Look for an appeal.
Lewis’s attorney, William Tambussi, said he will seek an expedited appeal with Third Circuit in Philadelphia.
In*White v. Manchin, 173 W. Va. 526, 318 S.E.2d 470 (1984), the Supreme Court of West Virginia uphold a state constitutional provision requiring a one-year residency requirement for state senate. The 24-page opinion stated, in part:
This Court has frequently recognized that the right to become a candidate for public office is a fundamental right, and that any restriction on the exercise of this right must serve a compelling state interest [various citations omitted]. Therefore, strict scrutiny applies, whether under the equal protection clause of the fourteenth amendment or under the fundamental right to candidacy under our state constitution, requiring a compelling state interest to sustain our durational residency provision's constitutionality.
In*Marra v. Zink, 163 W.Va. at 407, 256 S.E.2d at 586, this Court invalidated a City charter provision requiring members of city council to have been city residents for one year prior to their nomination. In so doing, we explicitly rejectged contentions that such a provision served a compelling state interest. ... This is relatively consistent with the majority of cases throughout the country which have invalidated*local*durational residency requirements*[citing decisions from the 3rd and 6th federal Circuit Courts, federal district courts in Louisiana, Maryland, Michigan; and state courts in California, Colorado, Michigan, New York; and citing cases to the contrary from the federal 6th and 5th Circuits, federal district courts in Michigan and Missouri, and state courts in Alaska, Arizona and Louisiana]; or*state statutory durational residency requirements governing*local*public officials,*[citing decisions from the 5th Circuit, federal district courts in Ohio and Michigan, and state courts in Georgia and Kentucky, and citing cases to the contrary from the 9th Circuit, federal district courts in Texas, Florida and Illinois, and state courts in New Jersey, New York and State of Washington].
On the other hand, courts have consistently upheld state constitutional durational residency requirements [citing 2 federal court decisions in New Hampshire that were affirmed by the U.S. Supreme Court; a Declaare federal district court, another federal court; and state courts in Alaska, Georgia, Hawaii, Missouri, New Jersey, and Tennessee; and citing cases to the contrary in the 8th Circuit; Oklahoma federal district court; and state courts in Maryland and Oklahoma].
Another, shorter decision, collecting cases both pro and con, is*Robertson v. Bartels, 150 F. Supp. 2d 691 (D. NJ 2001). After listing the various decisions, pro and con, the court stated:
There exists "a federal constitutional right to be considered for public service without the burden of invidiously discriminatory qualifications," and a state "may not deny to some the privilege of holding public office that it extends to others on the basis of distinctions that that violate federal constitutional guarantees."
The weighing process in each case is fact sensitive. A fundamental right is at stake and it is necessary to weigh against its impairment the governmental interests asserted in support of the classification. In the present case the State argues that "there is nothing in the State constitutional residency requirement that restricts plaintiffs' ability to express themselves.... Even assuming, Ii>arguendo, that candidates realistically have more opportunity to be heard, as plaintffs contend, this alleged increased opportunity does not amount to any abridgement of federally protected rights. The federal Constitution does not guarantee anyone, candidates or otherwise, the right "to be heard."*
The State may well be correct in its statement of these general principals. The fundamental right which is threatened by the one year residency requirement, however, is not the right to free speech or the right to travel. The fundamental right at issue is the combined right of persons to run for public office and the right of voters to vote for candidates of their choice. Impairment of that combined right, as recited above, is subject to strict scrutiny and can only be impaired if the impairment furthers significant State interests. [lengthy analysis omitted, but is good support for someone trying to have a local residency requirement declared unconstitutional.]
Conclusion
New Jersey's residency requirement for candidates for the Senate and General Assembly does not survive the strict scrutiny inquiry and, is therefore violative of the Constitution's Equal Protection Clause.
Also, see
- Lentini v. City of Kenner, 479 F. Supp. 966 (D.C. La. 1979) (city charter requirement that candidate for office of councilman have two years' residency in the city was not justified by any compelling governmental interest, and was thus violative of equal protection, despite contention that such statute insured that candidate was familiar with constituents, insured that voters had been thoroughly exposed to the candidate and prevented political carpetbagging.
- Wellford v. Battaglia, 485 F.2d 1151 (3rd Cir. 1973) (city charter provision that mayor shall have been a resident of the city for at least five years at the time of his election affected fundamental rights of right to vote and right to travel, and would be judged by the "compelling state interest" standard
- Campbell v. Tunny, 196 Misc. 2d 860, 764 N.Y.S.2d 163, 2003 N.Y. Slip Op. 23698 (Supreme Court, Albany NY 2003) (one-year residency requirement for candidate for office of county legislator deprived candidate of his right ot run for country office, and restricted right of voters to support candidate of their choice; and one-year residency requirement, as applied to candidate, was not reasonably related to rational objective of ensuring mutual familiarity between candidate and electorate.
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