Article Examines When Legal Costs Can Be Covered By Campaign During Investigations In New Jersey

Analyzing the New Jersey Election Law Enforcement Commission (ELEC)'s recent advisory opinion on the matter, the Rutgers Journal of Law & Public Policy published an article on the use of campaign funds to pay legal fees for the purpose of responding to subpoenas in relation to non-criminal inquiries in New Jersey even where public financing caps have been reached.  The article also calls into question current structural challenges at ELEC.

Federal Election Commission Releases Post-McCutcheon Contribution Chart

In conformance with the U.S. Supreme Court's decision in McCutcheon v. Federal Election Commission, the Federal Election Commission (FEC) has released an updated federal campaign contribution chart reflecting the elimination of aggregated federal contribution limits.

Election Law Enforcement Commission Provides Comprehensive Analysis on IE Spending In New Jersey

Very informative white paper by New Jersey Election Law Enforcement Commission on Independent Expenditures, with nice focus on history of IE spending in New Jersey, which has accelerated in recent years.  The reasons are varied and will likely be the subject of much debate along with calls for new disclosure requirements.

A Must Read On Super PACs

This article is a must read for anyone interested in the origins of Super PACs.  The chief political correspondent for the NY Times magazine, who actually understands the origins of Super PACs, explains very well that Citizen's United is not what led to their creation. It was, in fact, McCain-Feingold's efforts to close the political parties' soft money accounts in 2002. So-called campaign finance reformers just don't get it. All they have done through their efforts is weakened the power of political parties while making it even more difficult to trace the flow of campaign cash.

Robertson v. Bartels Under the Microscope

At the end of the highly litigious legislative reapportionment fight of 2001, Federal District Court Judge Dickinson Debevoise determined under a strict scrutiny analysis that the New Jersey State Constitution's one year residency requirement for Assembly candidates violated the Equal Protection Clause of the U.S. Constitution. As reported by the New Jersey Law Journal last Friday, the New Jersey Supreme Court is now determining whether a State judge's decision annulling the election of Democrat Gabriela Mosquera's to the Fourth Legislative District may stand.

Other federal jurisdictions have ruled differently in recent years regarding residency restrictions depending on a number of factors, but generally upholding shorter restrictions while overruling more lengthy ones that were seemingly unjustified for lesser offices. For example, a Governor could be required to reside in a State for at least 10 years, but a state legislator in a state where they only represent a few thousand people could not be subject to a 10-year residency requirement as there is no rational basis for such a lengthy residency. In New Jersey, the Robertson v. Bartels decision has stood for a decade as the law of the land, in 2011 however, it was brought into question in the case of Olympian Carl Lewis where the Third Circuit, upholding a lower court decision, declined to apply a strict scrutiny analysis to the New Jersey Constitution's lengthier residency requirement for State Senators.

The instant case raises not only the question of whether New Jersey's residency requirement is constitutional, but the role of federal courts passing judgement on the State's constitution. The Mosquera case is made even more unique in that it was brought post-election, just days before Mosquera was to be sworn into office. The State argues that while it was bound by Judge Debevoise's decision in Bartels, which is why the Secretary of State certified Mosquera's placement on the ballot, it can now question the decision in State court. Should Mosquera lose before the New Jersey Supreme Court, it appears that this matter could end up being resolved in federal court.

How Should Surrogates Balance Need To Run for Office With Judicial Canons?

Many states elect judges who have to strike a tricky balance when running for office. Controversies often arise when elected judges accept contributions from parties who may regularly appear before them. In New Jersey, where all are judges are appointed (not that politics ever plays into that process), entanglements regarding balancing political engagement and serving on the bench seldom arise. The only judicial officers who must be elected are County Surrogates who act as judges in matters of probate, wills, estates, adoptions and incapacitated persons. In almost no easily contrived circumstance would politics ever interfere with or play into such matters, nonetheless, surrogates are bound by the Judiciary's rules.

As the New Jersey Law Journal reports, Atlantic County Surrogate Chris Brown has now responded to a formal complaint against him relating to his participation in a fundraiser for a legislative candidate. The Code of Judicial Conduct for Judiciary Employees is pretty clear that Surrogates and other judiciary employees cannot serve in leadership positions or as spokespersons for political organizations that support "partisan political activity." But does serving on paper as a member of a host committee of a political fundraiser for a friend to be on the same ballot column with you cross the line? That is essentially the question that now must be answered in this case in which there appear to be little or no clear precedents.

This all begs the question of whether a surrogate ruling on a will could really harm the perception of the independence of the judiciary while serving in the ceremonial position of the member of a host committee for a political fundraiser for another candidate on the ballot with them? If so, then how are Surrogates supposed to run for office on a political party's organization ticket, appear on the same yard sign, or the same political mailers as their running mates in their county?

I think the ACJC really needs to create some bright lines for Surrogates who face these tricky circumstances that will likely trigger future complaints in the heat of election season.

When Should Campaign Finance Violations Overturn The Result of Close Election and Who Does It, ELEC or the Court?

The New Jersey Election Law Enforcement (ELEC) today decided to intervene in an election contest in which a judge voided the outcome of a primary election due to what appears to have been an excessive and/or improperly reported campaign contribution in the amount of $16,000.

While this does not necessarily seem significant, for a Republican primary in sleepy Morris County, $16,000 is a lot of money. Plaintiffs in this case successfully argued that $16,000 represented such a large sum of the total amount of money spent in the election that it was enough to impact its outcome where the candidates were separated by only a handful of votes.

ELEC, however, appears to asserting its primal jurisdiction over such matters as it has done before. In Re the Contest of the Democratic Primary in 2003, 367 N.J. Super. 261 (App. Div. 2004). In this case the Appellate Division remanded an election contest to ELEC to "develop a record and utilize its expertise in interpreting the Act's provisions as to the claimed violations."