Posted on 10/05/2002 6:49:35 PM PDT by jmstein7
I read the news today (oh, boy), and the stories on the appeal to the U.S. Supreme Court gave the impression that it was a real long shot i.e. having certiorari granted. Why would that be?
The relevant NJ election statute (19:13-20) is very clear and reads as follows:
A selection made pursuant to subsection (c) and a statement of the selection SHALL be filed not later than the 48th day before the election.
The relevant portion of subsection (c) says simply:
. . .for a statewide office, the candidate shall be selected by the State committee of the political party where the vacancy occurred. . .
This is probably the most unambiguous language I have read in the month or so Ive been in law school. The language seems to be very clear and airtight; particularly the word shall that I have emphasized. To read it any other way would necessitate reading in words that are not there. Even taking into account the spirit of the law, i.e. the public policy behind the statute, it would still read the same way. The public policy behind this statute is, intuitively, to keep a party from swapping out losing candidates at the last minute in an effort to gain an unfair advantage. This is exactly what the NJ Democratic Party is doing, and I dont understand how the New Jersey Supreme Court could miss that. Additionally, these rigid timetables promote consistency, predictability, and fairness in the election system. We have election laws, in general, to promote consistency and stability and to make sure everyone who plays the game plays by the same rules. It is completely unjust to allow one party to change the rules to its liking in the middle of the game. As Jonah Goldberg avers,"[another reason] we have complicated rules for when and how elections are to be held is so that we can educate the public about the issues and personalities involved. If this educational process didn't matter if people didn't need to know anything about the candidates we would simply hold election day the same day as we announced the candidates, and people could flip a coin inside the voting booths."
Regarding the federal question involved, Article I, Section 4 of the U.S. Constitution reads as follows:
The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof. . . .
I must have missed the part where it says subject to the approval of the judiciary. Again, the language could not be more unambiguous.
So, my question is (yes, there is a question forthcoming), since no reasonable man could dispute the fact that the New Jersey Supreme Court erred in usurping the authority of the New Jersey legislature granted to the said legislature by the Constitution, would it not be just and reasonable for the U.S. Supreme Court to grant certiorari and, subsequently, reverse the New Jersey Supreme Court? That said, why is it such a long shot?
Letting the decision stand as precedent could have terrible repercussions. In New Jersey, statute 19:13-20 would be constructively repealed, leaving a vacuum in the election law. Parties would be able to strategically swap candidates in and out of races at will, creating chaos and strategically disenfranchising absentee voters who may have unwittingly filled out invalid ballots. Other state courts could look to the decision as persuasive authority and, in the absence of a U.S. Supreme Court ruling, the chaos could spread to other states as state parties that cant win at the ballot box playing by the rules choose to sue their way into office. That's why other states, such as California, are filing amicus briefs -- they are afraid of the chaos spreading.
This case is very different from Bush v. Gore. In that case, you had two conflicting statutes that the court -- arguably -- had to synthesize, which severely weakened the Article II argument. In this case, you have one unambiguous statute, so there is a very strong Article I argument.
I predict that the court will take this one.
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