Battle for the US senate. Repeat of 2000 fiasco? NJ SC to intervene.

[MBD]

This might explain it ---

As Princeton's Robert P. George has pointed out elsewhere ..., this New Jersey court has garnered a well-deserved and infamous reputation for decisions that are well outside the mainstream. If previous examples of judicial temperament weren't enough to indicate the direction of the court in this case, a brief perusal of campaign-finance reports also provided court watchers with some additional insight. Justice James Zazzali gave $1,000 to Torricelli's present campaign, and he and his wife contributed $2,500 in previous years to Torricelli and his PAC. Justice Zazzali also contributed $1,000 to Lautenberg's 1994 campaign. Justice LaVecchia's husband gave $2,000 to Torricelli's current campaign, and Justice Long's husband gave $250 to Torricelli's 1996 campaign. Then there is Justice Albin, who was confirmed and privately sworn into the court three weeks ago, and was rushed into office so quickly that his public oath ceremony didn't occur until the day after the Torricelli case was decided. Justice Albin contributed $1,000 directly to Torricelli's current campaign, and gave another $500 to a PAC which in turn contributed $2,000 to the Torch. He also contributed $1,500 to Torricelli's 1996 campaign, and $500 Lautenberg's 1994 campaign. I'd mention recusal, but that seems beside the point now.

from another site

[uh Clem]

Why doesn't Torricelli simply back-date his withdrawal to 51 days prior?

That's basically what Katherine Harris did in Florida.

[DanS]

"Consider what effort Forrester had put into attacking Torriceli has now gone to waste."

This is exactly what I don't agree with. Forrester's choice to attack Torricelli instead of building up his own credentials on the issues is entirely his own.

If Forrester had 5 weeks of commercials in the can saying what he believes in, he wouldn't be afraid of fighting Lautenberg.

[DinoDoc]

Originally posted by DanS
So if nobody will be harmed, wouldn't you agree that a fuller ballot is at least justifiable?

Are there no third party candidates on the ballot? The Torch for all intents and purposes took his party out of the election. I fail to see how the Democrats can seek redress for that.

[Ned]

The decision of the NJ Sup. Ct. would make a lot of sense if this democracy were indeed a constitutional two party system and the candidates were appointed by the parties. There is nothing at all, however, holy about the Demcratic Party. It does not have a divine right to have a candidate on the ballot.

If we want to fix things the way the NJ Sup. Ct. sees things, the ballot should simply read Democratic Party Candidate. We really don't even need to know who that person is, because the choice is not between duly nominated candidates, but between the Democrat Party candidate and those nominated by the people during the primary.

The Supreme Court of the United States has to take this case to once again declare the Democrats to be the cheaters they are.

[Imran Siddiqui]

I agree with Ned!

How did that happen?!

Like he said, there is no rule that both major party candidates must be on a ballot.

[rah]

Yep, In Chicago that happens all the time. Most republicans don't even bother to run in local elections, since, even on a good day, they're not going to get more than 10% of the vote.

[Ming]

The republican primaries in Chicago are even funnier.

If a guy gets about 10 votes, he can usually be the Republican candidate for alderman in his ward... not that he would ever be elected, but sometimes people with strange names sign up as a lark just to see their name on the ballot.

[The Mad Monk]

Just to add a 'national' spin to this...

There are currently eight Senate elections that are considered close; the DNC has nowhere near the required funds to cover them all.

...they have to pay how much just to get Lousenberg on the ticket?

[joseph1944]

Originally posted by uh Clem
Why doesn't Torricelli simply back-date his withdrawal to 51 days prior?

That's basically what Katherine Harris did in Florida.

What Katherine did in Florida was follow the state law to the letter. The state law said if the count is close do a re-count by machine only. She did. Bush still won. The demo wanted a hand count, counting dimple, pimple, indent, mark on the card. She said no inaccordance with state law. The Florida Sup court said do it the demo way.
The US Sup Court said that is a violation of federal law and stopped it.
BTW after the Newspapers did the hand recount, Bush still won with just under 300 votes.
Then the papers did the recount the Demo way and Gore won by around 350 give or take a few.
And for the record, I was a register Demo from 1965 to 1998.
In 98 I switch to the Rep party. However I alway vote for the person no matter what party they are in. I should be a Independent.

[Lincoln]

Here is an interesting legal opinion from the findlaw website:

REWRITING THE NEW JERSEY BALLOT:
Some Preliminary Issue Spotting
By AKHIL REED AMAR AND VIKRAM DAVID AMAR
----
Friday, Oct. 04, 2002

This Wednesday, the New Jersey Supreme Court ordered election officials to replace Robert Torricelli's name on the November statewide ballot for United States Senator with that of Frank Lautenberg. What should observers make of the court's decision and the surrounding legal and political issues? In the grand tradition of law school exams, where students are given an interesting fact pattern and a short deadline, we will try to "spot" some of the major issues and provide some preliminary analysis.

Why All of the Democrats' Nonlitigation Alternatives Were Seriously Flawed

Issue 1: What options, other than filing suit to get new ballots printed up, did the Democrats have, and were those options attractive?

Democratic leaders had a few alternatives, but each of them was flawed. First, the Democrats could have left Torricelli's name on the ballots, but then waged a major write-in campaign to get Democratic voters to pencil in Lautenberg as their choice.

The problem with this strategy is the very real possibility that Republican candidate Douglas Forrester might win more votes than any other candidate and thus win the election even if most New Jerseyans were to vote Democrat.

For example, suppose a vigorous write-in campaign convinced an overwhelming proportion – say, 90%–of Democratic loyalists to write in Lautenberg. Ninety percent seems like a high number, but it may well not be good enough.

Even if ninety percent of Democrats wrote in Lautenberg, that could still result in an election in which Forrester gets, say, 48% of the vote, Lautenberg gets, say, 47%, and Torricelli gets another 5%. Together, Lautenberg and Torricelli would have many more votes than Forrester (and more than half the total votes), but under each state's election law, it is the person, and not the party, with the most votes who wins–in this realistic hypothetical, Forrester.

This dilemma for the Democrats might be mitigated if a single-transferable voting system – a system we explained in our May 3rd column – were used, so that Torricelli voters could register their second-place preference (which would more likely be Lautenberg than Forrester). Those Democrats who prefer Torricelli to Lautenberg might still prefer Lautenberg to Forrester, and would be allowed to register that second-choice preference, and have it count. If only half of the Torricelli voters chose Lautenberg as their second choice (and the other half were simply clueless voters who somehow didn't know that Torricelli had dropped out), this would still be enough to give Lautenberg more votes than Forrester in an STV system under the numbers we are assuming in our realistic hypothetical.

A second option for the Democrats would have been to leave Torricelli's name on the ballots and encourage all voters – even those who object to Torricelli's character – to vote for Torricelli on his promise that if elected, he would then resign his seat, which presumably would be given to Lautenberg by the Governor (who is a Democrat and who, under the Constitution, is empowered to fill Senatorial vacancies that occur post-election).

But this strategy also would have had its drawbacks. First, some voters may have trouble formally voting for a man they don't like. Second, this plan depends on Torricelli following through on his promise to resign. Chances are that he would do so, but there is no way to legally enforce such a promise. (And remember, Torricelli's character is not his strong suit these days.)

Constitutionally, there is no way for a state electorate to "recall" a Senator whom voters no longer want to represent them. (The Senate is of course empowered to expel miscreant members–just ask Bob Packwood–but most Senators might think twice, and even thrice, before tossing out someone who formally won the election and then broke a "campaign promise.")

Finally, even if Torricelli were to honor his promise and the Democratic Governor were to follow through by tapping Lautenberg, Mr. Lautenberg would occupy the seat only temporarily, not for a full six-year Term. The Democrats would thus be obliged to run again, and win, in a second, special election in order to retain the seat for the full six-year term.

This is why U.S. Senator Jean Carnahan from Missouri must run in a special election this year. In mid-October 2000, her husband Mel, the official Democrat on the Senate ballot, died in a plane crash. Democrats quickly huddled and told voters that if they voted for Mel, and he "won," the seat would go to his wife Jean, via a vacancy appointment from Missouri's Democratic Governor. But now Carnahan will have to defend her seat.

Questions About the Court's Application of New Jersey Law

Issue 2: Is the New Jersey Supreme Court's decision correct, or at least defensible?

The answer to this question, alas, turns on New Jersey law – not our area of expertise. But we do have some questions about what the state judges said and did.

The New Jersey statute at issue says two things: First, it states that "in the event of a vacancy, howsoever caused, among candidates nominated at primaries, which vacancy shall occur not later than the 51st day before the general election, . . . a candidate shall be selected" by the state party leadership. Second, it says that "a selection made pursuant to this section shall be made no later than the 48th day preceding the date of the general election."

Torricelli announced that he was dropping out later than 51 days before the general election. His replacement, Lautenberg, was named later than 48 days before the general election.

Accordingly, Republicans argued before the New Jersey Supreme Court that both the front end and the back end timelines of the statute were violated by the Democrats' request to put Lautenberg on the ballot. The court rejected that reading, however, holding that the statute did not foreclose reprinting the ballots, as the Democrats wanted, with Lautenberg's name.

Fair enough–we can imagine circumstances calling for new ballots after these deadlines have passed. Indeed, in our September 6 column, we discussed the need to provide mechanisms for dealing with unforeseen events that take place shortly before an election is held. Speaking in the context of Presidential elections, for example, we have suggested that the death of a major party candidate, or the occurrence of a major terrorist strike, should trigger a delay in the election or some other kind of accommodation. So we are not against the idea of interpreting election law flexibly to deal with exigencies.

But the kind of triggering event here – a decision to drop out by a candidate who is down in the polls and fears losing – is hugely different from death (or physical disability) or a terrorist incident, the genuine exigencies we discussed in our earlier column.

The instinct to provide some extraordinary relief from an otherwise fixed election timeline in response to an extraordinary event makes sense. But the instinct simply does not seem to apply when the so-called extraordinary event is a cold, calculated political prediction of success (or for Torricelli, failure).

Indeed, as the science of polling becomes better and better, one could imagine more and more people making decisions like Torricelli's after they see the writing on the wall. Yet the New Jersey Court didn't seem at all to grapple with this parade of horribles.

It is true, of course, that the timeline apparently set up by the New Jersey statute is itself somewhat arbitrary. What is the real difference 51 days and 35 days, so long as both periods allow new ballots to physically be prepared? And shouldn't voters be presented with as much choice as possible, so long as the ballots can be made up in time for the election? This seemed to be the reasoning adopted by the New Jersey court, both at its hearing and in its (extremely brief) opinion explaining its order.

Perhaps a 51-day/48 day rule is arbitrary. But ANY time limit is going to be arbitrary, and yet SOME time limit is needed. At least the 51-day/48 day limit is arbitrariness that comes from an ex ante legislative decision, made behind a veil of ignorance about which party would be helped or hurt by its application in a given year.

The same cannot be said for flexible deviations from that time line by courts that are no longer behind that veil of ignorance. For these reasons, absent death or (non-political) disaster, we would be inclined to read the state statute less flexibly than did the New Jersey Justices.

Of course, if there were clear New Jersey caselaw already interpreting the statute more expansively, then Wednesday's decision would seem less aggressive. But if there is such authority, the New Jersey Supreme Court certainly didn't cite to it.

The only decision significantly relevant to the current controversy involved the death of a candidate – not a voluntary dropping out. And in that earlier case (in 1952), while the candidate vacancy occurred after the front-end time line mentioned in the statute had already passed, the replacement candidate WAS named before the back-end date provided for in the statute. Thus, the 1952 case seems quite distinguishable.

Here's another way to put our point. New ballots will cost around 800 thousand dollars. The court ordered the Democratic Party to pay this expense. But suppose a party didn't have the money–would it then not be entitled to new ballots in a similar circumstance?

Ordinarily, government pays for ballots, not private parties. (This was one of the major reforms introduced into America in the late nineteenth and early twentieth century.) In a plane crash, or other death situation, would the court impose the costs on one political party? If there is genuinely a public interest in new ballots, why shouldn't the public pay?

Conversely, if this request for a new ballot is really the "fault" of the Democrats–enough so that they and only they should in fairness pay for the new ballots–then isn't this payment order itself an implicit admission that this is, to some extent at least, a partisan request for partisan advantage?

Issue 3: Given all this, is U.S. Supreme Court review likely?

Along with many other law professors, we made all sorts of mistaken predictions in the run-up to Bush v. Gore. Much of what the Court did surprised–even shocked–many thoughtful commentators. So, we've learned our lesson: the Supreme Court, it seems, will do what it wants in highly charged cases. We have no inside information and make no predictions.

Legally, readers should remember that the Supreme Court sits to hear matters of federal law, not state law. In many situations, a mere claim that a state court has misapplied state law would not rise to the level of a federal claim.

But it's worth noting that that the same federal issue that initially caught the Court's eye in Bush v. Gore – namely, do state courts violate the Federal Constitution when they misinterpret state statutes in such a way as to deprive state legislatures of the power conferred on them in the Constitution?–is precisely what is being pressed by the Republican lawyers in DC right now.

Article I says that "state legislatures" shall prescribe the time, place and manner of U.S. Senate elections, just as Article II says that "state legislatures" shall prescribe the "manner" for appointing Presidential electors. If the Court thought the Florida judiciary was violating Article II in 2000 – at least 3, and perhaps as many as 5 Justices so believed – we wouldn't be shocked if the Court thought that Wednesday's ruling by the New Jersey court violates Article I.

Then again, after Bush v. Gore, it's hard to be shocked by anything the Court might do or not do.

http://writ.news.findlaw.com/amar/20021004.html

[joseph1944]

Originally posted by Lincoln
Here is an interesting legal opinion from the findlaw website:

REWRITING THE NEW JERSEY BALLOT:
Some Preliminary Issue Spotting
By AKHIL REED AMAR AND VIKRAM DAVID AMAR
----
Friday, Oct. 04, 2002

This is an outstanding piece of work. I read each and every word. If you are not a writer, think about it.

Joseph

[Lincoln]

I am a writer (in need of a good editor) but I didn't write that article. I copied it from the findlaw website. They are usually pretty good.

[uh Clem]

joseph1944, I wasn't referring to 2000 (that wasn't clear).

I'm talking about Harris's current run for the House of Representatives. Under Florida law, she was obligated to resign her position as Secretary of State by, um, can't remember the date now, but I think it was July 15th.

She didn't, and continued to carry out the duties of SoS for a few weeks, untill this was pointed out to her. She apologized and resigned retroactively, so to speak. She said that she was unaware of the law, an explanation that I find very credible.

[uh Clem]

BTW, breaking news...

...it turns out that Doug Forrester hasn't always been so persnickity about deadlines. His views have, uh, matured in the past 6 months.

Via Josh Marshall's Talking Points Memo weblog:

Senator Allen maintained that moving Mr. Forrester's name to Mr. Treffinger's place on the ballot would come too late under Title 19 of the state election law, which sets a deadline of 51 days before an election for ballot substitutions. It is the same argument that Mr. Forrester's lawyer, Peter G. Sheridan, made before the State Supreme Court on Wednesday, opposing Mr. Lautenberg's placement on the ballot. The Democrats said that the deadline was merely a guideline.

In April, Mr. Sheridan read the law the way the Democrats do today.

"Strict compliance to statutory requirements and deadlines within Title 19," Mr. Sheridan wrote, "are set aside where such rights may be accommodated without significantly impinging upon the election process."

(Quoted material from Sunday's NYT.)

Oops.