENTON – The state Supreme Court heard arguments this morning over whether the new member of the 4th Legislative District should be Gabriela Mosquera or – possibly – Gabriela Mosquera.
That is one possible outcome of this legal argument over whether a one-year residency requirement should preclude November-election winner Mosquera from taking office. And if a lower court ruling invalidating the Democrat’s victory is upheld, does that mean a county Democratic political committee can then appoint someone, including Mosquera?
The Democrats prefer that option if the election results are not reinstated, while the Republicans argue they should have the right to appoint the new Assembly member since their party held that seat before redistricting.
Republican Domenick DiCicco had been in office, but the Democrats argue that they should actually be considered the incumbent party since their candidate clearly won the election.
Republican Shirley Lovett – who lost the election – challenged the results, arguing that Mosquera fell one month short of the one-year residency requirement.
A federal judge agreed with Lovett’s argument and threw out the election results. The Democrats responded that the one-year requirement had been thrown out a decade ago during a redistricting process.
This federal/state conflict led to more than two hours of legal arguments before the state’s high court today.
Attorney Matthew Wolf, representing Lovett, argued to the justices that the party of the prior incumbent should have the power to appoint the Assembly member if the election is invalidated.
In response to an argument by Wolf that residency requirements are important because they allow a district’s voters and a candidate time to get to know one another, Justice Barry Albin said “that would be laudable if borders were clear, but every 10 years they change.’’ And with “ever-shifting’’ district boundaries, some voters against their wishes lose the right to be represented by someone they elected, he said.
“This is a bust for you unless the Republican Party gets to select the successor, is what you’re saying,’’ Albin said to Wolf. But Wolf disagreed, and reiterated his position the definition of incumbent in the state Constitution trumps any other statutory interpretation that may have come out of the Legislature.
However, arguing for Mosquera, attorney William Tambussi pointed out to the justices that the desire of 19,000 voters is at stake here. He said if the decision overturning the November results stands, it will be unprecedented that such a clear-cut election winner was prevented from taking office.
“It is a question of whether the candidate was qualified,’’ Tambussi said, and he argued to the justices that the state has repeatedly and clearly taken the position that the one-year residency rule would not be enforced.
But Donna Kelly argued for the Attorney General’s office that the lower court ruling invalidating the election results should be upheld, but in response to questions from the justices, said that if the Democratic committee is allowed to choose the successor the one-year residency rule would not apply.