Committee to Recall Robert Menendez v. Wells, Amicus Brief

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On May 10, 2010 an amicus brief was filed on behalf of CLDEF in the case of Committee to Recall Robert Menendez from the Office of U.S. Senator v. Nina Mitchell Wells in the Supreme Court of New Jersey supporting the efforts of the plaintiff, the Committee to Recall Robert Menendez from the Office of U.S. Senator. On November 2, 1993, by an overwhelming majority, the people of New Jersey enacted an amendment to the New Jersey Constitution which allows the people to recall their representatives to the U.S. Congress, and directing the state legislature to promulgate laws to provide for recall elections, which the legislature did in May, 1995.

In September, 2009, the New Jersey Secretary of State refused to comply with these provisions, and declined to certify the plaintiff’s effort to recall Senator Menendez. In January of 2010, the New Jersey Superior Court, Appellate Division ordered that the recall effort must go forward. Senator Menendez joined the suit as an indispensable party. On April 27, 2010, he successfully sought expedited review of the decision by the New Jersey Supreme Court, where the case is now pending.

Our brief argues that the power to recall U.S. Senators is reserved to the people by the Tenth and Seventeenth Amendments. When the Constitution was ratified, the state legislatures had the power to choose representatives. This changed when the Seventeenth Amendment was adopted in 1913 to require the direct election of Senators by the people of the various states. Senator Menendez believes that the Amendment granted Congressmen an immunity from removal by the people they represent, even if they fail to faithfully represent the interests of their constituents. Neither the Seventeenth Amendment nor any other section of the Constitution prohibits the people of New Jersey from recalling their representatives.

Lastly, the Supreme Court’s decision in U.S. Term Limits v. Thornton does not foreclose this power. There, the Court held that the state legislatures may not add qualifications for members of Congress to supplement those in the Constitution. But the power to recall is not a qualification on whom the people may elect, but protects the people’s right to choose, giving the people another bite at the apple to elect someone who will better serve them.

Link to brief