A Very Special Special Election: “Opposite-Day” in New Jersey?

October 16, 2013

by Beth, Contributor

On October 16, some five million New Jersey residents can head to the polls and cast their votes for the senator of their choice. And twenty days later, they can go to the polls again to vote for governor. The reason: New Jersey’s October 16 special election.

On June 3, 2012, New Jersey Senator Frank S. Lautenberg died while serving as a New Jersey senator. The next day, NJ Governor Chris Christie issued a Writ of Election setting the date for primaries for the vacant seat on August 13, 2013, and a general election for the seat on October 16, 2013.

For political pundits in New Jersey, Christmas comes twice this year. But state Democrats—as well as some Republicans, countygovernments, minority and public interest groups, and coastal communities–aren’t seeing it that way. For these groups, the October 16 special election is a political ploy— and an expensive one.

The special election is estimated to cost the state $12 millionmore than having the senate vacancy election on Election Day 2013, according to an opinion issued this summer by the state’s bipartisan Office of Legislative Services, obtained by the Huffington Post. Democrats criticized Christie for wasting taxpayer money to serve his own political ends (namely, avoiding Cory Booker’s supporters at the polls in November).

A June 7motion for emergent relief challenged Christie’s decision to hold the election on October 16, 2013, as opposed to November 5, 2013. According to conflicting state election laws, Christie could have held the election on Election Day 2013, Election Day 2014, or another “special election” date (via language allowing the governor discretion in both statutes). Challengers argued Governor Christie exceeded the scope of his discretion – in part because of the election’s hefty price tag. (“[I]t’s a complete waste of taxpayer dollars,” one critic told the Star Ledger.)

In deciding the motion for relief in Grillo v. Christie on June 13, 2013, a three-judge appellate panel held that the cost of the special election was a political question outside the court’s review. “[O]bjections to the costs of this election are matters of policy that, in our view, are not questions for the court,” Judge Jane Grall wrote for the court. The Supreme Court of New Jersey denied cert. in the plaintiffs’ appeal.

Special elections – at what cost?

Although the New Jersey appellate court held that the “wisdom ofthe expenditure required to conduct a special election,” was “beyond the scope of our review,” theauthority to spend such money is a different question. The authority question, as opposed to the wisdom question, is one that appears to be justiciable. The Seventh Circuit highlighted this tension in Judge v. Quinn, noting that “[t]he doctrine . . . is one of ‘political questions,’ not one of ‘political cases.” The court in that case analyzed the merits of whether the district court could define the mechanics of a special election.

Moreover, despite the New Jersey court’s hands-off approach, a number of courts have considered the wisdom of spending money on special elections. (And the subject has also been debated in Massachusetts, Michigan, California, and Washington, D.C., among others.) Prior to last spring’s Shelby County decision invalidating the Voting Rights Act coverage formula in Section 4, the cost of special elections came up as an issue in the context of violations of preclearance requirements in covered jurisdictions. The issue: were special elections required to undo those “tainted” elections? In part because of the costs of special elections—the concern advanced by the New Jersey Democrats—the answer was often no.

In City of Arcade v. Emmons, for example, the Supreme Court of Georgia noted that “the cost [of a special election] should not be cavalierly brushed away by other branches of government, whether federal or judicial, that neither pay it nor impose the tax burden on which a remedy depends.” A Texas district court in United States v. City of Houston reached a similar conclusion: “as the cost of ordering new elections may be high relative to other public priorities, a jurisdiction forced into holding a special election has much less to spend on those other necessities.”

It’s worth noting too that discretion for a governor can also work to boost arguments for saving costs related to special elections in the face of opposition—the flipside of the arguments in New Jersey. In Fox v. Paterson, a New York federal district court concluded that the governor had “acted within his discretion in deciding to hold a special election in November,” and not sooner, as advocates had wanted.

Ultimately, the arguments in New Jersey have the tone of “opposite day.” Although Democrats want to nix the special election at hand, in the past special elections have been a tool to rectify voting rights violations, as the VRA cases above suggest. By the same token, a Republican governor, famous for his budget–cuttingpolicies, has told reporters that he “doesn’t care” about the costs of the special election.

At the end of the day, the debate shows the power of politics. The issue has produced some strange bedfellows. In the long run, it means that both of the Garden State’s political titans—Christie and Booker—will get their chance in the spotlight.

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