On Tuesday, the New Jersey Court of Appeals cleared the way for the recall of Sen. Robert Menendez (D-NJ) to proceed. New Jersey is one of nine states whose constitutions provide broad language with regard to recalling “all, every, any” elected official. This decision could severely endanger the 11 other sitting Senators (all Democrats) in those states, who are not up for re-election this year but could be subject to citizen recall efforts. (For details go to www.recallcongressnow.org.)
The American Civil Rights Union filed an amicus brief in this case, which landed in court when the former N.J. Secretary of State denied the approval of a recall petition by several Tea Party groups, declaring that its state constitution was unconstitutional.
The people of New Jersey, using the initiative process in their constitution, had guaranteed their "basic right" to recall all elected officials including U.S. Senators with a provision passed in 1993 by a 2-1 margin. The intent of the people was crystal clear. The court ruled that the recall of U.S. Senators was not "so clearly invalid" as to require "a judicial declaration thwarting the will of the voters." The court stayed its order to the Secretary of State to approve the petitions for 35 days to allow the defendants to appeal to the state Supreme Court.
Because of the basis of this decision, the strength of its conclusions, and the fact that it was unanimous, it’s unlikely that the N.J. Supreme Court will reverse this finding, and bar the recall effort. However, the Secretary of State, the Attorney General or Senator Menendez, who are the defendants in the case, have the right to appeal if any chooses to do so.
Under New Jersey law, supporters of the recall petitions would have 320 days after approval of their forms to gather and file 1,300,000 signatures. That would place the recall of Sen. Menendez on the next available statewide ballot.
This decision has importance far beyond the borders of New Jersey. Altogether, 18 states have recall provisions in their laws. Nine of those may well apply to Members of Congress. Any of the 26 states that lack recall laws but do have initiative laws could obtain the right to recall the way New Jersey did – by vote of the citizens themselves.