Having agreed to review on an emergent basis an attack on Governor Christie’s decision to schedule a special primary in August and a general election in October to fill the United States Senate seat that had been held by Senator Lautenberg, the Appellate Division has rejected that challenge. In a lengthy Order issued by Judges Grall, Koblitz, and Accurso, the Appellate Division determined that the statutory scheme calls for an election at the first or second scheduled general election, “unless the governor of this State shall deem it advisable to call a special election.” This broad legislative delegation to the Governor means that Governor Christie’s writ of election “is reviewable only for constitutional and statutory violation.” The panel declined to consider policy arguments such as the cost of the special election(s) and “the potential administrative practicalities of conducting a special election so close in time to a scheduled election.”
Though plaintiffs asserted that there was some potential conflict in the governing statutes, N.J.S.A. 19:3-26 and 19:27-6, the Appellate Division concluded that the Governor’s view of those statutes harmonized them and gave effect to each. The Governor’s position also maximized voter participation, a principle in the interpretation of election laws, since plaintiffs’ view would have resulted in an appointed Senator for a longer period of time rather than a Senator elected sooner by the voters.
The argument on the key issue of interpretation of the statutory language raised by plaintiffs came down to the meaning of a comma in one of the statutes at issue, thus again showing the importance of grammar and punctuation in statutory interpretation. Citing prior cases, the panel agreed with Governor Christie about the effect of the comma.
Plaintiffs also argued that holding the special general election so close in time to the scheduled November election would “lead to voter confusion and generally burden the exercise of the right to vote, especially for voters on military duty and those with disabilities.” The panel found those arguments lacked sufficient merit even to warrant discussion. On a related issue, the alleged difficulty, or even impossibility, of reprogramming, retesting, and redeploying voting machines for the November election so soon after the October special Senatorial election, neither side submitted certifications. Thus, the panel stated that while the issue “may be a significant one, invalidation of the writ on this ground is unwarranted.” The Governor’s “policy decision and assessment of the feasibility of accomplishing it is not reviewable.”
It seems unlikely that the Supreme Court would overturn this ruling. Wise or not as a matter of public policy or political considerations, the special primary election in August and the special general election in October appear likely to go forward.