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SOMETHING IN THE AIR

Tea parties win key victory in ousting Congress

Court rules 'no precedent' stopping voters from recall of U.S. senator

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Posted: March 16, 2010
10:48 pm Eastern

By Drew Zahn
© 2010 WorldNetDaily

Sen. Robert Menendez, D-N.J.

Tea partiers in New Jersey have moved one step closer to ousting a sitting U.S. senator that they say has shown "a total disregard for the people's wishes."

New Jersey Tea Parties United and the Sussex County Tea Party have joined forces to try an unprecedented way of sending a message to Washington: removing a senator through a recall vote.

A three-judge appellate panel ruled today that the New Jersey secretary of state must accept the tea partiers' notice of intent to recall Sen. Robert Menendez, D-N.J., and allow their joint recall committee to begin collecting the voter signatures needed to put the senator's name back on the ballot, two years before his term is supposed to end.

New Jersey is one of a handful of states that allows for the recall of its congressmen, thanks to a constitutional amendment New Jersey voters approved by a 3-to-1 margin in 1993.

Nonetheless, when the tea partiers filed to begin the recall process last September, New Jersey Secretary of State Nina Wells, under advisement of the state's attorney general, initially denied their notice, taking up the unusual argument that the state's constitutional amendment is … unconstitutional.

Executing a recall of a member of the U.S. Senate "is a matter of exclusive jurisdiction of federal authority," Wells responded in an official letter. "Neither the United States Constitution nor federal statute provide for a recall proceeding for a federally elected official."

The tea partiers, however, then turned to the courts.

Their lawsuit asked, "Can the state [of New Jersey], after amending its Constitution and passing legislation to guarantee its citizens access to a formal, state-endorsed mechanism to foster collective 'core political speech,' deny its citizens access to that mechanism because of the content of their political message?"

The state's appellate court today answered, "No."

The tea partiers explained their reasons for trying to oust Menendez, telling the New Jersey Herald their senator "does not represent the people the way his oath requires that he does," as evidenced by his votes on Medicare, health care and "extravagant, excessive multi-million dollar projects that offered little or no short-term economic benefits."

No U.S. senator, however, has ever been subjected to a recall vote, and, in fact, the U.S. Constitution doesn't provide any process for doing so. Consequently, Wells and her attorney have argued that the attempt is unconstitutional.

The court today, however, ruled that Wells determined this "albeit without citation to any specific legal authority."

And while the court's ruling suggests Wells' conclusion may in the end be correct, it admits the limits of judicial restraint prevent the court from stopping a legal process just because it might be ruled unconstitutional later.

"The language of the state constitutional amendment and the implementing legislation is clear and unambiguous," the judges stated. "No published opinion from any federal or state court in the nation has yet declared invalid a state recall measure's application to a member of the United States Senate or the House of Representatives."

And without that precedent, the judges decided, the court had no alternative but to order the recall process allowed to continue (though the order is stayed until further appeals by Wells can be heard).

"In sum," the ruling concluded, "there are a host of genuine arguments and counterarguments that can be articulated and debated about whether or not the federal Constitution would permit a United States senator to be recalled by the voters under state law. There is no express textual answer to this debate in the United States Constitution. Nor is there any precedent from the United States Supreme Court squarely on point.

"We are pointed to no precedential opinion which has held that the recall of a United States Senator cannot be conducted," the court said. "The silence of the federal Constitution may well result in the conclusion that it may be done."

Provided the court's order stands through further appeals, the tea partiers will then have 320 days to obtain the signatures of 25 percent of registered voters in New Jersey, roughly 1.3 million names, to place a recall on the ballot.

The effort to recall a senator is not entirely new, nor is it limited to New Jersey.

Peter Ferrara, a lawyer for the American Civil Rights Union, which is helping the tea partiers with their case, told the Washington Times, "Nine states, including 12 Democratic senators who are not up for re-election otherwise, could all be on the ballot with a recall.

"Given what they're doing on health care this year," he added, "that's just going to be a huge boost to the recall effort."

The other states that could attempt recalls of their congressional representatives are Colorado, Michigan, Montana, North Dakota, Oregon, Washington, Wisconsin and Louisiana, where an effort is already underway to oust Democratic Sen. Mary L. Landrieu.

A Republican has also heard the stirrings of recall when some Louisiana citizens who objected to his vote against the stimulus bill sought to remove Rep. Ahn Cao last year. The attempt failed to generate enough signatures before the state's 180-day time limit expired.