The death of Rep. Donald M. Payne, Jr. (D-Newark) creates an open congressional seat in New Jersey’s 10th district that will be filled under extraordinary circ*mstances: the filing deadline has passed and Payne is unopposed in the June 4 Democratic primary. Filling his seat is both easy – roughly 1,084 Democratic county committee members will pick the new member of Congress – and at the same time, complicated, since Gov. Phil Murphy could theoretically call a free-standing special election to fill Payne’s unexpired term.
Here is a Q&A on how Democrats will replace Payne.
Will Payne’s name remain on the ballot?
Yes. Voting in the primary is underway and Payne’s name is already printed on the ballot.
Why can’t the committee on vacancies just replace him?
The Committee on Vacancies – a group of three people designated to nominate petitions to replace a candidate who filed petitions – is more of a paper tiger than anything else. The Committee on Vacancies terminates 56 days before the primary; this year, it expired on April 9.
Can a dead man win an election?
They can. Assemblyman Donald Tucker (D-Newark) died on October 17, 2005 – 22 days before the general election – and won by over 20,000 votes. New Jersey has no legal mechanism to remove the name of a deceased candidate from the ballot, especially after ballots are printed. Democrats went to the New Jersey Supreme Court in October 2002 to switch U.S. Senate candidates after Bob Torricelli dropped his re-election campaign and were permitted to replace him with Frank Lautenberg, but they had to pay for the reprinting of ballots. In 2018, after the mayor of North Arlington died a month before the election, a judge allowed Republicans to replace him on the ballot; voting had already begun that year in Bergen County, where vote-by-mail ballots were stopped and reprinted after the New Jersey Secretary of State unexpectedly called a special election for sheriff.
Is Payne’s primary victory automatic?
Probably. The only way to defeat him in the Democratic primary would be to mount a write-in campaign. New Jersey hasn’t seen a successful congressional write-in effort since 1994, when the Democratic candidate in NJ-11 failed to file enough signatures on his petition to get on the ballot, leaving John Kucek, a Holocaust revisionist and follower of Ku Klux Klan leader David Duke unopposed in the Democratic primary. Democrats convinced a former state senator to run as a write-in and he won 71% of the vote. Still, running against Payne as a write-in would be a massive undertaking, and unlike 1994, votes are already being cast.
What happens after the primary?
After the June 17 deadline to certify the results of the primary election, Secretary of State Tahesha Way would declare a vacancy for the Democratic nomination for Congress in the 10th district. There are no special primary elections once the candidate is nominated. The only legal way to fill the vacancy would be for Democratic county committee members in the district to pick a replacement. After that, the Democratic county chairs in Essex, Hudson, and Union counties would call a convention to pick a nominee.
When must the meeting be held?
The statutory deadline to replace Payne on the ballot is August 29. Political parties are under no legal obligation to fill the vacant nomination before then.
Who can vote?
County committee members from the 18 municipalities in New Jersey’s 10th congressional district. It will be up to the rules adopted by the county chairs to decide if appointed county committee members may vote, and if so, the deadline to certify a list of official voters. Essex County Democratic county committee members are on the ballot this year.
How many votes are needed to win?
That depends on how many seats are filled, and how many county committee members show up. There are 1,084 possible votes from the 542 voting districts in the 10th. More than half of the county committee votes, if filled, come from Essex County, with Newark making up almost 22% of them. Jersey City has 198 possible votes, followed by East Orange (110), and Union Township (100).
Does a candidate need 50% plus one to win?
It’s New Jersey, so election laws are reliably silent. The Essex, Hudson, and Union county chairs would likely work out a set of rules that would be adopted by the county committee in advance of the vote. It’s too early to predict how the election will be conducted. Last year, when the Democratic county committee in the 27th legislative district met to pick new candidates, there were no runoffs; the top vote-getter was to win no matter how many candidates were in the race and the winning percentage. In the event of a tie, there would likely have been a revote, but that was at the chairman’s discretion.
Who can run?
The U.S. Constitution requires a candidate for the U.S. House of Representatives to be a resident of the state by Election Day. The candidate is not required to live in the 10th district.
What would happen if they simply never hold a meeting – or if Democrats wait until the last minute and can’t get a quorum?
The answer would be that it’s a ridiculous question, except that it happened just two years ago when Burlington County Democratic Chairman Joe Andl forgot to schedule a special election for county commissioner. So Republican Carmen Bucco could be a congressman; the 10th hasn’t elected a Republican since Fred Hartley defeated Peter Rodino in 1946, and this is one of the most Democratic House seats in the nation. In reality, a Superior Court judge would find the deadline fungible and allow Democrats to fill the ballot slot, at least until they’re printed and mailing commences on September 21.
Is there any other way to get on the general election ballot?
The filing deadline for independent candidates is June 4 at 2 PM.
What happens if the courts get involved?
That could be dangerous, and not necessarily result in any swift answers – especially in the summer.
Will there be a special election?
That’s up to Governor Murphy. He’s the only one who can issue a writ of special election.
When would that be?
This is another situation where New Jersey hasn’t updated its election laws across the board. One statute says the special could be 70 to 76 days after the write, but another sets the filing deadline at 71 days before the primary. If Murphy where to issue a writ today, there could be a special primary in the first week of July and a special election in in the first two weeks of September.
Does the winner of a special primary before the Democratic nominee for a full term in November 2024?
No.
What happens to Payne’s congressional office?
The office will continue to serve the people of the 10th district under the supervision of the Clerk of the House until the seat is filled. The office won’t have voting representation and may not advocate public policy positions, but may continue to work on pending casework files. New casework should go through another member of Congress. The office may continue to process applications to the U.S. service academies. Payne’s staff, widely viewed as one of the least effective on Capitol Hill, will remain employed.
What about Payne’s campaign money?
Payne had $109,060 cash-on-hand as of March 31, according to a report filed by the campaign on April 15, six days after Payne’s heart attack left him unconscious and on a breathing tube. Technically, the person in charge of the money is the campaign treasurer, Williams H. O’Neil. In reality, the Payne family will likely call the shots. After all debts are paid, they could use the money for political and/or charitable purposes.
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