Forrester Case Still Live in the Supreme Court

Special to Free Republic ^ | 11 October 2002 | John Armor (Congressman Billybob)

[inquest]

No, the action would be more akin to a DQ, and when the winning horse is DQd....Who Wins?

I don't think it works that way in elections, although I don't have any hard data to back that up. I'm sure the Congressman would know better, if he doesn't mind sparing the time. But my understanding is that if either house disqualifies a prospective member, a vacancy ensues, to be filled by the usual method of filling vacancies, such as in cases of death or resignation.

[bert]

Hmmmm.... What if they decide on November 1 or 4? For Forrester?

It would appear to me that justice would best be served, without any corners to make a decision before the election.

To whom do you appeal Supreme Court Clerical error?

[Congressman Billybob]

No, my friends, NO. A Forrester victory does NOT make the case moot. There IS a useful outcome after the election.

My second win in the US Supreme Court came in 1983, in a ruling that the election laws of ten states violated the Constitution by seeking to prevent John Anderson from running for President as an independent. Anderson ran in an election that was over three years before, in 1980. But the Court decided the case anyway because this is a "repetitious issue." It was sure to come up again, and therefore they kept the case and decided it.

Exactly the same logic applies here. There will be other requests -- there have already been two in Hawaii -- for state courts to change their election laws in the middle of an election. It would be very valuable for the Supreme Court to tell all who bring such cases, and all state supreme courts which receive such cases, that judges who attempt to rewrite their state's election laws are wrong.

A decision by the US SC states clearly that the NJ SC violated the US Constitution will be very valuable to American elections for the indefinite future. That is true regardless of who wins on the ballot in New Jersey, and regardless of whether the US SC needs to, can, or does order any specific remedy along with its Opinion.

Billybob

[inquest]

And the power to judge qualifications does not involve the power to decide qualifications. That I do know.

[gwjack]

Do you think the SCOTUS could grant cert and, if Lautenberg wins, issue a ruling that applies to future cases, but not to him?

gwjack

[hobbes1]

It is has never been done, I don't think, but clearly Art 1. Sec 5. makes each house the respective referee of the elections to itself.

[hobbes1]

The power to Judge an election, is the power to judge an election.

[BOBTHENAILER]

Thank ya' kindly for the update, billybob.

[doug from upland]

Thanks, John. I always appreciate your analysis.

[Congressman Billybob]

No, my friend. Tossing out "a duly elected Senator" is NOT the essence of the case at this point. Post 43 addresses this point.

Billybob

[Blood of Tyrants]

Maybe they hope that Forrester will win (and IMHO he still has a decent chance) and THEN they will slap the Dems down for illegally substituting a candidate.

This would be an excellent chance by someone to sue the Democratic Party for denying them of their legally chosen candidate.

[jackbill]

If things are as you say, and I have absolutely no reason to doubt, we may just see a big CYA on the part of the Court.

Had the Court (the Justices) known that there was also a Petition for Cert, would they have acted differently on the "relief" plea? If so, does the "found" Petition present a potential embarrassment? If so, they're probably looking for a big rug to shove everything under.

[Congressman Billybob]

Bush v. Gore (another case I participated in) was decided on an emergency basis. Forrester v. Torricelli is not going to be decided on an emergency basis. The Supreme Court does not like to do things on a hurry-up basis. They like to let everyone possible file their briefs, hear the arguments, then debate and decide the case.

The Court believes, and I thoroughly agree, that they do better work that way, than the way they were forced to do (by their own choice to act on an emergency) in Bush v. Gore.

Billybob

[RobFromGa]

A decision by the US SC states clearly that the NJ SC violated the US Constitution will be very valuable to American elections for the indefinite future.-- Congressman Billybob

Of course you are right-- this will be valuable in the future. But why would they not find it important enough to stop THIS NJ TAMPERING in its tracks, realtime?

How is this different from letting a bank robber get away, then later stating that BANK ROBBERY is illegal and will be punished??

[mlo]

If Lautenberg wins, the Court will have painted itself into a corner. If they rule for Forrester, what is the remedy? Does the US SC dare issue an Order throwing out a Member of the Senate? To avoid embarrassing themselves, the Court would be unlikely to take the case in that situation.

Regarding remedy, if the US Supreme Court ruled for Forrester after Lautenburg won I would think they'd remand the case to the NJ Supreme Court with instructions on how to read the law. It's conceivable that the NJ Court would be left with no option but to invalidate the Senate election. Should that happen NJ law says:

New Jersey Permanent Statutes

TITLE 19 ELECTIONS

19:3-23. Vacation of office when nomination or election void

When the nomination or election of a person to public office within this State or any of its political subdivisions shall have been declared null and void, such person shall remove or be removed from such office.

19:3-25. What constitutes vacancy

When a person shall remove or be removed from office because his nomination or election thereto has been declared null and void, such office shall be deemed to be vacant.

[Sabertooth]

Nice work!

[William McKinley]

Understood.

My point was that the corner they painted themselves into isn't really a corner because they can simply dismiss the case in such an instance by stating that no remedy exists, much as they forced the SCOFLAw to do.

[xsmommy]

did you see this?

[Damocles]

I agree. But it's way too late for injuctive relief now. Too little time before the election. This is the second best option.

[xsmommy]

shoulda figured!