Conservative Tea Party activists in New Jersey should have the right to try to throw a Democratic U.S. senator out of office, their lawyer argued in a state appeals court Tuesday, even though he acknowledged it is unlikely their effort would succeed.
The appellate panel should wait to weigh in on the group's recall effort against Sen. Robert Menendez until after the activists collect the 1.3 million voter signatures they would need to put the question on the ballot, said lawyer Daniel Silberstein, representing the Committee to Recall Robert Menendez.
"We are not arguing today for Sen. Menendez's recall," Silberstein told the panel. "We are arguing simply for the right to express our dissatisfaction with Sen. Menendez."
The three appeals judges gave no timetable Tuesday for making a decision in the case, which pits the state constitution against the U.S. Constitution.
"Tea party" coalitions have formed around the country to speak out against President Barack Obama and the Democratic-controlled Congress.
RoseAnn Salanitri, a spokeswoman for NJ Tea Parties United and the Sussex County Tea Party, which are behind the move to throw out Menendez, said the committee is targeting him because he supports health care reform, which they oppose, and because of his past votes in favor of government spending. She said the group is not pleased with New Jersey's other Democratic senator, Frank Lautenberg, but is not targeting him because at age 86, he is unlikely to seek another term.
Menendez will be up for re-election in 2012. Lautenberg would face voters again in 2014.
Menendez lawyer Marc Elias argued that the petition drive should be halted now because voters do not have the right under the U.S. Constitution to recall a federal legislator.
Elias said a U.S. Supreme Court ruling in a term limits case clearly spelled out situations that would create a midterm vacancy of a federal lawmaker: death, expiration of the term, or expulsion by the Senate. He said the high court was unified in its position that there is no right to recall a federal legislator.
Donna Kelly, an assistant New Jersey attorney general, argued that it would be misleading for voters to be asked to sign a recall petition then later told they're not legally part of the process.
"The supremacy clause of the U.S. Constitution has historically trumped even state constitutions," said Ben Dworkin, director of the Rider University Institute for New Jersey Politics. "There is no reason to believe it doesn't in this case as well."
New Jersey is one of 18 states that allow voters to recall statewide elected officials. However, there is no right to recall congressmen or senators under the U.S. Constitution.
The group petitioned the secretary of state to begin collecting signatures in September; it has not specified whether it is seeking to have a Menendez recall in the primary or general election. The group sued after their request was denied.
Kelly on Tuesday said then-Secretary of State Nina Wells acted on advice from the state attorney general's office.
Salanitri said the group is coordinating other recall drives in Louisiana and Colorado and considering one in Washington state.
However, Elias said that no U.S. president, senator or congressman has ever been recalled.
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