REWRITING THE NEW JERSEY BALLOT: Some Preliminary Issue Spotting

This Wednesday, the New Jersey Supreme Court ordered election officials to replace Robert Torricelli's name on the November statewide ballot for United States Senator with that of Frank Lautenberg. What should observers make of the court's decision and the surrounding legal and political issues? In the grand tradition of law school exams, where students are given an interesting fact pattern and a short deadline, we will try to "spot" some of the major issues and provide some preliminary analysis.

Why All of the Democrats' Nonlitigation Alternatives Were Seriously Flawed

Issue 1: What options, other than filing suit to get new ballots printed up, did the Democrats have, and were those options attractive?

The problem with this strategy is the very real possibility that Republican candidate Douglas Forrester might win more votes than any other candidate and thus win the election even if most New Jerseyans were to vote Democrat.

For example, suppose a vigorous write-in campaign convinced an overwhelming proportion – say, 90%–of Democratic loyalists to write in Lautenberg. Ninety percent seems like a high number, but it may well not be good enough.

Even if ninety percent of Democrats wrote in Lautenberg, that could still result in an election in which Forrester gets, say, 48% of the vote, Lautenberg gets, say, 47%, and Torricelli gets another 5%. Together, Lautenberg and Torricelli would have many more votes than Forrester (and more than half the total votes), but under each state's election law, it is the person, and not the party, with the most votes who wins–in this realistic hypothetical, Forrester.

This dilemma for the Democrats might be mitigated if a single-transferable voting system – a system we explained in our May 3^rd column – were used, so that Torricelli voters could register their second-place preference (which would more likely be Lautenberg than Forrester). Those Democrats who prefer Torricelli to Lautenberg might still prefer Lautenberg to Forrester, and would be allowed to register that second-choice preference, and have it count. If only half of the Torricelli voters chose Lautenberg as their second choice (and the other half were simply clueless voters who somehow didn't know that Torricelli had dropped out), this would still be enough to give Lautenberg more votes than Forrester in an STV system under the numbers we are assuming in our realistic hypothetical.

A second option for the Democrats would have been to leave Torricelli's name on the ballots and encourage all voters – even those who object to Torricelli's character – to vote for Torricelli on his promise that if elected, he would then resign his seat, which presumably would be given to Lautenberg by the Governor (who is a Democrat and who, under the Constitution, is empowered to fill Senatorial vacancies that occur post-election).

But this strategy also would have had its drawbacks. First, some voters may have trouble formally voting for a man they don't like. Second, this plan depends on Torricelli following through on his promise to resign. Chances are that he would do so, but there is no way to legally enforce such a promise. (And remember, Torricelli's character is not his strong suit these days.)

Constitutionally, there is no way for a state electorate to "recall" a Senator whom voters no longer want to represent them. (The Senate is of course empowered to expel miscreant members–just ask Bob Packwood–but most Senators might think twice, and even thrice, before tossing out someone who formally won the election and then broke a "campaign promise.")

Finally, even if Torricelli were to honor his promise and the Democratic Governor were to follow through by tapping Lautenberg, Mr. Lautenberg would occupy the seat only temporarily, not for a full six-year Term. The Democrats would thus be obliged to run again, and win, in a second, special election in order to retain the seat for the full six-year term.

This is why U.S. Senator Jean Carnahan from Missouri must run in a special election this year. In mid-October 2000, her husband Mel, the official Democrat on the Senate ballot, died in a plane crash. Democrats quickly huddled and told voters that if they voted for Mel, and he "won," the seat would go to his wife Jean, via a vacancy appointment from Missouri's Democratic Governor. But now Carnahan will have to defend her seat.

Issue 2: Is the New Jersey Supreme Court's decision correct, or at least defensible?

The answer to this question, alas, turns on New Jersey law – not our area of expertise. But we do have some questions about what the state judges said and did.

The New Jersey statute at issue says two things: First, it states that "in the event of a vacancy, howsoever caused, among candidates nominated at primaries, which vacancy shall occur not later than the 51^st day before the general election, . . . a candidate shall be selected" by the state party leadership. Second, it says that "a selection made pursuant to this section shall be made no later than the 48^th day preceding the date of the general election."

Torricelli announced that he was dropping out later than 51 days before the general election. His replacement, Lautenberg, was named later than 48 days before the general election.

Accordingly, Republicans argued before the New Jersey Supreme Court that both the front end and the back end timelines of the statute were violated by the Democrats' request to put Lautenberg on the ballot. The court rejected that reading, however, holding that the statute did not foreclose reprinting the ballots, as the Democrats wanted, with Lautenberg's name.

Fair enough–we can imagine circumstances calling for new ballots after these deadlines have passed. Indeed, in our September 6 column, we discussed the need to provide mechanisms for dealing with unforeseen events that take place shortly before an election is held. Speaking in the context of Presidential elections, for example, we have suggested that the death of a major party candidate, or the occurrence of a major terrorist strike, should trigger a delay in the election or some other kind of accommodation. So we are not against the idea of interpreting election law flexibly to deal with exigencies.

But the kind of triggering event here – a decision to drop out by a candidate who is down in the polls and fears losing – is hugely different from death (or physical disability) or a terrorist incident, the genuine exigencies we discussed in our earlier column.

The instinct to provide some extraordinary relief from an otherwise fixed election timeline in response to an extraordinary event makes sense. But the instinct simply does not seem to apply when the so-called extraordinary event is a cold, calculated political prediction of success (or for Torricelli, failure).

Indeed, as the science of polling becomes better and better, one could imagine more and more people making decisions like Torricelli's after they see the writing on the wall. Yet the New Jersey Court didn't seem at all to grapple with this parade of horribles.

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

The same cannot be said for flexible deviations from that time line by courts that are no longer behind that veil of ignorance. For these reasons, absent death or (non-political) disaster, we would be inclined to read the state statute less flexibly than did the New Jersey Justices.

Of course, if there were clear New Jersey caselaw already interpreting the statute more expansively, then Wednesday's decision would seem less aggressive. But if there is such authority, the New Jersey Supreme Court certainly didn't cite to it.

The only decision significantly relevant to the current controversy involved the death of a candidate – not a voluntary dropping out. And in that earlier case (in 1952), while the candidate vacancy occurred after the front-end time line mentioned in the statute had already passed, the replacement candidate WAS named before the back-end date provided for in the statute. Thus, the 1952 case seems quite distinguishable.

Here's another way to put our point. New ballots will cost around 800 thousand dollars. The court ordered the Democratic Party to pay this expense. But suppose a party didn't have the money–would it then not be entitled to new ballots in a similar circumstance?

Ordinarily, government pays for ballots, not private parties. (This was one of the major reforms introduced into America in the late nineteenth and early twentieth century.) In a plane crash, or other death situation, would the court impose the costs on one political party? If there is genuinely a public interest in new ballots, why shouldn't the public pay?

Conversely, if this request for a new ballot is really the "fault" of the Democrats–enough so that they and only they should in fairness pay for the new ballots–then isn't this payment order itself an implicit admission that this is, to some extent at least, a partisan request for partisan advantage?

Issue 3: Given all this, is U.S. Supreme Court review likely?

Along with many other law professors, we made all sorts of mistaken predictions in the run-up to Bush v. Gore. Much of what the Court did surprised–even shocked–many thoughtful commentators. So, we've learned our lesson: the Supreme Court, it seems, will do what it wants in highly charged cases. We have no inside information and make no predictions.

But it's worth noting that that the same federal issue that initially caught the Court's eye in Bush v. Gore – namely, do state courts violate the Federal Constitution when they misinterpret state statutes in such a way as to deprive state legislatures of the power conferred on them in the Constitution?–is precisely what is being pressed by the Republican lawyers in DC right now.

Article I says that "state legislatures" shall prescribe the time, place and manner of U.S. Senate elections, just as Article II says that "state legislatures" shall prescribe the "manner" for appointing Presidential electors. If the Court thought the Florida judiciary was violating Article II in 2000 – at least 3, and perhaps as many as 5 Justices so believed – we wouldn't be shocked if the Court thought that Wednesday's ruling by the New Jersey court violates Article I.

Then again, after Bush v. Gore, it's hard to be shocked by anything the Court might do or not do.