Posted on 10/02/2002 4:55:45 PM PDT by Timesink
SO WHAT'S THE LAW NOW IN NEW JERSEY? OK, say that on October 31 a Socialist Party candidate for the State Senate drops out, and the Socialist Party wants to replace him with someone else. Maybe they're seeking a tactical advantage -- the attempt will get them some free publicity -- though I doubt that the advantage will generally be that great. Or maybe their current candidate eats tainted Halloween candy or dies or has a nervous breakdown, and they genuinely want to substitute someone else.
Do they win or lose? My first reading of the New Jersey statutes (19:13-20) suggests that they should lose, because a substitution can be made only "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." But that's not true any more, because the New Jersey Supreme Court held that this statute "does not preclude the possibility of a vacancy occurring within fifty-one days of the general election" (surely a wording error on the Court's part by the way -- no statute can preclude the possibility of a vacancy; they mean that it doesn't preclude the possibility of substitution).
OK, so they win -- and thus they get an injunction mandating "The printing of the general election ballots with the substitution of the new candidate's name for that of [the old candidate]" and "A direction to defendant County Clerks that the substitution of the new candidate's name . . . be made on all ballots, whether absentee, military, provisional, emergency, voting machine, ballot card, or otherwise." Can that be right? It's October 31; the election is in 5 days; the absentee and military ballots have been mailed out; it will likely cost the taxpayers hundreds of thousands of dollars to implement the substitution. Surely that's not possible.
Well, then, they lose for the obvious reason: They're the tiny Socialist party, and have no chance of winning -- why waste all this money or effort over nothing? But I highly doubt that this is the rule of law that the New Jersey Supreme Court ought to create, or will be seen as having created. Some discrimination in favor of major-party candidates may sometimes be constitutionally permissible, but I doubt it will be permissible here; and even if it is permissible, it seems hardly sound. What if the third-party candidate had a decent chance of winning? What if he had a small chance, but bigger than the Socialists? Or what if it was the Republican candidate, and not the Socialist one, that had dropped out? (See also Patrick Ruffini's take on this.)
What about the other obvious reason? It's October 31, only 5 days before the election. But what if this had happened on October 10 or October 20? In elections, knowing the firm cut-off date is pretty important, in part because you want clear rules that guide judges, and diminish the risk that the decision will be a result of political bias. I suspect that most New Jersey election lawyers thought they knew it -- 51 days before the election. Now that's no longer the cut-off, but the New Jersey Supreme Court didn't produce any substitute cut-off. All it said is that "the central question" is whether "the dual interests of full voter choice and the orderly administration of an election can be effectuated if the relief requested by plaintiffs were to be granted," and in this case, for this candidate and this year and this day, it said the answer was "yes." What would the answer be on October 10, 20, or 31? We don't know.
Now I suppose the decision could have come out in favor of allowing the substitution and still provided some guidance. I think allowing any substitution after 51 days before the election would be an odd interpretation of the statute, but not an utterly ridiculous one; one could argue, as some have, that the statute merely provides that certain things may be done if a vacancy "occurs not later than the 51st day before the election," and doesn't provide the exclusive mechanism for substitution. Unfortunately, the New Jersey Supreme Court hasn't set forth its reasoning, so it's hard to tell whether the reasoning is sound; but let's assume that it is.
The court could have, if it felt entirely unbound by the statute, set forth a clear test. It could have, for instance, said that a substitution is permitted until the day that at least some ballots have been printed -- though this would apparently have led to the opposite result here, since ballots with Torricelli's name have already gone out to military absentees. Or it could have said that a substitution is permitted until the day that the regular absentee ballots have been mailed out (though apparently at least a few have been). Or I assume it could have come up with something else.
But the Court didn't do that. The only thing remotely approaching a legal rule that comes out from this decision is that other courts must presumably likewise ask "the central question" whether "the dual interests of full voter choice and the orderly administration of an election can be effectuated if the relief requested by plaintiffs were to be granted." Is this a standard that we think judges can fairly apply in future election cases, cases which might be similarly politically laden? Or might the old 51-day bright-line rule, with all its flaws, have been better after all?
What ever THE SOPRANO COURT wants it to be!!! (wish I could take credit for that gem, but can't.)
It's whatever the Socialists say it is!
There was a time, in this country, when a judge who handed down an obviously asinine decision in the interest of achieving a transparently corrupt end, did so at the risk of being tarred and feathered in the public square.
They didn't hand down as many asinine and corrupt decisions, back then.
On the subject of timely mailing of absentee ballots:
A quick read of this shows that based on a 1973 election statute, the U.S. Justice Dept has generally considered that there must be a minimum of 35 days between from when ballots become avaiable and election day, so that military personnel overseas can get their ballots in on time. For NJ, that has already been passed.
However, if a remedy were to be ordered, probably what would happen, is that the federal courts would mandate that overseas military ballots be counted if they arrive within 10 days after the election.
The now-famous Florida 10-day add-on came about as a result of a DOJ lawsuit in 1980, because Florida was having a hard time getting its absentee ballots printed and mailed on time (Apparently, electorally incompetence is something of a tradition down there!). Adding the 10 days gave them time to meet the 35-day "rule."
Interestingly, Georgia has a state mandated 45-day rule, which, because they failed to get the ballots out two weeks ago, has resulted in a just-initiated DOJ v. State of Georgia lawsuit. Maybe next they'll sue NJ!
The principle behind this is that in Federal elections, the DOJ has a strong precedent of demanding that states follow their own statutory rules with precision.
RIGHT! What a boneheaded and wrong decision!!!
Me too, seat belts, non-smoking buildings, look out N.J., you're about to have a population explosion!!
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