"The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each state by the LEGISLATURE
thereof...."

Here we go again.

Nate

> Rick Hasen wrote:
> 
> Below is an op-ed by Prof. Mayer arguing that Democrats should not get
> to put a new Senate candidate's name on the November ballot.  I'm not
> sure whether or not I agree with Mayer's bottom line (to me, that
> question turns upon how New Jersey law generally fills in gaps in
> statutes and any tools of construction especially relevant in the
> elections context).  But Mayer seems to be wrong in relying on cases
> like Storer v. Brown and the Anderson/Burdick/Timmons line of
> balancing
> cases. Those are cases where a state law affirmatively prevented a
> candidate from appearing on the ballot for whatever reason. This case
> involves a state law that is silent on the issue.
> 
> News reports suggest that the New Jersey Republican party is planning
> an
> appeal to the United States Supreme Court if the New Jersey Supreme
> Court allows the Democrats to put a new name on the ballot. It is hard
> to see a cognizable claim, unless it is some kind of due process/Roe
> v.
> Alabama about changing the rules after the fact (that of course
> assumes
> there is a change in rules, rather than the NJ court filling a
> gap---echoes of Bush v. Gore, no doubt). Indeed, I would not be
> surprised to see the Democrats argue under the equal protection
> holding
> of Bush v. Gore that the Constitution requires giving all voters an
> equal chance to cast a ballot for a candidate that will be effective.
> (I
> am *not* endorsing this argument, simply suggesting that it may be
> made).  Any other thoughts on potential constitutional issues or the
> likelihood the Supreme Court would reenter the political thicket in
> this
> way?
> 
> Rick
> 
> http://www.nytimes.com/2002/10/02/opinion/02MAYE.html
> 
> --
> Rick Hasen
> Professor of Law and William M. Rains Fellow
> Loyola Law School
> 919 South Albany Street
> Los Angeles, CA  90015-1211
> (213)736-1466 - voice
> (213)380-3769 - fax
> rick.hasen@lls.edu
> http://www.lls.edu/academics/faculty/hasen.html
> 
>     ---------------------------------------------------------------

-- 

Nathaniel Persily
Assistant Professor 
University of Pennsylvania Law School
3400 Chestnut Street
Philadelphia, PA 19104
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(f) 215-573-2025
npersily@law.upenn.edu
http://persily.pennlaw.net/