*1 A.3d THE COMMITTEE RECALL TO ROBERT MENENDEZ FROM THE SENATOR, PLAINTIFF-RESPONDENT, OFFICE OF U.S. v. WELLS, STATE, ESQ., NINA MITCHELL SECRETARY OF AND GILES, F. ROBERT DIRECTOR OF THE OF ELEC DIVISION TIONS, DEFENDANTS-RESPONDENTS, AND UNITED MENENDEZ, STATES ROBERT SENATOR INDISPENSABLE PARTY-APPELLANT.

Argued May Decided November2010. *5 bar, Elias, E. a member of the District of Columbia Marc Giantomasi, (Genova, appellant Bums & argued the cause for Genova, briefs). attorneys; on the Angelo J. (Mr. Schlafly argued respondents the cause for

Andrew L. Luzzi, Schlafly Richard attorneys; Mr. and Schlafly and &Oiler Luzzi, briefs). T. on the bar, Ferrara, Pennsylvania a member of the submitted

Peter J. Rights Union on amicus curiae American Civil a brief behalf of briefs). (James attorney; on the Pryor, K. Mr. Pryor, on behalf of amici curiae Laffey submitted a brief Michael P. Fund, on the Institute Legal Defense and Education Conservative Foundation, Foundation, Constitution, Gun Owners U.S. Justice America, America, Inc., Lincoln Owners of Vision Gun Education, Public for Advocate Institute Research Control, States, Inc., Control U.S. Border U.S. Border United Trade, Foundation, and The Competitive American Coalition (Messina Firm, at- Party Law National Committee Constitution Gary torneys; Laffey, Kreep, G. a member of the California Mr. Olson, Virgi- bar, a member of the Commonwealth William J. Titus, bars, Herbert W. nia and District Columbia brief). bar, Virginia on the member the Commonwealth *6 opinion Chief Justice RABNER delivered the Court. attempt an to a States This case involves recall United Senator seeking a statute. A committee of voters to recall under state Robert Menendez submitted a notice of intention U.S. Senator Secretary triggers That act Jersey’s New State. (UREL),

process outlined in the Uniform Recall Election Law -18, I, N.J.S.A. implements paragraph 19:27A-1 to which article of the State Constitution. State, Secretary consulting Attorney after with the

General, notice, accept asserting that refused to state recall a U.S. Senator violate the Federal Constitution. The would Division, respect Appellate ripeness out of a concern about and for Constitution, Secretary’s reversed the State administrative Secretary accept determination and ordered the the notice filing. procedural presents important

This case and substantive issues Procedurally, parties of constitutional dimension. have raised sidestepped. They sharply disagree an issue that cannot be as to whether a U.S. Senator can be recalled under state law. Without ruling legal dispute, process lawfully a on the the recall cannot proceed. requires That us to examine the merits of the case. Although possible, courts are to avoid constitutional issues when appropriate way ongoing this case no other there is resolve the conflict. Supreme a

The U.S. Court has outlined framework for address- ing questions. approach by similar constitutional follow its We Constitution, examining the text of the Federal relevant historical materials, principles system of our nation’s democratic order determine whether states can recall U.S. Senators. That analysis permit reveals the Federal Constitution does not recall.

According to the historical at the debates Constitutional Con- vention, rejected the Framers considered and to recall. Indeed, go That decision did not unnoticed. marked break Confederation, many delegates at both with the Articles spe- ratifying the state conventions Constitutional Convention and proposed new cifically highlighted part that recall was not approvingly; others lamented that Some did so Constitution. None, however, suggested that recall re- recall did exist. government the new constitutional form of mained alive under that was created. one conclusion: the Framers

The historical record leads to but power to rejected provision and denied the states the a recall finding Senators. That is consistent with views recall U.S. *7 observations, Supreme who made those same nine Court Justices Limits, Thornton, dicta, Inc. v. in in U.S. Term U.S. (1995)—even 5-4 over 131 L.Ed.2d 881 as divided S.Ct. primary issue in that case. time of the enactment of the Renewed debates around the yet support for that view. In Amendment offer more Seventeenth addition, legal uniformly contemporary scholars have reached recall, despite differing policy views conclusion about their same subject. on the Constitution, drafting a the Founders of this nation new stable, body independent a with two senators from each

envisioned state, six-year long-term enable to take a whose terms would them being subject to recall. New view of national issues without Jersey path for its State leaders—one that has chosen a different challenged good regard, remains law. In that State is not and Jersey right to But New voters retain the recall State officials. goes permits and the recall of federal officers. Such law further patchwork rules approach an could result inconsistent states, contrary among fifty which would be to the recall about Constitution. Federal ripe adjudication therefore find that the matter is

We Constitution, history of the Federal as conclude that the text and created, system it principles as the of the democratic do well Accordingly, power to recall U.S. Senators. allow the states the portions that those of the UREL and the State Constitu- we hold authorize the recall of U.S. Senators are unconstitution- tion which al, Appellate Division’s order and we reverse and vacate the directing Secretary accept to the notice of intention to recall Senator Menendez.

I. A. implements The UREL a state constitutional amendment public question A Jersey approved voters in 1993. on the New asked, year paragraph 2 “Shall Article of the ballot amended, proposed by Legislature, Constitution be Ques- provide for the recall election of elected officials?” Public (1993), http://nj.gov/state/elections/1993 No. 1 available at tion results/1993-public-questions.pdf. accompanying interpretive explained proposed provision “applies statement that the any elected official in this State and to the United States Senators Congressmen Jersey.” elected from New Ibid. Jersey

New citizens voted favor amendment 3,326,657 414,925. result, I, margin of Ibid. As a article paragraph provides, 2 of the State Constitution now in relevant part,

b. The reserve unto themselves the after at least one recall, year service, representing elected official in this State or this State the United *8 Congress. Legislature States The shall enact laws to for such recall provide such a elections. laws shall include a recall election shall be Any provision registered held of at least 25% of the voters in the electoral district upon petition sought legislation the official to be recalled. If this constitutional implement amendment is not enacted within one of the of the the year adoption amendment, regulation, of State shall, the constitutional Secretary implement amendment, regulations the of State shall be except adopted by Secretary superseded by legislation governing consistent with this constitutional amendment any subsequent grounds recall elections. The statement of reasons or sufficiency any proeedur- judicial shall be a rather than a ally required political question. 2(b) (Recall Amendment).] [N.J. Const. art. HI, UREL, 17,1995, May which went into effect on established “recall, procedures Jersey for New citizens to seek to after at least office, year person’s any one service current term of Representative elected from this State Senator or United States official.” N.J.S.A 19:27 A-2. State or local elected UREL, registered seeking to initiate recall a voter Under appropriate proceedings must first file “with the recall election official”—currently, Secretary of notice of intention State—a containing name and office of the official to be recalled and sponsors petitioning and the committee for information about the The recall election official must then recall. N.J.S.A 19:27A-6. days within three business for review the notice of intention “compliance provisions N.J.S.A [N.J.S.A 19:27A-6].” with 19:27A-7(a). compliance,

If notice is found to be in the official must notice, imprint approval sign name office on the her and her and committee, copy approved a notice to the recall return conducting the if prepare an estimate of the cost of recall election requested, public make the notice available for special a election is recalled, inspection, copy sought a on the officer to be and serve newspaper. in a 19:27A- publish notice of intention N.J.S.A (b). 7(a), compliance, “is not to be in the recall If the notice found notice, together a official shall ... return the with written election indicating finding, for that to the recall statement the reasons committee, opportunity which shall have the to file a corrected 19:27A-7(a). of intention.” N.J.S.A notice accepted, If intention is the recall committee must the notice of proposed petition to the election official in a then submit requirements form with the listed N.J.S.A 19:27A-8. consistent petition time approval The official’s of the starts the relevant Senator, period—320 days for recall of the Governor or U.S. commit- days all elected officials—inwhich the recall for other twenty-five percent registered gather signatures from tee must relevant electoral district as of the date voters (The 19:27A-5, parties preceding general election. N.J.S.A -10. signatures required.) The agree approximately 1.3 million are official signatures are submitted all at once to the recall election verification, 19:27A-11; the elec- counting N.J.S.A once *9 signatures petition, on the tion official confirms the resolved, N.J.S.A. challenge is a recall election is scheduled. (b). 19:27A-13(a), majority at the recall election If a of votes official, sitting of office of the recalling the then “the term favor of the election upon official terminate the certification elected shall results”; otherwise, continue in office as if no “the official shall 19:27A-16. recall election had been held.” N.J.S.A.

B. 7, 2006, petitioner Menendez was elected On November Robert six-year Jersey in for a term. represent New the U.S. Senate law, compliance with federal the State submitted “Certificate Term,” for Six-Year the Senate found to “con- of Election which SI, requirements.” Cong. (daily Rec. S3 tain all the essential 2007). required oath of ed. Jan. Senator Menendez took the officially January Senate on 2007. office and was seated January His term is set to end on 2013. Id. at S3. Id. S4. 25,2009, UREL, pursuant plaintiff-respon- September On to the dent, the Committee to Recall Robert Menendez from the Office (Committee), Wells, of U.S. Senator submitted to Nina then-New Giles, Jersey Secretary (Secretary), of State and Robert Director (Director Elections), of the Division of Elections a notice of undisputed to recall It is that the intention Senator Menendez. Committee included in its notice of intention all the information originally 19-.27A-6. listed required N.J.S.A. The Committee Secretary’s representative sponsors; pending the review of three intention, notice of the Committee filed an amended first 10, 2009, spon- replacing notice on November one of the named Secretary response sors. Because it had not received a from the 1, 2009, complaint in December the Committee filed a lieu seeking prerogative compel writs with the Law Division reject Secretary accept to either Director Elections the notice of intention. January acting Attorney

On on the advice General, Secretary agency issued a final determination that *10 Proposed of Intention to Recall nor the

“neither the Notice qualifi- accepted filing for or review” because “the Petition can be a a Member of the United States Senate is cations and election of jurisdiction authority ... of federal and nei- matter exclusive providefs] federal statute ther the United States Constitution nor proceeding federally-elected for a official.” Three for a recall later, to days Secretary and the Director of Elections moved the complaint ground on the it was dismiss the Law Division turn, moot, Committee, voluntarily the and the dismissed matter. determination, response Secretary’s January on to the emergent application filed an for relief with the Committee Division, seeking injunctive and Appellate temporary relief

the Secretary and the expedited review. The Committee named day, following Director of Elections defendants. Appellate permitted the Committee to file its motion and Division Menendez, indispens- an papers it to on Senator instructed serve Secretary to the and the Director of party, able in addition February Appellate granted On Division Elections. appeal, motion to accelerate the as well as the the Committee’s (ACRU) Rights partici- application of the American Civil Union pate as amicus curiae. presented appellate panel, the Committee the follow-

Before the Secretary improperly denied the notice of ing arguments: statutory though complied with all re- intention even the notice branch, Secretary, agent quirements; as an of the executive UREL; validity position opine on the was in no ripe judicial for review constitutionality of the UREL would not be (1) roughly signatures of obtained 1.3 million until the Committee (2) election, majority a recall registered voters needed to force (3) Menendez, Secretary to recall Senator voters voted recall; proceed must be allowed to ordered his Committee political process the recall because is matter “core with protected by and State Constitutions. speech” the Federal General, Secretary and the Attorney on behalf of the Both the Elections, asserted the follow- and Senator Menendez Director authority legal is the sole ing: the Federal Constitution expel a Member of Con- qualifications and governs the Amendment, which extend gress; and the Recall the UREL unconstitutional; and the Congress, are therefore Members of ripe adjudication. issue was decision, panel ques appellate published, per curiam

In a *11 “pass[ constitutionality ] but declined to the of the UREL tioned a process regarding United validity of the recall on the ultimate Secretary current of State to the “order[ed] States Senator” and proceed under the statute.” accept petition, and to and file the the U.S. Senator Comm. to Recall Robert Menendez from Office of Wells, (App.Div.2010). N.J.Super. 995 A.2d 1109 v. 413 outset, to address the panel concluded it did need At the the was authority Secretary to determine that the UREL of the 440-41, panel 1109. reasoned that invalid. Id. at 995 A.2d Attorney of the was on the advice her determination based officers,” General, obligated legal advice to State who is “render binding “until ... the courts address the and whose advice is 441, panel A. 2d 1109. The also noted the issue.” Id. at 995 resolving a constitutional issue that could be ad benefit of not 1109. at a time. Id. at 995 A.2d Nonethe dressed later less, process the panel the stated that it was “disinclined allow forward, go of this to believe are and the citizens State process, in if it is certain that the court participating a recall thereafter, decide, shortly process that the was would have 447, manifestly Id. at 995 A .2d 1109. Accord unconstitutional.” our State’s ingly, it framed the issue before as “whether measures, applied to statutory constitutional recall a Unit Senator, manifestly ed States are so invalid under Federal depart judicial that we must from the norms of Constitution circulating compel process restraint and the Committee’s (citation 449, petition at 995 A.2d 1109 recall be halted.” Id. omitted).

92 UREL, examining constitutionality panel

In found provided that “from what has been written and not in the Federal Constitution,” its based both on text and relevant historical evi dence, reasonably pre “one could conclude the Constitution 451, cludes the recall of United States Senator.” Id. at 995 A .2d addition, that, panel recognized 1109. In in line with the U.S. Thornton, supra, Supreme holdings Court’s and Cook v. Gra like, 510, 121 1029, 149 (2001), 581 U.S. S.Ct. L.Ed.2d the Tenth Amendment did not reserve to the States the to recall U.S. (citations omitted). 452, at A.2d 1109 Senators. Id.

However, panel prece that it noted could “find no case precludes ... dent which under Seventeenth Amend Moreover, citing at 452 & n. 1109. ment.” Id. A.2d Thornton, panel opined dissent in that “the silence of the may [the federal Constitution well result the conclusion that may recall of a U.S. be done.” Id. at 995 A.2d 1109 Senator] Thornton, (citing supra, 514 at at U.S. S.Ct. (Thomas, J., dissenting)). light L.Ed. 2d at 926 of the constitu identified, ambiguity panel that it not “convince[d] tional was safely predict Supreme ... can [it] what the United States presented if it Court would do were with the issue.” Id. *12 995A.2d 1109.

Therefore, citing Jersey’s “rich recog to New tradition ... of nizing rights go beyond that often individual the bare mínimums Constitution,” overwhelming major “the conferred the Federal 1993,” ity approved of who the recall voters measure and respect component for “a of our State’s charter that fortifies the citizens,” 454-55, of our democratic role id. 995 A.2d the panel perceived urgent “no reason” “to resolve difficult consti this if petition tutional issue the Committee’s drive fails to collect the 1,300,000 necessary, approximately, signatures.” Id. at panel A.2d 1109. The thus found that there a was “sufficient basis proceed for the Committee to with its initiative and for the Secretary perform of State to her ministerial function” without the Appellate “passing validity Division on the of ultimate the recall process.” Id. at 995A.2d 1109. Senator Menendez’s granted this Court April

On General, the Attorney representing The for certification. petition for Elections, petition elected Secretary and of the Director restraint, maintained judicial but has deference certification the Recall UREL and application of the position that the her the Federal Constitution.1 Senators violates Amendment U.S. Education Legal Defense and ACRU the Conservative The (CLDEF)2 as Fund, to submit briefs permitted al. were et curiae. amicus

II. constitutionality argues of Menendez that Senator Appellate mistak- ripe is and that the Division UREL for review position Attorney Specifically, State's on federal General wrote that "the same, constitutionality as in the brief filed below." remains the articulated brief, Division, argued Appellate filed the State with the Senator, officials, a United election federal elective such as States [t]he jurisdiction, provided United for in the a matter exclusive federal Pointedly, corresponding statutes. .. there States Constitution and federal explicit provision a state election for is no federal authorizes any upon which to States Nor is there reasonable basis United Senator. any authority implicit proceeding to initiate a recall construe a state against a United States Senator.... statutory non-enforceability While a state constitutional or .. circumstances, lightly, Suprema- provision is be taken under these not to compels cy States no other conclusion. Clause the United Constitution Nonetheless, arguing Appellate to the Division that the Committee's after merit," any position "ripeness State [does not] claim hold reversed its precedent recall election— is now "mindful that ... condition registered obtaining signatures approximately within 1.3 million voters days—may pass." therefore seek to come to The State does "not never judicial prudence Appellate Division's] and restraint." [the overturn exercise following twelve was on behalf of The CLDEF's amicus brief submitted Constitution; CLDEF; organizations: Founda- Institute on the U.S. Justice America, Foundation; Inc.; tion; to Amer- Gun Owners of Vision Gun Owners Education; Advocate; ica; U.S. Lincoln for Research and Public Institute *13 Control; Foundation; Com- American Coalition for Border Control Border U.S. Trade; Party petitive Constitution National Committee. and The enly “judicial invoked justify restraint” to its refusal to reach the constitutional issues in this case. Specifically, he notes that the Secretary’s agency final determination pivoted purely legal on a and, question thus, no further factual development will enhance the fitness of dispute Moreover, this for review. although no recall election is necessary imminent until the signatures have obtained, been if the notice of intention accepted, Senator argues Menendez he will need to divert attention from his senato- defense, rial duties mount a public and the will be harmed if it is led to believe that it is participating in process an electoral that inevitably will be deemed invalid. addressing merits, Senator argues Menendez by

extending Senators, recall to U.S. the UREL and the Recall with, Amendment conflict and are preempted by, thus the Federal Constitution virtue of the Supremacy Clause. Even if there is express preemption, no argues he that the Tenth Amendment did not reserve to the States the to recall a Senator. There- fore, Senator Menendez insists that because the UREL and the Recall Amendment interpreted cannot be in a manner that avoids defects, their constitutional this Court must find the laws unconsti- tutional. argues Committee that Senator Menendez’s prema- claim is

ture because he will any judicially not face recognizable harm unless and until a recall election is it, held and he loses neither the Senator nor the any significant State will bear expense during the initial signature-gathering stage. The Committee as- serts that the UREL is critical to participation democratic in this necessary State and to ensure that Jersey New citizens retain representation when their Senators are not fit or able to fulfill their duties. express Absent an conflict with a federal constitu- statutory tional or provision, maintains, the Committee States are empowered adopt procedures for the recall represen- of federal Finally, tatives. the Committee private contends that both a letter Washington President history and the of the Seventeenth Amendment confirm the constitutional to recall. *14 support filed briefs and CLDEF amicus

The ACRU regard arguments with They echo the Committee’s Committee. recall to justiciability, the constitutional reservation furthers. Senators, principles and the democratic U.S. gives Jersey New citizens the UREL The ACRU adds expression, with which rights political activity constitutional invoking interfere can neither the nor Senator Menendez State emphasizes alleged from The CLDEF “freedom criticism.” an prohibited in the Federal Constitution recall is nowhere Supreme law. foreclosed U.S. Court case

III. A. Secretary’s The appropriate for review. This issue is generated an of intention accept refusal to and review notice an controversy. The then filed action ongoing Committee result, dispute now whether the parties court. As a two adverse correct, decision, if and the determination was final administrative stand, moving from forward. prevents process the recall allowed Therefore, hypothetical not an abstract or debate. this is into controversy at this time not called existence of an actual dispute might moot if 1.3 million question be rendered because simply proceed gathered; process cannot signatures are not Secretary’s is reviewed in the courts. unless and until the decision words, case, necessary this it is to decide In other to resolve Secretary’s Appellate correct. The decision was whether mistakenly glosses the core contrary approach over Division’s parties presented. issue addressing disputes, we strive to avoid this like required so. See

reaching questions unless do constitutional 297, 306-07, 2671, 2683, McRae, 100 S.Ct. Harris v. U.S. (“[I]f (1980) may be decided on either L.Ed.2d case Court, jurispru statutory grounds, for sound or constitutional this reasons, statutory inquire question.”); into the will first dential Ctr., Randolph Morris, Town L.P. County 78, 80, v. 186 N.J. (2006) (“Courts 891 A .2d 1202 should not reach a constitutional question unless imperative its resolution is disposition to the (citations litigation.” omitted)); County accord Burnett v. Ber gen, (2009) 198 N.J. (quoting 968 A.2d 1151 Hennessey v. *15 Co., 81, Eagle 109, (1992) Coastal Point Oil 129 N.J. 609 A.2d 11 (Pollock, J., concurring)); Twp. Stafford, 384, Bell v. 110 N.J. 389, (1988). 541A.2d 692

In principle, accordance with that routinely courts consider statutory first, factual questions issues and but this ease cannot be grounds. event, resolved on those any In principle judicial restraint does not call for ruling courts to avoid aon case if an only answer can by resorting be found to analysis. constitutional Lyng Ass’n, See v. Cemetery Nw. Indian 439, Protective 485 U.S. 1319, 1323-24, (1988) 108 S.Ct. 99 L.Ed.2d 544-45 (addressing constitutional issues notwithstanding judicial canon of restraint because those issues necessary below); were to decisions see Comm’n, also Citizens v. U.S. -, United Fed. Election 558 -, (2010) (“It 130 S.Ct. 175 L.Ed.2d is not judicial unsound, restraint accept an argument just narrow so the Court can argument avoid another with implications. broader Indeed, a court would be remiss in performing its duties were it to accept an principle merely unsound to avoid necessity making ruling.”). a broader requests Committee Secretary we direct the accept

its notice of intention considering without the constitutional dimen- process sions of the recalling state a U.S. Senator. We decline approach, to follow that might which ordering entail a constitution- al carry officer to out unconstitutional acts. See N.J.S.A 41:1-1 (requiring officers uphold of State to swear to both “the Constitu- tion of the United States and the Constitution of the State of New Jersey”). Simply put, we cannot force the apply State to its imprimatur process may contravene the Federal Consti- tution ignoring very while questions constitutional necessary to resolve the ease. Secretary of State also maintains

The Committee under ministerial acts carry out to decline lacked discretion light of not act alone. UREL. But she did 7 of the section statute, which she constitutionality of the recall about the doubts chief harbors, from the State’s properly sought counsel she still 52:17A-4(b), N.J.S.A. Attorney General. See legal advisor—the General, acting Attorney (e) among powers and duties (listing Law, give to State officers responsibility to through Division they may from as “legal on such matters departments advice legal docu interpret all statutes and require!,] ... time to time activities”); legal see also ments, their and otherwise control ... Law, N.J.Super. 988 A.2d v. Div. of Paff an that there exists (recognizing “well-settled (App.Div.2010) and the [of Law] the Division attorney-client relationship between denied, advice”), legal agencies provides to which it state certif. (2010). 202 N.J. 994A.2d whether Attorney the decision entrusting to the General By a U.S. Senator would a notice of intention to recall acceptance of Constitution, Secretary avoided run afoul of the Federal *16 might have invited. See a unilateral action impropriety that (1912) 656, 583, (finding 658 Dawdy, 104 Ark. 149 S.W. Hodges v. State, Attorney “acting upon advice of the Secretary of that certify proposed General,” right to refuse to file and was within compel to an officer holding will not lie “[m]andamus that law (citation by law” or not authorized an act which is forbidden to do (Fla.1953) Watts, 347, (concluding omitted)); 70 351 Barr v. So.2d statute, officer legality of ministerial opine than on that rather validity of statutes all such attacks on “channel!] should duty protect it is to duly-elected public officer whose through the Attorney General of this respect—the public interest this Steinwedel, (citation omitted)); v. 203 Ind. State ex rel. Test state” (1932) 865, (allowing public ministerial officers 457, 180 N.E. 867 belief that it refusing to follow statute their defense for to offer as act, because, things, they “usually among other is unconstitutional counsel”); act, competent legal only advising with to after or refuse 391, A.2d Hosp. Mahoney, 161 Me. 213 Serv. Me. v. Associated 98 (1965) (recognizing 717 “when an officer acts under advice of Attorney exception “general

the State’s General” as one rule preventing a questioning ministerial officer from the constitution (citations ality performance of the law under which his sought” omitted)); Brown, Equal. Bldg. State ex rel. Sav. and Ass’n v. 334 (1934) Mo. (acknowledging although S .W.2d “[ojrdinarily, may question a ministerial officer ... the consti tutionality statute,” of a “well-recognized exception there is justify even such an officer can perform his refusal when Attorney advised General of the State that the statute is (citations omitted)); unconstitutional” State ex rel. Johnson v. Baker, (1945) 74 N.D. (holding N.W.2d improperly ministerial comply officer refused to with statute based on belief that it was unconstitutional “if because she doubted its validity duty her attorney was consult and advise with the general, state, legal the chief officer and to act in accor her”). opinion might give dance with such as he reasons, For all of those this present concrete matter does not that, justiciability. traditional concerns about We also note at oral argument, counsel for the entirely Committee focused almost on question arguably the constitutional conceded the issue ripeness.3 briefly We nonetheless argu- address the Committee’s pertaining ripeness. ments to the doctrine of argument, following exchange place At oral took after the Committee’s attorney argued length constitutionality in favor of the of the Recall Amend- ment: appropriate

THE COURT: Your answer sounds like a concession that it was Secretary issue], just for the [the State to evaluate constitutional she incorrectly. evaluated it certainly Secretary try ATTORNEY:Yes ... I think the of State should obligations, abide take____ all her constitutional but I think she made a mis- *17 Moreover, challenge Secretary's the Committee initiated this lawsuit to perspective, part decision. From the Committee’s at least of the matter was some, apparently ripe. Although theoretically possible only it is and not all, once, (a) may ripe parse in a issues case be at it is difficult here to question Secretary refusing accept whether the was correct in the notice of

B. “ ‘(1)the fitness on two factors: ripeness depends A case’s (2) if hardship parties to the judicial review and issues for ” N. K. Hovnanian Cos. at this time.’ judicial is withheld review 1, 9, Envtl. Prot.,N.J.Super. 379 Dep’t Jersey, Inc. v. N.J. Cent. Video, Mayor v. & Inc. (App.Div.2005) (quoting 966 A.2d 847 876 501, 691A.2d N.J.Super. Twp., 299 Twp. Comm. ofHazlet Div.1995)). (Law 435 dispute are The issues

First, fit for review. this case is judicial with resolution” legal,” “appropriate thus “purely Gardner, Labs. v. 387 U.S. Abbott developing additional facts. out (1967); 681, 1507, 1515, 691 see also 136, 149, L.Ed.2d 18 87 S.Ct. 903, 457, 479, 121 Ass’ns, S.Ct. Trucking 531 U.S. v. Am. Whitman (2001) (“The 1, us here is question before 20 149 L.Ed.2d not benefit from that would statutory interpretation purely one of (citation and presented.” development of the issues further factual omitted)). objection Menendez’s quotation marks Senator internal relating Recall Amendment portions of the UREL and the to the challenge, generally which “is a facial Senators amounts to U.S. applied.” is void as [law] a claim that the ‘ripe’ much earlier than City, N.J.Super. Mayor Atl. v. & Comm’rs Trombetta (Law o.b., Div.1981), N.J.Super. 436 A .2d aff'd v. Town Morristown (App.Div.1982); see also 454 A.2d 900 Hanover, (App.Div. 402 A.2d 983 N.J.Super. Twp. of 1979) (“Since apparent on the invalidity provisions of these ordinance, exploration was not essen factual of the further face tial____”). Furthermore, Secretary’s consti- decision because determination, agency this Court’s final administrative tutes a interfere with further administra “inappropriately review will Ass’ns, 479, 123 supra, 531 U.S. at Trucking Am. tive action.” (citation quotation and internal 149 L.Ed.2d at S.Ct Prot., omitted); Dep’t v. N.J. see also Mulschler marks of Envtl. UREL, intention, (b) constitutionality based her on which she from the decision. *18 100 1, 10-11, N.J.Super.

337 (App.Div.2001) (finding 766 A.2d 285 agency’s declaratory ruling ripe for was review because it consti determination). tuted final

Second, showing there is a sufficient of harm parties that the resolving would suffer if we were to abstain from this case. 19:25-14.7(b) requires oppose N.J.A.C. that elected officials who recall effort under the UREL “shall establish ... a recall defense subject organizational committee” to various reporting and re quirements, receipt as well as limits on the A contributions. oversight U.S. Senator’s coordination and of such efforts would expense congressional responsibilities. come at the of his or her injects uncertainty instability The recall initiative also and into scheme—inviting sign the State’s electoral petitions citizens to they participating process— the belief that are in a constitutional adversely public integrity affects confidence in the Penta, (1979) system. 65, 77, See Smith v. 81 N.J. 405 A.2d 350 (“[T]he strong public maintaining state has a interest integrity process.”); City Benja the electoral v. Newark cf. min, 58, (Ch.Div.) N.J.Super. 144 (explaining 364 A.2d 563 face, an “[i]f ordinance is invalid on its it would be a useless expenditure money of effort to submit it to the electorate determined”), o.b., validity before its has been 144 N.J.Super. aff'd 389, o.b., (App.Div.1976), 311, 365 A.2d 945 75 N.J. 381 A.2d aff'd (1978). appellate panel, 793 In the words of the we are “disin forward, process go clined to allow the and the citizens of this participating process, State believe are in a recall if it is decide, thereafter, shortly certain that the court would have to Menendez, process manifestly was unconstitutional.” supra, N.J.Super. 413 995A.2d 1109. “importan[t

It is also challenge to] decid[e] a to the consti tutionality of an election law before it takes effect.” Thorsted v. (W.D.Wash.1994) Gregoire, F.Supp. 841 (discussing 1074 state-imposed Congress) term limits for Members of (citing Bab Union, bitt v. United Farm Workers Nat’l n. U.S. (1979)), 99 S.Ct. 60 L.Ed.2d sub nom. aff'd Cir.1996). (9th Munro, “Justiciability in F.3d 454 v. Thorsted injury past fact of but much on the depends cases not so [election] impending or future in an of its occurrence prospect on the *19 12, 2310, Babbitt, n. 99 S. Ct. at supra, 442 at 300 U.S. election.” Limits, (citations omitted); see also Term U.S. L.Ed.2d at 908 60 (1994) 349, Hill, 251, (finding 354 Ark. 872 S.W.2d Inc. v. 316 were ex justiciable before officeholders challenge to term limits “uncertainty “daunting” over what noting from election and cluded Thornton, officials), sub nom. for elected future holds” aff'd 1842, 779, 881. The 131 L.Ed.2d 514 115 S.Ct. supra, U.S. ripe will not be until Senator that this matter contends Committee But when the law in an actual election. is recalled Menendez face,” “good there is on its giving to an election “is defective rise voting. Benjamin, validity before to review the law’s reason” (citation 66, and internal N.J.Super. at 364 A.2d 563 supra, 144 Harrison, omitted); Guys Inc. see also Two quotation marks from (1960) Furman, 199, 233,160 (addressing post- 265 32 N.J. A.2d v. question noting challenge language “[t]he of ballot and election election, ... after the and protest time to is before the Heller, 877, event”). 122 Nev. 141 Gaming, Inc. v. But Herbst cf. (2006) 1224, jurisdictions that (describing rule in other 1229 P.3d refuse, stage, to consider ... generally preelection at the “[c]ourts measure, enacted, violate substantive feder if would [whether] provisions”).4 al or constitutional state may 4 authority among Although split States as to whether a court there is a measure, Herbst, supra, challenge pre-election 141P.3d to a ballot see entertain cases), including Jersey's (citing many New subscribe to the at 1228-31 courts objection pre-election judicial permitted when the concerns view that review is Benjamin, supra, validity 144 measure. constitutional or form of the the facial 563; see, 721, 66, Gray Winthrop, e.g., So. N.J.Super. v. 115 Fla. 156 at 364 A.2d 270, (1934) (“If proposed its amendment to the State Constitution 272 necessarily specifically or limitation of the violates a command terms Constitution, duty part of an administrative officer that is Federal a ministerial submitting proposed prescribed legal procedure for such amendment may enjoined adoption rejection, be at the suit of the State for the electorate submission----"); proper parties expense of Berent v. in order to avoid the 193, (Iowa 2007) (concluding "preelec City City, 206 Iowa 738 N.W.2d challenge [proposed] amendment ... is review of the substantive facial tion 102 Accordingly, system in view of the value to the electoral “ [UREL], clarifying understanding ‘[t]he construction of the an ” operation, possible

its on application,’ constitutional limits its we need not wait to “remove doubt about the existence of Babbitt, supra, injury.” U.S. S.Ct. concrete at 300 n. (first Storer original) 60 L.Ed.2d at alteration in (quoting Brown, v. 415 U.S. 94 S.Ct. 737 n. 39 L.Ed.2d (1974)) (finding challenge govern- labor unions’ to statute ing procedures justiciable though yet election even union had not participated procedures). in election or invoked

Finally, any passing judgment concern about an on ab injury tempered by stract is the fact that this Court “not limited controversy’ requirement imposed to the ‘case or on the federal by way In re courts of Article III of the Federal Constitution.” License, Application Regency Corp. Boardwalk Casino *20 434, ("There ripe”); City Newport, (Ky.1952) v. 252 S.W.2d 437 is no Utz people upon proposed by to obtain a [an vote of the enactment of ordinance petition, approved by ought which] would invalid if be them. The court compel doing thing spending money.”); public of a vain and the useless 642, 1, (Okla.1992) Question re Initiative Petition No. State 349 No. 838 P.2d 8 ("A pre-submission constitutionality petition determination of the of the initiative necessary appropriate proposal facially is where the is unconstitutional and justified avoided.”); costly may City is awhen and futile election be v. Schultz 79, 279, (1956) Philadelphia, (considering 385 Pa. 122 A.2d constitutional validity proposed legislation "wholly unjustified because it would be to allow time, give thought question the voters to their and deliberation to the of the thereafter, affirmative, desirability legislation ... and if their vote be in vain"); judicial City confront them with a decree that their action was in Comm'n, 531, (Tenn.2004) Memphis Shelby County v. Election 146 S.W.3d ("[P]re-election challenges validity to the form or facial constitutional of referen- ripe judicial scrutiny.”); Wyo. Rights dum measures are Nat’l Abortion Action 281, ("[A]n League Karpan, (Wyo.1994) v. 881 P.2d initiative measure that language, language previ- contravenes direct constitutional or constitutional States, ously interpreted by highest subject court of a or of the state United review____[I]f unconstitutional, clearly such a were measure there would be purpose submitting process.”); no in it to the electorate under the initiative cf. Burden, 562, (D.C.1992) Hessey (stopping "forbid[ding] v. 615 A.2d short of pre-election challenges proposed review of constitutional initiatives” for appropriate "extreme cases in which it would be both and efficient decide initiative”). constitutionality proposed aof (citations omitted). (1982) 367, In that 361, 447 A.2d 1335 N.J. the Recall Amend constitutionality of the UREL and regard, the major importance,” which also favors public issue “of ment is an Laezza, 403 A.2d 465 City City v. 80 N.J. review. of Atl. (1979). position not alter the Attorney General’s current does

The Appellate analysis. Although prepared to abide above now specifically approach, approve, we do not she Division’s which her view that the UREL is unconstitu- informed this Court that unchanged. remains tional

IV. congressional constitutionality of limits for To assess the term Thornton, service, supra, in 514 U.S. at Supreme the U.S. Court the text and 115 S.Ct. at 131 L.Ed.2d reviewed materials, Constitution, Federal relevant historical structure follow that principles system. nation’s democratic We of our may recall approach whether States U.S. same to determine Senators.

A. pro Supremacy Clause of the Federal Constitution “[tjhis analysis. proclaims backdrop for our It vides Constitution, shall and the Laws of the United States which be supreme ... shall be the Law of the made Pursuance thereof Land; Judges every thereby, any shall be bound and the State Thing Contrary the Constitution or Laws of State VI, Therefore, notwithstanding.” Const. art. cl. 2. state laws U.S. *21 provisions and constitutional that conflict with the Federal Consti Louisiana, 725, Maryland 451 tution are “without effect.” v. U.S. (1981) 746, 2114, 2129, 576, (citing, 101 68 L.Ed.2d 595 inter S.Ct. (4 alia, Wheat.) 316, 427, 4 Maryland, 17 L.Ed. McCulloch v. U.S. (1819)). words, may legislate a state an area 579 other preempted in which it is the Federal Constitution or federal Inc., 455, Operations, 125 law. Maher v. N.J. Transit Rail N.J. 104 (“Under (1991)

463, system govern our federal 593 A.2d 750 sovereignty possess ment the concurrent with that of the States subject only imposed by government, federal the limitations Constitution, VI, supremacy article clause the United States (citation omitted)); 1, 9, Gangemi Berry, 2.” v. 25 N.J. 134 clause (1957) authority (stating although legislative A.2d 1 “the in, complete power the States consists of the full and as rests any country,” may by, sovereign be exercised subject provision state law or constitutional is still “to the which contained in the Constitution of the United limitations are (citation omitted)). quotation States” and internal marks law, challenged prohibition applies That same even when the UREL, provi is authorized a state constitutional like the under Thornton, 19, 1858, supra, n. sion. 514 U.S. at 809 115 S.Ct. at (‘We at 904 are aware of no ease that 131 L.Ed.2d would even validity suggest that the of a state law under the Federal Consti depend passed by at all on the state law was tution would whether legislature people directly through the state amendment Chavis, constitution.”); 124, 180, of the state Whitcomb v. 403 U.S. (1971) (“[T]he 1858, 1888, 91 S.Ct. 29 L.Ed.2d state give way requirements Supremacy constitution must Constitution.”); a conflict with the Clause when there is Federal Sims, 533, 584, 1362, 1393, Reynolds v. 377 U.S. 84 S.Ct. (1964) (“When an conflict L.Ed. 2d there is unavoidable Constitution, Supremacy a State between Federal and controls.”). Clause of course precedent evaluating validity

There is also State allegedly provision a state constitutional conflicts with the Bodine, E.g., Federal Constitution. Jackman v. 43 N.J. (1964) (holding provision 205 A.2d 713 that state constitutional portion Legislature regard of seats in without allocated

population person, violated “one one vote” mandate Fourteenth interpreted Reynolds, supra, Amendment 377 U.S. 506); Legislative Appor see also McNeil v. S.Ct. L.Ed.2d Comm’n, (2003) 364, 371, 388, tionment 177 N.J. 828 A.2d 840 *22 (concluding application political-bound of State Constitution’s ary requirement largest municipalities by to two preempted was person, “one one Voting Rights vote” mandate and federal inAct Clause). light Supremacy Bound as we are to adhere land, supreme law of the permit provision we cannot of the State Constitution to remain in if it force conflicts with the Federal State, 131, Constitution. Chamber Commerce v.U.S. 89 N.J. (1982) 141, 2). VI, (quoting A.2d 353 U.S. Const. art. cl. B. analysis begins Our plain language with the Federal Constitution. Trump See State v. Hotels & Casino Resorts, Inc., 505, 527, (1999). 160 N.J. 734 A.2d 1160 “If the language is unambiguous, clear and given the words used must be Ibid, plain meaning.” (citing 10, their Gangemi, supra, 25 N.J. at 1). 134A.2d plain language

The suggests of the Federal Constitution that a Senator’s term is fixed prevent and that a Senator completing from Senate, his or her term is vested not the I, 3, States. Article Section provides Clause 1 exception without that a Senator’s years. term of only service is six instance in abridgment which of that expressly appears term is discussed I, Article Section empowers Clause which each house to “determine Proceedings, the Rules of its punish its Members for Behavior, disorderly and, thirds, with the Concurrence of two expel Thus, a Member.” Supreme the U.S. Court noted in dicta that a only Senator’s seat “could become vacant his death, by expiration or office, his term of some direct part action on the of the Senate in the exercise of its constitutional powers.” States, Burton v. United 202 U.S. 26 S.Ct. (1906). addition, 50 L.Ed. 1057 each Congress house of Elections, Judge “the Qualifications Returns and of its own I, 5,§ Members.” U.S. Const. art. cl. 1. delegates

The Constitution limited to the States in the realm of Times, elections for of Congress: Members “The Places Representa holding for Senators Elections and Manner *23 thereof; by Legislature tives, the prescribed in each State shall be alter such any by Law make or may at time Congress but the chusing Senators.” U.S. the Places of except as to Regulations, Clause). (Elections I, 4,§ cl. 1 . Const. art. recall that silence about and amici assert

The Committee against prohibition a is not Constitution in the text of the Federal is unclear Federal Constitution that the recall. To the extent Trump guidance. for interpretive aids we look to ambiguous, (“[I]f Casino, A.2d 1160 N.J. at supra, 160 Hotels & suscep unclear or is provision is the constitutional language of the may sources interpretation, courts consider one to more than tible purpose.”). its intent and itself to ascertain beyond the instrument expressed at of the Framers examine the intent particular, we and the the Constitutional Convention at both historical debates ratifying conventions. state

C. Constitution, ap provisions of the Prior to ratification in two state constitu and Articles of Confederation peared the V, (“[Delegates [to art. tions. Articles of Confederation ... with a reserved annually appointed Congress] shall be them, any any at time delegates, or of its to recall each State the remain stead for others their year, and to send within § Rights, of VI 1776 Declaration year.”); Pa. Const. der of the of they may think (“[T]he periods as right, at such people have a station, private officers to a public their proper, to reduce elections.”); Vt. Const. regular by certain and supply the vacancies (“[T]he by legal right, a their people § have 1786 ch. VIII of reducing public officers for their to enact laws representatives, in a constitu station, their vacancies supplying for private elections, they may as manner, periods at such by regular tional Convention, Thus, leading into the Constitutional proper.”). think concept of familiar with delegates were people and their recall. Convention,

At the Constitutional contrary to the Committee’s position, rejected. of recall was considered and A recall provision first was introduced at Virginia the Convention delegate Randolph part Governor Virginia Edmund of the Plan structuring for government. May 29, 1787, the national On Ran- dolph proposed following provision govern Representatives’ terms of office: Legislature ought Resd. that the members of the first of branch the National be elected of the [_] several States term for the of every [_J; age to be [_] of to receive years least, liberal which stipends by be for the devotion of their may compensated time to service; to be public

ineligible to office established or under by particular State, authority belonging the United States, those except [pleculiarly to the functions of the first during the branch, term of and for the service, [_J after space its expiration; to be re-election incapable [_] space expiration their after subject term service, and to be to recall. *24 (M. 1911) (hereafter [1 Records the Federal Convention 1787 20 Farrand ed. Farrand) added).] (emphasis However, on June Pinckney, Governor Charles dele- gate Carolina, from South moved to strike portion of the resolution underscored above. 1 Adoption Debates on the Federal (J. ed., 1836) (hereafter Constitution Elliot); Elliot Elliot 185. The States unanimously approve voted Pinckney’s 172; motion. 1 Elliot 5 Elliot 185. delegates

Certain at the Constitutional Convention who favored recall of Senators acknowledged that part recall not was of the draft August constitution. On Elbridge Gerry, delegate Massachusetts, from expressed to the rest of the Constitutional Convention his concern over the lack of a provision recall to check power: the Senate’s great given If governed should be powers to the Senate, we shall be in reality by

junto, as has been [IJt would be apprehended very constituted from differently Congress [under the Articles of Confederation]. In the first there will be place, Virginia Under analogous Plan, there was no for Sena- provision tors; "since the members of the second branch were 'to be elected those of by Virginia the drafters of subject Plan saw no first/ need to apparently them to recall.” A. Rossum, Federalism, Ralph Court, and the Supreme (2001). Seventeenth Amendment: The Constitutional Irony Democracy Congress be are state; two from each there and may seven,

but deputies generally are for six those of five. In the second chosen they years; place, Congress subject In the are not those they recall; third annually. place, great Congress Congress for all nine states are And, finally, necessary are. eight it to that the will will suffice. Is be here persons presumed people purposes; agree ever to such system? (first added).] [5 Elliot 422 emphasis including the benefits of not a recall delegates

Other extolled 6,1787, as recorded in the notes of Massachu- provision. On June King, Dickinson of Delaware asserted delegate setts Rufus John ((Branch) Govt, ] draw a Br. a national as is unless we [w]e cannot form proposed legislature—it from & a Br. from the is necessary theory—And the people, objections project—The to an election essential to the success slight and when with arise nature of a Free Government are compared from the Br. from the the Government—The 2d must come State sover- the excellence of eignties Legislature, will more must for respectable they yr be they something duration be like the British House of peers— & respectability Legislatures and have But Br. be drawn from the who are been opposed can one Legisture. of the to be in States, It can—the Geni. Govt. ye appointment Govt, subject and to on the Geni. for office or 7. to a recall yr. 3-5 yrs; depend support— added).] (emphasis [1 Farrand 143 delegate

Similarly, June New York Alexander on Jersey government pro- the New Plan for Hamilton dismissed posed delegate Paterson. Hamilton stressed the need William sufficiently independent of the influ- Congress to be States’ ence, Jersey Plan nor the he believed neither New which adequately Articles ensured: of Confederation it is can raise no nor Examine the evident confederation, troops present *25 war is declared. cannot therefore take any vessels before actually They equip is at How unwise and inade- your measure before an door. enemy preparatory and this must ever be the when to define you attempt their case quate powers! being wanting. Congress, powers.—Something elected, will be annually always prejudices subject states than recallwill ever come with the their rather and of organized, good to a thus the union. Add therefore additional powers body the of consisting sovereignty single a of the worst of kind, body. and establish you govern- must either over the state the checks? None. They Where are prevail governments in them of the state must end dissolution. ments, or the prevalence objection the This a conclusive Jersey plan. (first added).] [1 Farrand 298 emphasis views in

Hamilton’s were several of Federalist echoed the Papers, speak objective safeguard stability which to the the independence of the public opinion. Senate it from and distance (Alexander See The Federalist Nos. at 389-94 Hamilton or Madison) 1888) ed., (hereafter (Henry Lodge James Cabot The Federalist). inability rallying

The the Senators States to recall became point Anti-Federalists, for opposed who ratification Amicus, Constitution. See No. A53: Plea Antifederalist for (1788), (M. Right reprinted Papers Recall The Antifederalist 1965), Borden (endorsing proposed ed. 152-53 amendment to providing permit Constitution for “dismissing] recall to from our employ possible, persons as soon such as do not consult our instructions).” interest and will not follow our concerning debate provi- the decision not to insert a recall sion in a draft of the Constitution continued in several the state ratifying participants—a conventions. Certain number of whom were delegates also to the Constitutional Convention—voiced their displeasure provision over the absence of a recall in the Constitu- tion, which had existed under Articles of Confederation. On 29, 1787, November example, delegate for Luther Martin of Maryland reported Maryland Legislature back to the that under being this new senators are chosen system, to be for six instead of years, being chosen instead of their annually; States, who send paid them, they, conjunction with other branch, are to out of themselves, pay treasury during United are States; and not liable to be recalled which period they for are Thus, Sir, chosen. six the senators are years rendered totally ought their whom absolutely States, independent be the representa- During join bond or

tives, without tie any between them. time, they may measures ruinous and destructive to even States, their such as should totally governments, annihilate their State and their States them, cannot nor exercise over control them. added).] (emphasis [3 Farrand 194 convention, Virginia

At ratifying towering figures two in our history spoke nation’s against out the draft Constitution’s failure to allow for recall. On Henry June Patrick remarked critically present you may “[a]t appeal to the voice of the

no obey Congress positively instructed to people, send men to and of be system policy them if their your You can recall instructions. your you government But can in this recall senators? ruinous. them----Where, cannot recall you Or can instruct them? You then, security?” Elliot is the 355. following George Mason offered a similar criticism day,

the draft Constitution: are six six not recallable for those are chosen for years. They The Senators reeligible [The Constitution] new stands at the end of the six and are years, years. ground [Senators] that system, on different from Confederation. By a very might and were reeleetion. recalled, incapable

were elected for one be year, only being are for elected for chosen one, they But the new instead of Constitution, misconduct, and at the recalled, time, six be in all that any cannot years. They long again be elected. end term may [3 404.] Elliot Lancaster) (“If (N.C., from [senators] deviate

See 4 Elliot 213 also they changed year, and the first duty, cannot be excluded their by the Congress can now Confederation----The the members may in this Congress now be recalled. But Constitu- members of Smith) recalled.”); (N.Y., (listing they 2 Elliot 281 tion cannot be “many operations among [the material checks recall have”); 2 Congress will not present Congress], future which (“In Constitution, (Mass., new are Kingsley) we Elliot 62 elections, rotation, cannot recall deprived have no and of annual masters, members; rulers be our our federal will therefore servants.”); (Mass., Taylor) (arguing that under not Elliot 48 Constitution, years[,] “are to be chosen for six but Senators recall”; thus, for, “if no provided rotation shadow of forever”); chosen, 2 Elliot 47 they they are chosen are once Jones) (“[SJenators forget time will (Mass., long for so chosen them.”); 3 cannot ... duty their to their constituents. We Martin) (Md., “are to serve (reporting Senators Farrand Treasury, Years, and are pay out of the General Six themselves State, paid by can be recalled for misconduct nor State that make before of the Interest of their [sic] sacrafice period”). expiration

Ill *27 York, Pennsylvania, Three States—New and Rhode Island— proposed amendments that would have explicitly allowed for the During recall of Senators. the debates at the New York Conven- tion, delegate Livingston argued Gilbert greater checks on the end, power. Senate’s that, To that he introduced a resolution among things, other permitted legislatures “the of the several senators, states to recall their ... elect others their stead, to serve for the remainder of the time for which such senators, recalled, senator or so appointed.” were 2 Elliot 289. Similarly, delegates Pennsylvania to the Convention introduced an providing senators, amendment though “[t]hat chosen for six years, recalled, shall be liable to be superseded by other appointments, by respective legislatures states, time.” 2 Elliot 545.

At Convention, the Rhode delegates Island proposed likewise an providing amendment legislatures “[t]hat the power state have recall, when think it expedient, senators, their federal and to send others in their stead.” 1 Elliot 337.

However, proposals survived, none those and all thirteen States ratified the Constitution without a provision in it. Jay Bybee, Ulysses Federalism, at the Mast: Democracy, and the Song Sirens’ Amendment, the Seventeenth 91 Nw. U.L.Rev. (1997). 529-30 It stands to reason that recall was discussed at the state ratifying conventions because it rejected had been at the Constitu- tional provided Convention and was not for in the Constitution. Plus, Constitution, course, yet final, was not ratified Thus, document. despite the contrary position, Committee’s debates at ratifying the state conventions do inform the historical record. light of that body evidence, substantial it is not surprising Thornton,

that in Supreme the U.S. Court’s majority and dissent- ing opinions both rejected noted that the Framers provi- a recall sion and power Thornton, denied States the to recall. supra, at 904 & n. 115 S.Ct. at 131 L.Ed.2d

514 U.S. at 810 reject proposal (recognizing “[t]he Framers’ decision representatives own allowing to recall their reflects” for States try to undermine the National Govern that States would “concern (internal omitted)); 890, 115 id. at S.Ct. at ment” citation (“[A] (Thomas, J., dissenting) recall[] 131 L.Ed.2dat 953 specified terms [the Framers] denied to States when [was] Congress.”). of Members of Washington nephew, almost to his dated

A letter from President Convention does two months after Constitutional ambiguous heavily analysis. general, uses weigh in the letter *28 passage The from the follows: language relevant letter at best. in It is entrusted for The the Constitution will be the always People. under power to of for a certain limited certain defined and period, representatives purposes, chusing; not to their Interest, their own and whenever is executed contrary agreeable recalled. can, will wishes, undoubtedly be, to then- their Servants (Nov. 10,1787), Washington George Washington 29 The Busbrod in [Letter from Original Writings George Washington Sources Manuscript 1745-1799 of from (John 1931).] 311 ed., C. Fitzpatrick not the recall of an official It is whether the letter addresses clear a a at reelection once term has been in the middle of term or support completed. cited the same letter as The Thornton Court representatives’ that need for reelection argument for the “the mandatory way to was more effective rather than rotation Thornton, supra, to the keep representatives responsive people.” n. at 907. & 115 S.Ct. 131 L.Ed.2d 514 U.S. at 814 event, hardly out any family to a member can private a letter weigh public at the open, debate conventions.6 6 single own It State that chose amend its noteworthy following further, and, inserted a recall constitution Convention provision recall in constitutions that the that had their two states previously provided See their new constitutions. omitted in any conspicuously parallel provision urged generally Thornton caution 1790; Vt. Const. 1793. Pa. Const. of relying the contours of Federal Constitution. on state measure practices Ct. at L.Ed.2d To the Thornton, U.S. at 115 S. at 912. supra, following weight, ratification have extent state immediately practices

D. The Committee relies on the Amendment Seventeenth authority source for states to recall U.S. Senators. The Amendment, passed 1913, provided Seventeenth for direct election of changed selecting U.S. Senators. While it mode Senators, provide it did not for the of recall. amendment, part, following in relevant struck the under I, language

lined from Article Section Clause 1—“The Senate of composed the United States shall be of two Senators from each State, Legislature thereof, years; chosen for six and each Senator have replaced phrase shall one Vote”—and with “elected thereof.” Const. U.S. amend. XVII. amendment, years preceding In the several Members of Congress spoke favorably support Cong. of recall. 46 Rec. (1911) (statement Bourne) 2495-96 (suggesting of S. ad- securing proper accountability government dress “the officials[, corporate greatest prob- which] is one our national lems,” public officials composite “must serve the citizen who represents general recalled, exists, welfare or be where the recall exists”); or fail of reelection primary where an efficient direct (1910) (statement Owen) Cong. Rec. 7125 (advocating of S. reforms, certain including statewide democratic right of “[t]he recall,” scale); adopted (1894) be Cong. on national Rec. 7767 *29 (statement McEttriek) (“The Rep. of power representa- to recall repudiated pledges tives who have and broken faith with the essential.”). people absolutely However, oblique their endorse- of ments recall did not evolve further.

Others remarked that virtually there was support no for a recall measure any and underscored that direct-election amendment encompass would not recall. In illuminating an statement on April Representative thought Thetus Sims of Tennessee lend further to the conclusion that the States understood the support Constitu- instituting Congress. tion to bar them from recall of Members of proposed direct- provision into the injecting a recall

better of amendment. election get ago just anxious to that he was so a few moments [T]he chairman stated through inasmuch as it had been already in form, this resolution its present not if at that he did all, it must passed in another where body, pass considered amendment be voted and would ask that it, every amendment offered to

want any an amendment to I have offered for that should down. Had it not been request joint and then the amendment I read the resolution resolution.... will this first not the I would now it were and which which I expected if for fact offer offer change kind way by any the resolution any that I do not to attempt propose I would like to and however much however here, amendment proper offered of gentlemen not meet with the a that does it, approval by provision support charge the whole have looked over and surveyed matter in and who who have this reads: situation. The resolution from each be of two Senators States shall composed The Senate of United have and each Senator shall thereof for six years; elected State, people one vote. following just I this amendment: words “six intended years” Now, offer them, either Senators, State to recall its or reserved to each With power of in their to send another or others their sendee and time within the period of legislatures the various States and the remainder such period, stead for legislation into effect this provision. carry shall by appropriate legislators, in their their the confidence of people I in order to retain think, if agents, House, necessary, or even Members of this Senators, States their United have the should otherwise, they the direct vote of people whether elected by judgment, agents in their or other servants whenever dismiss them longer who no ascertained, represent and deliberately properly them____I for recall would be otherwise such a do not believe provision elected go must But I realize that this resolution with sentiment. than accord public through and of statement by I the sincerity honesty another body, appreciate President, President, Election of Vice [the House Committee on the chairman give wanting anything Congress] in to do that will and Representatives objects, against in its main to vote the resolution purposes an excuse anybody a direct vote of the shall be elected by people. that United States Senators changes I his mind, the chairman of the committee Mr. unless Therefore, Speaker, but it is time to think it; and ask a vote upon this amendment will not offer things. about these Sims) added).] (statement (1911) (emphasis Cong. [47 Rec. 212 Rep. Senate, Heyburn of Idaho listed In Senator Weldon might horribles that later among parade Senators accepted. amendment were if a direct-election become law stated, 24,1911, May he session on *30 What in next? What will we face here this Chamber? The recall of perhaps changing officers of the United States at the whim of local communities. Do you get self-respecting think that would a man to you a this occupy position challenged Chamber when his so to at do was time to be likely any canceled? I not care would for the of a man who would acquaintance accept of on such terms. place responsibility (1911)(statement Cong. Heyburn).] [47 Rec. 1543 of S. later, Heyburn Two weeks on June Senator echoed his earlier remarks: clamoring change electing I know men who will be for a in the manner of clamoring President I of the United States. know men who will be the recall for Congress. the States I will not believe that there is Representatives of of from a Senator in this who would such a I have seen it in body support proposition, yet changed that the Constitution should be so as to a recall of print recently permit Congress. of the States in both Houses of What next? To representatives judge the life tenure of the will be the next one. Those who do not know destroy intelligent who have no of its Constitution, would conception purpose, support inject such an amendment. To limit the tenure of office and ambition and polities

into our United States Court and break down the Supreme our stability Government is one of them. Just start this raid the Constitution once and upon see where it will end. (1911) (statement added).] Cong. Heyburn) (emphasis [47 Rec. 1742 of S. Finally, accompanying reports make clear that the Seventeenth designed Amendment was not existing except interfere with law selecting 62-2, as to the H.R.Rep. manner Senators. No. at 3 (1911) (“This propose amendment any way does not to interfere with the fundamental except law save and the method or mode of Senators.”); choosing (1911) (same). S.Rep. No. at 5 reports Based on those and the statements of a number representatives Houses, in both is clear that the intent of Congress scope was to coniine the of the Amendment to the direct See, (1911) (state- election of e.g., Cong. Senators. Rec. 1977 Lodge) (arguing ment of S. that direct-election amendment “is a purely change” mechanical merely proposition that “is to convert Representatives, the Senate into a second House with two State, Congressmen large from each who are to be called years”); Senators and to Cong. hold office six Rec. 1103 (1911) (statement Borah) (“Will of S. change the mere of the mode selecting United bring States Senators effect or about change fundamental or incidental plan govern- the scheme or *31 116 it?”); Cong. 33 Rec. to us those who framed

ment as submitted Robb) (statement (1900) (“Except to the mode of Rep. of 4123 vacancies, change proposed, and filling no other election and departments States and the several of Senators to their relation unaffected.”); Cong. also 47 remain see of will the Government (1911) (statement McCumber); Cong. Rec. 3544 of S. 46 Rec. 1883 Jones). (1911) (statement Thus, Congress of as Members of S. Amend- emphasize, import of Seventeenth pains took beyond specific its terms.7 not reverberate ment does

E. 4, 1, I, § Clause, cl. also Const. art. The Elections U.S. with That clause “invests the States support for recall. offers no elections,” congressional of for the mechanics responsibility Love, time, v. 522 U.S. namely, place, and manner. Foster their (1997) (citation 464, 466, 369, 139 L.Ed.2d 373 118 S.Ct. omitted). terms, authority to create By “grant[s] States its own 832, Thornton, supra, at 115 regulations,” 514 U.S. procedural 918, 1869, legisla substantive at enact S.Ct. at 131 L.Ed.2d laws, congres- tion, which would alter the duration like recall 7 practices Amendment reveal that around the time of the Seventeenth State later, Wisconsin, years adopted provision only for the recall some thirteen Congress. Eight expressly extend recall to other States did not Members of XIII, (1926) ("The qualified § Compare art. 12 federal officers. Wis. Const. state, legislative may any congressional, judicial district ... electors of the officer____"), petition with Const. incumbent elective for the recall of Aril. State"); 1, 8, (1912) "[ejvery public (allowing part § officer in the 1 recall of art. Const, 23, (1911) (allowing "[ejvery public § recall of elective officer Cal. art. 1 Const, XXI, (1913) State”); "[ejvery (allowing § recall of art. 1 of the Colo. Kan, 4, (1914) state”); (allowing § public art. 3 of the Const. elective officer Const, judges); public except art. La. elected officials in the state” recall of "all 223, (1914) "[ajny except judges); (allowing § officer of this State” 2 recall VI, (1912) (allowing "every public § recall officer in art. 6 Idaho Const. 2, (1912) "[ejvery (allowing except judges); § art. State" Nev. Const. State”); (1912) (allowing § public recall of in the Wash. Const. art. officer Thornton, except judges). "[ejvery public once officer of the state” elective Thornton, supra, against practices. again, 514 U.S. reliance on such cautioned at 131 L.Ed.2d at 912. at 115 S.Ct. “to ‘dictate ability of recall light of office. sional terms “ ” congres ‘regulation’ of outcomes,’ it is a we find that electoral by the Elections simply is not authorized [that] elections sional Cook, at at 121 S.Ct. supra, 531 U.S. Clause.” Thornton, at supra, 514 U.S. (quoting L.Ed.2d at 58 918-19). 1869, 131L.Ed.2d at S.Ct.

F. *32 “the inability accords with Finally, to recall Senators ” in the system’ established our democratic principles of ‘basic 1856, 806, 115 Thornton, at supra, at S.Ct. 514 U.S. Constitution. deliberately structured the at 902. The Framers 131 L.Ed.2d instilling body capable of independent and as a stable Senate character, an extended view able to take with Senators national Cronin, See, e.g., Thomas six-year light of their terms. issues Initiative, Referendum, and Democracy: The Politics Direct terms, (1989)(“U.S. Senators, six-year serve elected Recall longer designed to take a view deliberately was in a chamber that and the alter that view interest. Recall would of the national Senate.”); justify of the that the existence principles federalist (explaining “[t]he that Bybee, supra, 91 Nw. at 530 U.L.Rev. their unwillingness of recall reaffirmed have Founders’ six-year conception their to the term” and commitment stability”); see also The repository of wisdom and Senate “as (Alexander Madi Hamilton or James No. at 391-92 Federalist son) sense of (asserting was to stimulate “due that Senate needed assembly “an only so if created as national character” and could do trust”). public durably invested with ... “ ‘an officer of objective, Senator was made

To realize that each union, the Consti- deriving powers qualifications his and from tution, nor controllable by, dependent upon, and neither created ” states,’ primary allegiance not to the by, “owe[d] and each Thornton, State, Nation.” people of a but to the of the people 131 L.Ed.2d at supra, 514 at 115 S.Ct. at U.S. (quoting Story, 1 J. Commentaries on the Constitution (3d 1858) (hereafter § Story)). United States ed.

Subjecting stability Senators to recall could erode the quality “patchwork” national of the Senate and lead to a of state terms of service. See at at id. S.Ct. 131 L.Ed.2d at 912. uniformity Those outcomes would “undermin[e] and the national sought character that the Framers envisioned and ensure” and “sever direct link that the Framers found so critical between the National Government and the (citation omitted); Cook, supra, United States.” Ibid. 531 U.S. cf. 521, 121 1037, 149 (agreeing S.Ct. at at 55 “binding L.Ed.2d instructions would undermine an Congress essential attribute of by eviscerating the deliberative of that Assembly” nature National (citation omitted)). sum, text, history, our review of the constitutional system

structure of the democratic reveals the Federal permit Constitution does not recall.

V. legal Certain States and a number of scholars have likewise concluded state law cannot be used to recall federal officials. *33 Jersey, authorizing Like New numerous other States have laws procedures Zick, public Timothy for the recall of officials. See Senators, The Consent the Governed: Recall United States of of (1999). 567, 103 Dick. L.Rev. expressly 569 n.8 Three States have provisions apply drafted their recall Congress: to Members of Michigan, 2(b); Jersey, I, New and Wisconsin. N.J. Const. art. U 13, (West 12; § Comp. 2010); Wis. Const. art. Mich. Laws 168.959 (West 2010). State, Arizona, Wis. Ann. 9.10 A Stat. fourth provides for recall Congress pledge resign of Members of who if upon not reelected a state recall vote. Ariz.Rev.Stat. Ann. 19-221 (West 2010). Additionally, “[m]any to -222 [thirty-two of the provisions arguably apply state Congress, other] to Members of officials, all specifically excluding cover elected without Mem Zick, Congress.” of supra, bers 103 Dick L.Rev. at 569 n.8. “[tjhere examples of However, many modern although have been senators,” Christopher for U.S. recall elections efforts schedule Instructions in Terranova, Legislative The Constitutional Life of (citations (2009) 1331, America, omit- 1341 n.65 L.Rev. 84 N.Y.U. in the recalled ted), Congress has ever been “no Member of Maskell, Congressional Research J. history States.” of the United and the Remov- Legislators Recall Report Congress, Service (2008). Congress al Members from Office laws.8 In squarely tested those case has precedential No court, District the Western in federal district a 1972 case filed directly against U.S. Senator complaint filed Michigan dismissed Judgment persons Hart, “Declaratory sought a Phillip which State of Michi Senator holding of United States the office Michigan forth in the by procedures set subject to recall gan are (W.D.Mich. Hart, Hooper v. 56 F.R.D. Law.” Election 1972). identify “a plaintiff failed to The court held parties controversy” between justiciable case or actual of the advisory That is the extent sought opinion. an Ibid. instead observed, accurately “no panel appellate As the relevant case law. or court in the nation has opinion from federal state published application to a recall measure’s yet invalid a state declared Representa House of States Senate member the United Menendez, 1109. N.J.Super. at 995 A.2d supra, 413 tives.” opined However, Attorneys States have General several rejected Most have question of federal officers. on the of recall to recall Members recall laws could be used the notion that state (2010) Att’y at 6 n.18 Congress. Op. N.D. & See 2010 Gen. affecting “[a]ny elected (refusing interpret provision noting offices and to extend to federal official state” unpublished court case an Idaho state Senator Menendez directs us to validity discussing petition Frank Church. We of a to recall U.S. Senator “[Ujnpublished light Court. case in of the rules of this decline to address that " by any precedent court.' opinions and ‘are not to be cited do not constitute Inc., (2010) Agency, Stengart Loving 990 A.2d 650 Care 201 N.J. 317 n. v. *34 1:36-3). (quoting R. Supreme that apply analysis

likelihood U.S. Court would same state law invalidating state-imposed as it did when term Thornton)-, (2010) Op. Att’y 2010-017, limits in Gen. Ark. at 5 (determining proposed that applies state recall amendment “as Congress to members of is unconstitutional because a state statute qualifications cannot alter the terms or for members of Con- 09-0051, (2009) gress”); Op. Att’y (concluding Gen. La. at 4-5 Louisiana citizens’ Representative efforts to recall U.S. Ahn “Jo- seph” proceed” Cao under state law “cannot because “the tenth amendment of the United States Constitution does not reserve to authority the states Congress remove members of from office”); (1994) Att’y Op. Gen. Kan. (concluding authorizing public state law recall of officials apply does not Congress noting Members of that “the United States constitu- tion does not reserve to the authority states the to remove congress office”); Op. Att’y members of from Gen. Nev. 14 (1978) (opining petition that “notice of intent to circulate a to recall one of intrinsically Nevada’s United States Senators” would be Secretary defective and that of State should refuse to file it “[o]nly because the United Repre- States Senate the House of prior sentatives can remove its own members to the end elected”); terms for which 17 Op. Att’y were Gen. Or. (1935) (advising Oregon Secretary accept of State not to or file petition seeking recall Representative “jurisdiction of U.S. because Representative Congress determine the of a to a seat is exclusively Representatives” vested in the House of Repre- and “a Congress subject sentative is not to recall legal voters of elected”). the state or of the electoral district from which he was case, As evident her submissions in this Jersey the New Attorney opinion General is also that a state recall law applied cannot be to a U.S. Senator. only exception—a

There is one opinion of the Wisconsin General, Attorney explained who “attempted while he had comprehensive analysis neither a resolution nor a of the constitu- issue,” tional he was “not aware of clear manifestation of Congress’ preempt compatible regulation intent to otherwise state

121 provisions that our recall area,” could not “state and thus in this preemp- grounds on of federal unconstitutional be declared would however, (1979). opinion, 140 That Att’y Op. Gen. Wis. tion.” 68 of States’ reserved Supreme Court’s discussion preceded 804-05, Thornton, at supra, 514 U.S. See in Thornton. powers (recognizing “Fram- at 901-02 131 L.Ed.2d 115 S.Ct. at federal officers the election of understanding powers that over ers’ by, to, the States” delegated rather than reserved to be had delegation to of constitutional the absence holding “[i]n that enumerated qualifications to those power to add the States of exist”). Constitution, power does not such agrees state legal scholarship that resounding A consensus See, e.g., Congress. to recall a Member cannot be used law (2006) Guidebook, 109-10, at 294 Doc. No. S. Election Law Senate Representa- or United States (“[M]aking a United States Senator constitute election would subject by a state recall to removal tive office, do not have for which the states qualification an additional Maskell, enact.”); supra, at 11 authority to J. constitutional (“For against a Member provision to be enforceable a recall amendment would appear that a constitutional Congress, it would authorizing requisite of states adopted by number need to be Constitution.”); procedure in the United States a recall such Zimmerman, People 31 Recall: Tribunal Joseph F. (“It (1997) employed against that the recall cannot be is clear ... Congress a U.S. constitutional without a member of the U.S. recall.”); supra, 91 Nw. authorizing Bybee, amendment (noting refusal to authorize “[t]he at Founders’ U.L.Rev. senators, recall,” “[rjecall, of control over has as a mechanism referendum],” legislatures “state and that [than fared no better senators”); Jefferson B. enjoyed right recall of U.S. never Fordham, Proposal, L.Rev. 1976 Utah The Utah Recall recall of Mem- permitting initiative (arguing proposed state legally Congress, adopted, “if would be an abortive—a bers compe- something beyond state ineffective—attempt to control design tence,” quite with the federal constitutional and “is at odds Terranova, supra, N.Y.U. Congress”); in the representation (“[T]he L.Rev. representatives [was] a Constitution, threat that was eliminated the U.S. which did not explicitly provide authority.”); Zick, supra, such 103 Dick. L.Rev. (arguing at 591-92 recognizing favor of recall but “[pjartie- ularly light analysis of the Thornton Court’s probable ... it is that the Court would hold that the states or lack *36 under Congress”). By the Constitution to recall a Member contrast, neither the single Committee nor amici a offer commen- suggests may validly tator who that employed state law be to recall federal officers.

VI. analysis In a manner consistent with the in section IV of opinion, Supreme this the U.S. rejected Court has considered and supplemental congressional to conditions terms of service. In McCormack, Powell v. the Court determined that the House of Representatives power has no long to exclude its members so requirements have satisfied the three membership for listed 1, 2, age, citizenship, Article Section Clause 2: residency. 1944, 1947, (1969). 491, 395 U.S. 89 S.Ct. 23 L.Ed.2d 498 conclusion, reaching In that the Court to looked relevant histori I, cal materials to ascertain whether Article Section ofV “the gives judicially Constitution the House power unreviewable to set qualifications membership judge and to prospective whether or, qualifications” conversely, members meet those whether “the gives power Constitution judge only the House to whether elected possess members standing qualifications the three set forth in the 520, 1963, Constitution.” Id. at 89 S.Ct. at 23 L.Ed.2d at 516. rejected The Court found that proposal the Framers empower Congress to qualifications ultimately add to the three Constitution, 532-36, 1970-71, fixed id. at 89 at S.Ct. 23 century L.Ed.2d at and that in following the Constitu- Convention, “Congress strictly tional its judge limited qualifications of its members to those enumerated in the Constitution,” 542, 1974, at id. 89 S.Ct. at 23 L.Ed.2d at 528.

123 5, I, § most is at Therefore, that “Art. concluded the Court judge only Congress to commitment’ to ‘textually demonstrable at Id. in the Constitution.” expressly set qualifications forth added). 1978, (emphasis at 532 548, 23 L.Ed.2d S.Ct. at Arkansas invalid an Thornton, the Court deemed supra, on the number limits imposed amendment constitutional 783, at 514 U.S. Congress could serve. that a Member terms decision, the Court In a 5-4 1845, 131L.Ed.2d at 888. at 115 S.Ct. proposi “important two and reaffirmed reviewed Powell first intended “the Framers the case established: tions” and that be exclusive” the Constitution to listed in qualifications democracy ... representative principle of our “fundamental is a they please govern choose whom should ‘that 1851, 131 L.Ed.2d at 895-96 115 S.Ct. at at them.’” Id. Powell, at (alteration supra, 395 U.S. original) (quoting 531). emphasized that at The Court L.Ed.2d S.Ct. at Powell, Congress may not alter or add conclusion “[o]ur analysis integral to our was qualifications in the Constitution L.Ed.2d at 896. Id. at S.Ct. and outcome.” *37 substance, analysis of the term- the Court’s In both form and The Court resolving the recall issue. applies to limits issue canvassing text and structure opinion by “the framed its materials, and, impor Constitution, most historical the relevant ” 806, system.’ at Id. tantly, principles of our democratic the ‘basic 1856, found “most at 902. The Court at 131 L.Ed.2d 115 S.Ct. [was ratification debates striking in the extensive that nowhere opponent of proponent or an either statement there] require permit States to constitution would rotation that the draft 814, at citizens.” Id. representatives of their own rotation for the Moreover, 150 1860, “for over L.Ed.2d at 907. 115 S.Ct. at 131 Powell, the view was] commentators years prior [believed qualifications estab to the could not add House that States 1862, 817, at 131 at 115 S.Ct. Id. lished the Constitution.” Therefore, the Constitu concluded that the Court L.Ed.2d at 909. elec- tion, a limited role federal the States but which “allows 124

tions, and maintains strict checks on state interference with the process[,] federal election ... body thus creates a uniform national representing single 822, the interests of a people.” Id. at 1864, earlier, S.Ct. at 131 L.Ed.2d at 911-12. As noted the Court emphasized patchwork qualifications” that “a of state would “un uniformity dermin[e] the national character sought 822, Framers envisioned and to ensure.” Id. at 115 S.Ct. 1864, 131 at L.Ed.2d at 912. Court, above, in a footnote also referred to added that reject proposal

“[t]he Framers’ decision to allowing for States to representatives recall their own reflects same the[ ] concerns” that try “States government.” would to undermine the national Id. at 20, (internal 810 n. 115 S.Ct. at at L.Ed.2d citation omitted); see also id. at 115 S.Ct. at 131 L.Ed.2d at 953 (Thomas, J., dissenting) (recognizing power that “a of recall [was] denied to the specified [the States when Framers] the terms of Congress”). strong Members of concluding remarks, its prescribe Court declared that a State could term limits con- gressional only office if the Federal Constitution were so amended. 837-38, Id. at 115 S.Ct. at (majority L.Ed.2d at 921 opinion). Cook,

Lastly, supra, the Court held Missouri could print negative threaten to labels on ballots next to the names congressional candidates who steps support failed take limits, specified term in a state constitutional amendment. 531 514-15, 527, 121 1033-34, 1040, 149 U.S. at at S.Ct. L.Ed.2d at 50- recognized 58. The Court that aside from the Elections Clause, other provision gives “[n]o constitutional the States au thority elections, congressional over and no such authority could Amendment”; thus, be reserved under may the Tenth only States regulate congressional elections to the extent that such delegated by the Elections Clause. Id. at S.Ct. *38 1038, 149 L.Ed.2d at 56. The Court then clarified that Elections procedural Clause relates to “the mechanisms of elec tions,” which do not include a to attach adverse labels to

125 at limits. Id. congressional do not embrace term candidates who 1039, 149 526, 121 at 58. at L.Ed.2d S.Ct. cases, engaged in historical trilogy the Court

In the above be analysis whether rules could added to determine and textual Constitution was congressional when the Federal terms service occasion, that the On each the Court concluded otherwise silent. were express I of the Federal Constitution provisions Article six-year analysis that the fixed exclusive. That demonstrates and I, similarly Clause fixed term Article Section exclusive.

VII. text, history, relating substantial evidence to the Because that recall Constitution reveals was and structure Federal deliberately the States omitted from Consti prohibited to tution, play. does not into Neverthe the Tenth Amendment come less, heavily on the rely and amici Tenth because Committee Amendment, briefly position. we their address powers delegat that provides

The Tenth Amendment “[t]he Constitution, prohibited by nor it to ed the United States States, respectively, to the States to the are reserved that people.” interpreted provi X. Thornton U.S. Const. amend. powers. directly question of reserved sion and addressed the only that the Amendment “could ‘reserve’ explained Court Tenth “ before,” say, it and thus state can that ‘[n]o which existed ” 802, 115 reserved, possessed.’ at S.Ct. has what never U.S. 627). § (quoting Story at There at 131 L.Ed.2d 899-900 fore, Constitution, any practices preceded despite the Federal empowered control elections— no State is to exercise over federal delegated except areas the Constitution— expressly for those Legislature “electing representatives to the was because National right, arising from Constitution itself.” 514 U.S. at a new 902; Cook, supra, at 115 S.Ct. at 131 L.Ed.2d see also 1037-38, 149 at 55-56. U.S. S.Ct. at L.Ed.2d Under only analysis, because office of U.S. Senator exists as a *39 126 Constitution,

result of possess States do not reserved to recall their Senators.

The in contrary dissent Thornton took a view. It maintained that the Tenth encompassed Amendment the “default” rule that “[w]here the Constitution is silent about the particu exercise of a is, power—that lar where the speak Constitution does not either expressly by necessary implication—the Federal Government power Thornton, lacks that enjoy and the supra, States it.” 514 848, 1876, at (Thomas, J., U.S. 115 S.Ct. at 131 L.Ed.2d at 927 Thus, dissenting). disagreed position with the only that “the powers reserved to the States are enjoyed those that the States 857, framing.” 1880, before the at Id. 115 S.Ct. at 131 L.Ed.2d at Nonetheless, 933. acknowledged even the dissent power that “a of recall [was] denied to the States when specified [the Framers] 890, 115 the terms of Congress.” 1896, Members of at Id. at S.Ct. 131L.Ed.2d at 953.

The Committee amici and assert that the omission from the any Federal Constitution of mention power pre- of recall—a dated Constitution—signals power that the was reserved to the States or the via the Tenth Appel- Amendment. The accepted late Division logic partially some extent and grounded premise its decision on the that “[t]he silence of the may federal Constitution well result the conclusion that [recall] Menendez, may supra, 455, be done.” N.J.Super. 413 at 995 A.2d Thornton, (citing supra, 1109 514 at U.S. at S.Ct. (Thomas, J., 131L.Ed.2d at 926 dissenting)).

However, precise reasoning explored repudiated was Cook, Thornton supra, and Cook. 531 U.S. at 121 S.Ct. at (“Because L.Ed.2d at 55-56 authority state regulate election to those precede [federal] offices could not their very Constitution, creation power such ‘had to delegated be ” to, by, rather than Thornton, reserved (quoting States.’ 804, 115 supra, 1855, 131 at 901)); U.S. S.Ct. at L.Ed.2d see Fried, Court, also Supreme Charles Term: Foreword: Revolutions?, (1995) 109 Harv. L.Rev. 21-22 (highlighting of Confederation and Articles Constitution discontinuity between the limitations waved aside observing that “the Constitution authority in its said to derive cannot be and thus the Articles them”). short, be no reserved there can from succession *40 very Congress, whose of Members relating to the election the Constitution. originated with offices

VIII. discus require extended presented do not issues Certain First Amend and ACRU’s the Committee’s with sion. We start to rights protects constitutional the UREL argument that ment expression. activity and political political engage in right petition to have the plainly

Citizens 414, Grant, Meyer v. 486 U.S. See against elected officials. speech (1988). 425, They 1892, 1886, 435 421-22, 100 L.Ed.2d 108 S.Ct. of U.S. for recall elections Congress to allow petition are free to themselves, not, establish in and of rights do But those Senators. Constitution. under the Federal right to recall guarantee or (3d Cir.2010) Obama, 204, 209 See, 612 F.3d v. e.g., Kerchner merit are without the First Amendment (finding “claims under ‘require govern- petition does not right to the individual because communications respond ... to individuals’ policymakers ment Found., (citation omitted)); Inc. v. People theWe public issues” on (D.C.Cir.2007) (holding that States, 140, 143-44 485 F.3d United ... the First Amendment flatly stated that Supreme Court “the response to or official consideration right to a provide not does Cmty. Knight, v. Colls. (citing Minn. State Bd. petition” of a for 299, 1058, 1066, 312-13 285, 79 L.Ed.2d 271, 104 S.Ct. 465 U.S. 463, Employees, 441 U.S. (1984), Highway Ark. v. State and Smith (1979))); 360, & Initiative 465, 60 L.Ed.2d 363 99 S.Ct. Cir.2006) (10th 1082, Walker, 1099 450 F.3d Inst. v. Referendum undoubtedly although First Amendment “[t]he (explaining that an initiative typically attends political speech that protects the other speech to influence just it does intended campaign, law, make decisions[,] protect right ... it does not political otherwise”); Deane, initiative or 416, Baker v. N.J.Super. (Law Div.1983) (explaining, 483 A.2d 218 reviewing prior statute, right constitutional petition “[t]he is to be (citation distinguished petition from the for recall” omit ted)). appellate panel also relied on expands case law that protections

state beyond guaranteed constitutional those under Menendez, the Federal Constitution. supra, See N.J.Super. Novembrino, (citing A.2d 1109 State v. 105 N.J. (1987), Hunt, A.2d 820 and State v. 91 N.J. 345- (1982)). 450 A.2d 952 Those eases do not stand for the proposition provide rights that States can preempted, are expressly impliedly, under the Federal Constitution. For instance, pass a State authorizing could a law its individual departure from electoral-college system presidential elec tions, if even the State acted in the interest of better representing

its citizens.

The Committee also advances policy arguments various in elections, favor of recall including importance of affording sick, citizens a mechanism to recall a corrupt, non-responsive Senator from office. We cannot policy resolve the debate over recall more than the Thornton Court could decide the wisdom Thornton, 837, of term limits. supra, See 514 U.S. at 115 S.Ct. at change 131 L.Ed. 2d at 921. A to the fabric of the Constitu tion, power which a represent, only recall would can be achieved through process. Court, the amendment The Thornton in lan guage applicable case, to this point made that abundantly clear: allowing We are ... convinced that the several firmly States to term limits adopt congressional change for service would effect a fundamental in the constitutional change legislation

framework. such must come not Any by either adopted by Congress or changes an individual State, but rather—as have other in important process—through the electoral the amendment set forth in Article procedures V. Congress Framers decided that for service in the qualifications throughout United States be fixed the Constitution and be uniform the Nation. understanding That decision Congress reflects the Framers’ that Members of are chosen by constituencies, but that separate become, when elected, servants delegates of the United States. are not They merely appointed integral and essential sovereign offices that are States; they occupy separate, of a single In the absence properly passed National Government. of a components allowing their own States to craft qualifica- individual amendment, constitutional Congress Kramers, envisioned by thus erode structure would tions designed, Constitution, to our of the Preamble the words structure that was Union.” form a “more perfect 921.] L.Ed.2d at 1871, 131 S.Ct. 837-38, 115 514 U.S. at [Thornton, supra, IX. Jersey- offer New the Recall Amendment The UREL and public servants accounta to hold state and local voters recognize important process. We through the recall ble Theresa See Comm. to Recall legitimate aims of both laws. Member Spring Heights Lake Sch. Bd. Casagrande from Office (Law 501, 507, 701 A.2d 478 N.J.Super. Casagrande, v. expand Div.) served to to more passage of UREL (explaining that uncertainty and “to eliminate public officials citizens specific limits and checks and by setting time process in the recall balances”), (App.Div.1997). N.J.Super. 701 A.2d 439 aff'd, 304 the Recall finding portions of the UREL and light of our unconstitutional, subject to recall are which Senators Amendment through aspects of the laws is proper way preserve other Natale, 458, 485, A.2d 724 judicial surgery. v. 184 N.J. State (2005) (“When judicial engaged surgery necessary, courts have constitutionally that otherwise would be to save an enactment omitted) (internal (citing Town Tobac quotation marks doomed.” (1983), Kimmelman, 85, 104, 462 A.2d 573 94 N.J. conist v. v. N.J. Election Law Commerce N.J. State Chamber Enforce (1980))); Comm’n, see also 411 A.2d 168 82 N.J. ment England, 546 N. New U.S. Ayotte v. Planned Parenthood of (2006) (“[W]hen 961, 967, 163 L.Ed.2d 126 S.Ct. *42 statute, try to limit the confronting flaw in a we a constitutional example, ... to sever its problem. prefer, for to the We solution intact, leaving portions the remainder United problematic while 220, 227-29, Booker, 160 L.Ed.2d 125 S.Ct. v. 543 U.S. States (2005).”). provisions We therefore conclude that the of the UREL and the pertaining invalid, Recall Amendment to U.S. Senators are but otherwise allow the laws to remain effect as relate to state and local officials.9

X. techniques challenge The dissent uses various the above analysis. attempts bypass It the historical record with broad items; swipes; champions marginal it rousing it offers rhetoric voters; disenfranchising about appeals and it But emotion. techniques those cannot rewrite the Constitution.

In an complete, opinion effort to be this contains each reference to recall that was found in the historical record. The references consistently confirmed that Framers rejected considered and recall, right to and that permit the new Constitution did not states direct, to recall U.S. Senators. The contrary dissent offers no proofs Instead, response. affirmatively challenge, declines to Id. “point-by-point,” powerful historical record assembled. pending challenge only constitutionality recalling concerns U.S. provide Senators. The UREL and the Recall Amendment also for the recall of Representatives, members of the House of an that is not issue before us. We grave constitutionality have doubts about the of the UREL to the extent that it permits light applicable portions recall of House members in of the above analysis as well as certain additional historical materials about the recall of E.g., (Alexander House members. The Federalist No. at 335 Hamilton or Madison) ("[W]ho pretend James will that the liberties of the of America elections, unalterably will not be more secure under biennial fixed such a Constitution, be, than those of other nation would where elections were annual, frequent, subject ordinary power or even more but to alterations 407-08, 434; government?"); (detailing 1 Elliot Elliot 224-26 rejection proposals three-year Framers' for one- and terms office for House terms). practical members in favor of biennial We also note the obvious terms, problems presents: two-year the UREL House members serve U.S. Const. I, process begin year § art. cl. but the recall could not until after one office, 19:27A-2, up days gathering N.J.S.A. and could then last to 160 for the signatures, process beyond N.J.S.A. 19:27A-10. The could thus extend into or Nonetheless, cycle. question the next election we decline to rule on the in the challenge. absence of a formal *43 might approach an have advanced 7 A.3d at 763. Such however, is appears place, in its Argument discussion. history. unable to erase recorded arguably supported

If Framers had offered evidence recall, have received right apparently would the dissent Indeed, history that the dissent differently. the limited them pages full champion revealing. It devotes two chooses to is end, though in no matter his Washington defend Bushrod even life, Washington accomplishments the document President later nephew, ambiguous, private letter to his him was but an sent actual, public for volumes of cannot serve as a substitute which involving the Framers. debates record, marginalizing the historical

In addition to Supreme rulings spare aspects of U.S. Court with dissent does straightforward disagrees. example, For observations which it nine right the lack of a of recall Thornton—made about “inexplicably ... included” Supreme Court Justices in dicta—were Supreme by the Court. Id. at 7 A.3d 764. But the U.S. is, course, of the Constitu the ultimate arbiter Federal Court tion.

XI. above, ripe we find that the case is For the reasons set forth that the Constitution does not allow States the review and Federal That conclusion is faithful to the power to recall U.S. Senators. Constitution, in the rule of law. It is faithful the written words its text and those who as illuminated the Framers who debated guided by ratifying conventions. It is participated the state by thoughtful scholarship. It is relevant case law and informed democracy, enduring form of our constitutional also faithful to the years ago. more than 200 which the Framers established judgment Appellate Division therefore reverse the We Secretary accept notice of requiring vacate its order intention. HOENS, dissenting.

Justices RIVERA-SOTO precious country having “No in a free than more that of *44 which, a voice in the election of those who make the laws under as citizens, basic, good rights, we must live. Other even the most are Sanders, illusory right Wesberry if the to vote is undermined.” v. (1964). 1, 17, 526, 535, 481, 11 376 U.S. 84 S.Ct. L.Ed.2d 492 right republican govern- to vote is inherent in the form of “[T]he envisaged by ment ... the Constitution. The House—and now Carr, by people.”10 the Senate—are chosen Baker v. 369 U.S. 186, 242, 691, 723, (1962) 663, J., (Douglas, 82 S.Ct. 7 L.Ed.2d 700 Thus, concurring) (emphasis supplied). “[v]oting clearly is Panish, 709, 721, right.” fundamental Lubin v. 415 U.S. 94 S.Ct. (1974) 1315, 1322, 702, J., (Douglas, concurring). 39 L.Ed.2d 712 underpinnings, right Even without such clear constitutional “the rights historically by vote in state elections is one of the ‘retained people’ by *, virtue of the Ninth Id. at 721 n. Amendment[.]” *, 94 S.Ct. at 1322n. 39 L.Ed.2d at 712 n. *. right long-standing. early

Our reverence for the to vote is As 1702, founding Republic, well before the the tradition we explicitly recognized inherited from the British courts that “[a] give person that a man has to his vote at the election of a represent parliament, him in there to concur making to the laws, liberty are property, which to bind his is a most nature____It thing, high transcendent of an great injury is a White, deprive 938, ... Ashby Raym. [him] it[.]” v. 2 Ld. (1702) Sanders, quoted Gray 368, 7, 953 v. 372 375 n. U.S. 83 (1963). 801, 7, 821, n. 9 S.Ct. L.Ed.2d 827 n. 7 Those principles guided history have us since the outset of our as an independent nation:

A fundamental our in Hamilton’s principle representative is, words, democracy govern “that should choose whom them.” Elliot’s people they please 10The "and now the Senate” ais reference to the Seventeenth Amend phrase ment. Ratified in "[t]he Senate of the United States shall provides State, be of two Senators from each elected [.]” composed by people thereof (emphasis supplied). U.S. Const. XVII amend. is under- Convention, out at the this principle

Debates 257. As Madison pointed limiting limiting the franchise can select as by mined as much whom itself. L.Ed.2d 89 S.Ct. [Powell McCormack, 486, 547, v. 395 U.S. (1969).] people, right to vote that through the exercise of their It is derived, heard. authority can make themselves all from whom authority has been people are that ultimate source That the in our first Jersey expressed it was recognized in New since 2, 1776, to that July preamble Adopted on Constitution. authority constitutional ever proclaimed that “all the Constitution colonies, or these kings of Great Britain over possessed dominions, was, people, by compact, from the derived their other society!.]” of the whole for the common interest and held of them Jersey’s to New second pmbl. preamble N.J. Const. of constitution, similarly states that adopted September *45 “[w]e, Jersey, ... do ordain and people of the State of New the constitution!,]” 1844, pmbl., a Const. declara establish this N.J. of Jersey’s preamble in to New current repeated tion verbatim the Const, constitution, pmbl. Noting that adopted in 1947. N.J. continuity expression, constitutional Professor Williams ob in preamble readily apparent that the serves that “the makes authority Jersey’s government is continues source of for New and Williams, The people to be of the state.” Robert F. New the (1997). Jersey 26 State Constitution exclusively drawing governmental power from Consistent with explicitly well-spring citizenry, of its our Constitution and the soundly political that is inherent the “[a]ll declares 1,112(a). contrast, it limits people.” sharp art. In the N.J. Const. “[g]overnment government, defining purpose its as follows: role security, people, protection, is the and benefit of the instituted for same, right at all times to alter or reform the and have the language public good may require it.” Ibid. That whenever the I, predecessor 2 paragraph of its limitation is identical Article Constitution, Compare N.J. the Constitution of 1844. Const. of 112(a). 1844, I, I, art. H2 N.J. Const. art. In furtherance of with 134 citizenry’s supremacy, long

its this State has embraced the view that “legislators agents are the mere and instruments of the confessedly people, sovereign assembling will, their to save the express superior necessity nature of the mass; when, case, from very representative good in honor and bound to conform his action to the will and desire of his faith, constituents.” (E. A.1914) (quoting A. v. 85 N.J.L. 89 780 & State v. [Hudspeth Swayze, (1854)).] 26 Vt.

Parker, that, recently, this More Court has held under our current Consti tution, mercy holding at “[t]he citizen is not of his servants positions public helpless trust nor is he to secure relief from ballot, except through their machinations the medium of the pressure public opinion prosecution.” or criminal v. Driscoll Co., (1952). 433, 476, Burlington-Bristol Bridge 8 N.J. 86 A.2d 201 today, zealously safeguarded right Until this Court has governed only by our citizens to be those who are elected people. Gangemi Rosengard, In v. 207 A.2d N.J. (1965), explained “despite impoverished beginning, we an right place among great our vote has taken its values. Indeed voting many years the fact franchise hoarded so was position in things. testifies to its exalted the real scheme of It is the citizen’s sword and shield.” Id. 207 A.2d 665. tones, ringing keystone we have described the vote “the truly society.” of a democratic Ibid. protection voting expression franchise also has found “[ejection liberally this Court’s insistence laws are to be purpose.” Kilmurray

construed so as to effectuate their v. Gil (1952). 435, 440, fert, 10 N.J. 91 A.2d That insistence has unbroken, Jones, remained see Deamer v. 42 N.J. *46 (1964) 440, (citing Kilmurray, supra,

A.2d 712 10 N.J. at 91 A.2d (1957) 865); Allan, 118, 129, Sadloch v. 25 N.J. 135 A.2d 173 185, (1953) (same); 197, Meyner, v. Wene 13 N.J. 98 A.2d 573 (quoting majority opinion Kilmurray, in Chief Justice Vanderbilt’s 440, 865), supra, underscoring 10 N.J. at 91 A.2d that “this Court traditionally law, given interpretation has a liberal to [election] construing importantly of it ... ‘liberal’ the sense most to allow Haberle, N.J. Day.” v. a choice on Election Catania the voters (1990) (emphasis supplied). 588A.2d 374 Haberle,11 v. Shortly after this Court’s decision Catania citizenry, in 1993 expression supremacy to the of its giving further general Jersey adopted, at a people of New of State election, allowing for the recall an amendment to the Constitution Now codified as in limited circumstances. of elected officials I, 2(b), provides Paragraph that constitutional amendment Article part that in relevant after at least one

[t]he recall, reserve VMtothemselves the power year representing this State in the United elected in this State or service, any official Congress. Legislature for such recall shall enact laws to provide States a recall election shall be such laws shall include a elections. Any provision registered in the of at least 25% of the voters electoral district held upon petition sought recalled. the official to be 2(b) (emphasis supplied).] [N.J. tl I, Const. art. mandate, Legislature compliance with that constitutional provisions. comprehensive legislation give effect to its

enacted Law, (provi- N.J.S.A. 19:27A-1 to -18 See Uniform Recall Election generally); sions for recall elected officials N.J.S.A. 40:41A-88 officials); county (provisions to -98 for recall of elected N.J.S.A. (provisions municipal 40:69A-168 to -178 for recall of elected generally); (provisions officials 40:75-25 to -49 for recall N.J.S.A. commissioners); municipal (provisions 40:84-12 elected N.J.S.A. councilmen). municipal for recall of As Professor elected Williams noted, major is a “[t]he also has the electorate change Jersey representative government. in New The amend- question sufficiency of the recall ment takes the reasons Williams, away supra, from the courts.” at xxi. 11Although 2, 1990, Catania v. Haberle was decided on October the same day argument allowing in which this Court heard in that appeal—thereby ballot as a name to on the November

plaintiff's appear Republican candidate for the State an election that won—the Assembly, plaintiff opinion that case was not filed until more than six months later. April Supra, N.J. at 588 A.2d 374. *47 fully appeal,

Germane to this consistent with that constitu- mandate, 2 of Recall Election Law tional Section the Uniform I, provides “[p]ursuant paragraph 2b. of specifically to Article Constitution, Jersey people have the New the this State shall recall, year after at least one of service the office, person’s any or current term United States Senator Representative State or local elected elected this State from (codi- provided official in the manner herein.”- N.J.S.A. 19:27A-2 (eff. 1995)). 1995, 105, May § 2 fying L. c. against backdrop longstanding

It is vivid of this Court’s fidelity principles safeguard of the to the serve governed appeal shall people to choose whom be this dispute must be considered. The before this Court about the group Jersey’s of citizens to recall one of New two effort Senators, a senator first elected to that office more United States people amended our Constitution to than decade after recall, weighty important provide for his is both a one. him, majori- concluding powerless that the are to recall ty ignores principles and fundamental constitutional those clear dispute matters that are central to this and does so when the judgment. overwhelmingly demand caution rather than a rush to I. 2(b) I, Invoking provisions Paragraph Article New Constitution, 1,112(b), Jersey art. 2 of N.J. Const. and Section Law, 19:27A-2, Uniform Recall Election N.J.S.A under cover September plaintiff dated The Committee Recall Robert Menendez from the Office of U.S. Senator filed with Jersey Secretary fully the New of State a executed defendant Jersey’s sitting of intention to initiate a recall of one of New notice provisions complied Senators. That notice in full with the U.S. Law, Section 6 of the Uniform Recall Election N.J.S.A. 19:27A-6. to, statutory obligation Tacitly acknowledging its “within three notice, copy days receiving return a certified business 19:27A-7(a), [plaintiff,]” approved notice to N.J.S.A but without *48 5, 2009, addressing filing, the substance of that on October defen- plaintiff. returning dant wrote to Rather copy than the certified approved required by notice as the Uniform Recall Election Law, however, merely “acknowledge[d] defendant receipt of [plaintiffs] purpose Notice of Intention for of initiating a recall against Menendez[,]” effort Senator Robert “advis[ed] [plaintiffs] currently Notice of legal Intention is under re- and, review, u]pon completion [plaintiff] of this will be view! accordingly.” notified

Nothing happened. 10, 2009, Under cover dated November plaintiff submitted “a purpose second Notice of Intent for the initiating against a recall effort Senator Robert Menendez.”12 Although again statutorily required respond to that notice of intention days, within three nothing. business defendant still did It was January not until two months statutory after the response required, only was plaintiff had sued for an after compelling order discharge statutory defendant her obligations, plaintiff: defendant notified13 On or about an initial Notice of September Intention to Recall United along States Senator Robert Menendez, with a was filed proposed petition, with the

Division of Elections, Department State, reliance on the New apparent Jersey “Uniform seg. [UREL] Recall Election Law,” N.J.S.A. 19:27A-1, et It has been determined that the and election of a Member of the qualifications United States jurisdiction Senate is a matter of exclusive of federal and that neither the authority proceeding United States statuteLs] Constitution nor federal for a provide for official. federally-elected Therefore, as the Chief Election my capacity Official of the State of New I determine that neither the Jersey, hereby Notice of Intention to nor Recall filing Petition can be proposed or review. accepted 12Plaintiffs second notice of intention differed from the first only respect a substitution of identities of one member of for another. There is no plaintiff substantive difference between first and second notices of intention. plaintiff’s 13 of the fact that the UREL spite within three business required response no was tendered for this days, explanation no claim was made that the delay; notice of intention or as filed were deficient or petition otherwise did not conform to the of the Constitution or the Uniform requirements Recall Election Law, return, its with the mandated should have been a statutory approval, routine, ministerial act. ag- agency matter. An This is the final administrative determination

grieved with Court, file an the New Jersey [Superior] Appellate party may appeal 2:2-03(a)(2). R. within 45 of such determination. Division, days truly yours, Very /s/ New of State Jersey Secretary and, days later, appealed adding after Senator plaintiff Two Appellate indispensable party, Division reversed. Menendez as an Menendez Co mm. to Recall Robert from Office of Wells, (App.Div. 995 A.2d 1109 N.J.Super. Senator v. U.S. 2010). Secretary Specifically, current of State “orderfed] proceed petition, and to under accept [plaintiffs] and file 458, 995 A.2d 1109. The Law].”14 Id. at Recall Election [Uniform that, ordering ministe painstakingly explained so panel “[i]n *49 act, on ultimate passing we not be the rial should understood validity process regarding a United States Senator or of the recall Exercising any underlying appropriate issue.” re other Ibid. acknowledging effects its aptly practical the of deci straint sion, Appellate the Division to a declare[d] recall in our State Constitution as applied neither the provision valid There and there will no is, be, or invalid. definitively United States Senator issue if to resolve this difficult constitutional the Commit- our courts necessity signa- to collect the 1,300,000 tee’s drive fails petition necessary, approximately, urgent Pending reason to now decide tures. that we see no possible eventuality, All we need as we decide, with validity finality. of question invalidity is a for the Committee to with done, have is whether there sufficient basis proceed To her ministerial function. its initiative and for the State Secretary perform go holding limited and “embrace constitutional unnecessary questions” that beyond judicial wiser restraint. “older,

would from the counsel” of depart tion. On Jersey. be held election, the recognition newly-appointed challenger. The [t]he appeal annually See N.J. Const. art. Appellate Governor ... shall Tuesday, that the final administrative Therefore, incumbent had taken on the first Tuesday successor Division's November place Democratic II, § Appellate be chosen the office reference in the 3, 2009, 1,11 waning after the first Monday governor Division's at of the Secretaiy (providing gubernatorial agency decision which was the general the "current" days was judgment of the then-current administra elections”). defeated election "[g]eneral of State. Secretary was NovemberL]" As a result of was held directed to his elections shall of State is Republican in New subject Harris, (quoting [Id. 995A.2d 1109 Scott v. 550 U.S. 127 S.Ct. 1780, 167 L.Ed.2d (2007)).] 686,698-99 Defendant any judicial review, demurred on further instead acknowledging Appellate “that correctly pointed Division out precedent that a condition recall election—obtaining the signatures approximately registered 1.3 million voters within 320 days—may pass.” that, never come to She “[rjepeated- noted ly invoking principles judicial restraint,” Appellate Division properly stayed judicial had its emphasized hand. She that “[t]he Appellate recognizing Division ‘grave and momentous conse- quences invalidating’ Jersey’s New statutory constitutional and ” provisions, ‘apply decided to caution and restraint.’ She concluded that she would “not seek to overturn this exercise judicial prudence and restraint.”15 Menendez, however,

Senator certification, sought which was granted. Comm. to Recall Robert Menendez from Office of Wells, (2010). U.S. Senator v. 201 N.J. 992 A.2d 793

II. Rather proceeding than with the prudence care and befitting a challenge that seeks to have this Court declare unconstitutional a 15 majority "specifically asserts that defendant informed this Court that her view that [Uniform Recall Law] Election is unconstitutional remains unchanged.” accurate, Ante at entirely A.3d at 734. That assertion is not *50 pursued participated because defendant proceedings neither nor in the before most, this Court. At originally-expressed she has not abandoned the view about constitutionality, description and an position accurate she has taken two-page before this Court can be found in the letter in which she summarized position: her Division, Appellate recognizing "grave The the and momentous conse- quences invalidating” Jersey's of statutory New constitutional and provisions, "apply decided caution and restraint.” The State will not seek judicial prudence to overturn this exercise and restraint. of (Emphasis supplied).] [ view, summary In our argument defendant’s own of her as set forth in the last letter,

paragraph majority’s representation view, of her rather than the of her only expression is the position. fair and faithful of defendant’s adopted within recent provision own State Constitution of our State, majority the caution memory by people of this throws the Because, however, present there is no onward. aside and rushes question urged upon us and the need reach constitutional event, because, nothing appeal raises unconstitutional this statutory Jersey’s recall election about constitutional New provisions, we dissent. the should reach constitu first whether this Court

We address majority opines length present at that the tional at all. issue moot, 95-99, 729-31, at and that controversy is not ante at A.3d at ripe disposition, at 7 A.3d 731-34. is ante however, majority sidesteps the the core determination Curiously, that is “no Appellate Division’s decision: there reached the invalidity validity or question the of urgent to now decide reason Robert finality.” Comm. Recall Menendez with from Office Senator, supra, N.J.Super. 995 A.2d United States of Thus, question presented is not whether controver 1109. but, rather, ripe this sy is whether before this Court moot quagmire in a that should even involve itself constitutional Court holding pass. from which may come to Because is never stems, necessary question this appeal threshold this is the Court must address. by determining appropriate stan- inquiry

That must start When, here, challenge a facial to an made dard review. law, challenge a required are to view that with election we Supreme Court of the United States jaundiced eye. As unconstitutionality recently a claim of of an in the context of noted law, election challenges of facial [flacial invalidity are disfavored for several reasons. Claims raise the risk of often on As a consequence, premature rest speculation. records. Facial of statutes on the basis barebones factually interpretation judicial challenges run to the fundamental restraint contrary also principle law in advance of the neither constitutional anticipate question courts should deciding rule of law than is it nor constitutional broader formulate necessity challenges facts it is to be facial Finally, to which applied. required by precise embodying preventing laws circuit democratic process by threaten short being with the from a manner consistent

will the people implemented

141 ruling Constitution. We must in mind that a of keep uneonstitutionality frustrates intent of the elected representatives people. Grange [Wash. v. State Wash. State 552 442, U.S. 128 Republican Party, (2008) (citations, 1184, S.Ct. 170 L.Ed.2d 161 1191, 151, internal marks quotation omitted).] editing marks Each of the three Supreme factors United States Court worthy found of Washington present comment in State is Grange First, light here. in of the enormous signatures number of require our Constitution and trigger recall, statute in order to a question of subject whether Sen. Menendez fact will be is, best, Second, speculation. rank order reach its result, majority a considers constitutional issue that is unnec- essary disposition Finally, of this case. declaring unconstitu- provision tional of our State Constitution and implementing its legislation directly clearly and expressed frustrates the will of the Jersey. concerns, alone, of New standing Each those give pause; should aggregate, compel the exercise of caution and restraint.

Further, jurisprudence replete our with instances where we have insisted that “we do not address constitutional issues when a narrower, non-constitutional result is available[.]” United States 492, 4, (2008). Scurry, v. 193N.J. n. 940 500 A.2d 1164 This Court again time and has held that not reach “should a constitutional question unless its is imperative disposition resolution to the litigation.” Ctr., Randolph Morris, County Town L.P. v. 186 78, (2006) (citations 80, omitted); N.J. 891 A.2d 1202 see N.J. Div. S.S., Family Youth & Servs. v. 187 N.J. 902 A.2d 215 (2006) (same); Gac, (2006) v.Gac N.J. 1018 A.2d (“Recently, we restated that constitutional issue should not be decided ‘unless its is imperative disposition resolution to the (citation litigation.’”) omitted); Fowlkes, State v. 169 N.J. (2001) 396, 778 (declining A.2d 422 question to reach constitutional on based “rule that ‘a court should not reach and determine a absolutely constitutional issue unless imperative disposition in the ”) (citation litigation’ omitted); Co., In re N.J. Am. Water (2001) (same); 169 N.J. A.2d Trucking Am. *52 (2000) 183, Ass’ns, State, 183, 752 A .2d v. 164 N.J. 1286 Inc. especially are ultimate constitutional issues (stating that “when decision, await, presen the should before fact-sensitive the Court record”) (citation omitted); v. well-developed tation of a O’Keefe Comm’n, 234, 240, 624 A.2d Valley 132 N.J. 578 Passaic Water (1993) that, explained, previously have courts (stating “[a]s we necessary to questions unless the not reach constitutional should (citations omitted); litigation”) State v. disposition of the Zucconi (‘We (1967) a 361, 364, decline to consider A.2d 193 50 N.J. 235 require such ... in a ease a question which does constitutional (1963) Weaver, 418, 428, decision.”); A.2d 27 v. 39 N.J. 189 Ahto questions will not be resolved unless (stating that “constitutional (citation litigation”) imperative disposition in absolutely the (1958) 289, 296, Salerno, omitted); 27 N.J. 142 A.2d 636 v. State (“[W]e challenge if a constitutional not undertake resolve should reaching the may disposed of without fundamental litigation the be issue[.]”). plainly: is stated operative rule adjudicate legislation if a only will of constitutionality courts Generally, a be is resolve necessary controversy determination absolutely constitutional articulated United States by

tween This doctrine of “strict necessity,” parties. Angeles, Court 331 U.S. 549, in Rescue v. Los Municipal Court Supreme Army of (1947), well-recognized. v. Thus, 1666 Donadio 1409, 67 91 L.Ed. S.Ct. (1971), [Cunningham], Cummingham A.2d we 58 N.J. 277 375 309, acknowledged reach and determine a constitutional issue that “a court should not litigation.” of unless absolutely disposition imperative (1988) (citations omitted).] A.2d 692 [Bell 110 541 v. N.J. Twp. Stafford, addition, principle judicial goes restraint hand-in-hand questions avoid- should be with core notion constitutional “absolutely imperative.” In the context of the constitu- ed unless enactment, recently that: statutory this Court noted tionality of a judicial springs Hughes restraint from a our explained, “seemly As Chief Justice government, as well as for public a branch co-equal for the act of respect invoking government—both a ‘broad elements interest effective operations considering charge evasion excess.” of constitutional tolerance’ in

143 (2008) (quoting [Abbott Burke, v. 196 N.J. A.2d 360 Ass’n on N.J. (1979) (citations omitted)).] Carr. A.2d v. N.J. Lan, Likewise, we are commanded precept (which not), even if we entertained a we doubt do we would be constitutionality judicial bound, since the earliest equally nation, our precedents days judicial legislative eschew interference with will. Chief Justice John Marshall

indeed counseled the courts to where avoid, at all confrontation with possible, Sitting constitutional issues. at circuit in Ex 20 F.Cas. parte Randolph, (C.C.D.Va.1833) (No. 11,558), he stated: brought judicial greater No can be before tribunal of than questions delicacy legislative those involve the which of a act. If become constitutionality ease, to the the court meet must and decide but indispensably necessary them; if *53 just legislature the be case determined on other may the points, respect for obligation that its laws not be requires, should and unnecessarily of assailed. wantonly (emphasis supplied).] [N.J. Corr., Ass’n on N.J. at 218, 80 403 A.2d 437 supra, s, 460, (2006) 415, See also Lewis v. Harri 188 N.J. 908 A .2d 196 (chiding being “willing part ways dissent for to from traditional judicial principles of restraint reach a constitutional that issue is us”). not before judicial principle time-honored of firmly restraint is moored

to the commonsense notion that [the] “while unconstitutional by exercise of power legislative the executive and branches government subject restraint, judicial only upon [a check court’s] own exercise of is [its] own sense of self-restraint.” Butler, 1, 78-79, United States v. U.S. 297 56 S.Ct. 80 (1936) 477, (Stone, J., And, L.Ed. 495 dissenting). Justice Pollock aptly pithily has and logic summarized the animate should judicial restraint; and inform the explained: exercise of he “Some- times, the hardest decision is the decision not to decide. Yet the decision judicial not decide is at the core of restraint.” De Vesa Dorsey, (1993) v. (Pollock, J., 134 N.J. 634 493 A.2d concurring). object An price of paid lesson to be for disre- garding logic that irrefutable arose a ago, mere decade when this country through repeated—and, claim, suffered persuasively some gratuitous—convulsions disputed from a presidential election. context, that charged cautionary by the wise and note sounded Supreme Chief Justice the Florida repeating Court bears here: 144 because the health [judicial in necessary to elections is absolutely restraint respect judges. being decided voters—not by our on elections depends by democracy contests to become embroiled

We must have self-discipline political majority judicial majority subjectively so because the concludes to do whenever a thing to Elections involve the other branches of is “the do.” perceives being government. elections, involved in especially by A lack self-discipline leading to a with the other resort, has crisis a court last always potential of government concerns. and raises serious separation-of-powers branches of (Fla.) (Wells, dissenting), rev'd v. sub [Gore Harris, 712 So.2d C.J., (2000) (emphasis L.Ed.24 Gore, S.Ct nom., Bush v. U.S. supplied).] peril. and at our ignore that wisdom caution 'We undergird the exercise Those considerations—the reasons reasonably motivated the judicial restraint—appropriately needlessly stay forgo declaring its Division to hand Appellate duly adopted our provision that a our State Constitution now, electorate, legislation, was together implementing its with adoption, its somehow unconstitutional. years after seventeen Yet, majority’s opinion any discussion is there nowhere Appellate which the of the reasons rationale whatsoever underlying ruling on the constitutional bypass Division elected tackle. More to the majority instead decides to question that explain why simple, majority point, nowhere does time-honored resolu- straightforward, readily understandable and ought disregarded. tion to be *54 is of apparent of its that the issue reaches support belief addressed, magnitude majority discusses that it must be

such First, majority by the *55 citizens, Jersey’s in our reflected Respecting the will of New Burns, Constitution, that, we in the of Professor insures words charter, people’s lawyer’s the not a retain “the Constitution as Burns, Packing the MacGregor contract.” Court: James Supreme Coming Crisis the Rise Power and the Judicial of of (2009). Addressing presented the in this question Court 254 humility requires circumstances is consistent appeal with the these words, expressed is “no there with Thomas Jefferson’s well powers society people depository the of but the safe ultimate themselves; enlightened enough to if we think them not discretion, remedy is control with wholesome the exercise their them, by to their not to it from but inform discretion take Jarvis from Thomas Jefferson William C. education.” Letter 28,1820). simple guide follow will make (Sept. Our failure to again very public and focused prophetic once Abraham Lincoln’s example judicial as a attack on what was then viewed stark tyranny: government vital policy upon citizen must confess that candid if affecting is to be decisions irrevocably whole questions, people, fixed litigation Court, made, the instant are between

Supreme ordinary parties, having their own rulers, will have ceased to be actions, personal resigned government their into the hands that eminent that extent practically tribunal. (Mar. 1861) (emphasis supplied) Inaugural First Address [Abraham Lincoln, in Dred v. Scott Sandford, (commenting Court’s decision on United States Supreme (1857)).] 60 U.S. How. 15 L.Ed. 393, 19 short, is presented appeal, in this there in the circumstances Jersey’s question of whether New recall no need to reach www.state.nj.us/educationJdata/vote/10/Registeredvotertotalswitholdcalculation.pdf. slightly of that over 1.3 million. number Twenty-five percent signatures although over 1.3 million now would be that, It is ironic required was office in 2006 less than Menendez, of Sen. he elected to seek according State, the number of number; the New Jersey Department http://www.state.nj.us/state/elections/ see registered 4,836,401, voters in 2006 was 2006results/06primaryelection/06-primary-regs-ballots-cast-rev. Sen. .pdf, http://www.state.nj.us/stat/elections/2006 garnered 1,200,853 votes, see Menendez results/06generaleleclion/2006-official-senate-tallies.pdf, than or 24.8%—fewer eligible voters in that election. 25%—of *56 provisions—either or statutory—concerning constitutional United by people Jersey represent States Senators elected the of New to people Jersey the of run afoul of New the United States Constitu- Therefore, tion. the Appellate exercising decision the Division judicial commanding restraint and that the ministerial functions respect process required of the recall of state officials be carried out should be affirmed.

III. having prove negative, Tasked with to a namely, power that the exist, to recall not does any burdened the absence of clear premise historically evidence that its analyt- is either accurate or sound, ically majority the technique cataloguing resorts to the separate events, they represented words and ifas a unified and In process, coherent whole. the there are references to obscure in history, moments lofty heights predictive elevation dicta to certainty, and reliance on information both extrinsic and irrele- vant, together by all of which is held an that insistence boils down proposition the that if right a cannot be expressly, found it must Shoring exist at all. up that rejec- endeavor are dismissive tions of all that evidence detracts from that theme or suggests that it is in error. end, majority hopes prove that Senator is elected

for a term and that end, once chosen he serves that term to its regard without his whether continued service fulfills the will of people. Because the expres- Constitution’s text lacks a direct people him, sion that have the majority recall people concludes that utterly powerless. are But that reflects policy choice, one immunity that cloaks in total anyone who is elected, by percentage voters, even the tiniest of the without regard might for what he do to protects merit recall. It him in that, spite of the fact statute, under our Constitution and our only accomplished could be if supported by the cries of an overwhelming number of contrary citizens with views. choice, rejection is a one policy preference

That the alternate recognizes people select whom far to the of an individu- governed superior shall wishes be al, body political party, or a or the of the Senate. whole premise on great nation survives because it is built Our one, only powers is a with government the federal limited those and, point, in it to the that the have chosen to vest more *57 power it notion that resides because rests on the fundamental any Lacking people they grant and until elsewhere. the unless power by ceded their of recall evidence that the have declaration, silence explicit majority the tries to find in their us, wholly-antidemocratic sound support for outcome. For the its demanding accountability the that more than a million voices of protects willingly not so be this Court. recall should silenced A. opinion majority’s Much of is devoted to an exhaustive the designed to that compilation historical references demonstrate of recall, of the which is nowhere mentioned in the text the Constitution, does not exist. Those materials consist Federal debates, describing speeches, delegates’ proposals *58 roots, power deep blossoming from The of recall has historical is, popular sovereignty, fundamental notions of that all people only by resides with the and that is their consent that the people may governed. be That doctrine finds its most familiar expression Independence: the Declaration Rights, among deriving That to secure these Governments are instituted their Men,

just Powers from the Form Governed, Consent of that whenever Right of Government becomes destructive of these it is the to Ends, People laying alter or to abolish and to institute new its foundation on it, Government, organizing such and its in such as to them shall seem most form, principles powers to effect their and likely Safety Happiness. earlier, for But its arrival on our shores came far themes of sovereignty governing compacts popular are found in the earliest by pilgrims, in created the brave souls who came here. The “enact, Mayflower Compact agreed constitute and frame, Laws, Ordinances, Acts, just equal such Constitutions Offices, time, thought from time to as shall be most meet and early compacts, Two colonial constitutional both

convenient.” give also voice to the agreed upon settlers doctrine. Hampshire (Aug. Agreement at Exeter in New See of the Settlers 4,1639) together (agreeing to “combine ourselves to erect and set among discerning to our up us such Government as shall be best God.”); Agreement, or agreeable to the Will of Fundamental (June 4, Haven, Colony pmbl. Original Constitution of the New (“[A]ll 1639) Agreement] plant- the free [hereinafter Fundamental together general meeting, in a to consult about ers assembled God.”). according right settling government, civil of recall ancient; early although explicit in either of those least as constitutions, among planters way as a it was discussed the free potential appointed posi- of those keep check the excesses Query power. Agreement, supra, 5. tions of See Fundamental sovereignty deepest popular That the is infused in our doctrine ignored. historical traditions cannot be

B. says nothing about the Because the United States Constitution Senator, majority begins to recall a with Clause, proclamations Supremacy about U.S. self-evident VI, corollary proposition conflicting that a Const. art. cl. and the provision yield.17 statute or constitutional must As none of state enlightening, particularly that is useful or we turn to review of provisions addressing election of the Constitution’s three Senators. long sure, To be we have held that where our Constitution provides protec Constitution, than those embodied in the Federal we are tions more expansive Hunt, would State v. not constrained the limitations that the latter impose. (1982) (quoting in the Law: The 338, 345-46, 91 N.J. 450 A.2d 952 Developments *59 (1982)). Rights, 1324, State Constitutional 95 Harv. L.Rev. 1367

Interpretation of something Although might argue inconsis one that there is inherently perhaps majority's logic devotion to the federal text as it tent between that and the stated here, we no such disconnect. ordinarily applies perceive I, 3, relevant, first, directly Article Section and most is Clause, Qualifications it lists Often referred to as the Clause 3. qualifications, requiring that one who seeks elec- only three such old, thirty years a citizen be at least have been tion to the Senate which “he years, nine and be an inhabitant of the State at least provision represent. relevant shall be chosen” to The second 4, 1, I, to as in Article Section Clause which is often referred found Time, That Elections Clause or the Place and Manner Clause. which, through subject a limited provision creates a mechanism to right granted Congress, legislature is override each state’s regulations governing the empowered to make its own election topic The third clause that is relevant to the Senators.18 I, election of Senators is Article Section Clause 2. That clause “punish disorderly permits the Senate its Members for Behavi- our, and, thirds, expel with the Concurrence of two a Member.” purports deprive people None of those clauses of a state of their to create a mechanism for recall and none has been interpreted to do so. precedents Supreme

In one of the few from the United States appeal, provisions Court cited in this two of these were considered impose an the context of effort Arkansas to a term limit. See Limits, Thornton, U.S. Term Inc. v. 115 S.Ct. U.S. (1995). Rejecting argument 131 L.Ed.2d 881 of the statute’s supporters simply permissible regulation that a term limit was time, elections, place, majority and manner of the Court’s 828-35, Qualifications on focused instead Clause. Id. at 1866-70, majority S.Ct. at 131 L.Ed.2d at 915-20. The found the imposing statute unconstitutional because a term limit amounted qualification, namely, the addition that a Senator not have previously many served too terms. Id. at 115 S.Ct. at extension, By Supreme 131 L.Ed. 2d at 917. States United subsequently effort, Court considered struck down Missouri’s (providing "[t]he See also U.S. Const. amend. XVII Senate oí the United State, composed States shall be of two Senators from each elected thereof'); A.3d at 775-76. infra

152 through adopted an amendment to its constitution in the wake of Limits, purported require the in Term its decision U.S. congressmen to work for a federal term limits amendment. See Gralike, 510, 525-26, 121 1029, 1039-40, 149 Cook v. 531 U.S. S.Ct. (2001). 44, L.Ed.2d 57-58

Although only question before the Court U.S. Term imposition was of a term limit would violate Limits whether Clause, Qualifications majority dissenting both the and the opinions, inexplicably, presumed a reference to a absence included Limits, supra, at n. right. of a recall See U.S. Term 514 U.S. 810 20, 115 20, 20; 890, 115 n. at 904 n. at S.Ct. at 1858 131 L.Ed.2d id. (Thomas, J., 1896, dissenting). at L.Ed.2d at 953 S.Ct. 131 comments, majority heavily on a of this Court relies those briefly. result of which address them we dicta, only opinions it Not are the references both but is noteworthy that neither of them includes the sort of detailed and analysis ordinarily pronouncement scholarly accompanies magnitude. majority opinion, only In such recall is mentioned in a attached to a discussion of the ratification debates footnote danger permitting congressional about the the states to fix compensation. id. at 810 n. 115 S.Ct. at 1858 n. 131 See (citing L.Ed.2d at 904 n. 20 1 Records the Federal Convention (hereinafter Farrand). (M. 1911)) Farrand, ed. dissent, similarly Thomas’s recall is confined to the discus Justice and, point uncharacteristically, supported is not sion of the same historical record. id. at at citations See S.Ct. (Thomas, J., dissenting) (observing 131 L.Ed. 2d power to the when [was] [the Framers] “a of recall denied States specified Congress”). passing of Members of Those terms that, simply do not demonstrate were the references recall majority question squarely presented, either the or the dissenters easily disposed so of. would find the matter noted, added, analyzing an As one scholar has recall as unconstitutional, flawed, fundamentally qualification therefore because

ignoro[s] distinction the Framers made between power expel the crucial Congress. of a member Members of Exclusion by qualifica- to exclude being the candidate’s failure in a candidate refused a seat based upon tion results Nothing statute, however, recall the stated state to meet qualification. long being meets elected and so as the candidate seated, from prohibits person age, I. A set forth in Article and inhabitancy residency, “qualifications” *61 of an after a seat is is in the nature expulsion election only occupied—it operates for office. from not an additional office, “qualification” Senators, Recall United States 103 The Consent the Governed: Zick, [Timothy (1999) (footnote omitted).] Dick. L.Rev. avoids, must, confronting majority today of this Court as it The qualification only limit is not adding the fact that a like a term Clause, contrary language Qualifications but directly to the of the espoused by so a principles antithetical to the even ardent champion of the Federal Constitution as Alexander Hamilton. debates, words, during it is his timeless uttered the constitutional representative democracy “that principle a fundamental of our the govern people they please should choose whom to them.” (J. Adoption Elliot Debates on the the Federal Constitution Elliot). 1836) (hereinafter ed., well, espoused precisely principle that cau James Madison tioning against unnecessary qualifications might “fetter the judgment disappoint people,” as or the inclination of the Limits, Supreme supra, United States Court noted. U.S. Term 819, 115 1863, 131 (quoting 514 U.S. at S.Ct. at L.Ed.2d at 910 The (James Madison) (Clinton ed., No. at 351 Rossiter Federalist 1961)). limitation, Adding potential such a which bars a candidate entirely an from the ballot because he had served excessive office, directly infringes upon people’s number of terms 1862-63, right. Id. at 115 S.Ct. at 131 L.Ed.2d at 910-11. majority today But what the fails to see is that recall does not only present danger; contrary, a similar on the does recall not choice, very right. it deprive the their but advances by permitting occupant of It does so those who find the current they unworthy, if are of sufficient number and determina- seat tion, attempt to for those who find the choose another. And occupant liking, current of the their choice is office their options guaranteed every step. at safeguarded numerous them making already They sign petitions, thus an are free refuse intentionally high petitioners; they insurmountable to hurdle candidate, may at a recall election itself vote so that their office; subject petition, they is not from that or recalled may him to election if so vote to return office the next remote, suggest creating possibility, To however choose. election, petition of a recall is the unconstitutional addition qualification principles of subverts free contorts the choice and governed. expression of the consent I, argument majority a second based on Article advances years, asserting that because Clause refers to six Section period creates a fixed immutable of time which cannot be is, altered. That because the clause states that Senators shall be selected, original language, by the in the case of the constitutional legislatures years,” ... for six states’ and shall be “chosen course, argument term is that this creates fixed of office.19 Of *62 majority years actually of six is not an even for the the term one, may occur immutable for concede vacancies either by through death or the action of the Senate itself should it decide I, 5, § 2. expel a member. Const. art. cl. See U.S. that, support position expulsion, short of or its death only occupied uninterrupted that can be for an seat remains one years, majority again refuge six finds in the words of the 105-06, Supreme Court. See ante at 7 A .3d at 735 United States States, 688, (quoting Burton v. 202 U.S. 26 S.Ct. United (1906)). 1057, There, much, 50 L.Ed. the Court said as commenting person] originally “[t]he [a seat into which was death, only by ... vacant inducted as a Senator could become his argument argument a like that because the Seventeenth includes changed Amendment, the method of selection to direct election which by "chosen ... state, of each also that Senators shall be six provided 113-16, term See ante at 7 A.3d at 740- it reinforced the fixed years,” principle. significance Amendment, of the Seventeenth 42. We discuss the historical infra 167-71, at 7 A.3d at 775-76. office, action on by term of or some direct by expiration of his powers.” part in the exercise of its constitutional of the Senate Burton, 50 L.Ed. at 1066. supra, 202 at 26 S.Ct. at U.S. concedes, 105-06, 7 A.3d at again, majority ante at But as the dicta, a because the issue Burton was whether quote conviction so that it would Senator could void federal Burton, supra, 202 in the Senate. See interfere with his service 692-94, at 1064-66. The 26 S.Ct. at 50 L.Ed. U.S. at rejecting Supreme Court made its observation while United States him, disqualified noting that it argument that the conviction facto, ipso to vacate the seat of the convicted operate, “did not Senator, expel regard him as compel nor the Senate to him or to judgment.” Id. at 26 S.Ct. expelled force alone 694, 50 L.Ed. at 1066. however,

Nothing holding suggests, that the Court in Burton’s ways may be vacated. intended to limit the which seat “only,” simply Although prefaced its list is the word the Court all, a did not create an exhaustive list. After seat could become term, prior if to the end of his was vacant a Senator retired Governor, appointed office of President or or was elected to the post. not mention the cabinet or to a similar Since the Court did possibilities, hardly that it intended its list of those follows others, recall, including possibility all an issue to foreclose Moreover, light upon that the Court not called to consider. was predates of the fact that the Burton decision the 1913 ratification Amendment, guide, predictive its value as a the Seventeenth legisla- power to reverted from the several state once the elect people, tures to the is limited.

Turning provisions to the other in the Federal Constitution that Senators, directly to the election and are relevant service *63 majority again prove negative. proclaims to It that the seeks recall,” 116, support “offers no ante at 7 A.3d Elections Clause 743, reasoning by engaging at but that conclusion reaches dicta, is, end, merely Quoting in the circular. still more the only permits majority argues that the clause states to affect “the elections,” time, congressional namely, place, mechanics of their Love, 464, 466, and manner. Foster v. 522 U.S. 118 S.Ct. (1997) (citation omitted). 369, majority L.Ed.2d relies Supreme reasoning on the Court’s clause United States “grant[s] authority procedural regulations,” to States create U.S. Limits, 832, 1869, supra, Term 514 U.S. at 115 S.Ct. at recall, 918, overlooking by affecting at the fact that L.Ed.2d election, theory or manner of an could in meet that test. time however, important, majority’s on More reliance the clause’s fundamentally example silence is but a further of its erroneous permit explicitly view that the Federal Constitution must not at all. directly

The third of the clauses that relates to Senators and I, 5, through their terms of office is Article Section which the given authority expel Appar- to Senate has been a member. ently relying Supreme on rather limited the United States Court’s section, reading majority of that finds that it must therefore mechanisms, preclude principal In other like recall. decision 5, scope Supreme about the of Section the United States Court did expel, power but address the considered Congress duly Representative. to seat a refuse elected short, power granted Congress the Court concluded that the by “qualifications” Section 5 was limited the three for members of I, 2, Representatives the House established Article Section Powell, supra, 2. at at Clause See 395 U.S. 89 S.Ct. 1962- contrary any 23 L.Ed.2d at 515-17. The Court reasoned that analysis empower Congress to people would thwart the will of the Representative by limiting their much authorized to elect “as people by limiting can as whom select the franchise itself.” at at Id. 89 S.Ct. 23 L.Ed.2d 531. I, course, only grants Congress

Article Section Clause member, authority expel apparently for violations of its behavior, disorderly long Rules or for as it does so a two- however, Nothing language, suggests vote. in its that the thirds given clause has relevance to whether the of a state *64 Indeed, power expel has the to authority to recall. the retain recall; power the to link to logical nor a historical a neither ordinary internal method for as a it was included rather instead Rawle, body. A View See William discipline deliberative of (2d 1829) (explaining ed. the United States the Constitution of legislative of the nature all power is incidental to “this ... that abuse, bodies.”). against com- so, Story its warned Justice Even safeguard: added as a majority was menting that two-thirds the dignity disgrace might and to lost to of as be so all sense duty And as a member grossness its by of his or deliberations conduct, interrupt the house the aggravated for misconduct to clamor, very violence or expel perpetual for the a as an ultimate redress not as but common, was also indispensable, time of grievance. at the same so subversive But so and such power, summary, might rights for of be exerted mere purposes of it was foreseen, the people, and it has measure; to aid a corrupt to remove or patriot faction party, guarded there shall concurrence be a restriction, been therefore wisely justify an of two-thirds of the members expulsion. (5th § 837 on the the United States Constitution Story, Commentaries [1 Joseph of 1891) (hereinafter Story).] ed. Senators, short, their that relate Clauses In Constitutional service, implicitly, selection, explicitly, or even do not and their them; any of clauses nothing in those right to recall address precludes therefore its exercise.

C. clauses find the three Searching support that cannot terms directly subject of their relate to the Senators and most office, of that took majority reverts a discussion events during both Constitutional Convention place debates at the large during ratifying selected conventions. itself as well as measure, length made at quoting that review consists comments recall, right delegate opining on the its by one or another it, benefits, explicitly including on reasons the wisdom subject being or were offered. why amendments on were 7 A. 3d at Discussion and comment See ante 735-40. course, expected, given be general, recall in would about part of the several expressly was conferred on states art. the Articles of Confederation. See Articles of Confederation V, H1. speeches And while some suggest of those subject that the debate, open was nothing approaches the sort outright *65 rejection right, of the power so fundamental to the that rests in people, majority the as the would have one believe. That there was inescapable; discussion is the explicitly is not plain. mentioned is But the notion that the therefore does proven by exist is not those historical observations. relatively The limited discussions about recall must be under- stood their historical context. In creating government, the new the experience Framers saw much in their governance of under the Articles of impeded Confederation that had the creation of unity and cohesion. That joining together document’s loose strong states with individual characters had any- failed to create thing approaching a cohesive whole and ability the of one or separate another of the stymie states to progress made future unity impossible. Kelly See H. Harbison, Alfred & Winfred A. The American Origins Constitution: Its Development and 99-101 (5th 1976). Thus, ed. the effort to a stronger, create federal system required significant change. The extensive debates while the being Constitution was drafted about the structure of the Congress epitomize the core Disputes concerns. among the states about representation how to balance among populous between and sparsely-settled and spawned Plan, states which Virginia the former, favoring Plan, the Jersey and the New protected which latter, dominated the 114-24; debate. See at id. 1 Samuel Morison, Eliot Henry Commager Steele & William E. Leuchten berg, (6th 1969) The Republic Growth the American 246-48 ed. [hereinafter Commager]. Morison &

Emblematic of that debate was the battle over the character of house, upper and its method of Early selection. during on Convention, Constitutional Randolph Edmund Virginia of the dele- gation, proposed what Plan, became known Virginia as the a bluntly blueprint likely nationalistic most authored Madison. Bowen, See Catherine Drinker Philadelphia, Miracle at Story (1986). It included 37-39 Convention the Constitutional upper plan for of the house: a the election Legislature Resold, of the National of the second branch 5. that the members ought those of the out of a number first, proper persons to be elected by Legislatures, age least; of-years individual to be of nominated their to receive a term sufficient to ensure independency, hold their offices for their time be devotion of which they may liberal stipends, by compensated ineligible State, established by to be office service; particular public belonging those the United States, peculiarly or under the except authority during service, term of for the branch, space the functions second of the thereof. after expiration [1 20-21.] Farrand provisions most of the

Although spirited erupted debate over Harbison, see, Plan,20 at 113- Virginia e.g., Kelly supra, & of the recounted, Virginia Story part later Justice *66 delegated to power have the elect the Senate resolution that would nega- support, no and was ... with decided to the House “met it, favor, tived, voting against voting in its nine States no State During § the being Story the debate about one 703. divided.” surfaced, Senate, Dick- including John other ideas creation the (of the branch suggestion [second] “that the inson’s members chosen) Legislatures,” was ought by be the which to individual 150; Sherman, by James Roger 1 Farrand Wilson’s seconded elected, 58, 151; popularly id. at argument be by appointed should be George proposal “that Senate Read’s the Virginia majority Plan an to the fact the also included The points relating that this to of the "first branch” and members explicit provision right to recall Senators was was down as evidence that the voted proposal rejected. to Ante 7 A.3d at 736. "first branch" which the at The quote refers, the Senate at but instead the that became however, all, body is not significance majority such, overlooks the House of As Representatives. granted would House, to members of which make recall the short terms that the about the Moreover, it overlooks the fact debate little value. practical preventing legisla- more with the states' creation of Senate was concerned government, interfering central tures from with the practice operation See & had to failure. 1 Morison doomed the Articles Confederation Commager, at 243-44. supra, Magistrate proper Executive out persons of a number of to be legislatures,” nominated the individual id. at 151.21 Following debates, extensive proposal Dickinson’s resurfaced overwhelmingly and the convention chose to power vest the select members of the legislatures. Senate in the states’ Id. noted, Story reflects, 156-57. As Justice that choice part, an effort to create a connection govern- between the state and federal ments that system, would result in a harmonious “and that public would increase securing confidence govern- the national ment from powers undue encroachments on the the States.” Story end, § 704. In recall, the limited discussions about right legislatures vested in the under the Articles of Confedera- tion, part were of a debate about how much permit those exercise, bodies to and not about whether the remained vested in the people.

D. draft the Constitution that left the convention and made way through its process ratification was certain to face more debate. And it is in that George context that Washington’s letter nephew Washington, his explicit Bushrod with its assurance that the men who would be elected to the national governing body recall, subject would be must be George viewed. Washington, all, after presided convention, had over the 1 Farrand had heard debates, the extended participated and had with the others when Whole, see, convention met as the Committee of the e.g., Bowen, supra, at particularly 40-41. It is telling that majority *67 dismisses this merely private document as family “a letter to a member,” 112, 740, ante at 7 A .3d at because that backhanded overlooks, reference perhaps proceeds of, ignorance in several important historical facts that significance. bear on the letter’s 21 Magistrate” Elsewhere, the role of "Executive is referred to as the "National Executive," but both are references to what became the office of the President. See 1 Farrand 152.

161 one of the men at thing, Washington For one Bushrod was few college, having graduated from earned his the time who had 1778, Mary in degree College of William and and who from the in pursued study Philadelphia. law and had the of both there Custer, A Washington Bushrod and John Marshall: Lawrence B. 34, (1960). Preliminary Inquiry, Legal 4 Am. J. 36-37 His Hist. study interrupted in the his service Continental law was presence Army, notable for his at Yorktown when Lord which was Justices: Illustat Supreme surrendered. Court Cornwallis (Clare ed., 1993). Biographies, Cushman ed 1789-1993 that, year significant the the Father It is even more him, Washington been writing our Nation Bushrod had was and, Virginia Delegates within the elected to serve in the House Virginia among delegates to year, was to serve selected Custer, Legal at 39. ratifying supra, Am. J. Hist. convention. professor University law at the He went on to become the first Pennsylvania, id. at and he served on United States thirty-one years, Supreme Biographies, Illustrated su Court pra, ally was so close an of Chief where he confidante to as Her- Justice John Marshall that were referred “one.” Johnson, Symposium: Washington, A. bert Bushrod 62 Vand. (2009) (Symposium) (citing L.Rev. Letter Thomas (Dec. 10, 1822), reprinted Jefferson from Justice William Johnson Johnson, part Morgan, in Donald G. Justice William the First (1954)). Washing- Dissenter And it was 181-82 Justice Bushrod ton, during Court, Supreme on the his tenure United States who penned majority words that the would be well advised to consider today: integrity, is bul decent due to wisdom, respect patriotism lilt legislative which law is in favour of its body, by presume validity, passed,

until its all violation of the constitution is reasonable doubt. beyond proved Wheat.) (12 (1827).J [Ogden v. 25 U.S. 6 L.Ed. Saunders, George Washington That would write his assurance that there being pro- remained to recall then Constitution ratification; posed for that he those words would write to one Johnson, heir, only nephew supra, his and his eventual see *68 Vand. L.Rev. at but to one who play was soon to his own role in process, hardly the ratification merits such derision from this Court. majority

The includes an listing exhaustive references debates, during ratifying 109-12, recall made the various ante at 738-39, 751, reasoning 7 A .3d at that because the states expression right, did secure the of that it ceased to exist. But that discussion overlooks real focus the debates. As an example, majority points to the debate in the New York convention, ratifying recognizing without that the discussion about actually the resolution on part recall was of the debate about the questionable delegating power wisdom of to elect members of legislatures th'e Senate to place. that, the state in the first As to Livingston Mr. lamented: people judges ought represent are the best who them. To dictate and them, they elect, abridge control to tell them whom shall not is to their natural

rights. [2 292-93.] Elliot advocated, always,

Hamilton strong govern- for a federal ment,22 Senators, particular, which would be free from the “vassalage entail; sort of dependence” might that recall but there, too, appears his focus to have been on a desire to divorce political them from the intrigue sort of would suffer were power of recall placed into the hands of the several state of, legislatures, on, than rather an indictment even comment Moreover, residual to do so. Id. at 303. majority’s transpired reliance on what York New overlooks fact, debate, openly during discussed the same mattered, hardly time their views already because nine states had ratify. voted to Elliot 324-25. 22Although greatly today, well-respected Hamilton is revered one treatise has pointed shape out that his idea for the of the future United States more was like "plan unitary a centralized constitution that would have made the states plan completely grasp mere counties—a that revealed how Hamilton failed to Commager, supra,

value of federalism." 1 & Morison at 248. *69 in other states ratifying in the debates to recall

The references general view character, reflecting speaker’s in some similar are and its bounds had exceeded Convention that the Constitutional preferable. For confederation was of the that a continuation speeches and on Luther Martin’s majority’s reliance example, the interesting 109-10, an at reflects letter, at 7 A.3d see ante his as the “wild authority. some historians Described choice of convention, Bowen, supra, at see of the constitutional man” two-day long speech which engaged in a having notable for Harbison, supra, at Kelly & opposition, see “harangued” all he 437-42, the convention was 120; believed that 1 he Farrand to the Articles of charge to mere amendments limited its Confederation, at that. and modest ones sovereignty, see principle of state adherent of the

An extreme efforts of Bowen, objected to the obvious he so supra, entirely govern- form of an new Madison to create Hamilton and against publicly. them to rail broke the vow of silence ment that he finalized, it was sign the constitution when planned to refuse He days it in the tirelessly to defeat and worked see id. at His observations Maryland ratifying convention.23 leading to the however, arguments he recall, fraction of the were a minute about in that effort. advanced

Likewise, lengthy listing comments about majority’s opposed the constitu- largely to men who recall are attributable Henry, Patrick being proposed general. tional scheme convention, “saying that he participate example, refused ” Henry Mayer, rat,’ (quoting 17 from Kaufman, supra, at ‘smelt a Republic Henry American Patrick and the A Son Thunder: (2001 ed.)), sign the final George Mason refused Martin, Harbison, As with document, Kelly supra, at 137-38. & fragment of their are but a small about recall their observations Maryland biographer to address the "Martin was unable A notes that recent Kauffman, Forgotten by laryngitis. having ratifying Bill been struck convention” Founder, (2008). Prophet Drunken views, majority’s and the on reliance those few comments miss the larger, appropriate, entirely. more majority’s context refer curious, similarly given ence to Rhode Island is that it refused to any delegates Philadelphia. Story 275; § send 1 Morison & Commager, supra, at 244.

Much ratifying of the debate in the conventions centered on the expression rights absence of an of fundamental people, shortcoming that proposed some of those conventions to address through rights. the addition of a bill of 1See Morison & Com- mager, supra, at 259-60. We need devote little attention to that debate, except provisions eventually as it relates to two Understanding became the Ninth and the Tenth Amendments. *70 guarantees the designed play light roles those were sheds question right on the authority the recall and the constitutional of the right voters of this state to assert that through an amend majority ment to our Constitution. The discusses the Tenth Amendment, 125-27, 748-49, see ante at 7 A.3d at but because scholarship suggests designed recent that it complement was Amendment, McAffee, the Ninth see Thomas B. A Critical Guide Amendment, (1996), Temp. to the Ninth L.Rev. both inform the debate before this Court. provide:

The two amendments

Amendment IX rights,

The enumeration the of certain Constitution, shall not be construed to disparage [Ratified 1791] others retained the December deny by people. Amendment X delegated not to the United States the powers by Constitution, nor prohibited it States, to the are reserved to the States

by or to the respectively, people. [Ratified 1791] December [U.S. X.] Const. amend. IX and begin Amendment,

We with discussion of the Tenth which has commonly authority been more as a asserted source of for recall. According analysis, right to that because the explicit recall was Confederation, in the specifical- Articles and because it was not Constitution, ly delegated in it among powers is that are states, reserved the Tenth Amendment to the notions that on the familiar argument rests people. part powers and enumerated is one “of limited government our federal delegated Thus, any specifically not Story power § ...” 2 1907. Story observed: is reserved. As Justice belongs if invested the State authorities [W]hat withheld, is not conferred government it invested, and if not so them; their constitutions respectively sovereignty. as a of their PEOPLE, residuary BY THE part is retained mm Limits, majority, by the ante upon U.S. Term relied Nor does the Tenth proposition that support A at at .3d power. The the recall could not have reserved Amendment prior to the not exist government did argument that federal Constitution, and that because the United States ratification of exist, no there was previously Senate therefore did reserved, ignores requires parsing a kind of power to be entirety. And as Justice Stevens confederation its earlier belongs commented, representatives not to “the to choose Limits, supra, States, 514 U.S. people.” to the U.S. Term but 820-21, 115 1863, 131 In the context of at at 911. S.Ct. L.Ed.2d delegated to some powers, if it was not government of limited delegated expressly government, and not branch of the federal else, reserved to the it is reserved. was anywhere Whether states, light of the fact that their make sense in which would time, or to at the legislatures were authorized to elect Senators pending the restoration to people, it remained unused where Amendment, through the Seventeenth to elect them simply *71 it not vanish. did support of the evidence Amendment offers further

The Ninth lay before essentially dormant That Amendment to recall. over inherent individual becoming point the focal for the debate 479, Connecticut, 85 381 U.S. rights privacy, see Griswold v. (1965), Douglas included it 1678, 14 L.Ed.2d 510 when Justice S.Ct. rights, at 85 S.Ct. “penumbra[l]” id. among his sources for the concurrence, Goldberg’s at 514-15. Justice at 14 L.Ed.2d variety likewise, of a as the source used the Ninth Amendment specified. See id. at 488- rights not otherwise fundamental human 166 1684-88, J., at 14 (Goldberg, S.Ct. L.Ed.2d at 517-22

concurring). provoked Those views the dissent which Justices argued Stewart and Black that because the Ninth Amendment power was intended to limit government, of the federal using effectively as a means that expand would federal twisted 519-20, 1701, 14 purposes. its Id. at 85 S.Ct. at at L.Ed.2d 536-37 (Black, J., dissenting); id. at 85 S.Ct. at 14 L.Ed.2d (Stewart, J., dissenting). at 542 In the that decades have fol lowed, debate, up arguing fervently scholars have taken about origins the historical Ninth relationship Amendment and its Amendment, part the Tenth as of them effort to understand they what mean. spring debates,

Both ratifying Amendments from the in which expressed grave several of the states concerns about the absence an expression agreed-upon of the rights fundamental McAffee, people. supra, Temp. time, See L.Rev. at 69. At the legislatures state general were considered to be bodies of authori- ty, only with the result that rights those expressly were extent, reserved to the were retained. To some fashion, operated Articles of Confederation in a similar because rights focused on that the body states ceded to the national as if repository the states were the essential authority. of all See (“The Commager, supra, Morison & at 228 Federal Government [through only the Articles of powers Confederation] received those recognized which the belonging king colonies had parliament.”).

In creating government, the federal the Founders embarked on course, very a intentionally creating government different “of limited powers,” Story system § and enumerated powers which all expressly designated govern- to the federal ment were reserved to the people. states Whether the emerged document from the Constitutional Convention goal subject achieved that became the of “intense debate” eventually gave McAffee, rise to the Ninth supra, Amendment. Temp. L.Rev. 69.

167 ardently debates, argued the Federalists ratifying In the achieved, an intentional the precisely what Constitution this expression. Id. at further it did not need scheme so self-evident failure to enumer that the The Anti-Federalists insisted 69-70. might for excessive allow rights of the ate the basic Proper clauses, Necessary and particular, in the expansion of I, people’s essential to the detriment of Clause of Article (Oct. 12,1787), in from the Federal Farmer IV liberties. Letters (Herbert ed., Storing 247 J. Complete 2 The Anti-Federalist McAffee, Meaning 1981); Original Thomas B. see (1990). Amendment, 1215, 1228-29 & n.51 90 Colum. L.Rev. Ninth argued that delegates ratifying conventions example, As an eventually embodied protections of the in the absence Amendment, might practice to the Congress revert Fourth ed., Cong. (Joseph Gales general use of warrants. Annals 1834). problem of whether an of that debate turned to the

The essence implication that rights might create the enumeration of somehow actually rights granted government federal were the limited if, is, example, the the concern was that not so limited. That might press, imply it that the rights included the free regulate given authority to government federal had been Wilson, Meeting press Speech at a Public some fashion. James (Oct. 6, 1787), History Documentary Philadelphia in 13 The (John P. Kaminski & the Constitution 339-40 the Ratification of McAffee, eds., 1981); Temp. supra, 69 Gaspare J. Saladino see very L.Rev. at The Federalists were concerned 87. thought plainly given not over to the rights they mention of were government imply would the Constitution did federal Lash, Kurt T. actually government a limited after all. See create Amendment, Original Meaning the Ninth 83 Tex. The Lost (2004). the states ratified the Constitu- L.Rev. Some of immediately only amended to tion on the condition that be rights expression agreed-upon fundamental include an of these safeguard against expansive power, generally federal see finding Commager, supra, apparently Morison & *73 meaning Federalist insistence on the clear of the document to be protection. insufficient Amendment, originated

The Ninth Virginia ratify- which in the convention, ing original and which in its final both and form was Madison, designed drafted the Federalist James was to solve problem. McAffee, 73; supra, Temp. this at 1 L.Rev. see Cong., supra, (reprinting Annals of at 449-59 Madison’s remarks amendments). proposed about And as one scholar has com- mented, placed “it was no accident that the Ninth Amendment was Lash, alongside supra, the Tenth.” 83 Tex. L.Rev. at 336. The designed guard against expansive two were to work in tandem to interpretations grant power of the words of the Constitution that government to the expressed federal and to ensure that both the retained, unexpressed, rights but of the be inviolate. McAffee, supra, part way 90 Colum. L.Rev. at 1307. As of the accomplish goal, against “the Ninth Amendment also counsels construing power federal as exclusive of concurrent state authori- Lash, ty, absolutely necessary.” unless Kurt T. A Textual- Amendment, Theory Historical the Ninth 60 Stan. L.Rev. (2008). brought We need not recount in detail the debates about separate the inclusion of the Ninth and Tenth Amendments to Ninth, purpose demonstrate that the of the described Madison, words of its “guarding against author James was interpretation” rights granted latitude of of the limited to the Lash, 336; government. supra, federal 83 Tex. at L.Rev. Annals (1791) Cong.1944-52 (reprinting Speech in Congress Madison’s Bank, 1791). Opposing opposition National Feb. In his to the bank, regarded improper bill to establish a national which he anas Necessary Clause, Proper Cong., extension of the Annals supra, power given at Madison cautioned that if a is not government the Constitution to the federal “the exercise of guilt usurpation.” 2 Cong., supra, involves the Annals of speech explaining 1951. One scholar has concluded that Madison’s meaning, power, and the essential Ninth Amendment Virginia was sufficient to necessity end the debate about the Lash, Rights. supra, ratification of the Bill of See 83 Tex. L.Rev. at 333-34.

Understanding separate roles of the Ninth and Tenth necessary Amendments is in order that be seen neither as surplusage. redundant nor as mere The Ninth stands as the expression government of the federal is limited and as an interpretation essential reminder that powers of its rights people. bounded The Tenth serves instead as express an reservation of rights non-enumerated to the states or people. importance rights expressed by the Ninth *74 for this plain. States, debate is therefore It assures the several thereof, people and intentionally grant the that the limited of powers so; government to the expansive federal will remain that readings will be in interpretations appreci- eschewed favor of that ate the true nature of the constitutional scheme. True faithful- ness to principles requires fundamental constitutional that a right, right recall, known granted like the to could neither be nor by implication; government, obliterated the having federal not an express in relating clause the Constitution Congress pro- to recall, hibits cannot powers expanded by have its means of the of interpretation” “latitude support needed to the result the majority reaches. contrary, operating On the separately both and tandem, in the Ninth and Tenth Amendments demand otherwise.

E. turn, must, Finally, we as we to a brief consideration of the significance of the Seventeenth Amendment. Its ratification triumph populist marked the of the effort to return to the people and to wrest it from grip legislatures. of the states’ But important more for the issue now before this Court is the rights historical expressly evidence that mentioned in the by Constitution were many exercised states to control Senators anyway. simple and their service The fact is that the Seventeenth adopted recognition states, Amendment was many that in of the effectively take the to already created methods people had legislatures, and do away from their power to choose Senators considered “instructions,” Framers had a means so Strauss, A. The Irrelevance rejected. David explicitly See of Amendments, 1496-98 114 Harv. L.Rev. Constitutional of (2001) of ratification Seven- history of instructions and (tracing Democ- Amendment); Bybee, Ulysses at the Mast: Jay S. teenth Federalism, Song the Seventeenth the Sirens’ racy, (1997) (describing Amendment, 521-24 91 Nw. U.L.Rev. instructions). rejection history of through deprived, people were suggestion Constitution, power to affect election

ratification of the compromise Senators, Although the historically inaccurate. by the would be elected through which the Senate achieved part ballot is popular than legislatures rather several states’ why they that the reasoning believe majority’s Senators, efforts the states to recall deprived were for their election effectively Constitution’s scheme bypass aspiring ... Senators quickly. “Beginning the 1830s surfaced legisla- directly to vote for state appealing to the electorate began them for the Senate.” pledged support who were tive candidates has Strauss, One scholar L.Rev. at 1496. supra, Harv. this prime example Lincoln-Douglas debates as pointed to the debates, although held while at 1496-97. Those trend. Id. *75 Senate, at the were aimed campaigning for two men were representa- to elect state to influence the voters public in order Thereafter, began to states support them. Ibid. who would tives election, including strategies approximate direct would devise Senate, for the designate candidates holding primaries would for state pledges from candidates requiring at id. by at 1497- bound those votes. Id. legislatures that would be 98. instruction, was included in several

Similarly, which constitutions, supra, Bybee, 91 Nw. U.L.Rev. see states’ inquiry, Christopher Terra- history to our see long relevant has nova, Note: The Legislative Constitutional Instructions in Life of America, (2009); 84 N.Y.U. L.Rev. 1333-39 Kenneth Bres ler, Rediscovering Right Legislators, to Instruct Eng. 26 New (1991). roots, L.Rev. deep 359-60 Also with historical it was during discussed the Constitutional Convention because the dele- gates from Delaware were “restrained their commission” from agreeing any change equal representation in the of the states. ratification, 1 Farrand Following 37. commonly it was used as a method to Senators, control the votes of the individual some resigning or declining to stand for re-election because their views from Bybee, differed their supra, instructions. at 525-27. More surprising, spite of the fact that rejected instructions were from Constitution, inclusion in the practice was used to force the Senate as a whole bow to the will of the several States that proceedings open 524; Senate public. be to the Id. at 4 Annals of (1794). Cong. 33-34 practice of instructions died out with the Amendment, ratification of Bybee, the Seventeenth supra, at significant but for the current debate to note that its absence from the Constitution was not raised as impediment an to its regular rather use the States.

IV. precious There is little reason for this Court to wade into the question constitutional it has seen fit to resolve. There is even less reason for this Court to embraced, reach the conclusion it has rejecting as Jersey’s unconstitutional New constitutional and stat- utory recall election mechanism. The notion that the State of Jersey, having New amended their own Constitution to provide for having of recall implemented power through the comprehensive enactment of legislation, cannot representatives one of their happens because he to be a United States illogical Senator is both and offensive. Taken to its logical conclusion, majority citizenry would tell the of New Jersey that it cannot recall one of its U.S. Senators even if he or indicted, she is convicted and incarcerated but impeached; *76 circumstances, that majority people the would conclude the those being no to disenfranchised. Jersey of New have means avoid citizens of our fellow voted hundreds thousands When amendment, they a set create a mechanism constitutional recall machinery They did so- high bringing for to bear. standard only infrequent in intentionally, reserve recall for those cases seen, in this truly it As we have circum- which is warranted. need, stance, remedy would invoke the of recall would those who it span, signatures to amass of more voters than short time place, at supra, first 116 n. took to the Senator elect n. 7. A.3d 742-43 record, history, nothing nothing and in our

Nothing in the experience suggests that will so threaten common shared Senate, government, the federal even the work of the or of office, should who now holds that that it be denied. life the one joining Nothing people gave up right when suggests that the to the Republic binding Federal together as a and themselves Indeed, only by lifting up a and is narrow Constitution. system historically unsupportable of the federal view majority argue for result it reaches. can effect, majority immune the Senate as an institution sees kind; criticism, profound and fundamental from even the most system, institution the part it sees of a but an elitist federal have to troubled what the of which should not be members believe, necessity having people they represent save every to vote into people return convince them back office and years. six stands,

Today, past in the has taken time the Court that people to a choice about who shall again, rights for the have Samson, them, v. Jersey Party, New Democratic Inc. govern see (“The simple. At its concept is 175 N.J. 814 A.2d voter, fundamental to exercise the center whose meaning.”), purpose our statutes with franchise infuses election denied, 154 L.Ed.2d 582 rt. S.Ct. U.S. ce (2002), impotence. Today, those same condemns *77 just ago Court that a few short months our insisted that local debate, boards and bodies cannot foreclose dissent see and Besler Windsor, 544, v. Bd. Educ. W. 201 N.J. A.2d (2010) (“Our society give free breathing must room an ‘uninhi issues, bited’ and ‘robust’ public discussion of even when it ‘in vehement, caustic, clude[s] and unpleasantly sharp sometimes ”) government attacks on public and (quoting officials.’ New York Sullivan, Times Co. v. 376 U.S. 84 S.Ct. (1964)),

L.Ed.2d precisely does that. still, Worse step, Court takes that step silencing protest debate, voices of foreclosing and when one of the most important decision-making in the Today bodies land is its focus. day indeed a and history sad dark in the of this Court. We cannot, not, join and we will in the unconstitutional disenfranchise- We, Jersey’s therefore, ment of New citizens. dissent.

For reversal vacation—Chief Justice RABNER LONG, LaVECCHIA, Justices and ALBIN—4.

For RIVERA-SOTO and HOENS—2. affirmance—Justices

7 A.3d 777 BRONSON, IN THE MATTER OF LARRY AN ATTORNEY (ATTORNEY 26311970). AT LAW NO. November 2010.

ORDER Disciplinary having Review Board filed with Court its decision concluding in DRB that as a matter of final discipline pursuant 1:20—13(c), to Rule LARRY BRONSON of YORK, YORK, NEW NEW who was admitted to the bar of this notes the two reasons offered Senator. attention requiring participate him in a recall will divert his that duties, pointing out that his “coordination and important from his expense at of his or her oversight such efforts would come responsibilities.” 7 A.3d at 732. Sec congressional Ante injects ond, majority recall initiative also “[t]he warns instability electoral uncertainty scheme[.]” into the State’s however, Neither, scrutiny. All officials withstands elected Ibid. process; politicians, live and products of the are electoral and, of the process importantly, more the will die the electoral Senator, ran like all since people. The officials elected 145 and assumed office on notice that subject his election was to recall. Suggesting ability that recall will diminish his to serve or create uncertainty against official, would counsel its use as to elected step view well out of with people. the will of the Moreover, agree were we to with claim subjecting an elected official to the sanction of the somehow diminishes her, him or then an elected charged official could not be with a subjected crime or to a civil lawsuit while in office. But as the Supreme held, United States Court has even civil litigants are not precluded pursuing see, from against officials, claims elected e.g., Jones, 681, 705-06, Clinton v. U.S. 117 S.Ct. (1997) L.Ed.2d (categorically rejecting stay proceedings in civil against lawsuit States), the President of the United contrary conclusion that runs expressed by the concerns majority. view, In our the confluence of relevant considerations—the principle commanding that we avoid a question constitutional unless indispensable to the salutary outcome and the doctrine of judicial restraint—authoritatively we, counsels that Appel- like the Division, late stay our hand process and allow the recall go forward. We so by pragmatically conclude recognizing the daunt- ing facing task plaintiff: securing, within the statutory time period, signatures, is, over 1.3 million over four thousand signatures per day for days, petition consecutive on a seeking the recall of Sen. Menendez.16 Law, 19:27A-5, Section 5 of the Uniform Recall requires Election N.J.S.A. petition "signed that a recall registered must be a number of voters of the jurisdiction sought equal the official to be recalled to at least 25% persons registered jurisdiction" to vote in that immediately preceding on the election; general 10(a)(1) Law, Section of the Uniform Recall Election N.J.S.A. 19:27A-10(a)(l), that, provides person sought if the to be recalled is a United Senator, signatures States those days must be collected within 320 "from the petition date that the approval receives final for circulation from the recall According tallies, election Jersey’s officialL]” to the State of New official as of year 5,223,047 registered there were http:!/ voters in the State. See

notes during either the Constitutional Convention various kinds offered conventions; during ratifying portions or itself some Papers; references amendments of- selected Federalist the stages at various that would have made fered discussed the right explicit. aggregate is then used to advance was argument right the of recall discussed but that because Constitution, it expressly in the Federal must have been included obliterated, rejected, or deleted. anything yet, pile And in that of information is there nowhere question approaches clarity level of on the that the that the recounting of majority prove. lengthy in the hopes to Nowhere viewpoints inform on exchange the robust debate the a new is there important matter as creation of Constitution equates in that with anything suggests that silence document people. historically recognized the extinction of a principles on which the nation contrary, the fundamental On the founded, Federal Constitution which are embodied was today itself, Founding Fathers we championed were which revere, throughout of this infused the decisions and which are Court, make manifest Supreme and of States Court the United flawed, only fundamentally majority's conclusion not as citizens of this that it flies in the face of all we hold dear but proud nation. could, course, engage point-by-point in a refutation of One relies, majority on but to do so each of the sources which does, majority mistake that would be to make same materials, missing bigger picture that the mass of viewed Instead, individually, engaging than inevitably obscures. rather majority’s response to the effort to what would be a tedious conclusion, can, it can for its we assemble the best case muster bankruptcy of examples, with a few illustrate the essential majority’s thesis.