{"id":52886,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/rewriting-the-new-jersey-ballot.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"rewriting-the-new-jersey-ballot","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/rewriting-the-new-jersey-ballot.html","title":{"rendered":"Rewriting The New Jersey Ballot"},"content":{"rendered":"\n
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REWRITING THE NEW JERSEY BALLOT: Some Preliminary Issue Spotting <\/h1><\/td>\n <\/tr>\n

By AKHIL REED AMAR AND VIKRAM DAVID AMAR<\/h2><\/a><\/td>\n <\/tr>\n

Friday, Oct. 04, 2002<\/td>\n\n <\/tr>\n <\/table>\n

This Wednesday, the New Jersey\n\nSupreme Court ordered election officials to replace Robert Torricelli’s name on\n\nthe November statewide ballot for United States Senator with that of Frank\n\nLautenberg. What should observers make of the court’s decision and the\n\nsurrounding legal and political issues? In the grand tradition of law school\n\nexams, where students are given an interesting fact pattern and a short\n\ndeadline, we will try to “spot” some of the major issues and provide some\n\npreliminary analysis.<\/p>\n\n\n\n\n\n\n\n

Why All of the Democrats’ Nonlitigation Alternatives Were Seriously Flawed<\/b><\/p>\n\n\n\n\n\n\n\n

Issue 1: What options, other than filing suit to get new\n\nballots printed up, did the Democrats have, and were those options attractive?<\/p>\n\n\n\n\n\n\n\n\nleaders had a few alternatives, but each of them was flawed. First, the\n\nDemocrats could have left Torricelli’s name on the ballots, but then waged a\n\nmajor write-in campaign to get Democratic voters to pencil in Lautenberg as\n\ntheir choice. \n\n\n\n\n\n\n\n

The problem with this strategy is\n\nthe very real possibility that Republican candidate Douglas Forrester might win\n\nmore votes than any other candidate and thus win the election <\/i>even if most New Jerseyans were to vote Democrat. <\/p>\n\n\n\n\n\n\n\n

For example, suppose a vigorous\n\nwrite-in campaign convinced an overwhelming proportion \u0096 say, 90%\u0096of Democratic\n\nloyalists to write in Lautenberg. Ninety percent seems like a high number,\n\nbut it may well not be good enough. <\/p>\n\n\n\n\n\n\n\n

Even if ninety percent of Democrats\n\nwrote in Lautenberg, that could still result in an election in which Forrester\n\ngets, say, 48% of the vote, Lautenberg gets, say, 47%, and Torricelli gets\n\nanother 5%. Together, Lautenberg and Torricelli would have many more votes\n\nthan Forrester (and more than half the total votes), but under each state’s\n\nelection law, it is the person, and not the party, with the most votes who\n\nwins\u0096in this realistic hypothetical, Forrester. <\/p>\n\n\n\n\n\n\n\n

This\n\ndilemma for the Democrats might be mitigated if a single-transferable voting\n\nsystem \u0096 a system we explained in our May 3rd<\/sup> column<\/a> \u0096 were used, so that Torricelli voters could\n\nregister their second-place preference (which would more likely be Lautenberg\n\nthan Forrester). Those Democrats who prefer Torricelli to Lautenberg might\n\nstill prefer Lautenberg to Forrester, and would be allowed to register that\n\nsecond-choice preference, and have it count. If only half of the Torricelli\n\nvoters chose Lautenberg as their second choice (and the other half were simply\n\nclueless voters who somehow didn’t know that Torricelli had dropped out), this\n\nwould still be enough to give Lautenberg more votes than Forrester in an STV\n\nsystem under the numbers we are assuming in our realistic hypothetical. <\/p>\n\n\n\n\n\n\n\n

A\n\nsecond option for the Democrats would have been to leave Torricelli’s name on\n\nthe ballots and encourage all voters \u0096 even those who object to Torricelli’s\n\ncharacter \u0096 to vote for Torricelli on his promise that if elected, he would\n\nthen resign his seat, which presumably would be given to Lautenberg by the\n\nGovernor (who is a Democrat and who, under the Constitution, is empowered to\n\nfill Senatorial vacancies that occur post-election). <\/p>\n\n\n\n\n\n\n\n

But this strategy also would have\n\nhad its drawbacks. First, some voters may have trouble formally voting for a\n\nman they don’t like. Second, this plan depends on Torricelli following through\n\non his promise to resign. Chances are that he would do so, but there is no way\n\nto legally enforce such a promise. (And remember, Torricelli’s character is\n\nnot his strong suit these days.) <\/p>\n\n\n\n\n\n\n\n

\n\nConstitutionally, there is no way\n\nfor a state electorate to “recall” a Senator whom voters no longer want to\n\nrepresent them. (The Senate is of course empowered to expel miscreant\n\nmembers\u0096just ask Bob Packwood\u0096but most Senators might think twice, and even\n\nthrice, before tossing out someone who formally won the election and then broke\n\na “campaign promise.”) <\/p>\n\n\n\n\n\n\n\n

Finally, even if Torricelli were to\n\nhonor his promise and the Democratic Governor were to follow through by tapping\n\nLautenberg, Mr. Lautenberg would occupy the seat only temporarily, not for a\n\nfull six-year Term. The Democrats would thus be obliged to run again, and win,\n\nin a second, special election in order to retain the seat for the full six-year\n\nterm. <\/p>\n\n\n\n\n\n\n\n

This is why U.S. Senator Jean\n\nCarnahan from Missouri must run in a special election this year. In\n\nmid-October 2000, her husband Mel, the official Democrat on the Senate ballot,\n\ndied in a plane crash. Democrats quickly huddled and told voters that if they\n\nvoted for Mel, and he “won,” the seat would go to his wife Jean, via a vacancy\n\nappointment from Missouri’s Democratic Governor. But now Carnahan will have to\n\ndefend her seat.<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n

Issue 2: Is the New Jersey Supreme Court’s decision correct, or at least\n\ndefensible?<\/b><\/p>\n\n\n\n\n\n\n\n

The\n\nanswer to this question, alas, turns on New Jersey law \u0096 not our area of\n\nexpertise. But we do have some questions about what the state judges said and\n\ndid.<\/p>\n\n\n\n\n\n\n\n

The New Jersey statute at issue\n\nsays two things: First, it states that “in the event of a vacancy, howsoever\n\ncaused, among candidates nominated at primaries, which vacancy shall occur not\n\nlater than the 51st<\/sup> day before the general election, . . . a\n\ncandidate shall be selected” by the state party leadership. Second, it says\n\nthat “a selection made pursuant to this section shall be made no later than the\n\n48th<\/sup> day preceding the date of the general election.” <\/p>\n\n\n\n\n\n\n\n

Torricelli announced that he was\n\ndropping out later than 51 days before the general election. His replacement,\n\nLautenberg, was named later than 48 days before the general election. <\/p>\n\n\n\n\n\n\n\n

Accordingly, Republicans argued\n\nbefore the New Jersey Supreme Court that both the front end and the back end\n\ntimelines of the statute were violated by the Democrats’ request to put\n\nLautenberg on the ballot. The court rejected that reading, however, holding\n\nthat the statute did not foreclose reprinting the ballots, as the Democrats\n\nwanted, with Lautenberg’s name.<\/p>\n\n\n\n\n\n\n\n

Fair enough\u0096we can imagine\n\ncircumstances calling for new ballots after these deadlines have passed. \n\nIndeed, in our September 6 column<\/a>, we\n\ndiscussed the need to provide mechanisms for dealing with unforeseen events\n\nthat take place shortly before an election is held. Speaking in the context of\n\nPresidential elections, for example, we have suggested that the death of a\n\nmajor party candidate, or the occurrence of a major terrorist strike, should\n\ntrigger a delay in the election or some other kind of accommodation. So we are\n\nnot against the idea of interpreting election law flexibly to deal with\n\nexigencies.<\/p>\n\n\n\n\n\n\n\n

But\n\nthe kind of triggering event here \u0096 a decision to drop out by a candidate who\n\nis down in the polls and fears losing \u0096 is hugely different from death (or\n\nphysical disability) or a terrorist incident, the genuine exigencies we\n\ndiscussed in our earlier column. <\/p>\n\n\n\n\n\n\n\n

The instinct to provide some\n\nextraordinary relief from an otherwise fixed election timeline in response to\n\nan extraordinary event makes sense. But the instinct simply does not seem to\n\napply when the so-called extraordinary event is a cold, calculated political\n\nprediction of success (or for Torricelli, failure). <\/p>\n\n\n\n\n\n\n\n

Indeed, as the science of polling\n\nbecomes better and better, one could imagine more and more people making decisions\n\nlike Torricelli’s after they see the writing on the wall. Yet the New Jersey\n\nCourt didn’t seem at all to grapple with this parade of horribles.<\/p>\n\n\n\n\n\n\n\n\nis true, of course, that the timeline apparently set up by the New Jersey\n\nstatute is itself somewhat arbitrary. What is the real difference 51 days and\n\n35 days, so long as both periods allow new ballots to physically be prepared? \n\nAnd shouldn’t voters be presented with as much choice as possible, so long as\n\nthe ballots can be made up in time for the election? This seemed to be the\n\nreasoning adopted by the New Jersey court, both at its hearing and in its\n\n(extremely brief) opinion explaining its order.\n\n\n\n\n\n\n\n

Perhaps\n\na 51-day\/48 day rule is arbitrary. But ANY time limit is going to be\n\narbitrary, and yet SOME time limit is needed. At least the 51-day\/48 day limit\n\nis arbitrariness that comes from an ex ante legislative decision, made behind a\n\nveil of ignorance about which party would be helped or hurt by its application\n\nin a given year.<\/p>\n\n\n\n\n\n\n\n

\n\nThe same cannot be said for flexible deviations from that time line by courts\n\nthat are no longer behind that veil of ignorance. For these reasons, absent\n\ndeath or (non-political) disaster, we would be inclined to read the state\n\nstatute less flexibly than did the New Jersey Justices.<\/p>\n\n\n\n\n\n\n\n

Of\n\ncourse, if there were clear New Jersey caselaw already interpreting the statute\n\nmore expansively, then Wednesday’s decision would seem less aggressive. But if\n\nthere is such authority, the New Jersey Supreme Court certainly didn’t cite to\n\nit. <\/p>\n\n\n\n\n\n\n\n

The only decision significantly\n\nrelevant to the current controversy involved the death of a candidate \u0096 not a\n\nvoluntary dropping out. And in that earlier case (in 1952), while the\n\ncandidate vacancy occurred after the front-end time line mentioned in the\n\nstatute had already passed, the replacement candidate WAS named before the\n\nback-end date provided for in the statute. Thus, the 1952 case seems quite\n\ndistinguishable.<\/p>\n\n\n\n\n\n\n\n

Here’s\n\nanother way to put our point. New ballots will cost around 800 thousand dollars.\n\n The court ordered the Democratic Party to pay this expense. But suppose a\n\nparty didn’t have the money\u0096would it then not be entitled to new ballots in a\n\nsimilar circumstance? <\/p>\n\n\n\n\n\n\n\n

Ordinarily, government pays for\n\nballots, not private parties. (This was one of the major reforms introduced\n\ninto America in the late nineteenth and early twentieth century.) In a plane\n\ncrash, or other death situation, would the court impose the costs on one\n\npolitical party? If there is genuinely a public interest in new ballots, why\n\nshouldn’t the public pay? <\/p>\n\n\n\n\n\n\n\n

Conversely, if\n\nthis request for a new ballot is really the “fault” of the Democrats\u0096enough so\n\nthat they and only they should in fairness pay for the new ballots\u0096then isn’t\n\nthis payment order itself an implicit admission that this is, to some extent at\n\nleast, a partisan request for partisan advantage?<\/p>\n\n\n\n\n\n\n\n

Issue 3: Given all this, is U.S. Supreme Court review likely?<\/b><\/p>\n\n\n\n\n\n\n\n

Along\n\nwith many other law professors, we made all sorts of mistaken predictions in\n\nthe run-up to Bush v. Gore<\/i>. Much of\n\nwhat the Court did surprised\u0096even shocked\u0096many thoughtful commentators. So,\n\nwe’ve learned our lesson: the Supreme Court, it seems, will do what it wants in\n\nhighly charged cases. We have no inside information and make no predictions. <\/p>\n\n\n\n\n\n\n\n\nthat the Supreme Court sits to hear matters of federal law, not state law. In\n\nmany situations, a mere claim that a state court has misapplied state law would\n\nnot rise to the level of a federal claim. \n\n\n\n\n\n\n\n

But it’s worth noting that that the\n\nsame federal issue that initially caught the Court’s eye in Bush v. Gore<\/i> \u0096 namely, do state courts violate the Federal\n\nConstitution when they misinterpret state statutes in such a way as to deprive\n\nstate legislatures of the power conferred on them in the Constitution?\u0096is\n\nprecisely what is being pressed by the Republican lawyers in DC right now. <\/p>\n\n\n\n\n\n\n\n

Article I says that “state\n\nlegislatures” shall prescribe the time, place and manner of U.S. Senate\n\nelections, just as Article II says that “state legislatures” shall prescribe\n\nthe “manner” for appointing Presidential electors. If the Court thought the\n\nFlorida judiciary was violating Article II in 2000 \u0096 at least 3, and perhaps as\n\nmany as 5 Justices so believed \u0096 we wouldn’t be shocked if the Court thought\n\nthat Wednesday’s ruling by the New Jersey court violates Article I. <\/p>\n\n\n\n\n\n\n\n

Then again, after Bush v. Gore<\/i>, it’s hard to be shocked by anything the Court might\n\ndo or not do.<\/p>\n\n\n\n\n<\/span>\n\n\n

\n

\n\n\n<\/a>\nAkhil Reed Amar and Vikram\n\nDavid Amar are brothers who write about law. Akhil graduated from Yale College\n\nand Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale\n\nLaw School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked\n\nfor Judge William Norris and Justice Harry Blackmun, and teaches at U.C.\n\nHastings College of Law. Their “brothers in law” column appears regularly in\n\nWrit, and they are also occasional contributors to publications such as the New\n\nYork Times, the Los Angeles Times, and the Washington Post. Jointly and\n\nseparately, they have published over one hundred law review articles and five\n\nbooks.\n

\n\n<\/p>\n <\/div>

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