Appeals court says Gabriela Mosquera can take her Assembly seat after all

Gabriela Mosquera, the freshman South Jersey Democrat whose Assembly election was overturned by a Superior Court judge last week, may take her seat Tuesday with the rest of the Legislature, an appellate court has ruled.

Mosquera, who is set to represent the Fourth District, had been found in violation of the state's residency requirement for legislative candidates. But a three-judge state appeals panel ruled Monday that the constitutional questions surrounding the rule were sufficient to allow her to take office while legal proceedings continued.

Mosquera's residency came into question last month when Republican Shelley Lovett, who lost to Mosquera in November, filed a lawsuit contending that her opponent had moved to Gloucester Township's Blackwood section in December 2010.

The state constitution requires legislative candidates to have lived in their districts for at least one year before they may be elected.

Lovett's attorney, Matthew Wolf, said Monday afternoon that he would challenge the appellate ruling in the state Supreme Court in an attempt to block Mosquera's noon swearing-in.

The legal maneuvering followed a ruling last week by Superior Court Judge George S. Leone that invalidated Mosquera's election.

New Jersey election officials have not enforced the district residency requirement since 2002, when a U.S. District Court judge ruled it a violation of political candidates' constitutional rights.

Leone argued that ruling was incorrect and cited, among other things, a 2010 U.S. Appeals Court decision that upheld the state residency law that kept Olympic athlete Carl Lewis off the ballot in his bid for the New Jersey Senate last year.

Residency requirements for elected officials - which pit voters' right to select the candidate of their choice against rules designed to ensure politicians are familiar with their constituencies - have been a contentious issue within the U.S. judicial system.

"There's nothing definitive from the U.S. Supreme Court, so it just sits until the next controversy over residency requirements pops up," said Robert Williams, a constitutional law professor at Rutgers-Camden. "This is the classic case of both the state and federal court systems operating on the same question."

Critics of New Jersey's provision have said that because district boundaries are redrawn every 10 years, a legislator may suddenly be without a district to run in. His or her home may end up in a new district where the candidate cannot claim a year's residency, they argue.

The ruling by Leone, who was appointed by Gov. Christie, had been condemned by most of the state's top Democrats.

"A judge should not substitute his own individual opinion for the opinion of tens of thousands of voters in Camden and Gloucester Counties who went to the polls in November," Senate President Stephen Sweeney (D., Gloucester) said in a statement over the weekend. "This is a truly horrific and antidemocratic decision."

The Fourth District includes parts of both counties.

A spokesman for the New Jersey Republican State Committee would not comment Monday.

Were the Supreme Court to hear Lovett's case before noon, its ruling could block Mosquera's swearing-in. Leone last week ordered South Jersey Democrats to appoint an interim Assembly member until a special election could be held in November.

The question of whether Mosquera, an aide in Gloucester Township Mayor David Mayer's office, would take her seat Tuesday dominated Monday's appellate court proceedings.

When that issue is resolved, the appellate court will address the question of whether the residency requirement violates the U.S. Constitution.

During Monday's hearing, William Tambussi, Mosquera's attorney - who also represented Lewis - said a definitive state ruling on the residency rule was long overdue.

"It's kept us lawyers very busy," he said.