New Jersey's Constitutional Residency Requirement for State Legislature Candidates: A Roadmap for Challengers and a Cry for Reform During Re-Districting Years

New Jersey's constitution provides, in article IV, section 1, paragraph 2, that "no person shall be a member of the Senate who shall not … have been a citizen and resident of the State for four years, and of the district for which he shall be elected one year, next before his election." Additionally, "no person shall be a member of the General Assembly who shall not … have been a citizen and resident of the State for two years, and of the district for which he shall be elected one year, next before his election." For over a decade, however, the New Jersey Attorney General and the Secretary of State have been barred from enforcing this constitutional provision due to a federal district court's injunction in Robertson v. Bartels (Robertson I). Robertson I concluded that the one-year-in-district residency requirement violated the Equal Protection Clause under a strict scrutiny analysis because it impeded on the fundamental right of "persons to run for public office [combined with] the right of voters to vote for candidates of their choice." Thereafter, New Jersey Attorneys General and Secretaries of State relied on this opinion when supervising and enforcing the state's election process, and allowed candidates to pursue and succeed in becoming elected to public office without meeting the in-district requirement.In recent years, however, the injunction proved artificial in plugging the flow of litigation stemming from the provision. Prior to November 8, 2011 - Election Day - the provision succeeded in keeping Olympic gold-medalist Carl Lewis from running for State Senate in New Jersey's Eighth Legislative District. In Lewis v. Guadagno, perhaps the highest-profile state legislative race in the country, the United States Court of Appeals for the Third Circuit denied Mr. Lewis's bid to run in part because he had not resided in the state for the requisite four years. After Election Day 2011, the provision struck again via the New Jersey Supreme Court, which invalidated the election of Gabriela Mosquera to the General Assembly in In re Contest of November 8, 2011 General Election of Office of New Jersey General Assembly due to the fact that she had not lived in the Fourth Legislative District for the requisite one year. The facts of the case made the decision more complex because Ms. Mosquera moved to her new residence during 2011 - a year in which legislative re-districting occurred - affecting which municipalities constituted the Fourth Legislative District. This drew a lengthy dissent from Chief Justice Stuart Rabner, who objected to the requirement's application to candidates during re-districting years. The decision flew in the face of Robertson I, and drew criticism for invalidating the votes of 19,000 citizens for a candidate who was certified by the Secretary of State and ran in reliance on a long-standing injunction. Thereafter, the New Jersey Attorney General petitioned the district court to annul the Robertson I injunction, citing the In re Contest decision for support. Various groups intervened, seeking to modify the scope of the original injunction, rather than annul it, in light of In re Contest. In a caustic opinion, Judge Dickinson Debevoise concluded not only that the durational residency requirement was again invalid under a strict scrutiny analysis, but also that In re Contest was an "improper collateral attack" by a state court on the district court's original injunction in Robertson I. At the interveners' behest, however, the court narrowed the scope of the injunction to preclude enforcement of the one-year-in-district requirement "only during years where the state undergoes legislative re-apportionment." This Note seeks to comment on this recent flow of litigation stemming from the New Jersey Constitution's residency requirements for candidates for public office: Robertson I, Lewis, In re Contest, and Robertson II. In so doing, I revisit the history of the New Jersey residency requirement in its constitution and in its court system. I then critique how modern cases have worked in tandem, and to each others' detriment, and argue that, during re-districting years, the one-year-in-district residency requirement clashes with re-districting in a manner that violates equal protection: allowing the requirement to oust political enemies via the hands of the unelected. Candidates whose residency is challenged during these years will likely be able to prevail against such claims within the court system - especially those whose resident municipalities are re-districted into another district, and who seek to move their residence into the newly-formed district, the majority of which they formerly represented. However, I argue that during other years where re-districting is not an issue, the requirement still serves the non-violative purpose it has served since 1776: allowing voters to become familiar with a candidate, as well as allowing the candidate to become familiar with voters. I conclude that the New Jersey Legislature should seek to abolish the one-year residency requirement during re-districting years, and that otherwise, candidates may bring valid challenges to the requirement, provided they meet the specific circumstances of what I deem a "perfected claim."