Legal Commentary

New Jersey Appellate Court Allows Continued Signature Gathering for Recall of U.S. Senator Robert Menendez

By Eugene Volokh

Here?s the opinion. To my surprise, the court concluded that it?s uncertain whether the recall would be constitutional. (My view is that a mandatory recall would clearly be unconstitutional, since the Constitution expressly states that Senators serve for six years; and while I suggested that an advisory recall might be fine ? though it probably wouldn?t be ? the court didn?t adopt that approach.)

I?m on the run right now, so I can?t talk further for a while, but here?s the court?s summary of its conclusion:

To summarize, we neither declare the recall provision in our State Constitution as applied to a United States Senator definitively valid or invalid. There is, and there will be, no necessity for our courts to resolve this difficult constitutional issue if the Committee?s petition drive fails to collect the necessary, approximately, 1,300,000 signatures. Pending that possible eventuality, we see no urgent reason to now decide the question of invalidity or validity with finality. All we need to decide, as we have done, is whether there is a sufficient basis for the Committee to proceed with its initiative and for the Secretary of State to perform her ministerial function [i.e., accepting the petition, which would allow signature gathering to proceed ?EV]. To go beyond that limited holding and ?embrace unnecessary constitutional questions? would depart from the ?older, wiser counsel? of judicial restraint.

So the recall may yet be found unconstitutional, after the signatures are gathered. But until then, the recall will be going, and will presumably be a continuing news event in New Jersey ? not something that Senator Menendez is likely to find pleasant, I think. More later, I hope.

Full post as published by The Volokh Conspiracy on March 16, 2010 (boomark / email).