updated 9/15/2004 6:31:51 PM ET 2004-09-15T22:31:51

A federal judge refused Wednesday to order a special election to replace Gov. James E. McGreevey, who announced last month that he was gay and would step down Nov. 15.

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U.S. District Judge Garrett E. Brown Jr. dismissed a lawsuit that claimed that McGreevey had effectively created a vacancy by announcing his resignation. Brown said there was no vacancy to fill because McGreevey had not left office.

“He clearly intends to hold office until Nov. 15, 2004. The requirement of holding a special election does not arise. The rights of registered voters are not being violated,” Brown said.

The lawsuit, filed by two Princeton lawyers, argued that by staying in office until there was not enough time to schedule a special election, McGreevey was depriving voters of their constitutional rights.

McGreevey called a news conference last month to say he had had an extramarital affair with a man and would resign.

Under state law, if McGreevey had left office before Sept. 3, a special election would have been called for Nov. 2. But now, Senate President Richard J. Codey, a fellow Democrat, will succeed McGreevey as acting governor until the term expires in January 2006. The state has no lieutenant governor.

In his ruling, Brown detailed definitions of the word “vacancy,” using several types of dictionaries. Under every definition he could find, the state has no vacancy because McGreevey has not left office, Brown said.

Bruce Afran, one of the lawyers who filed the lawsuit, said he would argue again in state Supreme Court that the state was violating the public’s right to vote for a replacement.

“I am quite shocked that a U.S. district court judge decides a dictionary is more important than the United States Constitution,” Afran said afterward.

Assistant Attorney General Stefanie Brand said Brown’s decision appeared to be final.

“I thought it was clear and logical,” Brand said.

McGreevey has not changed his plan to resign and was pleased by the ruling, said Micah Rasmussen, his spokesman.

“We appreciate the judge’s thoughtful decision,” Rasmussen said.

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