Appeals court, in reversal, orders Carl Lewis' name taken off the ballot

Posted: September 23, 2011

Olympic gold medalist Carl Lewis' bid for the New Jersey state Senate ended Thursday when a federal appeals court panel ordered the Democrat's name removed from the ballot, reversing a decision it made last week.

Lewis, 50, of Medford, will not appeal the decision and will not seek another office this year, said his campaign manager, Chris Walker. Lewis will detail his plans at a news conference at Kings Grant Park in Evesham on Friday, Walker said.

"We feel like our attorneys . . . did all that they could do and presented the facts. It's just unfortunate that all of the facts were not considered," Walker said. "Carl is going to stay involved, he's not going away. New Jersey is his home and he's very passionate about education and health care."

The decision ended a months-long legal battle that began as soon as Lewis, a Willingboro native, entered the Eighth Legislative District race in April.

In a 10-page opinion issued Thursday morning, a three-judge panel of the U.S. Court of Appeals for the Third Circuit ordered the former track star's name stricken from the ballot because he did not meet the four-year residency requirement for Senate candidates.

That is the same conclusion that Lt. Gov. Kim Guadagno, in her role as secretary of state, reached in April, sparking the legal battle that churned through state and federal courts.

Only days ago, it looked as if Lewis might have won the fight. The same three judges who ultimately threw him out of the race came down in Lewis' favor last week. In their 2-1 ruling on Sept. 13, the judges said Guadagno had "failed to demonstrate a compelling state interest" by refusing to allow Lewis on the ballot. The decision overruled the state Supreme Court and a lower federal court judge.

But when Guadagno and the Burlington County GOP asked for a rehearing, the appeals court judges - in what lawyers said was an unusual move - granted it.

At the second hearing, held Tuesday, the judges focused almost exclusively on votes Lewis cast in California elections in 2008 and 2009. Republicans argued that Lewis, who lived in California before returning to New Jersey, could not be a citizen of New Jersey and legally vote by absentee ballot in California.

Lewis' lawyer, William Tambussi, argued that the votes should not be the only element considered when determining residency. Lewis bought two condos in 2005 and a house in 2007, and has held a New Jersey driver's license since 2006. But he didn't register to vote in the state until he entered the race.

The legal argument at the federal court focused on whether the residency requirement, as it applied to Lewis, violated his constitutional rights. The judges ruled that it did not.

"Lewis did not register to vote in New Jersey until April of 2011, he continued to affirm his domicile in California through the spring of 2009 by voting in California elections, and is a candidate for a New Jersey statewide office that is subject to a constitutional durational residency requirement," they wrote.

"Under these circumstances, he cannot show that the New Jersey constitutional provision has been applied unevenly as to him."

Election law experts said this week that while the reversal was unusual, they were more surprised that the appeals judges had not ruled against Lewis in the first place.

"The circumstance that candidate Lewis had voted in California twice within the time period should have been decisive much earlier in the litigation," said Gregory Harvey, a lawyer and election-law expert in Philadelphia.

"That fact strikes me as so decisive that it's surprising that his lawyers were able to keep his candidacy alive as long as they did," Harvey said.

"It's rare that a panel of the Third Circuit would have failed to understand the importance of the votes cast in California," he added. "It's not surprising at all that the panel reconsidered and reached a unanimous result that Lewis' challenge should fail."

Larry Otter, who also practices election law in Pennsylvania, was more blunt.

"I think they made a serious blunder in allowing him on the ballot," he said.

County clerks in the Eighth Legislative District, which comprises much of Burlington County and parts of Camden and Atlantic Counties, were ordered by the federal judges to begin printing ballots without Lewis' name.

The deadline to mail the ballots to military and other mail-in voters is Saturday, Burlington County Clerk Timothy Tyler said.

Unless Democrats ask the courts to halt the printing and mailing of ballots, Republican Sen. Dawn Marie Addiego will run unopposed. Burlington County Democratic Party chairman Joe Andl did not return calls seeking comment on the matter Thursday.


Contact staff writer Joelle Farrell at jfarrell@phillynews.com, 856-779-3237 or @joellefarrell on Twitter.

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