In re Contest of November 8, 2011 General Election of Office of New Jersey General Assembly

Chief Justice RABNER,

dissenting.

In this case, the majority overturns the outcome of a democratically run election conducted in accordance with a federal court order that went unchallenged for a decade. The 2001 order declared that the one-year residency requirement in the New Jersey Constitution violated the Fourteenth Amendment of the United States Constitution. The federal district court later imposed a broad injunction that barred the Attorney General and the Secretary of State from enforcing that restriction.

For about a decade since, the rules have been clear: the residency requirement has not been enforced; no candidate has been barred from running for office because of it; and no election *79has been annulled on its account. In fact, candidates seeking advice from the Attorney General have been told that the one-year residency restriction does not apply.

In that context, respondent Gabriela Mosquera campaigned for a seat in the General Assembly for the Fourth Legislative District. She filed a nominating petition, and the Secretary of State certified her to run for office in the primary election. She won the primary race, and the Secretary of State certified her as a candidate for the general election. After months of campaigning, she won the race with 19,907 votes, the second highest tally. The Secretary then certified her victory. Although Mosquera had lived in the Fourth Legislative District for only ten months and one week as of Election Day, the rules in place for a decade banned application of the one-year residency requirement against her or any other candidate.

Now, after the voters have spoken, petitioner Shelley Lovett, who finished in third place, asks this Court to revisit the validity of the residency restriction. The majority reaches a result different from the federal court and concludes that the residency requirement is constitutional.

I believe that the requirement raises serious constitutional concerns during redistricting years, when a substantial number of citizens are “redistricted” out of their previous home districts. But even if the rule were constitutional, basic principles of equity and federalism require that the decision be applied prospectively in light of the unique circumstances of this case.

The majority instead mistakenly applies its conclusion to the past election. The majority not only changes the rules after the fact, it also silences 19,907 voters and strips away respondent’s victory. For reasons that follow, I respectfully dissent.

I.

The residency requirement has been a part of the State’s Constitutions since 1776. In the modern Constitution of 1947, the *80restriction appears at Article IV, Section 1, Paragraph 2, and reads in part as follows:

No person shall be a member of the General Assembly who shall not have attained the age of twenty-one years and have been a citizen and resident of the State for two years, and of the district for which he shall be elected one year, next before his election.
[ (emphasis added).]

The provision is designed to protect important interests: to prevent carpetbagging; to allow voters to become familiar with a potential candidate; and to allow the candidate adequate time to become familiar with issues important to area voters. See Callaway v. Samson, 193 F.Supp.2d 783, 787 (D.N.J.2002); Robertson v. Bartels, 150 F.Supp.2d 691, 696 (D.N.J.2001).

That said, the residency requirement raises serious questions, particularly in light of the reapportionment process. Because of the seminal one-person-one-vote decision in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), New Jersey’s district boundaries for State Senate and General Assembly are reviewed every ten years. See also Jackman v. Bodine, 43 N.J. 453, 205 A.2d 713 (1964). As part of the reapportionment process, various towns are moved to different districts to ensure an equal voice for all who possess the right to vote. As a result, voters, incumbents, and potential candidates can be moved from one district to the next once each decade.

The census is conducted at the start of the decade, most recently in 2010. After the results are final, the State’s Apportionment Commission meets to redraw district boundaries. See N.J. Const, art. IV, § 3, 11111-2. Because that process is not completed until early in the year of an election for State Senate and General Assembly, see id., no one residing in a town that has been moved into a new district will have lived there for a full year by the time of the fall election. This past year, the Apportionment Commission completed its work in early April 2011, only about seven months before Election Day. Matt Friedman, “Redistricting Commission Approves Democratic-Proposed Legislative Map,” *81NJ.com, (Apr. 3, 2011), http://www.nj.com/news/index.ssf/2011/04/ redistricting_eommittee_approv.html.

United States District Judge Dickinson R. Debevoise recognized those concerns when he struck the residency requirement in 2001 in Robertson. He noted that “the precise boundaries” for Assembly districts “are subject to periodic revision” every ten years to “meet one-person one-vote requirements and other constitutional and statutory mandates.” Robertson, supra, 150 F.Supp.2d at 697, 699. Under such circumstances, he found the reasons advanced by the State to justify a one-year residency requirement “uneompelling” and “insubstantial[ ].” Id. at 697. In his judgment, “[i]t requires a considerable stretch of the imagination to find that when a person moves from one district to another”—or in some eases, across the street—“it requires a year to prevent ‘carpet bagging1, to enable the person to become familiar with the new district and for the voters to recognize the new resident of the district.” Ibid.

The past cycle demonstrates the real-world consequences of the redistricting process. In 2011,190 municipalities were moved into new districts. Compare Robert Lupp, Congressional and Legislative Districts For New Jersey Municipalities: An Alphabetical Listing (2001) (identifying municipalities in each legislative district for 2001-10), with New Jersey Legislature-Districts by Number, http://www.njleg.state.nj.us/districts/districtnumbers.asp (last visited Feb. 8, 2012) (same for 2011-20). In addition, parts of Jersey City and Newark, which are each divided into multiple districts, were also moved into new districts. Compare Fitzgerald’s Legislative Manual 210-11 (Skender-Strauss Assocs., ed. 2010) with Jersey City Legislative Districts, http://www.njelections.org/2011legislative-districts/jersey-eity-words.pdf (last visited Feb. 16, 2012); Newark Legislative Districts, http://www.njelections.org/ 2011-legislative-districts/newark-words.pdf (last visited Feb. 16, 2012). More than 2.1 million people live in the 190 localities moved into new districts by the most recent reapportionment. See Municipalities Sorted By Alphabetical Order, http://www.nj *82elections.org/2011-legislative-districts/towns-alpha.pdf (last visited Feb. 16, 2012). Thousands more live in the redistrieted areas of Jersey City and Newark.1

In other words, redistricting affected more than one-third of New Jersey’s 566 towns. As a result, not a single adult resident in roughly one-third of the State’s localities could run for the General Assembly, or vote for a neighbor who wanted to run, under the strict terms of the residency requirement. Yet none of those individuals relocated to a new area, are less familiar with the issues where they continue to live, or are less well-known to their neighbors.

The majority overlooks those concerns in finding the residency requirement constitutional. It relies in part on United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697, 707 (1987), which stated in dicta that to prevail on a facial challenge “the challenger must establish that no set of circumstances exist under which” a statute “would be valid.” See ante at 46-48, 40 A.3d at 693-95.

This Court recently relied on Salerno in rejecting a facial constitutional challenge to a tax statute. Whirlpool Props., Inc. v. Dir., Div. of Taxation, 208 N.J. 141, 176-77, 26 A.3d 446 (2011). In that case, plaintiff raised a challenge under the federal due process clause and the commerce clause, not the equal protection clause. Id. at 150, 26 A.3d 446. The Court, tracking Salerno, noted that a tax statute “is not facially unconstitutional if it operates constitutionally in some instances.” Id. at 175, 26 A.3d 446 (internal citation and quotation marks omitted).

At the time, this Court acknowledged criticism of Salerno. Id. at 175-77, 26 A.3d 446. In City of Chicago v. Morales, 527 U.S. 41, 55 n. 22, 119 S.Ct. 1849, 1858 n. 22, 144 L.Ed.2d 67, 79 n. 22 (1999), for example, the United States Supreme Court noted that *83“[t]o the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court, including Salerno itself____” More recently in United States v. Stevens, U.S. -,-, 130 S.Ct. 1577, 1587, 176 L.Ed.2d 435, 446 (2010), the Supreme Court declined to decide whether Salerno or another standard—whether a statute lacks any “plainly legitimate sweep”—should apply to a typical facial challenge. (Quoting Washington v. Glucksberg, 521 U.S. 702, 740 n. 7, 117 S.Ct. 2302, 2305 n. 7, 138 L.Ed.2d 772, 781 n. 7 (1997) (Stevens, J., concurring in judgments)). The latter standard stems from Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830, 842 (1973), in which the Supreme Court explained that “where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”

Last month, the Tenth Circuit carefully reviewed Supreme Court precedents and concluded that “[t]he idea that the Supreme Court applies the ‘no set of circumstances’ test to every facial challenge is simply a fiction, readily dispelled by a plethora of Supreme Court authority.” Doe v. City of Albuquerque, 667 F.3d 1111, 1124 (10th Cir.2012) (citing twelve cases).

Salerno’s role in equal protection eases is even less clear. The United States Supreme Court has considered equal protection challenges without applying Salerno, see Berkley v. United States, 287 F.3d 1076, 1090 n. 14 (Fed.Cir.2002) (recognizing that “in equal protection eases involving facial challenges, the Supreme Court has thus far not discussed or applied the Salerno test”), and the Federal Circuit has questioned whether Salerno applies to an equal protection analysis, see id. at 1090; see also Stuart Buck, Salerno vs. Chevron: What To Do About Statutory Challenges, 55 Admin. L. Rev. 427, 453 n. 165 (2003) (warning that “[o]ne should be careful not to confuse the Salerno test ... with the level of scrutiny required under the Equal Protection Clause____Though *84the two doctrines may be coterminous to some extent—a showing that there is a rational basis for a law may well go hand in hand with a showing that the law has at least one valid application— they remain distinct doctrines with different purposes”). But see H.B. Rowe Co. v. Tippett, 615 F.3d 233, 243 (4th Cir.2010) (explaining that plaintiff alleging statute violates equal protection clause must show that there are no circumstances under which it would be constitutional); Giusto v. INS, 9 F.3d 8, 10 (2d Cir.1993) (same).

That debate aside, the scope of the residency requirement during redistricting years suggests that it might not survive intermediate scrutiny. That standard is consistent with Matthews v. City of Atlantic City, 84 N.J. 153, 417 A.2d 1011 (1980), and is considered at length in the majority’s opinion. See ante at 49-55, 40 A.3d at 695-99.

To withstand review under intermediate scrutiny, a law must “serve important governmental objectives and must be substantially related to achievement of those objectives.” Chamber of Commerce v. New Jersey, 89 N.J. 131, 158, 445 A.2d 353 (1982); see also Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 1914, 100 L.Ed.2d 465, 472 (1988); Contractors Ass’n of E. Pa., Inc. v. City of Philadelphia, 6 F.3d 990, 999 n. 9 (3d Cir.1993) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090, 1098 (1982)). In the context of an election law case, this Court has held that “a requirement or restriction for candidates for elective office must be reasonably and suitably tailored to further legitimate governmental objectives.” Matthews, supra, 84 N.J. at 169, 417 A.2d 1011 (emphasis added).

When a law infringes on the rights of all voting-age residents in more than a third of the State’s localities, for no apparent legitimate purpose, is the law’s sweep too broad to be constitutional? 2 *85Here, can it be said that the residency requirement not only “serves important governmental objectives” but is also “substantially related” to achieving those objectives when it diminishes the voting rights of residents in 192 towns in redistricting years, even though concerns about carpetbagging do not exist? See Chamber of Commerce, supra, 89 N.J. at 158, 445 A.2d 353. Is such a restriction suitably tailored to achieve its aims? See Matthews, supra, 84 N.J. at 169, 417 A.2d 1011.

In light of the above facts, I do not agree that the residency requirement imposes “a minimal burden” on voters that is tailored to advance the State’s interests. See ante at 60, 78, 40 A.3d at 702-03, 713. It is also not clear that the restriction can be saved by as-applied challenges that a quarter of the electorate could bring. See id. at 63-64, 40 A.3d at 704-05.

Because the problematic part of the residency requirement is how it is applied during redistricting years, judicial surgery might resolve the constitutional dilemma. See Comm, to Recall Robert Menendez from the Office of U.S. Senator v. Wells, 204 N.J. 79, 129-30, 7 A.3d 720 (2010) (applying judicial surgery to eliminate constitutional and statutory provisions pertaining to recall of United States Senators but leaving laws in effect for state and local officials); see also State v. Notale, 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. *86320, 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).”). The better course might be to strike the residency requirement insofar as it applies to people who have been moved out of their home district through the reapportionment process, but otherwise leave the restriction intact.

For today’s purpose, though, I believe it is not necessary to resolve those difficult questions. Indeed, differing views about the constitutionality of the residency requirement are not at the heart of this case because even if the residency requirement is constitutional, it should not apply to the past election. Equity and federalism demand otherwise.

II.

The Law Division found the residency requirement constitutional and enjoined Mosquera from taking the oath of office on January 10, 2012. The Appellate Division stayed that order in response to Mosquera’s emergent application. The appellate panel believed that Mosquera had demonstrated a likelihood of success on her claim that the trial court’s decision “should be given prospective effect only.” I agree.

The traditional analysis for deciding whether a ruling in a civil matter should apply retroactively or prospectively turns initially on whether the decision establishes “a new principle of law.” Coons v. Am. Honda Motor Co., 96 N.J. 419, 427, 476 A.2d 763 (1984) (Coons II) (citing Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296, 306 (1971)).3

*87That paradigm does not entirely fit given the unique circumstances of this case. The majority’s determination here is not a “new” rule in the ordinary sense because the residency requirement has been a part of the State’s Constitution since 1776. Yet for nearly a decade, ever since a federal court held the restriction unconstitutional, the provision has not served as an operative rule of law. The framework in Coons II, therefore, is not a perfect fit, but it offers a helpful starting point in the analysis.

Coons II quotes the three-factor test the United States Supreme Court outlined in Chevron:

First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed.... Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history or the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” ... Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.”
[Ibid, (quoting Chevron, supra, 404 U.S. at 106-07, 92 S.Ct. at 355, 30 L.Ed.2d at 306) (alterations in original).]

Starting with the first factor, Robertson established a principle of law upon which candidates for office could reasonably rely for a decade: that the residency requirement is unconstitutional and would not be enforced against them. The district court did not simply rule on the legal issue before it. The court instead imposed a broad injunction barring the Secretary of State and the Attorney General from enforcing the residency provision.

The majority, without a proper basis, does not consider the federal court’s injunction in its Coons II analysis, despite the vital role that injunction has played for a decade. See ante at 67-68, 40 A.3d at 707. The injunction was not narrowly worded. Just the opposite, it addressed the two key players responsible for enforcing the State’s election laws. And even now, despite the majority’s ruling, the injunction remains in place. The fact that private parties could bring a state lawsuit seeking to uphold the residency *88requirement did not undermine the scope or force of the injunction.

Of note, neither the Attorney General nor the Secretary of State appealed Judge Debevoise’s ruling. Instead, they chose to honor it as they have done for a decade. Also, neither has tried to reopen the issue in federal court since 2002. See Fed.R.Civ.P. 60(b)(5) (providing grounds for relief from final judgment or order when “applying it prospectively is no longer equitable”).

That the injunction has been in place for ten years also favors prospective application. The law has been so clearly entrenched that for the past ten years the Attorney General’s Office “has advised people”—including candidates—that “you can be a candidate without the one-year residency restriction.”

To say that the residency requirement has not been questioned in the state court system, or that Robertson is from a separate, parallel jurisdiction, misses the mark. See ante at 69-70, 40 A.3d at 708. Those points ignore the reality of the past decade: that the residency requirement, in theory and practice, has been unconstitutional and unenforceable.

Petitioner argues that Mosquera could have filed a declaratory judgment action before the election. But why would any reasonable person armed with a binding order from federal court litigate the very question that has already been decided in her favor?

Petitioner also maintains that there is no evidence Mosquera relied on Robertson when she decided to move to the District or to run for office. As discussed below, the former claim is true; Mosquera testified that she did not intend to run for office when she moved. But the latter claim is belied by the facts. Mosquera, like every candidate for General Assembly throughout the State, could reasonably rely on the state of the law after Robertson, and her behavior throughout her candidacy, discussed below, reveals that she did.

*89Because the majority’s decision in effect overrules clear past precedent on which litigants could rely, the first Coons II factor weighs in favor of prospective application.

The second factor looks to the purpose and effect of the rule. In this case, the State’s interests are to ensure that a candidate has sufficient time to be familiar with issues of concern to area residents and to allow the electorate time to become familiar with the candidate. Mosquera, of course, falls roughly seven weeks short of the one-year residency requirement, but that fact does not end the inquiry.

According to the record, Mosquera has lived in New Jersey since age three or four. She grew up in Union City and attended college at Seton Hall University and The College of New Jersey. Afterward, she lived in Hamilton, North Bergen, Deptford, and Maple Shade. She entered into a contract to purchase a home in Blackwood—a section of Gloucester Township in the Fourth Legislative District—on November 13,2010, closed on the property on December 29, 2010, and moved in a day or two later. She registered to vote in the District on February 24, 2011 and has voted there since.

After college, she worked in Trenton for about five years in the Assembly Democratic Office, and later as director of policy for a Member of the Assembly in the Fifth Legislative District. Starting January 4, 2010, and through the date of her testimony at a hearing in this matter on December 19, 2011, she has worked in the mayor’s office for Gloucester Township, within the District. The trial judge, in a comprehensive and thoughtful written opinion, found that “[tjhrough the course of her employment, she comes in contact with the residents of Gloucester Township on a daily basis, and thus is familiar with the people and issues in the Township.”

The trial judge also found that Mosquera did not move to the District with the intent to run for office. Rather, she decided to run in 2011 when an incumbent chose not to seek reelection. Mosquera testified that she met with thousands of residents while *90campaigning almost every weekday night and on weekends, as she knocked on doors in a majority of the district’s towns, handed out literature, attended events in the community, and held two fund-raising events. She also promoted her campaign through mailers, television advertising, and telephone calls to voters.

Mosquera’s two years of work in the district, her residency for more than ten months, and her campaign efforts do not raise the specter of a true carpetbagger who is unfamiliar with the election district and unknown to the voters.

The third Coons II factor—whether retroactive application of a decision will produce substantial inequitable results—weighs strongly in favor of applying the majority’s ruling prospectively.

It is helpftd to consider the events in sequence. As discussed above, from the first moment anyone contemplated running for General Assembly in 2011 through Election Day that November, the residency requirement was subject to a federal injunction that declared the prohibition unconstitutional and enjoined the Secretary of State and Attorney General from enforcing it.

Mosquera signed a nominating petition to run for office on April 11, 2011. The standard form was prepared by the New Jersey Division of Elections, which is part of the Office of the Secretary of State. Because the document was not produced at the trial court and Mosquera was not questioned about it, I rely only on certain pre-printed language. In bold print, the form lists “CANDIDATE QUALIFICATIONS” as follows:

ACCORDING TO N.J. CONST. ART. IV, SEC. 1, PAR. 2, CANDIDATE FOR THE OFFICE OF NEW JERSEY GENERAL ASSEMBLY MUST: BE 21 YEARS OLD BY THE DAY [ ] HE/SHE IS SWORN INTO OFFICE BE A CITIZEN AND RESIDENT OF THE STATE FOR TWO YEARS BY THE DAY OF ELECTION BE A LEGAL VOTER BY THE DAY THE PETITION IS FILED

Consistent with Robertson, the list of qualifications for office makes no reference to the one-year residency requirement in the State Constitution. A reasonable interpretation of the form conveys that no such restriction applies.

*91Next, the Secretary of State certified Mosquera to run in the primary. She campaigned in that race and won in June 2011.

The Secretary then certified Mosquera to run in the general election. Mosquera campaigned in the manner described above and won election in November 2011 with the second-highest number of votes, 19,907. Petitioner finished in third place with 14,351 votes. The Secretary then certified the election results.

At each step of the process, Mosquera abided by the rules in place, as certified by the Secretary of State. Whether the Secretary knew that Mosquera resided in the Fourth District for less than a year or not, the Secretary was enjoined from enforcing the residency requirement.

Petitioner challenged the results of the election within thirty days, consistent with N.J.S.A. 19:29-3. In evaluating the equities presented, though, it is noteworthy that she did not act when she heard in June 2011 that Mosquera did not meet the residency requirement. Petitioner testified that she did not have the money or resources to bring a lawsuit then, but she also concedes that she is not paying for counsel in the present case.

The interest of the voting public also weighs heavily in favor of prospective application of the majority’s ruling. This Court’s case law is replete with reminders that voters have a right to choose for whom to vote on Election Day, and that their will should not be thwarted lightly. In Gangemi v. Rosengard, 44 N.J. 166, 170, 207 A.2d 665 (1965), Chief Justice Weintraub traced the history of the right to vote and emphasized that it “would be empty indeed if it did not include the right of choice for whom to vote.” Years later in Catania v. Haberle, 123 N.J. 438, 448, 588 A.2d 374 (1990), Chief Justice Wilentz explained “that this Court has traditionally given a liberal interpretation to [election laws], ‘liberal’ in the sense of construing [them] to allow candidates to get on the ballot, to allow parties to put their candidates on the ballot, and most importantly to allow the voters a choice on Election Day.” Chief Justice Warren offered similar thoughts in Reynolds, supra, 377 U.S. at 555, 84 S.Ct. at 1378, 12 L.Ed.2d at 523, when he declared *92that “[t]he right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” The law does not preclude appropriate eligibility requirements, but they cannot be imposed after-the-fact.

19,907 voters expressed their choice on Election Day when they cast a ballot for respondent. Because the majority applies its decision retroactively, those voters will be disenfranchised. The possibility that Mosquera may be reinstated by members of her political party, under N.J. Const, art. IV, § 4, 111, and N.J.S.A. 19:27-11.2, does not change that fact. The voters did not choose party officials to select a legislator for them last November.

Balancing the equities, Mosquera followed the applicable rules throughout the process. She was not required to abide by a restriction that had been stricken a decade ago. Had anyone confronted her with a copy of the residency requirement mid-campaign, she could have proceeded with the knowledge that an injunction prevented the State’s responsible election officers from applying the restriction to her. The authorities in fact validated her official submissions in accordance with all pending rules. And the public made its decision known at the polling booth.

When the interests of justice so require, it is proper to give this Court’s rulings prospective effect only. See N.J. Election Law Enforcement Comm’n v. Citizens to Make Mayor-Council Gov’t Work, 107 N.J. 380, 387, 526 A.2d 1069 (1987). To tell a winning candidate, whose election has been certified, that the rules have changed after the fact is inequitable to her. To annul the election is to disenfranchise 19,907 voters and raise questions about whether their constitutional right to vote has been denied. Therefore, under the unique circumstances of this case, the majority’s decision cannot be applied retroactively.

III.

There are now two competing interpretations of the residency requirement. This Court has ruled it is constitutional, yet the *93federal district court’s contrary decision and injunction remain in place. That is so because “a final federal court judgment based on federal law cannot be collaterally attacked by a state court.” Del. Valley Citizens’ Council for Clean Air v. Pennsylvania, 755 F.2d 38, 45 (3d Cir.), cert. denied, 474 U.S. 819, 106 S.Ct. 67, 88 L.Ed.2d 54 (1985). As the Third Circuit explained in Delaware Valley, “there is a clearly established rule that state courts must give full faith and credit to the proceedings of federal courts.” Id. at 43 (relying on U.S. Const, art. IV, § 1) (citations and internal quotation marks omitted). When a federal court renders a judgment or enters a decree under a federal statute or the United States Constitution, “that decision is ‘final until reversed in an appellate court, or modified or set aside in the court of its rendition.’ Id. at 44 (citation omitted). In other words, the Secretary of State and the Attorney General are still subject to a federal injunction that bars them from enforcing the residency requirement, yet they are expected to enforce the majority’s ruling as well.

The majority recognizes that untenable situation and encourages the parties to take appropriate action in federal court. See ante at 38, 77, 40 A.3d at 689, 712-13. Based on representations at oral argument, it would not be surprising if today’s opinion results in an emergent filing in federal court and leaves the Fourth Legislative District seat at stake unfilled.

I believe that prospective application is compelled by the facts of this ease and the applicable law. In addition, as a matter of comity and respect for a pending federal injunction, a prospective ruling would avoid an immediate, direct clash and a race to the federal courthouse. The competing decisions could have been resolved in a more orderly manner in due course—an approach that would have inured to the benefit of the voters.

IV.

In all spheres of life, it is wrong to change the rules after the game has ended. A party who plays by the rules in place—and *94wins—has earned a victory she is entitled to keep. Because today’s ruling deviates from that elementary principle of fairness, I respectfully dissent.

For reversal—Chief Justice RABNER and Justices LONG and ALBIN—3.

For affirmance—Justices LaVECCHIA, HOENS,

PATTERSON and Judge WEFING (temporarily assigned)—4.

New Jersey's total population as of the most recent census was 8,791,894. U.S. Census Bureau, New Jersey QuickFacts From the U.S. Census Bureau, http:// quickfacts.census.gov/qfd/states/34000.hml (last visited Feb. 16, 2012).

In the context of the First Amendment, the United States Supreme Court "recognizes 'a second type of facial challenge/ whereby a law may be invalidated as overbroad if 'a substantial number of its applications are unconstitutional, *85judged in relation to the statute's plainly legitimate sweep.' ” Stevens, supra, U.S. at-, 130 S.Ct. at 1587, 176 L.Ed.2d at 446-47 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n. 6, 128 S.Ct. 1184, 1191 n. 6, 170 L.Ed.2d 151, 161 n. 6 (2008)). Although the overbreadth doctrine does not apply here, the sweep of the restriction bears on whether it is suitably tailored to attain its objectives.

Although Chevron has been overruled, see Harper v. Va. Dep't of Taxation, 509 U.S. 86, 97-98, 113 S.Ct. 2510, 2517-18, 125 L.Ed.2d 74, 86-87 (1993), this Court has continued to apply Coons II. See Cox v. RKA Corp., 164 N.J. 487, 514, 753 A.2d 1112 (2000).