TRENTON, N.J. – A federal judge Wednesday derailed one of the last efforts to force a special gubernatorial election, dismissing a lawsuit arguing that Gov. James McGreevey’s decision to resign Nov. 15, and not earlier, deprived voters of their right to choose his successor.
Lawyer Bruce Afran told U.S. District Judge Garrett E. Brown Jr. that an election was necessary because McGreevey created a vacancy in the state’s top office the day he announced he was gay, had an extramarital affair and would resign.
But Brown, who read aloud three dictionary definitions of “vacancy” in his opinion from the bench, said Afran was asking him to construe the word “beyond its plain meaning.” The governor’s office is not empty, Brown ruled, and the state constitution allows McGreevey to decide when and whether he will leave.
“He clearly intends to hold office until Nov. 15,” Brown said. “The rights of registered voters are not being violated.”
Afran, a Ralph Nader campaign organizer who sued with fellow Princeton lawyer Carl Mayer on behalf of New Jersey voters, filed a nearly identical lawsuit in state court Wednesday afternoon. A hearing was set for Oct. 4.
Afran contends that the Nov. 15 resignation date – past the state Sept. 3 deadline for allowing a special election – is a technicality engineered to deprive residents the chance to choose their leader.
“I am disappointed that a U.S. district judge charged with protecting the right to vote decided such flimsy evidence as a dictionary could beat the state constitution,” Afran said. “The political bosses have won again.”
Assistant Attorney General Stefanie Brand said Brown’s decision was “clear and logical” – and appeared to be final, rendering a state court ruling unnecessary. Brand had argued that the governor’s office is not vacant until he files a formal letter of resignation.
McGreevey, who rebuffed bipartisan calls to resign by Sept. 3, was pleased by the ruling, spokeswoman Juliet Johnson said. Senate President Richard Codey, a Democrat, is expected to serve as acting governor after Nov. 15.
Legal experts said the ruling did not surprise them.
The Princeton lawyers “had an uphill battle in the face of a fairly well-understood meaning of ‘vacancy,’ ” said Robert Williams, a professor at Rutgers School of Law in Camden. Because state constitutions are approved by voters, courts interpret them in plain language, he said.