The state Supreme Court has upheld the state’s residency requirement for legislative candidates, effectively overturning the election of Gabriela Mosquera to a 4th District Assembly seat.
Though the court in its 4 -3 decision invalidated the results of the November election, it held Democrats will be allowed to fill the vacant seat, which could pave the way for Mosquera to be seated as the court also held that she now meets the residency requirement and could be named as the interim representative.
While Democrats will choose the representative to fill the spot in the short term, the ruling sets up a special election in November when Republicans will have a second shot at taking over the seat.
Mosquera was elected in the November general election, defeating Republican Shirley Lovett. But Lovett filed suit, claiming that Mosquera did not meet the mandated one-year residency requirement prior to her election. A Superior Court Judge initially ruled against Mosquera, but that ruling was overturned on appeal. The Supreme Court stepped in and vacated the appeal and stayed the Superior Court decision – blocking Mosquera’s swearing in and leaving the replacement in limbo in the process – pending a hearing.
Attorneys for Mosquera had argued that the residency requirement had not been enforced in a decade, since a federal court ruled the provision unconstitutional. Attorneys argued that if the provision were to be enforced it should not be applied retroactively.
But in its ruling, the Supreme Court held that the residency requirement does not violate the constitution, and because that ruling is not new, does not pose a problem with retroactive enforcement.
In a strange twist, the court recommended that the case not end with its decision, but instead that the parties petition courts at the federal level, including the U.S. Supremem Court to hear the case in an effort to resolve the conflict between Thursday’s decision and the federal injunction issued 10 years ago.
“It is beyond our power to modify or dissolve that injunction and we do not purport to do so here,” wrote Justice Jaynee LaVecchia. “But it is our duty to interpret and enforce our Constitution and that we have done. We rely on the parties to bring to the federal courts the questions about the continued effect, if any, to be given to the Robertson injunction.”
Chief Justice Stuart Rabner along with Justices Virginia Long and Barry Albin dissented.
In all spheres of life, it is wrong to change the rules after the game has ended,” Rabner wrote. “A party who plays by the rules inplace — and wins — has earned a victory she is entitled to keep. Because today’s ruling deviates from that elementary principle of fairness, I respectfully dissent.”
Mosquera Attorney William Tambussi said the decision leaves 19,000 voters disenfranchised.
“Gabby Mosquera won the election by a margin of 5000 votes but it only took one vote of a Supreme Court Justice to overturn the clear will of over 19,000 voters,” Tambussi said. “New Jersey now has the dubious distinction of being the only state where a candidate who plays by the rules in place and wins is denied a victory she is entitled to keep. Make no mistake about it, this decision tosses aside and disregards the over 19,000 votes validly cast for Mosquera. That is truly unfortunate in a democracy.”
