Fight Over Residency Leaves Assembly With Vacant Seat

Colleen O'Dea | January 13, 2012 | More Issues
NJ courts step in to invalidate Democratic election in South Jersey’s District 4

Gabriela Mosquera, Democratic Assemblywoman for District 4.
Although the Democrats gained a seat in last November’s election, the 215th New Jersey Legislature still only has 47 Democrats in the Assembly today due to another fight over the question of residency.

Gabriela Mosquera won election to a seat in South Jersey’s 4th District by a comfortable 6,300-vote margin but was not sworn in on Tuesday with the rest of the lawmakers because of a last minute order by the state Supreme Court.

“Right now, the 4th District has a vacant Assembly seat,” said Mosquera’s attorney, William Tambussi of Westmont. “So 21,000 voters were disenfranchised and 220,000 residents of the 4th District are without full representation.”

For the last week, the state’s courts have seesawed on the question of whether Mosquera, who is the chief of staff to the mayor of Gloucester Township, should legally be allowed to serve in the Assembly based on the state’s residency requirements.

The legal ups and downs recall the wranglings between the parties last summer over the candidacy of Olympian Carl Lewis for a seat in the nearby 8th District. The Democrats ultimately lost that one as Lewis was barred from the ballot.

At the moment, the party is losing the battle over Mosquera as well, following the highest court’s decision Tuesday morning to leave in place a Superior Court ruling that invalidated Mosquera’s election and ordered the Democrats to name a replacement.

“For the future, everyone is on notice that you should live in the district you want to represent,” said Matthew Wolf, the Haddon Heights lawyer who brought the case against Mosquera.

While the question of residency and whether a candidate lived where he needed for the requisite amount of time would seem to be straightforward, it is not, due to state constitutional provisions and prior case law.

The constitution states that a person cannot be a member of the Assembly unless he is age 21, can vote, and has lived in New Jersey for two years and in the district in which he is seeking office for one year prior to being elected.

In Mosquera’s case, the problem is that she lived in Maple Shade through the end of 2010 and did not move to Blackwood, in Gloucester Township until December 31, 2010, so she only lived in the 4th District for 10 months and 8 days when the election took place, said Wolf, who is representing Shelley Lovett, a former Gloucester Township councilwoman and Republican who lost to Mosquera and sought to invalidate the election results. Mosquera received 21,461 votes last November, while Lovett polled 15,106.

A strict reading of the residency rule should have kept Mosquera off the ballot in the first place. “This should have been argued earlier,” said Tambussi, noting Lovett could have challenged the secretary of state’s certification of Mosquera as a valid candidate.

Wolf said Lovett did not challenge Mosquera sooner because she had little money and had only “heard rumors” about when Mosquera moved into the district.

Ernie Landante, a spokesman for Secretary of State Kim Guadagno, said he could not comment on the matter because it is before the courts.

But the lawyers in the case said Guadagno was enjoined from enforcing the residency requirement by a 2002 federal court order in Robertson v. Bartels that challenged both the last redistricting plan and the residency rule.

That suit had been filed by a number of Republicans, including former Sen. Norman Robertson and former Assemblyman Gerald Zecker, both of Passaic County. In a July 2001 ruling in the case, U.S. District Court Senior Judge Dickinson Debevoise ruled that the requirement that an Assembly or Senate candidate live in the district he seeks to represent for at least a year prior to the election violates the equal protection clause of the U.S. Constitution.

“It requires a considerable stretch of the imagination to find that when a person moves from one district to another it requires a year to prevent ‘carpet bagging,’ to enable the person to become familiar with the new district and for the voters to recognize the new resident of the district,” Debevoise wrote in his decision. “To sum it up, New Jersey’s one-year residency requirement for candidates for the State Senate and State Assembly does not survive a strict scrutiny analysis.”

But Wolf said that did not stop Lovett from challenging Mosquera’s candidacy.

“The state can’t not certify her as a candidate, but her holding office is still a violation of the constitution,” Wolf said.

Camden County Superior Court Judge George Leone agreed. On January 5, Leone upheld the constitutionality of the residency rule, invalidated the election and told the Democrats to appoint a new candidate until an election this November to choose an assembly member.

However, Mosquera got an appellate panel to stay that ruling on Monday, the day before she was to be sworn into office. The judges cited the 2002 federal injunction in allowing Mosquera to be seated.
But shortly before the swearing in, the Supreme Court stopped it.

In support of that action, Deputy Attorney General George Cohen argued that if Mosquera was allowed to take the office, the matter would be out of the courts’ hands because then the Assembly, which is in Democratic control, determines the election and qualifications of a sitting member. Cohen further argued that the residency rule is an important one, as a way of “preserving the integrity of the state’s electoral system.”

Assembly Speaker Sheila Oliver, D-Essex, who has one less Democratic vote for the party’s cause, said she was disappointed in the ruling. “The people of the 4th District elected Gabriela Mosquera because of her devotion to public service, her plans to help working families and her hard work and dedication,” Oliver said. “The voters made their say clear more than two months ago.
Assemblywoman-elect Mosquera meets the requirements of office under a federal court ruling more than a decade ago. Her background and experience will be valuable additions to the New Jersey General Assembly. Let’s get past the legal squabbles and respect the will of the voters.”

The next move is up to the Supreme Court, which could ask for briefs, hear oral arguments or just issue a ruling on the matter.

This is a story that should sound familiar to South Jerseyans, in particular because it’s one that played out last summer over Lewis’ residency and his attempt at running for the Senate seat in the 8th District, which includes portions of Atlantic, Burlington and Camden counties.

Tambussi, who also represented Lewis, said the difference in the cases is that Guadagno refused to certify the Democrat’s candidacy until ordered by a court to do so. Agreeing with Burlington County Republican committee members, who challenged Lewis almost as soon as he filed his nominating petitions, Guadagno said Lewis did not meet the requirement that a state senate candidate live in New Jersey for four years prior to running for office. Lewis was living in California and had voted there as recently as May 2009.

In a convoluted series of court motions and rulings, Lewis was put on and moved off the ballot. He finally wound up disqualified by a three-judge panel of federal appellate judges after that panel reversed itself just days after ordering Lewis onto the ballot in mid-September. Because that ruling came after the deadline to fill a ballot vacancy, no Democrat opposed incumbent Sen. Dawn Marie Addiego, a Republican.

The GOP had challenged Lewis early and forcefully, fearing the well-known track gold medalist had a shot at unseating Addiego.

Mosquera was seeking an open Assembly seat in a district considered strongly Democratic. Domenick DiCicco, a Republican who had held the seat for one term, was redistricted into the neighboring 3rd.

No one challenged the candidacy, meanwhile, of Edward Forchion, who goes by NJ Weedman. A perennial candidate, Forchion ran as an independent for an Assembly seat in Lewis’ 8th District last November, despite having moved to Los Angeles three years earlier.

Tambussi said that had he known about Forchion’s residency at the time, and that he was allowed on the ballot, the courts may have allowed Lewis on the ballot as well.

“Here, the question is not whether Ms. Mosquera has lived in New Jersey for the two years required of Assembly members,” Tambussi said. “The question of whether you’ve lived in the district only comes up once every 10 years when they redraw the lines.”

Tambussi said he is hoping for a quick resolution because Mosquera already has “lost committee assignments, lost seniority, and lost the right to represent her constituents.”