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In a case of first impression, a federal judge has held that the Hatch Act, which bars federal employees from running for office, does not violate the U.S. Constitution’s Qualifications Clause. The law does “not prevent … participation as a candidate … , but instead constitutes a valid attempt on the part of Congress to insulate public employees from partisan political influence,” U.S. District Judge Joseph Irenas wrote in Merle v. United States, Civ. 02-3469. Irenas, of the District of New Jersey, likened the Hatch Act, 5 U.S.C. 7323, to other “resign-to-run” laws that have been upheld as constitutional. The statute has withstood many challenges since it was enacted in 1939, including a First Amendment challenge in 1973. Still, the Sept. 5 ruling by Irenas is the first to resolve a challenge under the Qualifications Clause issue, which requires a candidate for Congress to be at least 25, a citizen for seven years and a resident of the state. (Article 1, � 2, Clause 2) Roger Merle, a postal worker and the Green Party candidate for Congress in New Jersey’s 2nd District, sought an emergent declaration that the Hatch Act unlawfully added to the constitutional qualifications, arguing that he would lose his mail-carrier job if he tried to campaign. Irenas disagreed, saying that the law does not require Merle to quit his job to appear on the ballot but merely forces him to choose between his job and elective office. “Plaintiff need not even resign from his position in order to appear on the ballot, as the burden is upon the government to respond to his candidacy with a sanction for removal or suspension,” Irenas said. The need for Merle to decide “does not constitute an additional qualification for the office of Representative and consequently the Act does not run afoul of the Constitution.” That is a choice Merle should not have to make, says his lawyer, Princeton, N.J., solo practitioner Bruce Afran. He accuses Irenas of elevating form over substance by failing to acknowledge that the Hatch Act imposes an “impenetrable economic barrier” to millions of public employees. Afran says the “resign-to-run” statutes upheld by other courts involved requirements pertaining to certain jobs, rather than a broad-based disqualification, and that some of those other courts expressed reservations about laws that cover a wide range of occupations. “Federal employees comprise the broadest range of occupations,” says Afran, who ran against Jon Corzine for the U.S. Senate in 2000 on the Green Party ticket. He adds that he will seek an emergent appeal and take the case to the Supreme Court, if necessary. Assistant U.S. Attorney Louis Bizzarri did not return a call seeking comment. Karen Stewart, an attorney from the U.S. Department of Justice, who also defended the law, declined comment.

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