I don't disagree with your thoughts here. But, while I acknowledge the "new
glow" advantage a late-entry candidate would have, I suppose Lautenberg's
forces would say that entering a campaign at the eleventh hour isn't
necessarily a slam-dunk advantage, either.
David Epstein wrote:
My thoughts on the subject, after thinking and talking about it over the
past few days are as follows. The replacement of Torricelli, and more
importantly the precedent it sets, are both disturbing to those who like
good, clean elections. As long as one is within the range of
administrative feasibility (and that will get shorter and shorter with
time), and as long as the candidate agrees to step aside (a big, big
if), one can swap out candidates for any state-administered office. This
means that the public will have only a short time to consider the new
candidate, who may be able to enter the election still basking in that
"new candidate" glow rather than the tired, old long-time candidate
appearance. And the parties will have the final say in who runs: no
extra primary, no public input at all.
As I say, these are not the elements of a good election. And if I were
the New Jersey state legislature, I would go out and fix that election
statute right away, or at least soon after the election. For the
interests of having time for debate, lack of ballot confusion, and
administrative convenience are all priorities that states can weigh when
designing their statutes. For whatever reason, the NJ law was silent on
what happens if a withdrawl occurs less than 51 days before the
election, but they had ample examples in neighboring states of tougher
laws that made it clear that no substitutions were allowed within the
51-day period.
So this may be a poorly drafted law, but I can't see that it's a federal
case. Furthermore, I can't see that the outcome of this case has great
implications for elections in general. Much of the fulminating about the
decision is put in terms of "what if this becomes a general trend?" But
other states have much more tightly drafted legislation, and so the
probablity of this occurring again, let alone with any regularity, is
rather small.
Just my $.02,
David Epstein
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Steven
Mulroy
Sent: Friday, October 04, 2002 5:27 PM
To: Mark Rush
Cc: election-law@majordomo.lls.edu
Subject: Re: New Jersey
I wonder how likely it is that parties will try to exploit that. They'd
have to convince a nominee to voluntarily withdraw. They'd have to
convince a politician that the polls are right and he/she can't turn it
around, which is hard to do to a politician with an ordinary size ego.
Also, absent extreme circumstances like the one with Torricelli and the
scandal, they'd have to factor in the PR hit they'd take for so
obviously manipulating the process.
Part of the reason I'm not worried about opening the floodgates is that
parties could have been doing this for years now by pressuring the
nominee to withdraw prior to the statutory deadline, yet have not been
doing so. After all, parties often know more than 34/48 days prior to
the election if a nominee isn't working out.
What troubles me is that, even in the rare case where extraordinary
events require a nominee to pull out, and there's no conscious
gamesmanship, we are nonetheless doing an end run around the primary
process and susbtituting backroom deals for the primary voters' choice.
Why wouldn't the best solution in such situations be to postpone the
election and have a special election? If cost is an issue, you could do
what the NJ Sup Ct did and impose costs on the petitioning party.
I suppose you could object that turnout would drop in a special
election, and the party which benefits from low turnout (usually the
GOP) could thus unduly benefit by being the one to screw up the election
schedule. Also, I could see a cost rationale for preferring late
substitution over a special election every time a minor party candidate
withdraws (it might be
financially burdensome on the Natural Law party, e.g.). Anyway, just a
thought. SJM
Mark Rush wrote:
Legal wrangling notwithstanding, I think Will is right: this decision
opens the door (potentially) to chaos. While the NJ court urged that
voters needed to have a real choice, there is also a strain of
constitutional thought that says that they are also entitled to an
orderly, non-confusing electoral process.
The current decision opens the door for parties essentially to
override the nomination process if they don't like the candidate they
have running.
Mark E. Rush
Professor of Politics
Washington and Lee University
Lexington, VA 24450
http://home.wlu.edu/~rushm
(540) 458-8904
(540) 458-8639 (fax)
rick.hasen@lls.edu 10/04/02 01:38PM >>>
another view of the New Jersey situation, this one from George Will.
http://www.washingtonpost.com/wp-dyn/articles/A41199-2002Oct3.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