Although I agree with Prof. Caswell that the NJ court was following precedent
in deciding to allow the Democrats to make a change, I think it is an exaggeration
to claim that the NJ "justices were completely constrained by case law."
As a few others who have read the 1952 case (Kilmurray v. Gilfert, 10 NJ
435 (1952)) have pointed out to me, although it is true the court let a party
replace a dead candidate on a statute after the time for announcing a vacancy
had past, the change occurred before a second limit in the statute for naming
a replacement kicked in. Using today's deadlines in the statute (19:13-20),
it would have been as though Torricelli withdrew in fewer than 51 days but
in greater than the 48 days the statute gives for naming a replacement. In
dicta in Kilmurray, the court stated that "of course" the party had to act
"not later" than the time period for naming a replacement.
That is dicta not a holding, and my read of NJ St. 19:13-20 is that the 48
day limit does not kick in *at all* unless we are in a situation where a
vacancy occurs more than 51 days before the election; thus, the statute is
silent on *all the procedures* to take place if a vacancy occurs less than
51 days before the election.
Thus, the NJ court certainly could have written a respectable opinion either
way. In the original version of my op-ed (that I had to rewrite once the
NJ court ruled), I did not know who was going to win in the NJ court. I predicted
that both sides would have potential appeals to the Supreme Court upon losing
(with the Dems. able to allege an equal protection violation under Bush v.
Gore by valuing some votes (or voters) over others). I argued that whatever
the NJ court did, the Supreme Court should stay out. I still stand by that
position.
But it will be interesting (if this case goes further) to see whether one's
views of how to read Kilmurray correlate with one's political affiliation,
as seemed so common in reading Florida statutes and caselaw last time through.
Rick
CaswellB@aol.com wrote:
I am a political scientist, not an attorney,
but I would like to venture the opinion that the problem here is not a bad
decision or activist justices, but a bad statute. The statute instructs
the election officials how to conduct elections, and election officials must
follow the statute. The statute does not, however, explicitly prohibit candidates
from withdrawing within 51 days of the election, nor does it provide any
procedures for such an eventuality. The silence of the law required that
the NJ justices turn to case law and, on the basis of 1952 case law, the
justices instructed election officials to change the ballot. The court order,
I haven't seen anyone mention, requires the Democratic Party to post an $800,000
bond by today (Friday) to cover the costs of re-doing the ballots. In my
opinion, the justices were completely restrained by case law in making this
decision. Had they made any other decision, they would have been making
law not adjudicating.
As further proof that the justices felt constrainted by case law, six of
the seven justices were appointed by a Republican governor and confirmed
by a Republican-controlled Senate. Several of the justices were appointed
while Republicans had a 2-1 margin in the Senate.
The statute could easily be fixed by providing procedures, criteria, and
fees for late withdrawals and substitutions. Legislating a process with
specific guidelines, as well as charging the candidate and party for the
late change plus a fine under certain situations, would make late substituions
a very rare event. As previous posters have suggested, the technical and
logistical inhibitions to making late changes on ballots are becoming progressively
smaller. (The same is true for the administrative considerations in late
voter registration, an argument made 20 years ago in connection with residency
requirements for voting.) For this reason, I personally think the statute
should be as flexible as is feasible in giving candidates options and providing
voters with effective choices. But these are matters for legislatures, and
I suspect many state legislatures wil be re-exmining their election laws
in light of this case.
Dr. Bruce E. Caswell
Associate Professor
Political Science Department
Rowan University
Glassboro NJ 08028
(856) 256-4866
caswell@rowan.edu
--
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