Senators Menendez (right) and Lautenberg
(AP Photo/Mel Evans)

The Committee to Recall Robert Menendez from the US Senate appealed the recent decision of the New Jersey Division of Elections that their recall notice was unconstitutional, one of their attorneys told this Examiner last night.

Richard T. Luzzi, co-counsel for the recall committee, made the announcement at a meeting of the Morristown Tea Party in Morristown, NJ.

Luzzi and the other counsel, Daniel P. Silberstein, had received the response on January 12. Luzzi then announced a day later that the recall committee would appeal. The committee filed its appellate brief on January 21, and on that day the assigned judge ordered the committee to serve notice of the appeal on the New Jersey Division of Elections and on Senator Menendez.

Service was accomplished on January 22, and the Elections Division and the Senator's office now have ten days to file respondent's briefs. Unconfirmed reports stated that Senator Menendez reacted with shock and astonishment upon being presented with the appeal notice. Senator Menendez could not be reached for comment.

Richard T. Luzzi (from the Independence
Caucus, used by permission)

The elections division had responded about three months late to a Notice of Intent that the recall committee had filed on September 25, 2009 (and the division had acknowledged receiving on October 5), and only after the recall committee first sued the elections division and the New Jersey State Department, and then requested summary judgment to force them to respond. In that response, the elections division stated that voters in a State were not permitted to recall United States Senators under the federal constitution, and that any petition to recall a senator was impermissible under the federal constitution's Supremacy Clause.

Luzzi told the assembled Tea Party activists and public guests, who had gathered to hear a presentation by Harry S. Pozycki of the Center for Civic Responsibility, that the appellants' brief made three key arguments:

1. It is not for the New Jersey Division of Elections, nor indeed any office of the executive branch of government, to decide the federal constitutionality of a recall petition. That is a judicial function only.
2. The constitutional acceptability of a recall of a sitting United States Senator by the voters of his State could only be decided as it happened, and that can only happen if a recall election is held and succeeds.
3. In denying certification for reasons not provided by New Jersey law, the elections division was interfering with the free-speech rights both of potential petition circulators and potential petition signers.

The deadline for respondent's briefs by the elections division and by Senator Menendez will pass on Monday.

Luzzi stressed to the crowd the urgency of the petition, saying that the recall committee fully intends to gather the required 1.2 million signatures in time to put the question to a vote this November.

This article is part of the Robert Menendez series.

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