New Jersey Special Election Could Happen

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By: Jennifer Potash , Staff Writer  09/03/2004
Princeston Packet

   A federal judge will hold a hearing Wednesday on a lawsuit filed by two Princeton attorneys that claims Gov. James E. McGreevey's delayed resignation violates federal voting laws.

   But state Attorney General Peter J. Harvey filed papers this week asking the federal court to dismiss the lawsuit as untimely, since the governor has not formally resigned from office.

   Attorney Bruce Afran, with fellow attorney Carl Mayer, said federal District Court Judge Garrett Brown agreed last week to hold a hearing on the lawsuit Sept. 8 in the federal courthouse in Trenton.

   Gov. McGreevey announced on Aug. 12 that he would resign from office effective Nov. 15. The governor said he was a "gay American" and had an extramarital affair with a man.

   State law requires a special election if the governor leaves office more than 60 days before the general election. Under the current scenario, with the governor resigning on Nov. 15, state Senate President Richard Codey (D-South Orange) would serve the remaining 14 months of Gov. McGreevey's term.

   Mr. Afran and Mr. Mayer argue in the lawsuit that Gov. McGreevey's Aug. 12 announcement, subsequently reported on television and in newspapers, is tantamount to a resignation letter and New Jersey lacks a requirement for the governor to formally deliver such a letter to any legislative body or officer.

   "Gov. McGreevey has not issued a written letter of resignation but has made a solemn declaration before millions of people that he is resigning effective Nov. 15, a far more public and indeed irrevocable act than the submission of a private letter," according to the lawsuit.

   But in the court filing on Wednesday, Attorney General Harvey said the Aug. 12 announcement was only "an intention to resign at a future date."

   He also argued in court papers that the lawsuit doesn't belong in federal court, since the New Jersey Constitution sets the rules for gubernatorial vacancies.

   The hearing in federal court will take place after the Sept. 3 deadline to hold a special election, but that doesn't matter, Mr. Afran said.

   "Gov. McGreevey need not physically leave office prior to Sept. 3 for the special election provision to take effect," Mr. Afran wrote in a brief. And the short time frame — two months until Election Day on Nov. 2 — is not a barrier, Mr. Afran said.

   For example, in October 2002, the state Supreme Court allowed former U.S. Sen. Frank Lautenberg to replace then-U.S. Sen. Robert Torricelli on the ballot after Mr. Torricelli dropped out due to ethical allegations, Mr. Afran argues in the brief. In the Torricelli case, Mr. Afran argues, the court found the vacancy occurred when the senator announced his intention to leave the race. Similarly, Gov. McGreevey's resignation should be dated to his Aug. 12 announcement, not his expected Nov. 15 departure, he said.

   Other states, including Massachusetts and Illinois, have reached similar conclusions about filling vacancies that occur in top political offices, Mr. Afran said in the brief.

   Mr. Afran said the lawsuit, filed Aug. 16, is not about politics — both he and Mr. Mayer have run for elected office, including the U.S. Senate and House of Representatives, under the Green Party banner — but goes directly to protecting voters' rights to select Gov. McGreevey's successor.

   The governor, in his speech announcing his resignation on Aug. 12, said he would stay until Nov. 15 to ensure an orderly and smooth transition to the next administration.