New Jersey Residency Requirements May Be Destined for the Supreme Court: Part I

The U.S. Supreme Court may ultimately consider what could be the most dramatic change in New Jersey politics since federal candidates were permitted to be bracketed with candidates for state and local office. It all began in 2001 when a federal judge determined that New Jersey’s one-year residency requirement was unconstitutional. The issue remained dormant until the election of Assemblywoman Gabriela Mosquera in the fall of 2011.

Article IV of the New Jersey Constitution provides that “[n]o person shall be a member of the General Assembly who shall not … have been a citizen and resident … of the district for which he shall be elected [for] one year, next before his election.”

Gabriela Mosquera, who was elected to the General Assembly from the Fourth Legislative District, admits that she was not a resident of the district for a full year before her election. However, she argues that the New Jersey residency requirement violates the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution.

While Mosquera’s case may appear to require traditional constitutional analysis, it is anything but straightforward. The case is complicated by a federal court decision (Robertson v. Bartels, 150 F. Supp. 2d 691 (D.N.J. 2001)) that concluded that the New Jersey residency requirement violated the Fourteenth Amendment of the U.S. Constitution. The federal court issued an injunction prohibiting the state’s attorney general and secretary of state from enforcing it.

While the New Jersey Supreme Court acknowledged the Robertson injunction in deciding Mosquera’s case, it determined that it should be the one to decide whether the one-year district residency requirement of the New Jersey Constitution violated the federal Equal Protection Clause. The opinion states, “A state court is not barred from addressing federal constitutional questions about state statutes, and perforce federal constitutional challenges to our State Constitution, notwithstanding a lower federal court ruling on the subject.”

The New Jersey Supreme Court ultimately held that the durational residency requirement was constitutional, characterizing the Robertson’s ruling as an “anomaly” in this area of law. The court applied an intermediate scrutiny test, rather than the higher level of scrutiny employed by the federal court. Under this analysis, the justices determined that the requirement advances the following state interests: it ensures that voters have time to develop a familiarity with the candidate; it ensures that the candidate can become familiar with the constituents and the issues facing the people to be represented; and it operates as a curb on carpet-bagging.

The panel further noted that its decision did not announce new law. “The public interest in that requirement is a strong and long-standing one that has been retained in our Constitution ever since it first was inserted in the original constitution of this state in 1776,” Justice Jaynee LaVecchia wrote in the majority opinion.

The New Jersey Supreme Court ordered Mosquera’s election to be set aside and a special election for General Assembly be held in the Fourth Legislative District at the time of the general election on November 6, 2012.

Of course, that is not the end of the story. Although Mosquera has since satisfied the residency requirement and was appointed to fill the vacant seat on an interim basis, the law is still unsettled. For a discussion of the federal court’s recent take on the controversy, please stay tuned for next week’s post.


Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

New Jersey Residency Requirements May Be Destined for the Supreme Court: Part I