Committee to Recall Menendez v. Wells

7 A.3d 720, 204 N.J. 79, 2010 N.J. LEXIS 1223

• Court: Supreme Court of New Jersey
• Decided: November 18, 2010
• Docket: A-86 September Term 2009
• Status: Published

Opinions

Chief Justice RABNER

delivered the opinion of the Court.

This case involves an attempt to recall a United States Senator under a state statute. A committee of voters seeking to recall U.S. Senator Robert Menendez submitted a notice of intention to New Jersey’s Secretary of State. That act triggers the recall process outlined in the Uniform Recall Election Law (UREL), N.J.S.A. 19:27A-1 to -18, which implements article I, paragraph 2 of the State Constitution.

The Secretary of State, after consulting with the Attorney General, refused to accept the notice, asserting that state recall of a U.S. Senator would violate the Federal Constitution. The Appellate Division, out of a concern about ripeness and respect for the State Constitution, reversed the Secretary’s administrative determination and ordered the Secretary to accept the notice for filing.

This case presents important procedural and substantive issues of constitutional dimension. Procedurally, the parties have raised an issue that cannot be sidestepped. They sharply disagree as to whether a U.S. Senator can be recalled under state law. Without a ruling on the legal dispute, the recall process cannot lawfully proceed. That requires us to examine the merits of the case. Although courts are to avoid constitutional issues when possible, in this case there is no other appropriate way to resolve the ongoing conflict.

The U.S. Supreme Court has outlined a framework for addressing similar constitutional questions. We follow its approach by examining the text of the Federal Constitution, relevant historical materials, and principles of our nation’s democratic system in order to determine whether states can recall U.S. Senators. That analysis reveals that the Federal Constitution does not permit recall.

According to the historical debates at the Constitutional Convention, the Framers considered and rejected a right to recall. That decision did not go unnoticed. Indeed, it marked a break with the Articles of Confederation, and many delegates at both the Constitutional Convention and the state ratifying conventions specifically highlighted that recall was not part of the proposed new Constitution. Some did so approvingly; others lamented that recall did not exist. None, however, suggested that recall remained alive under the new constitutional form of government that was created.

The historical record leads to but one conclusion: the Framers rejected a recall provision and denied the states the power to recall U.S. Senators. That finding is consistent with the views of nine Supreme Court Justices who made those same observations, in dicta, in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995)—even as they divided 5-4 over the primary issue in that case.

Renewed debates around the time of the enactment of the Seventeenth Amendment offer yet more support for that view. In addition, contemporary legal scholars have uniformly reached the same conclusion about recall, despite their differing policy views on the subject.

In drafting a new Constitution, the Founders of this nation envisioned a stable, independent body with two senators from each state, whose six-year terms would enable them to take a long-term view of national issues without being subject to recall. New Jersey has chosen a different path for its State leaders—one that is not challenged and remains good law. In that regard, State voters retain the right to recall State officials. But New Jersey law goes further and permits the recall of federal officers. Such an approach could result in a patchwork of inconsistent rules about recall among the fifty states, which would be contrary to the Federal Constitution.

We therefore find that the matter is ripe for adjudication and conclude that the text and history of the Federal Constitution, as well as the principles of the democratic system it created, do not allow the states the power to recall U.S. Senators. Accordingly, we hold that those portions of the UREL and the State Constitution which authorize the recall of U.S. Senators are unconstitutional, and we reverse and vacate the Appellate Division’s order directing the Secretary to accept the notice of intention to recall Senator Menendez.

I.

A.

The UREL implements a state constitutional amendment that New Jersey voters approved in 1993. A public question on the ballot that year asked, “Shall Article 1, paragraph 2 of the Constitution be amended, as proposed by the Legislature, to provide for the recall election of elected officials?” Public Question No. 1 (1993), available at http://nj.gov/state/elections/1993 results/1993-public-questions.pdf. The accompanying interpretive statement explained that the proposed recall provision “applies to any elected official in this State and to the United States Senators and Congressmen elected from New Jersey.” Ibid.

New Jersey citizens voted in favor of the amendment by a margin of 3,326,657 to 414,925. Ibid. As a result, article I, paragraph 2 of the State Constitution now provides, in relevant part,

b. The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress. The Legislature shall enact laws to provide for such recall elections. Any such laws shall include a provision that a recall election shall be held upon petition of at least 25% of the registered voters in the electoral district of the official sought to be recalled. If legislation to implement this constitutional amendment is not enacted within one year of the adoption of the amendment, the Secretary of State shall, by regulation, implement the constitutional amendment, except that regulations adopted by the Secretary of State shall be superseded by any subsequent legislation consistent with this constitutional amendment governing recall elections. The sufficiency of any statement of reasons or grounds proeedurally required shall be a political rather than a judicial question.

[N.J. Const. art. I, H 2(b) (Recall Amendment).]

The UREL, which went into effect on May 17,1995, established procedures for New Jersey citizens to seek to “recall, after at least one year of service in the person’s current term of office, any United States Senator or Representative elected from this State or any State or local elected official.” N.J.S.A 19:27 A-2.

Under the UREL, a registered voter seeking to initiate recall proceedings must first file “with the appropriate recall election official”—currently, the Secretary of State—a notice of intention containing the name and office of the official to be recalled and information about the sponsors and the committee petitioning for recall. N.J.S.A 19:27A-6. The recall election official must then review the notice of intention within three business days for “compliance with the provisions of [N.J.S.A 19:27A-6].” N.J.S.A 19:27A-7(a).

If the notice is found to be in compliance, the official must imprint her approval and sign her name and office on the notice, return a copy of the approved notice to the recall committee, prepare an estimate of the cost of conducting the recall election if a special election is requested, make the notice available for public inspection, serve a copy on the officer sought to be recalled, and publish the notice of intention in a newspaper. N.J.S.A 19:27A-7(a), (b). If the notice “is found not to be in compliance, the recall election official shall ... return the notice, together with a written statement indicating the reasons for that finding, to the recall committee, which shall have the opportunity to file a corrected notice of intention.” N.J.S.A 19:27A-7(a).

If the notice of intention is accepted, the recall committee must then submit a proposed recall petition to the election official in a form consistent with the requirements listed in N.J.S.A 19:27A-8. The official’s approval of the petition starts the relevant time period—320 days for recall of the Governor or a U.S. Senator, and 160 days for all other elected officials—in which the recall committee must gather signatures from twenty-five percent of registered voters in the relevant electoral district as of the date of the preceding general election. N.J.S.A 19:27A-5, -10. (The parties agree that approximately 1.3 million signatures are required.) The signatures are submitted all at once to the recall election official for counting and verification, N.J.S.A 19:27A-11; once the election official confirms the signatures on the petition, and any challenge is resolved, a recall election is scheduled. N.J.S.A. 19:27A-13(a), (b). If a majority of votes at the recall election favor recalling the sitting official, then “the term of office of the elected official shall terminate upon the certification of the election results”; otherwise, “the official shall continue in office as if no recall election had been held.” N.J.S.A. 19:27A-16.

B.

On November 7, 2006, petitioner Robert Menendez was elected to represent New Jersey in the U.S. Senate for a six-year term. In compliance with federal law, the State submitted a “Certificate of Election for Six-Year Term,” which the Senate found to “contain all the essential requirements.” 153 Cong. Rec. SI, S3 (daily ed. Jan. 4, 2007). Senator Menendez took the required oath of office and was officially seated in the Senate on January 4, 2007. Id. at S4. His term is set to end on January 3, 2013. Id. at S3.

On September 25,2009, pursuant to the UREL, plaintiff-respondent, the Committee to Recall Robert Menendez from the Office of U.S. Senator (Committee), submitted to Nina Wells, then-New Jersey Secretary of State (Secretary), and Robert Giles, Director of the Division of Elections (Director of Elections), a notice of intention to recall Senator Menendez. It is undisputed that the Committee included in its notice of intention all the information required by N.J.S.A. 19-.27A-6. The Committee originally listed three representative sponsors; pending the Secretary’s review of the first notice of intention, the Committee filed an amended notice on November 10, 2009, replacing one of the named sponsors. Because it had not received a response from the Secretary by December 1, 2009, the Committee filed a complaint in lieu of prerogative writs with the Law Division seeking to compel the Secretary and the Director of Elections to either accept or reject the notice of intention.

On January 11, 2010, acting on the advice of the Attorney General, the Secretary issued a final agency determination that “neither the Notice of Intention to Recall nor the Proposed Petition can be accepted for filing or review” because “the qualifications and election of a Member of the United States Senate is a matter of exclusive jurisdiction of federal authority and ... neither the United States Constitution nor federal statute providefs] for a recall proceeding for a federally-elected official.” Three days later, the Secretary and the Director of Elections moved to dismiss the Law Division complaint on the ground that it was moot, and the Committee, in turn, voluntarily dismissed the matter.

In response to the Secretary’s determination, on January 13, 2010, the Committee filed an application for emergent relief with the Appellate Division, seeking temporary injunctive relief and expedited review. The Committee named the Secretary and the Director of Elections as defendants. The following day, the Appellate Division permitted the Committee to file its motion and instructed it to serve papers on Senator Menendez, an indispensable party, in addition to the Secretary and the Director of Elections. On February 4, 2010, the Appellate Division granted the Committee’s motion to accelerate the appeal, as well as the application of the American Civil Rights Union (ACRU) to participate as amicus curiae.

Before the appellate panel, the Committee presented the following arguments: the Secretary improperly denied the notice of intention even though the notice complied with all statutory requirements; the Secretary, as an agent of the executive branch, was in no position to opine on the validity of the UREL; the constitutionality of the UREL would not be ripe for judicial review until (1) the Committee obtained roughly 1.3 million signatures of registered voters needed to force a recall election, (2) a majority of voters voted to recall Senator Menendez, and (3) the Secretary ordered his recall; and the Committee must be allowed to proceed with the recall process because it is a matter of “core political speech” protected by the Federal and State Constitutions.

Both the Attorney General, on behalf of the Secretary and the Director of Elections, and Senator Menendez asserted the following: the Federal Constitution is the sole legal authority that governs the qualifications and right to expel a Member of Congress; the UREL and the Recall Amendment, which extend to Members of Congress, are therefore unconstitutional; and the issue was ripe for adjudication.

In a published, per curiam decision, the appellate panel questioned the constitutionality of the UREL but declined to “pass[ ] on the ultimate validity of the recall process regarding a United States Senator” and “order[ed] the current Secretary of State to accept and file the petition, and to proceed under the statute.” Comm. to Recall Robert Menendez from the Office of U.S. Senator v. Wells, 413 N.J.Super. 435, 458, 995 A.2d 1109 (App.Div.2010). At the outset, the panel concluded it did not need to address the authority of the Secretary to determine that the UREL was invalid. Id. at 440-41, 995 A.2d 1109. The panel reasoned that her determination was based on the advice of the Attorney General, who is obligated to “render legal advice to State officers,” and whose advice is binding “until ... the courts address the issue.” Id. at 441, 995 A.2d 1109. The panel also noted the benefit of not resolving a constitutional issue that could be addressed at a later time. Id. at 446-47, 995 A.2d 1109. Nonetheless, the panel stated that it was “disinclined to allow the process to go forward, and the citizens of this State to believe they are participating in a recall process, if it is certain that the court would have to decide, shortly thereafter, that the process was manifestly unconstitutional.” Id. at 447, 995 A.2d 1109. Accordingly, it framed the issue before it as “whether our State’s constitutional and statutory recall measures, as applied to a United States Senator, are so manifestly invalid under the Federal Constitution that we must depart from the norms of judicial restraint and compel that the Committee’s process in circulating a recall petition be halted.” Id. at 449, 995 A.2d 1109 (citation omitted).

In examining the constitutionality of the UREL, the panel found that “from what has been written and not provided in the Federal Constitution,” based both on its text and relevant historical evidence, “one could reasonably conclude that the Constitution precludes the recall of a United States Senator.” Id. at 451, 995 A.2d 1109. In addition, the panel recognized that, in line with the U.S. Supreme Court’s holdings in Thornton, supra, and Cook v. Gralike, 581 U.S. 510, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001), the Tenth Amendment did not reserve to the States the power to recall U.S. Senators. Id. at 452, 995 A.2d 1109 (citations omitted).

However, the panel noted that it could “find no case or precedent which ... precludes recall under the Seventeenth Amendment.” Id. at 452 & n. 13, 995 A.2d 1109. Moreover, citing the dissent in Thornton, the panel opined that “the silence of the federal Constitution may well result in the conclusion that [the recall of a U.S. Senator] may be done.” Id. at 455, 995 A.2d 1109 (citing Thornton, supra, 514 U.S. at 845, 115 S.Ct. at 1875, 131 L.Ed.2d at 926 (Thomas, J., dissenting)). In light of the constitutional ambiguity that it identified, the panel was not “convince[d] ... that [it] can safely predict what the United States Supreme Court would do if it were presented with the issue.” Id. at 454, 995 A.2d 1109.

Therefore, citing to New Jersey’s “rich tradition ... of recognizing individual rights that often go beyond the bare mínimums conferred by the Federal Constitution,” “the overwhelming majority of voters who approved the recall measure in 1993,” and respect for “a component of our State’s charter that fortifies the democratic role of our citizens,” id. at 454-55, 995 A.2d 1109, the panel perceived “no urgent reason” “to resolve this difficult constitutional issue if the Committee’s petition drive fails to collect the necessary, approximately, 1,300,000 signatures.” Id. at 457, 995 A.2d 1109. The panel thus found that there was a “sufficient basis for the Committee to proceed with its initiative and for the Secretary of State to perform her ministerial function” without the Appellate Division “passing on the ultimate validity of the recall process.” Id. at 457-58, 995 A.2d 1109.

On April 27, 2010, this Court granted Senator Menendez’s petition for certification. The Attorney General, representing the Secretary and the Director of Elections, elected not to petition for certification in deference to judicial restraint, but has maintained her position that the application of the UREL and the Recall Amendment to U.S. Senators violates the Federal Constitution.¹

The ACRU and the Conservative Legal Defense and Education Fund, et al. (CLDEF)² were permitted to submit briefs as amicus curiae.

II.

Senator Menendez argues that the constitutionality of the UREL is ripe for review and that the Appellate Division mistakenly invoked “judicial restraint” to justify its refusal to reach the constitutional issues in this case. Specifically, he notes that the Secretary’s final agency determination pivoted on a purely legal question and, thus, no further factual development will enhance the fitness of this dispute for review. Moreover, although no recall election is imminent until the necessary signatures have been obtained, if the notice of intention is accepted, Senator Menendez argues he will need to divert attention from his senatorial duties to mount a recall defense, and the public will be harmed if it is led to believe that it is participating in an electoral process that inevitably will be deemed invalid.

In addressing the merits, Senator Menendez argues that by extending recall to U.S. Senators, the UREL and the Recall Amendment conflict with, and are thus preempted by, the Federal Constitution by virtue of the Supremacy Clause. Even if there is no express preemption, he argues that the Tenth Amendment did not reserve to the States the power to recall a Senator. Therefore, Senator Menendez insists that because the UREL and the Recall Amendment cannot be interpreted in a manner that avoids their constitutional defects, this Court must find the laws unconstitutional.

The Committee argues that Senator Menendez’s claim is premature because he will not face any judicially recognizable harm unless and until a recall election is held and he loses it, and neither the Senator nor the State will bear any significant expense during the initial signature-gathering stage. The Committee asserts that the UREL is critical to democratic participation in this State and necessary to ensure that New Jersey citizens retain representation when their Senators are not fit or able to fulfill their duties. Absent an express conflict with a federal constitutional or statutory provision, the Committee maintains, States are empowered to adopt procedures for the recall of federal representatives. Finally, the Committee contends that both a private letter by President Washington and the history of the Seventeenth Amendment confirm the constitutional right to recall.

The ACRU and CLDEF filed amicus briefs in support of the Committee. They echo the Committee’s arguments with regard to justiciability, the constitutional reservation of a right to recall U.S. Senators, and the democratic principles that recall furthers. The ACRU adds that the UREL gives New Jersey citizens constitutional rights to political activity and expression, with which neither the State nor Senator Menendez can interfere by invoking an alleged “freedom from criticism.” The CLDEF emphasizes that recall is nowhere prohibited in the Federal Constitution or foreclosed by U.S. Supreme Court case law.

III.

This issue is appropriate for review. The Secretary’s refusal to accept and review the notice of intention generated an ongoing controversy. The Committee then filed an action in court. As a result, two adverse parties now dispute whether the final administrative determination was correct, and the decision, if allowed to stand, prevents the recall process from moving forward. Therefore, this is not an abstract or hypothetical debate. The existence of an actual controversy at this time is not called into question because the dispute might be rendered moot if 1.3 million signatures are not gathered; the process simply cannot proceed unless and until the Secretary’s decision is reviewed in the courts. In other words, to resolve this case, it is necessary to decide whether the Secretary’s decision was correct. The Appellate Division’s contrary approach mistakenly glosses over the core issue the parties presented.

In addressing this and like disputes, we strive to avoid reaching constitutional questions unless required to do so. See Harris v. McRae, 448 U.S. 297, 306-07, 100 S.Ct. 2671, 2683, 65 L.Ed.2d 784, 798 (1980) (“[I]f a case may be decided on either statutory or constitutional grounds, this Court, for sound jurisprudential reasons, will inquire first into the statutory question.”); Randolph Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80, 891 A.2d 1202 (2006) (“Courts should not reach a constitutional question unless its resolution is imperative to the disposition of litigation.” (citations omitted)); accord Burnett v. County of Bergen, 198 N.J. 408, 420, 968 A.2d 1151 (2009) (quoting Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 109, 609 A.2d 11 (1992) (Pollock, J., concurring)); Bell v. Twp. of Stafford, 110 N.J. 384, 389, 541 A.2d 692 (1988).

In accordance with that principle, courts routinely consider factual issues and statutory questions first, but this ease cannot be resolved on those grounds. In any event, the principle of judicial restraint does not call for courts to avoid ruling on a case if an answer can only be found by resorting to constitutional analysis. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445-47, 108 S.Ct. 1319, 1323-24, 99 L.Ed.2d 534, 544-45 (1988) (addressing constitutional issues notwithstanding canon of judicial restraint because those issues were necessary to decisions below); see also Citizens United v. Fed. Election Comm’n, 558 U.S. -, -, 130 S.Ct. 876, 892, 175 L.Ed.2d 753, 775 (2010) (“It is not judicial restraint to accept an unsound, narrow argument just so the Court can avoid another argument with broader implications. Indeed, a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling.”).

The Committee requests that we direct the Secretary to accept its notice of intention without considering the constitutional dimensions of the state process for recalling a U.S. Senator. We decline to follow that approach, which might entail ordering a constitutional officer to carry out unconstitutional acts. See N.J.S.A 41:1-1 (requiring officers of State to swear to uphold both “the Constitution of the United States and the Constitution of the State of New Jersey”). Simply put, we cannot force the State to apply its imprimatur to a process that may contravene the Federal Constitution while ignoring the very constitutional questions necessary to resolve the ease.

The Committee also maintains that the Secretary of State lacked discretion to decline to carry out ministerial acts under section 7 of the UREL. But she did not act alone. In light of doubts about the constitutionality of the recall statute, which she still harbors, she properly sought counsel from the State’s chief legal advisor—the Attorney General. See N.J.S.A. 52:17A-4(b), (e) (listing among powers and duties of Attorney General, acting through Division of Law, responsibility to give to State officers and departments “legal advice on such matters as they may from time to time require!,] ... interpret all statutes and legal documents, ... and otherwise control their legal activities”); see also Paff v. Div. of Law, 412 N.J.Super. 140, 151, 988 A.2d 1239 (App.Div.2010) (recognizing as “well-settled that there exists an attorney-client relationship between the Division [of Law] and the state agencies to which it provides legal advice”), certif. denied, 202 N.J. 45, 994 A.2d 1040 (2010).

By entrusting to the Attorney General the decision whether acceptance of a notice of intention to recall a U.S. Senator would run afoul of the Federal Constitution, the Secretary avoided any impropriety that a unilateral action might have invited. See Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656, 658 (1912) (finding that Secretary of State, “acting upon the advice of the Attorney General,” was within right to refuse to file and certify proposed law and holding that “[m]andamus will not lie to compel an officer to do an act which is forbidden or not authorized by law” (citation omitted)); Barr v. Watts, 70 So.2d 347, 351 (Fla.1953) (concluding that rather than opine on legality of statute, ministerial officer should “channel!] all such attacks on the validity of statutes through the duly-elected public officer whose duty it is to protect the public interest in this respect—the Attorney General of this state” (citation omitted)); State ex rel. Test v. Steinwedel, 203 Ind. 457, 180 N.E. 865, 867 (1932) (allowing ministerial public officers to offer as defense for refusing to follow statute their belief that it is unconstitutional because, among other things, they “usually act, or refuse to act, only after advising with competent legal counsel”); Associated Hosp. Serv. of Me. v. Mahoney, 161 Me. 391, 213 A.2d (1965) (recognizing “when an officer acts under advice of the State’s Attorney General” as one exception to “general rule preventing a ministerial officer from questioning the constitutionality of the law under which his performance is sought” (citations omitted)); State ex rel. Equal. Sav. and Bldg. Ass’n v. Brown, 334 Mo. 781, 68 S.W.2d 55, 58 (1934) (acknowledging that although “[ojrdinarily, a ministerial officer ... may not question the constitutionality of a statute,” there is “well-recognized exception that even such an officer can justify his refusal to perform when advised by the Attorney General of the State that the statute is unconstitutional” (citations omitted)); State ex rel. Johnson v. Baker, 74 N.D. 244, 21 N.W.2d 355, 364 (1945) (holding that ministerial officer improperly refused to comply with statute based on belief that it was unconstitutional because “if she doubted its validity her duty was to consult and advise with the attorney general, the chief legal officer of the state, and to act in accordance with such opinion as he might give her”).

For all of those reasons, this concrete matter does not present traditional concerns about justiciability. We also note that, at oral argument, counsel for the Committee focused almost entirely on the constitutional question and arguably conceded the issue of ripeness.³ We nonetheless briefly address the Committee’s arguments pertaining to the doctrine of ripeness.

B.

A case’s ripeness depends on two factors: “ ‘(1) the fitness of issues for judicial review and (2) the hardship to the parties if judicial review is withheld at this time.’ ” K. Hovnanian Cos. of N. Cent. Jersey, Inc. v. N.J. Dep’t of Envtl. Prot., 379 N.J.Super. 1, 9, 876 A.2d 847 (App.Div.2005) (quoting 966 Video, Inc. v. Mayor & Twp. Comm. ofHazlet Twp., 299 N.J.Super. 501, 515-16, 691 A.2d 435 (Law Div.1995)).

First, this case is fit for review. The issues in dispute are “purely legal,” and thus “appropriate for judicial resolution” without developing additional facts. Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681, 691 (1967); see also Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 479, 121 S.Ct. 903, 915, 149 L.Ed.2d 1, 20 (2001) (“The question before us here is purely one of statutory interpretation that would not benefit from further factual development of the issues presented.” (citation and internal quotation marks omitted)). Senator Menendez’s objection to the portions of the UREL and the Recall Amendment relating to U.S. Senators amounts to a facial challenge, which “is generally ‘ripe’ much earlier than a claim that the [law] is void as applied.” Trombetta v. Mayor & Comm’rs of Atl. City, 181 N.J.Super. 203, 223, 436 A.2d 1349 (Law Div.1981), aff'd o.b., 187 N.J.Super. 351, 454 A.2d 900 (App.Div.1982); see also Town of Morristown v. Twp. of Hanover, 168 N.J.Super. 292, 300, 402 A.2d 983 (App.Div. 1979) (“Since the invalidity of these provisions is apparent on the face of the ordinance, further factual exploration was not essential____”). Furthermore, because the Secretary’s decision constitutes a final administrative agency determination, this Court’s review will not “inappropriately interfere with further administrative action.” Am. Trucking Ass’ns, supra, 531 U.S. at 479, 123 S.Ct at 915, 149 L.Ed.2d at 21 (citation and internal quotation marks omitted); see also Mulschler v. N.J. Dep’t of Envtl. Prot., 337 N.J.Super. 1, 10-11, 766 A.2d 285 (App.Div.2001) (finding that agency’s declaratory ruling was ripe for review because it constituted final determination).

Second, there is a sufficient showing of harm that the parties would suffer if we were to abstain from resolving this case. N.J.A.C. 19:25-14.7(b) requires that elected officials who oppose a recall effort under the UREL “shall establish ... a recall defense committee” subject to various organizational and reporting requirements, as well as limits on the receipt of contributions. A U.S. Senator’s coordination and oversight of such efforts would come at the expense of his or her congressional responsibilities.

The recall initiative also injects uncertainty and instability into the State’s electoral scheme—inviting citizens to sign petitions in the belief that they are participating in a constitutional process— and adversely affects public confidence in the integrity of the system. See Smith v. Penta, 81 N.J. 65, 77, 405 A.2d 350 (1979) (“[T]he state has a strong public interest in maintaining the integrity of the electoral process.”); cf. City of Newark v. Benjamin, 144 N.J.Super. 58, 66-67, 364 A.2d 563 (Ch.Div.) (explaining that “[i]f an ordinance is invalid on its face, it would be a useless expenditure of effort and money to submit it to the electorate before its validity has been determined”), aff'd o.b., 144 N.J.Super. 389, 365 A.2d 945 (App.Div.1976), aff'd o.b., 75 N.J. 311, 381 A.2d 793 (1978). In the words of the appellate panel, we are “disinclined to allow the process to go forward, and the citizens of this State to believe they are participating in a recall process, if it is certain that the court would have to decide, shortly thereafter, that the process was manifestly unconstitutional.” Menendez, supra, 413 N.J.Super. at 447, 995 A.2d 1109.

It is also “importan[t to] decid[e] a challenge to the constitutionality of an election law before it takes effect.” Thorsted v. Gregoire, 841 F.Supp. 1068, 1074 (W.D.Wash.1994) (discussing state-imposed term limits for Members of Congress) (citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 300 n. 12, 99 S.Ct. 2301, 2310, 60 L.Ed.2d 895, 908 (1979)), aff'd sub nom. Thorsted v. Munro, 75 F.3d 454 (9th Cir.1996). “Justiciability in [election] cases depends not so much on the fact of past injury but on the prospect of its occurrence in an impending or future election.” Babbitt, supra, 442 U.S. at 300 n. 12, 99 S.Ct. at 2310, 60 L.Ed.2d at 908 (citations omitted); see also U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349, 354 (1994) (finding challenge to term limits justiciable before officeholders were excluded from election and noting “daunting” “uncertainty over what the future holds” for elected officials), aff'd sub nom. Thornton, supra, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881. The Committee contends that this matter will not be ripe until Senator Menendez is recalled in an actual election. But when the law giving rise to an election “is defective on its face,” there is “good reason” to review the law’s validity before voting. Benjamin, supra, 144 N.J.Super. at 66, 364 A.2d 563 (citation and internal quotation marks omitted); see also Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199, 233,160 A.2d 265 (1960) (addressing post-election challenge to language of ballot question and noting “[t]he time to protest is before the election, and not ... after the event”). But cf. Herbst Gaming, Inc. v. Heller, 122 Nev. 877, 141 P.3d 1224, 1229 (2006) (describing rule in other jurisdictions that “[c]ourts generally refuse, at the preelection stage, to consider ... [whether] the measure, if enacted, would violate substantive federal or state constitutional provisions”).⁴

Accordingly, in view of the value to the electoral system in clarifying “ ‘[t]he construction of the [UREL], an understanding of its operation, and possible constitutional limits on its application,’ ” we need not wait to “remove any doubt about the existence of concrete injury.” Babbitt, supra, 442 U.S. at 300 n. 12, 99 S.Ct. at 2310, 60 L.Ed.2d at 908 (first alteration in original) (quoting Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 714, 727 (1974)) (finding labor unions’ challenge to statute governing election procedures justiciable even though union had not yet participated in election or invoked procedures).

Finally, any concern about passing judgment on an abstract injury is tempered by the fact that this Court is “not limited to the ‘case or controversy’ requirement imposed on the federal courts by way of Article III of the Federal Constitution.” In re Application of Boardwalk Regency Corp. for Casino License, 90 , 447 A.2d 1335 (1982) (citations omitted). In that regard, the constitutionality of the UREL and the Recall Amendment is an issue “of major public importance,” which also favors review. City of Atl. City v. Laezza, 80 N.J. 255, 266, 403 A.2d 465 (1979).

The Attorney General’s current position does not alter the above analysis. Although now prepared to abide by the Appellate Division’s approach, which we do not approve, she specifically informed this Court that her view that the UREL is unconstitutional remains unchanged.

IV.

To assess the constitutionality of term limits for congressional service, the U.S. Supreme Court in Thornton, supra, 514 U.S. at 806, 115 S.Ct. at 1856, 131 L.Ed.2d at 902, reviewed the text and structure of the Federal Constitution, relevant historical materials, and principles of our nation’s democratic system. We follow that same approach to determine whether States may recall U.S. Senators.

The Supremacy Clause of the Federal Constitution provides the backdrop for our analysis. It proclaims that “[tjhis Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. Therefore, state laws and constitutional provisions that conflict with the Federal Constitution are “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576, 595 (1981) (citing, inter alia, McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427, 4 L.Ed. 579 (1819)). In other words, a state may not legislate in an area in which it is preempted by the Federal Constitution or federal law. Maher v. N.J. Transit Rail Operations, Inc., 125 N.J. 455, , 593 A.2d 750 (1991) (“Under our federal system of government the States possess sovereignty concurrent with that of the federal government, subject only to the limitations imposed by the supremacy clause of the United States Constitution, article VI, clause 2.” (citation omitted)); Gangemi v. Berry, 25 N.J. 1, 9, 134 A.2d 1 (1957) (stating that although “the legislative authority in the States consists of the full and complete power as it rests in, and may be exercised by, the sovereign power of any country,” any state law or constitutional provision is still subject “to the limitations which are contained in the Constitution of the United States” (citation and internal quotation marks omitted)).

That same prohibition applies even when the challenged law, like the UREL, is authorized under a state constitutional provision. Thornton, supra, 514 U.S. at 809 n. 19, 115 S.Ct. at 1858, 131 L.Ed.2d at 904 (‘We are aware of no ease that would even suggest that the validity of a state law under the Federal Constitution would depend at all on whether the state law was passed by the state legislature or by the people directly through amendment of the state constitution.”); Whitcomb v. Chavis, 403 U.S. 124, 180, 91 S.Ct. 1858, 1888, 29 L.Ed.2d 363, 398 (1971) (“[T]he state constitution must give way to requirements of the Supremacy Clause when there is a conflict with the Federal Constitution.”); Reynolds v. Sims, 377 U.S. 533, 584, 84 S.Ct. 1362, 1393, 12 L.Ed. 2d 506, 540 (1964) (“When there is an unavoidable conflict between the Federal and a State Constitution, the Supremacy Clause of course controls.”).

There is also State precedent for evaluating the validity of a state constitutional provision that allegedly conflicts with the Federal Constitution. E.g., Jackman v. Bodine, 43 N.J. 453, 461, 473, 205 A.2d 713 (1964) (holding that state constitutional provision that allocated a portion of seats in Legislature without regard to population violated “one person, one vote” mandate of Fourteenth Amendment as interpreted in Reynolds, supra, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506); see also McNeil v. Legislative Apportionment Comm’n, 177 N.J. 364, 371, 388, 828 A.2d 840 (2003) (concluding that application of State Constitution’s political-boundary requirement to two largest municipalities was preempted by “one person, one vote” mandate and federal Voting Rights Act in light of Supremacy Clause). Bound as we are to adhere to the supreme law of the land, we cannot permit a provision of the State Constitution to remain in force if it conflicts with the Federal Constitution. Chamber of Commerce of U.S. v. State, 89 N.J. 131, 141, 445 A.2d 353 (1982) (quoting U.S. Const. art. VI, cl. 2).

Our analysis begins with the plain language of the Federal Constitution. See State v. Trump Hotels & Casino Resorts, Inc., 160 N.J. 505, 527, 734 A.2d 1160 (1999). “If the language is clear and unambiguous, the words used must be given their plain meaning.” Ibid, (citing Gangemi, supra, 25 N.J. at 10, 134 A.2d 1).

The plain language of the Federal Constitution suggests that a Senator’s term is fixed and that any right to prevent a Senator from completing his or her term is vested in the Senate, not the States. Article I, Section 3, Clause 1 provides without exception that a Senator’s term of service is six years. The only instance in which abridgment of that term is expressly discussed appears in Article I, Section 5, Clause 2, which empowers each house to “determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.” Thus, in 1906, the U.S. Supreme Court noted in dicta that a Senator’s seat “could only become vacant by his death, or by expiration of his term of office, or by some direct action on the part of the Senate in the exercise of its constitutional powers.” Burton v. United States, 202 U.S. 344, 369, 26 S.Ct. 688, 694, 50 L.Ed. 1057 (1906). In addition, each house of Congress is “the Judge of the Elections, Returns and Qualifications of its own Members.” U.S. Const. art. I, § 5, cl. 1.

The Constitution delegates limited power to the States in the realm of elections for Members of Congress: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” U.S. Const. art. I, § 4, cl. 1 (Elections Clause). .

The Committee and amici assert that silence about recall in the text of the Federal Constitution is not a prohibition against recall. To the extent that the Federal Constitution is unclear or ambiguous, we look to interpretive aids for guidance. Trump Hotels & Casino, supra, 160 N.J. at 527-28, 734 A.2d 1160 (“[I]f the language of the constitutional provision is unclear or is susceptible to more than one interpretation, courts may consider sources beyond the instrument itself to ascertain its intent and purpose.”). In particular, we examine the intent of the Framers expressed at historical debates at both the Constitutional Convention and the state ratifying conventions.

C.

Prior to ratification of the Constitution, recall provisions appeared in the Articles of Confederation and in two state constitutions. Articles of Confederation art. V, 11 (“[Delegates [to Congress] shall be annually appointed ... with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year.”); Pa. Const. of 1776 Declaration of Rights, § VI (“[T]he people have a right, at such periods as they may think proper, to reduce their public officers to a private station, and supply the vacancies by certain and regular elections.”); Vt. Const. of 1786 ch. 1, § VIII (“[T]he people have a right, by their legal representatives, to enact laws for reducing their public officers to a private station, and for supplying their vacancies in a constitutional manner, by regular elections, at such periods as they may think proper.”). Thus, leading into the Constitutional Convention, the people and their delegates were familiar with the concept of recall.

At the Constitutional Convention, contrary to the Committee’s position, the right of recall was considered and rejected. A recall provision was first introduced at the Convention by Virginia delegate Governor Edmund Randolph as part of the Virginia Plan for structuring the national government. On May 29, 1787, Randolph proposed the following provision to govern Representatives’ terms of office:

Resd. that the members of the first branch of the National Legislature ⁵ ought to be elected by the people of the several States every [_] for the term of [_J; to be of the age of [_] years at least, to receive liberal stipends by which they may be compensated for the devotion of their time to public service; to be ineligible to any office established by a particular State, or under the authority of the United States, except those [pleculiarly belonging to the functions of the first branch, during the term of service, and for the space of [_J after its expiration; to be incapable of re-election for the space of [_] after the expiration of their term of service, and to be subject to recall.

[1 Records of the Federal Convention of 1787 20 (M. Farrand ed. 1911) (hereafter Farrand) (emphasis added).]

However, on June 12, 1787, Governor Charles Pinckney, delegate from South Carolina, moved to strike the portion of the resolution underscored above. 1 Debates on the Adoption of the Federal Constitution 172 (J. Elliot ed., 1836) (hereafter Elliot); 5 Elliot 185. The States voted unanimously to approve Pinckney’s motion. 1 Elliot 172; 5 Elliot 185.

Certain delegates at the Constitutional Convention who favored recall of Senators acknowledged that recall was not part of the draft constitution. On August 14, 1787, Elbridge Gerry, delegate from Massachusetts, expressed to the rest of the Constitutional Convention his concern over the lack of a recall provision to check the Senate’s power:

If great powers should be given to the Senate, we shall be governed in reality by a junto, as has been apprehended [IJt would be very differently constituted from Congress [under the Articles of Confederation]. In the first place, there will be but two deputies from each state; in Congress there may be seven, and are generally five. In the second place, they are chosen for six years; those of Congress annually. In the third place, they are not subject to recall; those of Congress are. And, finally, in Congress nine states are necessary for all great purposes; here eight persons will suffice. Is it to be presumed that the people will ever agree to such a system?

[5 Elliot 422 (first emphasis added).]

Other delegates extolled the benefits of not including a recall provision. On June 6,1787, as recorded in the notes of Massachusetts delegate Rufus King, John Dickinson of Delaware asserted that

[w]e cannot form a national Govt, as is proposed unless we draw a Br. ((Branch) ] from the people, & a Br. from the legislature—it is necessary in theory—And essential to the success of the project—The objections to an election by the people arise from the nature of a Free Government and are slight when compared with the excellence of the Government—The 2d Br. must come from the State sovereignties or Legislature, they will be more respectable and they must for yr respectability & duration be something like the British House of peers—

But can one Br. be drawn from the Legislatures who are and have been opposed to ye Geni. Govt. It can—the appointment of the Legisture. of the States, to be in office 3-5 or 7. yrs; not subject to a recall and to depend on the Geni. Govt, for yr. support—

[1 Farrand 143 (emphasis added).]

Similarly, on June 18, 1787, New York delegate Alexander Hamilton dismissed the New Jersey Plan for government proposed by delegate William Paterson. Hamilton stressed the need for Congress to be sufficiently independent of the States’ influence, which he believed neither the New Jersey Plan nor the Articles of Confederation adequately ensured:

Examine the present confederation, and it is evident they can raise no troops nor equip vessels before war is actually declared. They cannot therefore take any preparatory measure before an enemy is at your door. How unwise and inadequate their powers! and this must ever be the case when you attempt to define powers.—Something will always be wanting. Congress, by being annually elected, and subject to recallwill ever come with the prejudices of their states rather than the good of the union. Add therefore additional powers to a body thus organized, and you establish a sovereignty of the worst kind, consisting of a single body. Where are the checks? None. They must either prevail over the state governments, or the prevalence of the state governments must end in them dissolution. This is a conclusive objection to the Jersey plan.

[1 Farrand 298 (first emphasis added).]

Hamilton’s views were echoed in several of the Federalist Papers, which speak to the objective to safeguard the stability and independence of the Senate and distance it from public opinion. See The Federalist Nos. 62-63, at 389-94 (Alexander Hamilton or James Madison) (Henry Cabot Lodge ed., 1888) (hereafter The Federalist).

The inability of the States to recall Senators became a rallying point for the Anti-Federalists, who opposed ratification of the Constitution. See Amicus, Antifederalist No. 53: A Plea for the Right of Recall (1788), reprinted in The Antifederalist Papers (M. Borden ed. 1965), at 152-53 (endorsing proposed amendment to Constitution providing for recall to permit “dismissing] from our employ as soon as possible, such persons as do not consult our interest and will not follow our instructions).”

The debate concerning the decision not to insert a recall provision in a draft of the Constitution continued in several of the state ratifying conventions. Certain participants—a number of whom were also delegates to the Constitutional Convention—voiced their displeasure over the absence of a recall provision in the Constitution, which had existed under the Articles of Confederation. On November 29, 1787, for example, delegate Luther Martin of Maryland reported back to the Maryland Legislature that under

this new system, the senators are to be chosen for six years, instead of being chosen annually; instead of being paid by their States, who send them, they, in conjunction with the other branch, are to pay themselves, out of the treasury of the United States; and are not liable to be recalled during the period for which they are chosen. Thus, Sir, for six years the senators are rendered totally and absolutely independent of their States, of whom they ought to be the representatives, without any bond or tie between them. During that time, they may join in measures ruinous and destructive to their States, even such as should totally annihilate their State governments, and their States cannot recall them, nor exercise any control over them.

[3 Farrand 194 (emphasis added).]

At the Virginia ratifying convention, two towering figures in our nation’s history spoke out against the draft Constitution’s failure to allow for recall. On June 13, 1788, Patrick Henry remarked critically that “[a]t present you may appeal to the voice of the people, and send men to Congress positively instructed to obey your instructions. You can recall them if their system of policy be ruinous. But can you in this government recall your senators? Or can you instruct them? You cannot recall them----Where, then, is the security?” 3 Elliot 355.

The following day, George Mason offered a similar criticism of the draft Constitution:

The Senators are chosen for six years. They are not recallable for those six years, and are reeligible at the end of the six years. [The new Constitution] stands on a very different ground from the Confederation. By that system, [Senators] were only elected for one year, might be recalled, and were incapable of reeleetion. But in the new Constitution, instead of being elected for one, they are chosen for six years. They cannot be recalled, in all that time, for any misconduct, and at the end of that long term may again be elected.

[3 Elliot 404.]

See also 4 Elliot 213 (N.C., Lancaster) (“If [senators] deviate from their duty, they cannot be excluded and changed the first year, as the members of Congress can now by the Confederation----The members of Congress now may be recalled. But in this Constitution they cannot be recalled.”); 2 Elliot 281 (N.Y., Smith) (listing recall among the “many material checks to the operations of [the present Congress], which the future Congress will not have”); 2 Elliot 62 (Mass., Kingsley) (“In the new Constitution, we are deprived of annual elections, have no rotation, and cannot recall our members; therefore our federal rulers will be masters, and not servants.”); 2 Elliot 48 (Mass., Taylor) (arguing that under the Constitution, Senators “are to be chosen for six years[,] but a shadow of rotation provided for, and no power to recall”; thus, “if they are once chosen, they are chosen forever”); 2 Elliot 47 (Mass., Jones) (“[SJenators chosen for so long a time will forget their duty to their constituents. We cannot ... recall them.”); 3 Farrand 155 (Md., Martin) (reporting that Senators “are to serve Six Years, to pay themselves out of the General Treasury, and are not paid by the State, nor can be recalled for any misconduct or sacrafice [sic] of the Interest of their State that they make before the expiration of that period”).

Three States—New York, Pennsylvania, and Rhode Island— proposed amendments that would have explicitly allowed for the recall of Senators. During the debates at the New York Convention, delegate Gilbert Livingston argued for greater checks on the Senate’s power. To that end, he introduced a resolution that, among other things, permitted “the legislatures of the several states to recall their senators, ... and to elect others in their stead, to serve for the remainder of the time for which such senator or senators, so recalled, were appointed.” 2 Elliot 289.

Similarly, delegates to the Pennsylvania Convention introduced an amendment providing “[t]hat senators, though chosen for six years, shall be liable to be recalled, or superseded by other appointments, by the respective legislatures of the states, at any time.” 2 Elliot 545.

At the Rhode Island Convention, delegates likewise proposed an amendment providing “[t]hat the state legislatures have power to recall, when they think it expedient, their federal senators, and to send others in their stead.” 1 Elliot 337.

However, none of those proposals survived, and all thirteen States ratified the Constitution without a recall provision in it. Jay Bybee, Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment, 91 Nw. U.L.Rev. 500, 529-30 (1997).

It stands to reason that recall was discussed at the state ratifying conventions because it had been rejected at the Constitutional Convention and was not provided for in the Constitution. Plus, the Constitution, of course, was not yet a final, ratified document. Thus, despite the Committee’s contrary position, the debates at the state ratifying conventions do inform the historical record.

In light of that substantial body of evidence, it is not surprising that in Thornton, the U.S. Supreme Court’s majority and dissenting opinions both noted that the Framers rejected a recall provision and denied the States the power to recall. Thornton, supra, 514 U.S. at 810 & n. 20, 115 S.Ct. at 1858, 131 L.Ed.2d at 904 (recognizing that “[t]he Framers’ decision to reject a proposal allowing for States to recall their own representatives reflects” the “concern that States would try to undermine the National Government” (internal citation omitted)); id. at 890, 115 S.Ct. at 1896, 131 L.Ed.2d at 953 (Thomas, J., dissenting) (“[A] power of recall[] [was] denied to the States when [the Framers] specified the terms of Members of Congress.”).

A letter from President Washington to his nephew, dated almost two months after the Constitutional Convention in 1787, does not weigh heavily in the analysis. The letter uses general, ambiguous language at best. The relevant passage from the letter follows:

The power under the Constitution will always be in the People. It is entrusted for certain defined purposes, and for a certain limited period, to representatives of their own chusing; and whenever it is executed contrary to their Interest, or not agreeable to then- wishes, their Servants can, and undoubtedly will be, recalled. [Letter from George Washington to Busbrod Washington (Nov. 10,1787), in 29 The Writings of George Washington from the Original Manuscript Sources 1745-1799 311 (John C. Fitzpatrick ed., 1931).]

It is not clear whether the letter addresses the recall of an official in the middle of a term or at reelection once a term has been completed. The Thornton Court cited the same letter as support for the argument that “the representatives’ need for reelection rather than mandatory rotation was the more effective way to keep representatives responsive to the people.” Thornton, supra, 514 U.S. at 814 & n. 26, 115 S.Ct. at 1860, 131 L.Ed.2d at 907. In any event, a private letter to a family member can hardly outweigh open, public debate at the conventions.⁶

D.

The Committee relies on the Seventeenth Amendment as a source of authority for states to recall U.S. Senators. The Seventeenth Amendment, passed in 1913, provided for direct election of U.S. Senators. While it changed the mode of selecting Senators, it did not provide for the power of recall.

The amendment, in relevant part, struck the following underlined language from Article I, Section 3, Clause 1—“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years; and each Senator shall have one Vote”—and replaced the phrase with “elected by the people thereof.” U.S. Const. amend. XVII.

In the years preceding the amendment, several Members of Congress spoke favorably in support of recall. 46 Cong. Rec. 2495-96 (1911) (statement of S. Bourne) (suggesting that to address “the securing of proper accountability of government and corporate officials[, which] is one of our greatest national problems,” public officials “must serve the composite citizen who represents general welfare or be recalled, where the recall exists, or fail of reelection where an efficient direct primary exists”); 45 Cong. Rec. 7125 (1910) (statement of S. Owen) (advocating that certain statewide democratic reforms, including “[t]he right of recall,” be adopted on national scale); 26 Cong. Rec. 7767 (1894) (statement of Rep. McEttriek) (“The power to recall representatives who have repudiated pledges and broken faith with the people is absolutely essential.”). However, their oblique endorsements of recall did not evolve further.

Others remarked that there was virtually no support for a recall measure and underscored that any direct-election amendment would not encompass recall. In an illuminating statement on April 13, 1911, Representative Thetus Sims of Tennessee thought better of injecting a recall provision into the proposed direct-election amendment.

[T]he chairman just stated a few moments ago that he was so anxious to get through this resolution in its present form, inasmuch as it had already been considered in another body, where it must pass if passed at all, that he did not want any amendment offered to it, and would ask that every amendment be voted down. Had it not been for that request I should have offered an amendment to this joint resolution.... I will read first the resolution and then the amendment which I expected to offer and which I would offer now if it were not for the fact that I do not propose to attempt to change the resolution in any way by any kind of amendment offered here, however proper and however much I would like to support it, by a provision that does not meet with the approval of the gentlemen who have this matter in charge and who have looked over and surveyed the whole situation. The resolution reads:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof for six years; and each Senator shall have one vote.

Now, just following the words “six years” I intended to offer this amendment:

With a power reserved to each State to recall its Senators, or either of them, at any time within the period of their sendee and to send another or others in their stead for the remainder of such period, and the legislatures of the various States shall by appropriate legislation carry into effect this provision.

I think, in order to retain the confidence of the people in their legislators, their agents, their United States Senators, or even Members of this House, if necessary, whether elected by the direct vote of people or otherwise, they should have the power to dismiss them agents or other servants whenever in their judgment, properly and deliberately ascertained, they no longer represent the people who elected them____I do not believe such a provision for recall would be otherwise than in accord with public sentiment. But I realize that this resolution must go through another body, and I appreciate the sincerity and honesty of statement by the chairman of [the House Committee on Election of President, Vice President, and Representatives in Congress] in not wanting to do anything that will give anybody an excuse to vote against the resolution in its main purposes and objects, that United States Senators shall be elected by a direct vote of the people. Therefore, Mr. Speaker, unless the chairman of the committee changes his mind, I will not offer this amendment and ask for a vote upon it; but it is time to think about these things.

[47 Cong. Rec. 212 (1911) (statement of Rep. Sims) (emphasis added).]

In the Senate, Senator Weldon Heyburn of Idaho listed the recall of Senators among the parade of horribles that might later become law if a direct-election amendment were accepted. In a session on May 24,1911, he stated,

What next? What will we face here in this Chamber? The recall perhaps of officers of the United States at the changing whim of local communities. Do you think that you would get a self-respecting man to occupy a position in this Chamber when his right so to do was likely at any time to be challenged and canceled? I would not care for the acquaintance of a man who would accept a place of responsibility on such terms.

[47 Cong. Rec. 1543 (1911) (statement of S. Heyburn).]

Two weeks later, on June 7, 1911, Senator Heyburn echoed his earlier remarks:

I know men who will be clamoring for a change in the manner of electing the President of the United States. I know men who will be clamoring for the recall of the Representatives of the States from Congress. I will not believe that there is a Senator in this body who would support such a proposition, yet I have seen it in print recently that the Constitution should be changed so as to permit a recall of the representatives of the States in both Houses of Congress. What next? To destroy the life tenure of the judge will be the next one. Those who do not know the Constitution, who have no intelligent conception of its purpose, would support such an amendment. To limit the tenure of office and inject ambition and polities into our United States Supreme Court and break down the stability of our Government is one of them. Just start this raid upon the Constitution once and see where it will end.

[47 Cong. Rec. 1742 (1911) (statement of S. Heyburn) (emphasis added).]

Finally, accompanying reports make clear that the Seventeenth Amendment was not designed to interfere with existing law except as to the manner of selecting Senators. H.R.Rep. No. 62-2, at 3 (1911) (“This amendment does not propose in any way to interfere with the fundamental law save and except the method or mode of choosing the Senators.”); S.Rep. No. 61-961, at 5 (1911) (same). Based on those reports and the statements of a number of representatives in both Houses, it is clear that the intent of Congress was to coniine the scope of the Amendment to the direct election of Senators. See, e.g., 46 Cong. Rec. 1977 (1911) (statement of S. Lodge) (arguing that direct-election amendment “is a purely mechanical change” that “is merely a proposition to convert the Senate into a second House of Representatives, with two Congressmen at large from each State, who are to be called Senators and to hold office for six years”); 46 Cong. Rec. 1103 (1911) (statement of S. Borah) (“Will the mere change of the mode of selecting United States Senators effect or bring about any fundamental or incidental change in the scheme or plan of government as submitted to us by those who framed it?”); 33 Cong. Rec. 4123 (1900) (statement of Rep. Robb) (“Except as to the mode of election and filling vacancies, no other change is proposed, and the relation of Senators to their States and to the several departments of the Government will remain unaffected.”); see also 47 Cong. Rec. 1883 (1911) (statement of S. McCumber); 46 Cong. Rec. 3544 (1911) (statement of S. Jones). Thus, as Members of Congress took pains to emphasize, the import of the Seventeenth Amendment does not reverberate beyond its specific terms.⁷

E.

The Elections Clause, U.S. Const. art. I, § 4, cl. 1, also offers no support for recall. That clause “invests the States with the responsibility for the mechanics of congressional elections,” namely, their time, place, and manner. Foster v. Love, 522 U.S. 67, 69, 118 S.Ct. 464, 466, 139 L.Ed.2d 369, 373 (1997) (citation omitted). By its own terms, it “grant[s] States authority to create procedural regulations,” Thornton, supra, 514 U.S. at 832, 115 S.Ct. at 1869, 131 L.Ed.2d at 918, not to enact substantive legislation, like recall laws, which would alter the duration of congressional terms of office. In light of the ability of recall “to ‘dictate electoral outcomes,’ ” we find that it is a “ ‘regulation’ of congressional elections [that] simply is not authorized by the Elections Clause.” Cook, supra, 531 U.S. at 526, 121 S.Ct. at 1040, 149 L.Ed.2d at 58 (quoting Thornton, supra, 514 U.S. at 833-34, 115 S.Ct. at 1869, 131 L.Ed.2d at 918-19).

F.

Finally, the inability to recall Senators accords with “the ‘basic principles of our democratic system’ ” established in the Constitution. Thornton, supra, 514 U.S. at 806, 115 S.Ct. at 1856, 131 L.Ed.2d at 902. The Framers deliberately structured the Senate as a stable and independent body capable of instilling national character, with Senators able to take an extended view of issues in light of their six-year terms. See, e.g., Thomas Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall 244 (1989) (“U.S. Senators, elected for six-year terms, serve in a chamber that was deliberately designed to take a longer view of the national interest. Recall would alter that view and the federalist principles that justify the existence of the Senate.”); Bybee, supra, 91 Nw. U.L.Rev. at 530 (explaining that “[t]he Founders’ unwillingness to have a right of recall reaffirmed their commitment to the six-year term” and their conception of the Senate “as a repository of wisdom and stability”); see also The Federalist No. 63, at 391-92 (Alexander Hamilton or James Madison) (asserting that Senate was needed to stimulate “due sense of national character” and could only do so if created as “an assembly ... durably invested with public trust”).

To realize that objective, each Senator was made “ ‘an officer of the union, deriving his powers and qualifications from the Constitution, and neither created by, dependent upon, nor controllable by, the states,’ ” and each “owe[d] primary allegiance not to the people of a State, but to the people of the Nation.” Thornton, supra, 514 U.S. at 803, 115 S.Ct. at 1855, 131 L.Ed.2d at 900 (quoting 1 J. Story, Commentaries on the Constitution of the United States § 627 (3d ed. 1858) (hereafter Story)).

Subjecting Senators to recall could erode the stability and national quality of the Senate and lead to a “patchwork” of state terms of service. See id. at 822, 115 S.Ct. at 1864, 131 L.Ed.2d at 912. Those outcomes would “undermin[e] the uniformity and the national character that the Framers envisioned and sought to ensure” and “sever the direct link that the Framers found so critical between the National Government and the people of the United States.” Ibid. (citation omitted); cf. Cook, supra, 531 U.S. at 521, 121 S.Ct. at 1037, 149 L.Ed.2d at 55 (agreeing that “binding instructions would undermine an essential attribute of Congress by eviscerating the deliberative nature of that National Assembly” (citation omitted)).

In sum, our review of the constitutional text, history, and structure of the democratic system reveals that the Federal Constitution does not permit recall.

V.

Certain States and a number of legal scholars have likewise concluded that state law cannot be used to recall federal officials. Like New Jersey, numerous other States have laws authorizing procedures for the recall of public officials. See Timothy Zick, The Consent of the Governed: Recall of United States Senators, 103 Dick. L.Rev. 567, 569 n.8 (1999). Three States have expressly drafted their recall provisions to apply to Members of Congress: Michigan, New Jersey, and Wisconsin. N.J. Const. art. I, U 2(b); Wis. Const. art. 13, § 12; Mich. Comp. Laws 168.959 (West 2010); Wis. Stat. Ann. 9.10 (West 2010). A fourth State, Arizona, provides for recall of Members of Congress who pledge to resign if not reelected upon a state recall vote. Ariz.Rev.Stat. Ann. 19-221 to -222 (West 2010). Additionally, “[m]any of the [thirty-two other] state provisions arguably apply to Members of Congress, as they cover all elected officials, without specifically excluding Members of Congress.” Zick, supra, 103 Dick L.Rev. at 569 n.8. However, although “[tjhere have been many modern examples of efforts to schedule recall elections for U.S. senators,” Christopher Terranova, The Constitutional Life of Legislative Instructions in America, 84 N.Y.U. L.Rev. 1331, 1341 n.65 (2009) (citations omitted), “no Member of Congress has ever been recalled in the history of the United States.” J. Maskell, Congressional Research Service Report for Congress, Recall of Legislators and the Removal of Members of Congress from Office 1 (2008).

No precedential case has squarely tested those laws.⁸ In a 1972 case filed in federal district court, the Western District of Michigan dismissed a complaint filed directly against U.S. Senator Phillip Hart, which sought a “Declaratory Judgment that persons holding the office of United States Senator in the State of Michigan are subject to recall by procedures set forth in the Michigan Election Law.” Hooper v. Hart, 56 F.R.D. 476, 477 (W.D.Mich. 1972). The court held that the plaintiff failed to identify “a justiciable case or actual controversy” between the parties and instead sought an advisory opinion. Ibid. That is the extent of the relevant case law. As the appellate panel accurately observed, “no published opinion from any federal or state court in the nation has yet declared invalid a state recall measure’s application to a member of the United States Senate or the House of Representatives.” Menendez, supra, 413 N.J.Super. at 449, 995 A.2d 1109.

However, the Attorneys General in several States have opined on the question of recall of federal officers. Most have rejected the notion that state recall laws could be used to recall Members of Congress. See 2010 Op. Att’y Gen. N.D. 8, at 6 & n.18 (2010) (refusing to interpret recall provision affecting “[a]ny elected official of the state” to extend to federal offices and noting likelihood that U.S. Supreme Court would apply same analysis to state recall law as it did when invalidating state-imposed term limits in Thornton)-, Op. Att’y Gen. Ark. 2010-017, at 5 (2010) (determining that proposed state recall amendment “as it applies to members of Congress is unconstitutional because a state statute cannot alter the terms or qualifications for members of Congress”); Op. Att’y Gen. La. 09-0051, at 4-5 (2009) (concluding that Louisiana citizens’ efforts to recall U.S. Representative Ahn “Joseph” Cao under state law “cannot proceed” because “the tenth amendment of the United States Constitution does not reserve to the states the authority to remove members of Congress from office”); Op. Att’y Gen. Kan. 94-35, at 3 (1994) (concluding that state law authorizing recall of public officials does not apply to Members of Congress and noting that “the United States constitution does not reserve to the states the authority to remove members of congress from office”); 1978 Op. Att’y Gen. Nev. 14 (1978) (opining that “notice of intent to circulate a petition to recall one of Nevada’s United States Senators” would be intrinsically defective and that Secretary of State should refuse to file it because “[o]nly the United States Senate or the House of Representatives can remove its own members prior to the end of the terms for which they were elected”); 17 Op. Att’y Gen. Or. 312, 313 (1935) (advising Oregon Secretary of State not to accept or file petition seeking recall of U.S. Representative because “jurisdiction to determine the right of a Representative in Congress to a seat is vested exclusively in the House of Representatives” and “a Representative in Congress is not subject to recall by the legal voters of the state or of the electoral district from which he was elected”). As evident by her submissions in this case, the New Jersey Attorney General is also of the opinion that a state recall law cannot be applied to a U.S. Senator.

There is only one exception—a 1979 opinion of the Wisconsin Attorney General, who explained that while he had “attempted neither a resolution nor a comprehensive analysis of the constitutional issue,” he was “not aware of any clear manifestation of Congress’ intent to preempt otherwise compatible state regulation in this area,” and thus could not “state that our recall provisions would be declared unconstitutional on grounds of federal preemption.” 68 Op. Att’y Gen. Wis. 140 (1979). That opinion, however, preceded the Supreme Court’s discussion of States’ reserved powers in Thornton. See Thornton, supra, 514 U.S. at 804-05, 115 S.Ct. at 1855-56, 131 L.Ed.2d at 901-02 (recognizing “Framers’ understanding that powers over the election of federal officers had to be delegated to, rather than reserved by, the States” and holding that “[i]n the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a power does not exist”).

A resounding consensus of legal scholarship agrees that state law cannot be used to recall a Member of Congress. See, e.g., Senate Election Law Guidebook, S. Doc. No. 109-10, at 294 (2006) (“[M]aking a United States Senator or United States Representative subject to removal by a state recall election would constitute an additional qualification for office, which the states do not have the constitutional authority to enact.”); J. Maskell, supra, at 11 (“For a recall provision to be enforceable against a Member of Congress, it would appear that a constitutional amendment would need to be adopted by the requisite number of states authorizing such a recall procedure in the United States Constitution.”); Joseph F. Zimmerman, The Recall: Tribunal of the People 31 (1997) (“It is clear ... that the recall cannot be employed against a member of the U.S. Congress without a U.S. constitutional amendment authorizing the recall.”); Bybee, supra, 91 Nw. U.L.Rev. at 530, 558 (noting “[t]he Founders’ refusal to authorize recall,” that “[rjecall, as a mechanism of control over senators, has fared no better [than referendum],” and that “state legislatures never enjoyed the right of recall of U.S. senators”); Jefferson B. Fordham, The Utah Recall Proposal, 1976 Utah L.Rev. 29, 34 (arguing that proposed state initiative permitting recall of Members of Congress, “if adopted, would be an abortive—a legally ineffective—attempt to control something beyond state competence,” and “is quite at odds with the federal constitutional design for representation in the Congress”); Terranova, supra, 84 N.Y.U. L.Rev. at 1331 (“[T]he right to recall representatives [was] a threat that was eliminated by the U.S. Constitution, which did not explicitly provide such authority.”); Zick, supra, 103 Dick. L.Rev. at 591-92 (arguing in favor of recall but recognizing that “[pjartieularly in light of the Thornton Court’s analysis ... it is probable that the Court would hold that the states or the people lack power under the Constitution to recall a Member of Congress”). By contrast, neither the Committee nor amici offer a single commentator who suggests that state law may validly be employed to recall federal officers.

VI.

In a manner consistent with the analysis in section IV of this opinion, the U.S. Supreme Court has considered and rejected supplemental conditions to congressional terms of service. In Powell v. McCormack, the Court determined that the House of Representatives has no power to exclude its members so long as they have satisfied the three requirements for membership listed in Article 1, Section 2, Clause 2: age, citizenship, and residency. 395 U.S. 486, 489, 89 S.Ct. 1944, 1947, 23 L.Ed.2d 491, 498 (1969). In reaching that conclusion, the Court looked to relevant historical materials to ascertain whether Article I, Section V of “the Constitution gives the House judicially unreviewable power to set qualifications for membership and to judge whether prospective members meet those qualifications” or, conversely, whether “the Constitution gives the House power to judge only whether elected members possess the three standing qualifications set forth in the Constitution.” Id. at 520, 89 S.Ct. at 1963, 23 L.Ed.2d at 516.

The Court found that the Framers rejected a proposal to empower Congress to add to the three qualifications ultimately fixed by the Constitution, id. at 532-36, 89 S.Ct. at 1970-71, 23 L.Ed.2d at 523-25, and that in the century following the Constitutional Convention, “Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution,” id. at 542, 89 S.Ct. at 1974, 23 L.Ed.2d at 528. Therefore, the Court concluded that “Art. I, § 5, is at most a ‘textually demonstrable commitment’ to Congress to judge only the qualifications expressly set forth in the Constitution.” Id. at 548, 89 S.Ct. at 1978, 23 L.Ed.2d at 532 (emphasis added).

In Thornton, supra, the Court deemed invalid an Arkansas constitutional amendment that imposed limits on the number of terms that a Member of Congress could serve. 514 U.S. at 783, 115 S.Ct. at 1845, 131 L.Ed.2d at 888. In a 5-4 decision, the Court first reviewed Powell and reaffirmed the two “important propositions” the case established: that “the Framers intended the qualifications listed in the Constitution to be exclusive” and that it is a “fundamental principle of our representative democracy ... ‘that the people should choose whom they please to govern them.’” Id. at 795, 115 S.Ct. at 1851, 131 L.Ed.2d at 895-96 (alteration in original) (quoting Powell, supra, 395 U.S. at 547, 89 S.Ct. at 1977, 23 L.Ed.2d at 531). The Court emphasized that in Powell, “[o]ur conclusion that Congress may not alter or add to the qualifications in the Constitution was integral to our analysis and outcome.” Id. at 796, 115 S.Ct. at 1851, 131 L.Ed.2d at 896.

In both form and substance, the Court’s analysis of the term-limits issue applies to resolving the recall issue. The Court framed its opinion by canvassing “the text and structure of the Constitution, the relevant historical materials, and, most importantly, the ‘basic principles of our democratic system.’ ” Id. at 806, 115 S.Ct. at 1856, 131 L.Ed.2d at 902. The Court found “most striking that nowhere in the extensive ratification debates [was there] any statement by either a proponent or an opponent of rotation that the draft constitution would permit States to require rotation for the representatives of their own citizens.” Id. at 814, 115 S.Ct. at 1860, 131 L.Ed.2d at 907. Moreover, “for over 150 years prior to Powell, commentators [believed it was] the view of the House that States could not add to the qualifications established in the Constitution.” Id. at 817, 115 S.Ct. at 1862, 131 L.Ed.2d at 909. Therefore, the Court concluded that the Constitution, which “allows the States but a limited role in federal elections, and maintains strict checks on state interference with the federal election process[,] ... thus creates a uniform national body representing the interests of a single people.” Id. at 822, 115 S.Ct. at 1864, 131 L.Ed.2d at 911-12. As noted earlier, the Court emphasized that “a patchwork of state qualifications” would “undermin[e] the uniformity and the national character that the Framers envisioned and sought to ensure.” Id. at 822, 115 S.Ct. at 1864, 131 L.Ed.2d at 912.

The Court, in a footnote also referred to above, added that “[t]he Framers’ decision to reject a proposal allowing for States to recall their own representatives reflects the[ ] same concerns” that “States would try to undermine the national government.” Id. at 810 n. 20, 115 S.Ct. at 1858, 131 L.Ed.2d at 904 (internal citation omitted); see also id. at 890, 115 S.Ct. at 1896, 131 L.Ed.2d at 953 (Thomas, J., dissenting) (recognizing that “a power of recall [was] denied to the States when [the Framers] specified the terms of Members of Congress”). In its strong concluding remarks, the Court declared that a State could prescribe term limits for congressional office only if the Federal Constitution were so amended. Id. at 837-38, 115 S.Ct. at 1871, 131 L.Ed.2d at 921 (majority opinion).

Lastly, in Cook, supra, the Court held that Missouri could not threaten to print negative labels on ballots next to the names of congressional candidates who failed to take steps to support term limits, as specified in a state constitutional amendment. 531 U.S. at 514-15, 527, 121 S.Ct. at 1033-34, 1040, 149 L.Ed.2d at 50-51, 58. The Court recognized that aside from the Elections Clause, “[n]o other constitutional provision gives the States authority over congressional elections, and no such authority could be reserved under the Tenth Amendment”; thus, States may only regulate congressional elections to the extent that such power is delegated by the Elections Clause. Id. at 522-23, 121 S.Ct. at 1038, 149 L.Ed.2d at 56. The Court then clarified that the Elections Clause relates to “the procedural mechanisms of elections,” which do not include a power to attach adverse labels to congressional candidates who do not embrace term limits. Id. at 526, 121 S.Ct. at 1039, 149 L.Ed.2d at 58.

In the above trilogy of cases, the Court engaged in historical and textual analysis to determine whether rules could be added to congressional terms of service when the Federal Constitution was otherwise silent. On each occasion, the Court concluded that the express provisions of Article I of the Federal Constitution were fixed and exclusive. That analysis demonstrates that the six-year term in Article I, Section 3, Clause 1 is similarly fixed and exclusive.

VII.

Because substantial evidence relating to the text, history, and structure of the Federal Constitution reveals that recall was prohibited to the States and deliberately omitted from the Constitution, the Tenth Amendment does not come into play. Nevertheless, because the Committee and amici rely heavily on the Tenth Amendment, we briefly address their position.

The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X. Thornton interpreted that provision and directly addressed the question of reserved powers. The Court explained that the Tenth Amendment “could only ‘reserve’ that which existed before,” and thus “ ‘[n]o state can say, that it has reserved, what it never possessed.’ ” 514 U.S. at 802, 115 S.Ct. at 1854, 131 L.Ed.2d at 899-900 (quoting 1 Story § 627). Therefore, despite any practices that preceded the Federal Constitution, no State is empowered to exercise control over federal elections— except for those areas expressly delegated by the Constitution— because “electing representatives to the National Legislature was a new right, arising from the Constitution itself.” 514 U.S. at 805, 115 S.Ct. at 1856, 131 L.Ed.2d at 902; see also Cook, supra, 531 U.S. at 522-23, 121 S.Ct. at 1037-38, 149 L.Ed.2d at 55-56. Under that analysis, because the office of U.S. Senator exists only as a result of the Constitution, States do not possess a reserved right to recall their Senators.

The dissent in Thornton took a contrary view. It maintained that the Tenth Amendment encompassed the “default” rule that “[w]here the Constitution is silent about the exercise of a particular power—that is, where the Constitution does not speak either expressly or by necessary implication—the Federal Government lacks that power and the States enjoy it.” Thornton, supra, 514 U.S. at 848, 115 S.Ct. at 1876, 131 L.Ed.2d at 927 (Thomas, J., dissenting). Thus, it disagreed with the position that “the only powers reserved to the States are those that the States enjoyed before the framing.” Id. at 857, 115 S.Ct. at 1880, 131 L.Ed.2d at 933. Nonetheless, even the dissent acknowledged that “a power of recall [was] denied to the States when [the Framers] specified the terms of Members of Congress.” Id. at 890, 115 S.Ct. at 1896, 131 L.Ed.2d at 953.

The Committee and amici assert that the omission from the Federal Constitution of any mention of recall—a power that predated the Constitution—signals that the power was reserved to the States or the people via the Tenth Amendment. The Appellate Division accepted that logic to some extent and partially grounded its decision on the premise that “[t]he silence of the federal Constitution may well result in the conclusion that [recall] may be done.” Menendez, supra, 413 N.J.Super. at 455, 995 A.2d 1109 (citing Thornton, supra, 514 U.S. at 845, 115 S.Ct. at 1875, 131 L.Ed.2d at 926 (Thomas, J., dissenting)).

However, that precise reasoning was explored and repudiated in Thornton and Cook. Cook, supra, 531 U.S. at 522, 121 S.Ct. at 1037, 149 L.Ed.2d at 55-56 (“Because any state authority to regulate election to those [federal] offices could not precede their very creation by the Constitution, such power ‘had to be delegated to, rather than reserved by, the States.’ ” (quoting Thornton, supra, 514 U.S. at 804, 115 S.Ct. at 1855, 131 L.Ed.2d at 901)); see also Charles Fried, The Supreme Court, 1994 Term: Foreword: Revolutions?, 109 Harv. L.Rev. 13, 21-22 (1995) (highlighting discontinuity between Constitution and Articles of Confederation and observing that “the Constitution waved aside the limitations in the Articles and thus cannot be said to derive its authority in succession from them”). In short, there can be no reserved power relating to the election of Members of Congress, whose very offices originated with the Constitution.

VIII.

Certain issues presented do not require extended discussion. We start with the Committee’s and ACRU’s First Amendment argument that the UREL protects constitutional rights to political activity and expression.

Citizens plainly have the right to petition and engage in political speech against elected officials. See Meyer v. Grant, 486 U.S. 414, 421-22, 108 S.Ct. 1886, 1892, 100 L.Ed.2d 425, 435 (1988). They are free to petition Congress to allow for recall elections of U.S. Senators. But those rights do not, in and of themselves, establish or guarantee a right to recall under the Federal Constitution. See, e.g., Kerchner v. Obama, 612 F.3d 204, 209 (3d Cir.2010) (finding “claims under the First Amendment are without merit because the individual right to petition does not ‘require government policymakers to ... respond to individuals’ communications on public issues” (citation omitted)); We the People Found., Inc. v. United States, 485 F.3d 140, 143-44 (D.C.Cir.2007) (holding that “the Supreme Court flatly stated that the First Amendment ... does not provide a right to a response to or official consideration of a petition” (citing Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 285, 104 S.Ct. 1058, 1066, 79 L.Ed.2d 299, 312-13 (1984), and Smith v. Ark. State Highway Employees, 441 U.S. 463, 465, 99 S.Ct. 1826, 1828, 60 L.Ed.2d 360, 363 (1979))); Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1099 (10th Cir.2006) (explaining that although “[t]he First Amendment undoubtedly protects the political speech that typically attends an initiative campaign, just as it does speech intended to influence other political decisions[,] ... it does not protect the right to make law, by initiative or otherwise”); Baker v. Deane, 196 N.J.Super. 416, 424, 483 A.2d 218 (Law Div.1983) (explaining, in reviewing prior recall statute, that “[t]he constitutional right to petition is to be distinguished from the right to petition for recall” (citation omitted)).

The appellate panel also relied on case law that expands state constitutional protections beyond those guaranteed under the Federal Constitution. See Menendez, supra, 413 N.J.Super. at 454, 995 A.2d 1109 (citing State v. Novembrino, 105 N.J. 95, 144-45, 519 A.2d 820 (1987), and State v. Hunt, 91 N.J. 338, 345-46, 450 A.2d 952 (1982)). Those eases do not stand for the proposition that States can provide rights that are preempted, expressly or impliedly, under the Federal Constitution. For instance, a State could not pass a law authorizing its individual departure from the electoral-college system for presidential elections, even if the State acted in the interest of better representing its citizens.

The Committee also advances various policy arguments in favor of recall elections, including the importance of affording citizens a mechanism to recall a sick, corrupt, or non-responsive Senator from office. We cannot resolve the policy debate over recall any more than the Thornton Court could decide the wisdom of term limits. See Thornton, supra, 514 U.S. at 837, 115 S.Ct. at 1871, 131 L.Ed. 2d at 921. A change to the fabric of the Constitution, which a power of recall would represent, can only be achieved through the amendment process. The Thornton Court, in language applicable to this case, made that point abundantly clear:

We are ... firmly convinced that allowing the several States to adopt term limits for congressional service would effect a fundamental change in the constitutional framework. Any such change must come not by legislation adopted either by Congress or by an individual State, but rather—as have other important changes in the electoral process—through the amendment procedures set forth in Article V. The Framers decided that the qualifications for service in the Congress of the United States be fixed in the Constitution and be uniform throughout the Nation. That decision reflects the Framers’ understanding that Members of Congress are chosen by separate constituencies, but that they become, when elected, servants of the people of the United States. They are not merely delegates appointed by separate, sovereign States; they occupy offices that are integral and essential components of a single National Government. In the absence of a properly passed constitutional amendment, allowing individual States to craft their own qualifications for Congress would thus erode the structure envisioned by the Kramers, a structure that was designed, in the words of the Preamble to our Constitution, to form a “more perfect Union.”

[Thornton, supra, 514 U.S. at 837-38, 115 S.Ct. at 1871, 131 L.Ed.2d at 921.]

IX.

The UREL and the Recall Amendment offer New Jersey-voters the power to hold state and local public servants accountable through the recall process. We recognize the important and legitimate aims of both laws. See Comm. to Recall Theresa Casagrande from Office of Spring Lake Heights Sch. Bd. Member v. Casagrande, 304 N.J.Super. 496, 501, 507, 701 A.2d 478 (Law Div.) (explaining that passage of UREL served to expand to more citizens right to recall public officials and “to eliminate uncertainty in the recall process by setting specific time limits and checks and balances”), aff'd, 304 N.J.Super. 421, 701 A.2d 439 (App.Div.1997).

In light of our finding that portions of the UREL and the Recall Amendment which subject Senators to recall are unconstitutional, the proper way to preserve other aspects of the laws is through judicial surgery. State v. Natale, 184 N.J. 458, 485, 878 A.2d 724 (2005) (“When necessary, courts have engaged in judicial surgery to save an enactment that otherwise would be constitutionally doomed.” (internal quotation marks omitted) (citing Town Tobacconist v. Kimmelman, 94 N.J. 85, 104, 462 A.2d 573 (1983), and N.J. State Chamber of Commerce v. N.J. Election Law Enforcement Comm’n, 82 N.J. 57, 75, 411 A.2d 168 (1980))); see also Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328-29, 126 S.Ct. 961, 967, 163 L.Ed.2d 812, 821 (2006) (“[W]hen confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, ... to sever its problematic portions while leaving the remainder intact, United States v. Booker, 543 U.S. 220, 227-29, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).”).

We therefore conclude that the provisions of the UREL and the Recall Amendment pertaining to U.S. Senators are invalid, but otherwise allow the laws to remain in effect as they relate to state and local officials.⁹

X.

The dissent uses various techniques to challenge the above analysis. It attempts to bypass the historical record with broad swipes; it champions marginal items; it offers rousing rhetoric about disenfranchising voters; and it appeals to emotion. But those techniques cannot rewrite the Constitution.

In an effort to be complete, this opinion contains each reference to recall that was found in the historical record. The references consistently confirmed that the Framers considered and rejected a right to recall, and that the new Constitution did not permit states to recall U.S. Senators. The dissent offers no direct, contrary proofs in response. Instead, it affirmatively declines to challenge, “point-by-point,” the powerful historical record assembled. Id. at 149, 7 A.3d at 763. Such an approach might have advanced the discussion. Argument that appears in its place, however, is unable to erase recorded history.

If the Framers had offered evidence that arguably supported the right to recall, the dissent apparently would have received them differently. Indeed, the limited history that the dissent chooses to champion is revealing. It devotes two full pages to defend Bushrod Washington even though in the end, no matter his accomplishments later in life, the document President Washington sent him was but an ambiguous, private letter to his nephew, which cannot serve as a substitute for volumes of actual, public debates involving the Framers.

In addition to marginalizing the historical record, the dissent does not spare aspects of U.S. Supreme Court rulings with which it disagrees. For example, straightforward observations about the lack of a right of recall in Thornton—made by nine Supreme Court Justices in dicta—were “inexplicably ... included” by the Court. Id. at 152, 7 A.3d at 764. But the U.S. Supreme Court is, of course, the ultimate arbiter of the Federal Constitution.

XI.

For the reasons set forth above, we find that the case is ripe for review and that the Federal Constitution does not allow States the power to recall U.S. Senators. That conclusion is faithful to the rule of law. It is faithful to the written words in the Constitution, as illuminated by the Framers who debated its text and those who participated in the state ratifying conventions. It is guided by relevant case law and informed by thoughtful scholarship. It is also faithful to the enduring form of our constitutional democracy, which the Framers established more than 200 years ago.

We therefore reverse the judgment of the Appellate Division and vacate its order requiring the Secretary to accept the notice of intention.

1 Specifically, the Attorney General wrote that "the State's position on federal constitutionality remains the same, as articulated in the brief filed below." In that brief, filed with the Appellate Division, the State argued that

[t]he election of federal elective officials, such as a United States Senator, is a matter of exclusive federal jurisdiction, as provided for in the United States Constitution and corresponding federal statutes. .. Pointedly, there is no explicit federal provision that authorizes a state recall election for a United States Senator. Nor is there any reasonable basis upon which to construe any implicit authority for a state to initiate a recall proceeding against a United States Senator....

.. While the non-enforceability of a state constitutional or statutory provision is not to be taken lightly, under these circumstances, the Supremacy Clause of the United States Constitution compels no other conclusion.

Nonetheless, after arguing to the Appellate Division that the Committee's "ripeness claim [does not] hold any merit," the State reversed its position and is now "mindful that ... a condition precedent to any recall election— obtaining the signatures of approximately 1.3 million registered voters within 320 days—may never come to pass." The State therefore does "not seek to overturn [the Appellate Division's] exercise of judicial prudence and restraint."

2 The CLDEF's amicus brief was submitted on behalf of the following twelve organizations: the CLDEF; Institute on the Constitution; U.S. Justice Foundation; Gun Owners Foundation; Gun Owners of America, Inc.; Vision to America; The Lincoln Institute for Research and Education; Public Advocate; U.S. Border Control; U.S. Border Control Foundation; American Coalition for Competitive Trade; and The Constitution Party National Committee.

3 At oral argument, the following exchange took place after the Committee’s attorney argued at length in favor of the constitutionality of the Recall Amendment:

THE COURT: Your answer sounds like a concession that it was appropriate for the Secretary of State to evaluate [the constitutional issue], she just evaluated it incorrectly.

ATTORNEY: Yes ... I certainly think the Secretary of State should try to abide by all her constitutional obligations, but I think she made a mistake____

Moreover, the Committee initiated this lawsuit to challenge the Secretary's decision. From the Committee’s perspective, at least part of the matter was apparently ripe. Although it is theoretically possible that only some, and not all, issues in a case may be ripe at once, it is difficult here to parse (a) the question whether the Secretary was correct in refusing to accept the notice of intention, from (b) the constitutionality of the UREL, on which she based her decision.

4 Although there is a split of authority among States as to whether a court may entertain a pre-election challenge to a ballot measure, see Herbst, supra, 141 P.3d at 1228-31 (citing cases), many courts including New Jersey's subscribe to the view that judicial review is permitted when the pre-election objection concerns the facial constitutional validity or form of the measure. Benjamin, supra, 144 N.J.Super. at 66, 364 A.2d 563; see, e.g., Gray v. Winthrop, 115 Fla. 721, 156 So. 270, 272 (1934) (“If a proposed amendment to the State Constitution by its terms specifically and necessarily violates a command or limitation of the Federal Constitution, a ministerial duty of an administrative officer that is part of the prescribed legal procedure for submitting such proposed amendment to the electorate of the State for adoption or rejection, may be enjoined at the suit of proper parties in order to avoid the expense of submission----"); Berent v. City of Iowa City, 738 N.W.2d 193, 206 (Iowa 2007) (concluding that "preelection review of the substantive facial challenge to [proposed] amendment ... is ripe”); Utz v. City of Newport, 252 S.W.2d 434, 437 (Ky.1952) ("There is no right to obtain a vote of the people upon the enactment of [an ordinance proposed by petition, which] would be invalid if approved by them. The court ought not compel the doing of a vain thing and the useless spending of public money.”); In re Initiative Petition No. 349 State Question No. 642, 838 P.2d 1, 8 (Okla.1992) ("A pre-submission determination of the constitutionality of the initiative petition is appropriate and necessary where the proposal is facially unconstitutional and is justified when a costly and futile election may be avoided.”); Schultz v. City of Philadelphia, 385 Pa. 79, 122 A.2d 279, 283 (1956) (considering constitutional validity of proposed legislation because it would be "wholly unjustified to allow the voters to give their time, thought and deliberation to the question of the desirability of the legislation ... and thereafter, if their vote be in the affirmative, confront them with a judicial decree that their action was in vain"); City of Memphis v. Shelby County Election Comm'n, 146 S.W.3d 531, 539 (Tenn.2004) ("[P]re-election challenges to the form or facial constitutional validity of referendum measures are ripe for judicial scrutiny.”); Wyo. Nat’l Abortion Rights Action League v. Karpan, 881 P.2d 281, 288 (Wyo.1994) ("[A]n initiative measure that contravenes direct constitutional language, or constitutional language as previously interpreted by the highest court of a state or of the United States, is subject to review____[I]f such a measure were clearly unconstitutional, there would be no purpose in submitting it to the electorate under the initiative process.”); cf. Hessey v. Burden, 615 A.2d 562, 574 (D.C.1992) (stopping short of "forbid[ding] pre-election review of constitutional challenges to proposed initiatives” for "extreme cases in which it would be both appropriate and efficient to decide the constitutionality of a proposed initiative”).

5 Under the Virginia Plan, there was no analogous recall provision for Senators; "since the members of the second branch were 'to be elected by those of the first/ the drafters of the Virginia Plan apparently saw no need to subject them to recall.” Ralph A. Rossum, Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy 100 (2001).

6 It is noteworthy that not a single State that chose to amend its own constitution following the Convention inserted a recall provision and, further, that the two states that had previously provided for recall in their constitutions conspicuously omitted any parallel provision in their new constitutions. See generally Pa. Const. of 1790; Vt. Const. of 1793. Thornton urged caution in relying on state practices to measure the contours of the Federal Constitution. Thornton, supra, 514 U.S. at 823, 115 S. Ct. at 1864, 131 L.Ed.2d at 912. To the extent state practices immediately following ratification have any weight, they lend further support to the conclusion that the States understood the Constitution to bar them from instituting recall of Members of Congress.

7 State practices around the time of the Seventeenth Amendment reveal that only Wisconsin, some thirteen years later, adopted a provision for the recall of Members of Congress. Eight other States did not expressly extend recall to federal officers. Compare Wis. Const. art. XIII, § 12 (1926) ("The qualified electors of the state, of any congressional, judicial or legislative district ... may petition for the recall of any incumbent elective officer____"), with Aril. Const. art. 8, part 1, § 1 (1912) (allowing recall of "[ejvery public officer in the State"); Cal. Const, art. 23, § 1 (1911) (allowing recall of "[ejvery elective public officer of the State”); Colo. Const, art. XXI, § 1 (1913) (allowing recall of "[ejvery elective public officer of the state”); Kan, Const. art. 4, § 3 (1914) (allowing recall of "all elected public officials in the state” except judges); La. Const, art. 223, § 2 (1914) (allowing recall of "[ajny officer of this State” except judges); Idaho Const. art. VI, § 6 (1912) (allowing recall of "every public officer in the State" except judges); Nev. Const. art. 2, § 9 (1912) (allowing recall of "[ejvery public officer in the State”); Wash. Const. art. 1, § 33 (1912) (allowing recall of "[ejvery elective public officer of the state” except judges). Thornton, once again, cautioned against reliance on such practices. Thornton, supra, 514 U.S. at 823, 115 S.Ct. at 1864, 131 L.Ed.2d at 912.

8 Senator Menendez directs us to an unpublished Idaho state court case discussing the validity of a petition to recall U.S. Senator Frank Church. We decline to address that case in light of the rules of this Court. “[Ujnpublished opinions do not constitute precedent and ‘are not to be cited by any court.' " Stengart v. Loving Care Agency, Inc., 201 N.J. 300, 317 n. 4, 990 A.2d 650 (2010) (quoting R. 1:36-3).

9 The pending challenge concerns only the constitutionality of recalling U.S. Senators. The UREL and the Recall Amendment also provide for the recall of members of the House of Representatives, an issue that is not before us. We have grave doubts about the constitutionality of the UREL to the extent that it permits recall of House members in light of applicable portions of the above analysis as well as certain additional historical materials about the recall of House members. E.g., The Federalist No. 53, at 335 (Alexander Hamilton or James Madison) ("[W]ho will pretend that the liberties of the people of America will not be more secure under biennial elections, unalterably fixed by such a Constitution, than those of any other nation would be, where elections were annual, or even more frequent, but subject to alterations by the ordinary power of the government?"); 1 Elliot 407-08, 434; 5 Elliot 183-84, 224-26 (detailing Framers' rejection of proposals for one- and three-year terms of office for House members in favor of biennial terms). We also note the obvious practical problems the UREL presents: House members serve two-year terms, U.S. Const. art. I, § 2, cl. 1, but the recall process could not begin until after one year in office, N.J.S.A. 19:27A-2, and could then last up to 160 days for the gathering of signatures, N.J.S.A. 19:27A-10. The process could thus extend into or beyond the next election cycle. Nonetheless, we decline to rule on the question in the absence of a formal challenge.