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Posted on 10/04/2002 9:15:32 AM PDT by Tumbleweed_Connection
WASHINGTON, Oct. 3 — Again?
Is it conceivable that not even two years after the United States Supreme Court brought the presidential election to a close with its 5-to-4 decision in Bush v. Gore, the justices would put themselves on the line again in a state election case that this time could determine control of the Senate?
That chance presented itself today in the form of an "application for emergency relief" filed at the court by the New Jersey Republican Party. The Republicans asked for a stay of the New Jersey Supreme Court's decision on Wednesday to permit former Senator Frank R. Lautenberg's name to appear on the Democratic ballot Nov. 5 in place of Senator Robert G. Torricelli's after the formal deadline for a ballot substitution had expired.
Psychoanalyzing the Supreme Court in the aftermath of Bush v. Gore was the second challenge confronting the Republicans' lawyers today as they scrambled to keep a potential Democratic winner from replacing an almost certain loser. The first challenge was a strictly legal one: persuading any justices who might be inclined to intervene in this state election law dispute that there is a plausible basis for the Supreme Court to assert its jurisdiction. And on that score, given what they had to work with, the lawyers probably did as good a job as anyone could.
The Supreme Court has jurisdiction only over questions arising under the federal Constitution and federal statutes. The Republican petition offered the justices a bit from both categories, including nods to constitutional due process and to a federal statute on absentee voting. Most creatively, the Republicans borrowed a concept from the three-justice plurality opinion in Bush v. Gore to the effect that a state legislature's word on the conduct of federal elections is final and cannot be supplanted or perhaps even supplemented by the state's courts.
"It's not an argument that before Bush v. Gore would have occurred to a lot of lawyers, but it's their best claim to make," Professor Richard H. Pildes, an election law expert at New York University Law School, said today.
The argument was more than a little audacious because, while in Bush v. Gore it had the support of Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas, it was pointedly not embraced by the other six justices — neither by the four dissenters who wanted the Florida recount to continue nor by Justices Sandra Day O'Connor and Anthony M. Kennedy.
Those two justices said the recount, ordered by the Florida Supreme Court, violated the guarantee of equal protection. The Rehnquist three reluctantly endorsed that conclusion to have a majority rationale for stopping the recount, but at the same time insisted that the equal-protection rationale would not apply to any other case beyond "the present circumstances."
The argument in Bush v. Gore that state courts have a sharply circumscribed role in interpreting state election procedures derived from the Constitution's Article II, which governs the presidency and provides that a state's presidential electors shall be appointed "in such manner as the legislature thereof shall direct."
In the New Jersey case, New Jersey Democratic Party v. Samson, the Republicans are invoking a similar phrase from Article I, which governs Congress. "The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof," Section 4 of Article I provides.
The Republicans' lawyers assert that "the same exclusive legislative authority obtains here," and therefore renders illegitimate the New Jersey Supreme Court's decision permitting Mr. Lautenberg's name to be on the ballot despite the expiration of a statutory deadline for making such substitutions. The New Jersey court's decision came two days after Mr. Torricelli withdrew his re-election bid, and the Democrats are expected to file their response on Friday.
"It's amazing how close" the parallel arguments are, said Professor Richard L. Hasen, an election law specialist at Loyola Law School in Los Angeles. "It shows that Bush v. Gore can rear its head in lots of ways that we can't anticipate. It's out there for everyone to use for their different purposes."
The New Jersey justices, ruling unanimously on Wednesday, said the expired deadline for ballot changes could be overlooked because the state's election laws should be "liberally construed" in favor of "a full and fair ballot choice for the voters of New Jersey."
The decision had distinct echoes of the Florida Supreme Court's unanimous decision on Nov. 21, 2000, which extended the deadline for counties that were conducting recounts of the presidential votes to transmit their election returns. As its "guiding principle," the Florida court said it wanted to honor the "will of the people" rather than fall back on "hypertechnical reliance upon statutory provisions" that would have made the late returns invalid.
One difference between the two cases is the point at which the Supreme Court's intervention is being sought. In Florida, the election had been held and the ultimate question was who would be declared the winner. The question in New Jersey is one of access to the ballot.
"The worst that can happen is that their guy has to run in a competitive election," Professor Hasen said of the New Jersey Republicans.
Another difference, of course, is that the New Jersey case does not arrive at the court on a clean slate. Although to much of the public, Bush v. Gore may seem a bad dream now faded in the mists of time, to the justices it remains vivid.
This is where psychology, rather than actual law, enters the equation. The court has essentially complete control over its docket. The new court term, which begins Monday, could well include major issues like campaign finance, affirmative action, and constitutional limits of the war on terrorism.
To this volatile mix, does the court want to start the year off by adding Bush v. Gore the Sequel? On the other hand, can anyone who lived through Bush v. Gore the Original be confident of the answer?
Just like Gore v. Bush, there is no "murky waters" here. Its a clear issue. The law is the law. Only the Legislature can write the law, per the U.S. Constitution. A court can not "interpret" 51 days to mean anything other than 51 days. End of discussion.
Wrong again!
It's a case of upholding the laws that already exist, and not creating new ones. These stupid Dems never learn, and what's more they never apologize.
BINGO! It CANNOT be ANY clearer!!!
The question in New Jersey should actually be one of judicial competence. A state supreme court that overrides an exisiting state statute without ruling that it violates the rights of the citizenry under that state's constitution must be comprised of judges who are dumber than sacks of hammers.
I spent $60 on a college government textbook that claimed the 5-4 decision and never mentioned the 7-2 decision. What crap passes for college education these days! That's ONE book I didn't keep. The teachers that conduct these courses are all liberals and one of them is pointedly anti-American.
This article is dreck as well.
Mr.M
The New Jersey Supreme Court, two of whose members gave financial donations to Torricelli, ruled in the Party's favor, putting in jeopardy a fair election for voters everywhere who expect political parties and their candidates to succeed or fail by clearly written election laws.
I sure hope the SCOTUS is aware of this conflict of interest...
1. The fact that there were two Torricelli donors on the court did not matter in the end, since the decision the court handed down was 7-0.
2. This kind of rationale cuts both ways -- This is exactly what the Democrats said when they asked Scalia to recuse himself from the Bush v. Gore case in 2000 because one of his sons worked for the Republican Party in some capacity. If justices must recuse themselves because of an indirect connection to one of the parties in a case, then we're likely to find that there will be no one left to render a decision.
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