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Judge Throws Out Booker's Speight Vote

In absence of a tie, mayor should not have taken part, court says

Judge Throws Out Booker's Speight Vote

A Superior Court judge in Newark Tuesday negated Mayor Cory Booker’s vote in favor of Shanique Speight for a vacant Newark Municipal Council seat, stating the mayor’s participation was a violation of procedures clearly spelled out in municipal law.

“The vote is 4 to 2 to 2. The previous vote is invalidated, and Speight will not be sworn in,” Judge Dennis Carey said after hearing arguments from both sides for about an hour.

“Justice is done,” Councilman Ras Baraka said immediately after the proceedings, as jubilant court spectators cheered around him. 

On Dec. 5, four members of the nine-seat council voted for Speight, herself a member of the board of education. Two members, including Baraka, voted against, while two abstained. Booker, citing a state law empowering him to break a tie, joined with the majority in selecting Speight.

Speight was appointed to a seat formerly held by Donald Payne, who left the governing body after he was elected to Congress last month.

On Tuesday, attorneys for Booker and the four pro-Speight voters argued that the two abstentions -- by council members Ron Rice and Darrin Sharif -- should be counted as “no” votes, thereby setting up a tie and justifying Booker’s involvement. 

But attorneys representing council members Rice and Shariff, as well as Mildred Crump and Baraka, pointed to the council’s own voting rules, which explicitly state that an abstention is not to be counted as either a yes or a no vote.

Attorneys for Booker and the four members who did vote for Speight, however, argued that the municipal voting rules were trumped by state law, which says an abstention can’t be used to thwart the operation of government. Robert Pickett, the West Orange attorney representing the Rice faction, said there was no proof the abstentions were designed to impede the democratic process.

In making his ruling, Carey admitted there was no state law that addressed the situation directly. But he also agreed with Pickett that there was no evidence the abstentions were meant to interfere with the conduct of the council’s business.

“I accept Mr. Pickett’s argument that [the abstention question] is provided by law and I accept that the mayor can only vote if there’s a tie....I don’t think the court has the right to read the minds of councilmen Rice and Sharif,” Carey said. 

The chain of events leading up to Tuesday’s decision began Nov. 20, when Speight was nominated to replace Payne on the council.

Booker had locked up the support of four council members prior to that meeting, the Rice faction said, compelling Rice to stay away in order to avoid setting up a tie. Citing procedural irregularities, the other three council members who were in attendance stepped down from the dais and refused to participate in the Speight vote.

When the four council members still on the dais voted for Speight, Booker, who normally would not take part in council business, cast the fifth and - at the time - deciding vote for Speight. The session erupted in chaos when the city clerk attempted to swear Speight in, as audience members upset by Booker’s tactics rushed the podium. 

Both sides then turned to the courts, prompting Carey to call for a re-vote Dec. 5 and also ordering all eight members of the council to participate. But Carey had also scheduled Tuesday’s court session in order to render a final decision on the validity of that re-vote.

It was unclear Tuesday what happens next, but Pickett said the governing body now has until Dec. 28 to make a decision on who should fill the seat. By law, the council has 30 days from the time a vacancy opens up to select a replacement. Although Payne left the governing body Nov. 16, Pickett said the clock has been reset to Nov. 28, the day Carey ordered the re-vote.

“What we need to do is what we should have done in the first place, which is discuss a preliminary council candidate,” Rice said. “It should have emanated from the council.”

Rice, Baraka and others had previously criticized Booker for forcing the vote on Speight, an unusual move both for Newark and in New Jersey, where governing bodies -- customarily following a lot of behind-the-scenes horse-trading -- routinely select replacements.

Another option is to hold a special election next year, an option favored by Baraka and one used previously in the city to fill council vacancies. On Dec. 5, Baraka called a motion to hold such an election, but that vote ended in a tie, with all four members of the pro-Speight faction opposed.

If a special election is held, it could have an ironic consequence -- Booker taking part in more council votes. Payne’s old seat would remain vacant until the election, leaving just eight members in the interim and the possibility of more 4-4 ties, which would require Booker’s vote to break.

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