Sen. Frank Lautenberg (D-NJ) died this morning, giving Gov. Chris Christie (R-NJ) the opportunity to appoint a temporary replacement. Thanks to a drafting error in an elections bill passed in 2011, however, the length of that temporary senator’s time in office is entirely uncertain. Two different provisions of New Jersey law, enacted at the same time in the same bill, say two different things about how a U.S. Senate vacancy shall be filled in New Jersey:
The first of these two provisions governs “vacancies in the United States senate.” It provides that
If a vacancy shall happen in the representation of this State in the United States senate, it shall be filled at the general election next succeeding the happening thereof, unless such vacancy shall happen within 70 days next preceding such election, in which case it shall be filled by election at the second succeeding general election, unless the governor of this State shall deem it advisable to call a special election therefor, which he is authorized hereby to do.
The governor of this State may make a temporary appointment of a senator of the United States from this State whenever a vacancy shall occur by reason of any cause other than the expiration of the term; and such appointee shall serve as such senator until a special election or general election shall have been held pursuant to law and the Board of State Canvassers can deliver to his successor a certificate of election.
The next general election in New Jersey will take place on November 5, 2013, when Christie himself will stand for reelection. Because today is more than 70 days from November 5, this means that Christie’s appointee to the United States Senate shall serve until he is replaced in an election to be held the same time as Christie’s own election.
But, wait! There’s another, entirely separate provision of New Jersey law that says something different. That provision governs “Congressional vacancies” and it provides that
If the vacancy happens in the representation of this State in the United States Senate the election shall take place at the general election next succeeding the happening thereof, unless the vacancy shall happen within 70 days next preceding the primary election prior to the general election, in which case it shall be filled by election at the second succeeding election, unless the Governor shall deem it advisable to call a special election therefor, which he is authorized hereby to do.
Rather than count from 70 days before the next general election to determine when the senate election shall be held, this provision counts from 70 days before the next primary election. But the next primary election in New Jersey will take place tomorrow. If this second provision of law controls, that means Christie’s appointee will serve an extra year until they can be replaced by an election taking place in November 2014.
One possible way out from this conundrum is that both provisions empower Christie to call a special election in order to fill the senate vacancy. Unless he does so, however, the question of how long Christie’s appointment shall serve is entirely unclear under New Jersey law.