Subject: Re: L.A. Times op-ed on New Jersey election controversy
From: Rick Hasen
Date: 10/4/2002, 9:34 AM
To: "election-law@majordomo.lls.edu" <election-law@majordomo.lls.edu>

I have been getting two strongly negative reactions from conservatives to my opinion piece. First, they argue that the NJ statute in fact speaks to the question of vacancies that occur in fewer than 51 days by barring them. This is not true. Unlike the Florida situation, where the statute said certification *must occur* within x days (and the Florida court relaxed that requirement), the New Jersey statute says, if a vacancy occurs within x days, here are the consequences. It says nothing of what happens if a vacancy occurs in fewer than x days. This is a classic problem of a statute that is incomplete, and it is literally an every day occurrence that a court issues an opinion filling in a gap in the statute. The court should fill in the gap in an election statute using whatever tools it usually uses to fill gaps in statutes.

The other argument that conservatives have been making is that I mischaracterize the Bush v. Gore holding as a 5-4 decision ,when it was really 7-2 except on a "procedural matter."  As a professor of remedies, I find this objection laughable. To a lawyer's client, all that matters is the bottom line. Although Breyer and Souter were willing to at least entertain the possibility of an equal protection violation (being recognized for the first time ever by the Supreme Court in the context of rules for recounting votes---quite a leap from the past),  they were unwilling to end the election by failing to give the Florida courts a chance to recount the votes using a uniform standard in conformity with this new rule. On this bottom line issue, the only issue that really mattered to the parties, the Court split 5-4, the same conservative-liberal 5-4 split we have seen in many Court decisions in many contexts.

Rick

Rick Hasen wrote:
Here's an op-ed on the New Jersey election controversy I have in today's Los Angeles Times.

http://www.latimes.com/news/opinion/commentary/la-oe-hasen3oct03,0,699389.story?coll=la-news-comment-opinions

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
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