"I'm goin' places, Tom, and I'm takin' you with me!
Posted on 09/30/2002 8:24:06 AM PDT by frmrda
If he resigns after Saturday, McGreevy will be able to name a replacement, and suspend the election.
After that, the only thing that can stop him is the USSC. (Term of A Senator 6 years..)
To Wit: Absentee and Military Ballots have already gone out, Hence in reality, the election process has already begun....
Ummmm,how about Judge Napolitano. and before you argue, here is his resume'
Napolitano is the youngest life-tenured Superior Court Judge in the history of the State of New Jersey. While on the bench from 1987 to 1995, Judge Napolitano tried over 150 jury trials, and sat in all parts of the Superior Court — Criminal, Civil, Equity and Family. For eleven years, Napolitano served as an adjunct professor at Seton Hall Law School, where he taught constitutional law and jurisprudence. He returned to private law practice in 1995, the same year he began his career in broadcasting. Napolitano received his undergraduate degree from Princeton University and his Juris Doctor from the University of Notre Dame.
Nobody has responded to my point that the application of the same law in same way allows:
1) - Perpetual two year terms appointed by the Gov with the new Dem quiting before each election
- This is clearly unconstitutional BUT it would be "legal" under that application of the law. And,
2) - Voiding the results of an election by resigning after losing an election and still letting the Gov appoint a Dem for two years
- This is also clearly unconstitutional, yet would be "legal" under Napolitano's interpretation
The point he is missing is that, when the SC determines the legislative intent for a statute, they cannot interpret that intent in a way that violates the constitution.
He's still wrong. Not that the NJSC might not go the way of the SCOFLaws, but an interpretation that allows the Governor to unilaterally replace a senator every two years without ever holding an election won't fly under the Constitution.
In that respect the NJ statute does Collide with the constitution. That having been said, anytime you are relying on appeals, you are taking a chance.
You are not even guaranteed that SCOTUS will ever get to hear the case, as they could just as easily, put the onus on the Senate, Under the guideline expressed in Article 1 section 5, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members"
Oh, that's not the only one (although it is clearly more than enough).
It would also violate the equal protection clause in the same way that the Florida election decisions would have. You can't have a state law that completely takes the voters out of the process.
Ouch! Not playing nice.
There's no reason that this situation needs to be unique. The Governor can pick someone who will be willing to resing a month before the 2004 election and replace him with someone who is willing to back out of the 2006 election etc.etc.etc.
So now in NJ, your vote for Governor is really a vote for both Senate seats as well? That can't be a valid interpretation of the law.
point 2 falls outside of the law
Not at all - and I won't type it in caps :-) - if you read the first sentence of the law we've been quoting:
"The governor of this state may make a temporary appointment of a senator of the United States from this state whenever a vacancy shall occur by reason of any cause other than the expiration of the term"
In this (2nd) case... did a "vacancy occur"? - Yes
Was it because of the expritation of the term? - Nope, he'd have 60 days left in his term.
So what does this law say happens? The Gov appoints a new Senator
When does (s)he stand for re-election? The statute is clear...: "it shall be filled at the general election next succeeding the happening thereof"
Which is when? 2004
This is a parallel interpretation of the same law to the one Napolitano is giving. But it is ridiculous on it's face.
As to point 1, i wasn't trying to be uncharitable...I should have said I dont get the question.
Yes. Of course the election satisfies the vacancy. That is my point for all of these arguments. But the election does not satisfy the vacancy any more in my examples than it does in the situation we are in now. They are parallel. The statute contemplates what happens just before an election, but it also addresses vacancies at any time in a term. It doesn't make an explicit exception for vacancies that occur after the election, therefore it mus apply (by the same tortured logic of the original argument).
Tell me where it breaks down?
Did a vacancy occur? Was it caused by the end of the term? How is such a vacancy handled? And when is the next election?
You see my point? None of this law can be interpreted to cancel a regular election. A "plain english" argument leaves the state open to several unconstitutional possibilities. But a commonn sense approach still wins the day - and you laid it out... the election satisfys the vacancy.
And here's the legal argument that needs to be made:
The law addresses vacancies not caused by the expiration of the term. Implicit in that law (and the Constitution) is that the end of the six year term CAUSES a vacancy! When is that vacancy filled? The November before it happens! This is the regular course of events. The general election fills the vacancy that will happen at the end of the term. What in the current situation changes that?
See? A perfectly valid legal argument that does not assume that NJ created an unconstitutional law.
Correct. and the Election legally addresses vacancies caused by the expiration of the term
Correct. AND it says that there will be an expiration of this term regardless of who the Gov appoints in the interim. The term won't change when somebody else acts.
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