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Two lawyers for the Green Party have filed a suit in New Jersey’s federal court that seeks to compel a special Nov. 2 election to replace resigning Gov. James McGreevey, who has stated that he will stay in office until Nov. 15. Princeton, N.J., solos Bruce Afran and Carl Mayer charge that McGreevey’s postponed resignation — which will effectively make the Senate president the acting governor until 2006 — deprives New Jersey voters of their constitutional right to determine who will be their governor and violates their civil rights under 42 U.S.C. 1983. The case has been assigned to U.S. District Judge Garrett Brown Jr., who has scheduled a Sept. 8 hearing. Afran v. McGreevey comes amid a groundswell of public sentiment in favor of the governor leaving office before Sept. 3, thereby triggering an immediate special election. Under the state constitution, if a resignation comes less than 60 days before a general election, the Senate president takes over as acting governor for the rest of the elected term, which ends in 2006. State Republicans, including former Gov. Christine Todd Whitman, are asking that McGreevey leave office now in order to avert that extended lame-duck term. Democratic U.S. Sen. Jon Corzine, while not calling for immediate resignation, has intimated that he would be ready to step in as a gubernatorial candidate if needed. McGreevey’s office is saying little about the lawsuit. His chief spokesman, Micah Rasmussen, says only that it is “unfortunate” that politicians are attempting to “exploit” what has become a painful episode in the governor’s life. The case may turn on whether a governor’s unequivocal statement of intention to resign is enough to set a special election in motion. High courts of other states have said yes, but there is no case on point in New Jersey. The situation is clouded by the fact that McGreevey — who stated on Aug. 12 that “I have decided that the right course of action is to resign” – has not formally written to the secretary of state to effectuate his resignation. “He could always change his mind,” says Rutgers Law School-Newark associate dean Ronald Chen, who litigates state and federal constitutional issues for the American Civil Liberties Union. “He is governor until he signs a letter officially stating that he is resigning.” But Afran says that McGreevey’s Aug. 12 statement — followed by commentaries he published in USA Today and The New York Times — lead to the conclusion that he has constructively created a vacancy in the governor’s office. “These are words of definitive declaration and leave no room for doubt,” Afran said. “Nowhere does the Governor use words of indecision such as ‘I expect to leave office’ or ‘I anticipate leaving office � ‘ or other statements that indicate he is reserving the potential to stay on.” Afran says there is no material difference between public statements and a letter of resignation. McGreevey has “made a solemn declaration before millions of people that he is resigning effective November 15, 2004, a far more public and indeed irrevocable act than the submission of a private letter,” Afran says. “There is no requirement either by formality or tradition that a resigning governor deliver a written resignation to any particular officer or body.” Most of the case law cited by the plaintiffs is from out of state. In Allen v. Powell, 42 Ill.2d 66 (1969), the Illinois Supreme Court upheld the governor’s decision to hold a special election to fill the seat being vacated by state Sen. Paul Simon. The special election was predicated on the date of the receipt of the letter, not the effective date of the resignation that was two months later. “We are of the opinion that the resignation with finality created a vacancy within the meaning of the Constitution and that the Governor properly issued writs of election forthwith to the end that the vacancy be promptly filled,” the Court said. Afran also cited Wyler v. Secretary of the Commonwealth, 441 Mass. 22 (2004), where the Massachusetts Supreme Judicial Court held that the resignation of a state senator gave rise to a vacancy, even though the senator in question was not going to actually leave office for two months. The Louisiana Supreme Court reached the same conclusion, allowing a special election for two local judges who had submitted letters of resignation to be effective in two months, McKenzie v. Edwards, 361 So.2d 880 (1978). So did the Florida Supreme Court, calling for a special election for a justice who tendered his resignation, even though it was not to be effective for months, Spector v. Gleason, 305 So.2d 777 (1974). Critics of the current suit insist that it will be deemed a nonjusticiable political question, says Richard Perr, who chairs the State Bar Association’s Election Law Committee. “They [voters] elected him in 2001 and there is a constitutional structure in place as to who would succeed him” if he leaves early, says Perr, of Fineman, Krekstein & Harris in Haddonfield, N.J. Frank Askin, the director of the Constitutional Law Center at Rutgers-Newark, agrees. “The state constitution provides who is going to be governor under what circumstances,” he says. Afran and Mayer do have one local ace in the hole: the New Jersey Supreme Court’s ruling, in New Jersey Democratic Party v. Samson, 175 N.J. 178 (2002), that allowed a last-minute replacement when Sen. Robert Torricelli withdrew as a candidate for re-election. Though the statutory time limit had been exceeded, refusal to allow the substitution would have left no Democratic candidate on the ballot. The Court held that election laws should be liberally construed so as to maximize public participation. If the federal judge decides to punt to the state Court, Afran and Mayer might find a favorable forum.

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