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Now Let Jersey Voters Just Vote

The state court should have the last word.

October 03, 2002|RICHARD L. HASEN | Richard L. Hasen, a professor specializing in election law at Loyola Law School in Los Angeles, consulted with the Gore campaign on the manual recount issue in Miami-Dade County.

The New Jersey Supreme Court held Wednesday that Sen. Robert Torricelli's name could be replaced on the general election ballot with a new nominee chosen by the Democratic Party.

At issue in the case was a New Jersey election statute that provides for a political party to fill a vacancy at least 51 days before the election when its nominee, for whatever reason, cannot or will not run in the general election.

Here, Democrats pressured Torricelli--because of a plummet in the polls in light of ethics questions--to withdraw from his reelection bid against Republican Doug Forrester.

The New Jersey court allowed the Democrats to make the change less than 51 days before the election.

It relied on a 1952 decision by the same court that said it is in the public interest to give the electorate a choice between candidates of both major parties.

In that 1952 case, the court had excused a similar filing deadline that would have kept the name of the dead candidate on the ballot, and it had noted that the Legislature imposed the filing deadline with the "obvious intent" of affording election officials sufficient time to prepare for elections.

The New Jersey court Wednesday rejected the Republicans' argument that by imposing a statutory 51-day limit for filling vacancies before the election and remaining silent on what happens within the 51-day limit, the Legislature intended not to allow the parties to fill vacancies in the closer time period.

Lawyers for the Republicans have announced plans to take this case to the U.S. Supreme Court, and pundits are already comparing this dispute to the Florida election fiasco of 2000.

Although there are some similarities, this time the high court should stay out of the controversy.

What is the federal issue Republicans could take to the high court?

Republicans probably will argue that the New Jersey court opinion constitutes a "new law," thereby taking away the power given by the U.S. Constitution to state legislatures to choose the manner for the selection of U.S. senators. This is parallel to the argument accepted by three high court justices in Bush vs. Gore: that the Florida Supreme Court's decision to allow the selective recounting of under-votes was a new law making an end run around Florida's legislative requirements for choosing presidential electors. The high court is already scheduled later this year to hear a case out of Mississippi that raises a similar issue.

Republicans also could argue that changing the rules in midstream violates one's right to due process or equal protection of the law.

If the U.S. Supreme Court gets involved here, it will only cement the idea arising out of Bush vs. Gore that every election dispute is a potential federal constitutional case. However, a court that respects the values of federalism should leave all but the most egregious disputes over the meaning of state law alone.

The circumstances here are not egregious.

The court should recognize that state legislatures leave gaps in their election statutes all the time, and legislatures fully expect the state courts to fill the gaps with sensible rules. Federal intervention would disrupt this partnership between state courts and state legislatures.

The court's legitimacy also is at stake.

Court intervention in this case, particularly if we see the same 5-4 Bush vs. Gore split in an opinion siding with the GOP position, would only renew charges that the court is driven by political considerations.

The high court should not again interfere with how a state--including that state's courts--chooses to conduct its elections.

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