Rick Hasen’s Election Law Blog notes that a reprise of the notorious 2002 Forrester-Torricelli debacle is in the works. Apparently Senator Robert Menendez, the hand-picked successor to now-Governor Corzine who has faced allegations of corruption, may drop out of this fall’s race and New Jersey Democrats will seek to replace him on the ballot. Republicans, of course, want to forbid any such replacement, because Republicans have a decent chance (even in New Jersey) if their Democratic opponent is a candidate who is thought to be corrupt and has declared his intention not to run for the office.
The Republicans would appear to have the law on their side, as the relevant statute (NJS 19:13-20) states, “In the event of a vacancy, howsoever caused, among candidates nominated at a primary election for the general election, which vacancy shall occur not later than the 51st day before the general election, or in the event of inability to select a candidate because of a tie vote at such primary, a candidate shall be selected in the following manner . . . A selection made pursuant to this section shall be made not later than the 48th day preceding the date of the general election . . .” The implication, as I read it, is that vacancies shall not be filled at all unless “occur[ring] not later than the 51st day before the general election,” as there is no statutory provision governing vacancies that occur between day 50 and the election.
Appearances, however, can be deceiving. In what surely ranks as one of the worst judicial decisions of the millennium, the New Jersey Supreme Court decided in New Jersey Democratic Party, Inc. v. Samson, 814 A.2d 1028 (N.J.), cert. denied 537 U.S. 1083 (2002), that replacements were allowed within 48 days before the election as long as there was time to print new ballots and run the election “in an orderly manner.” As a result of the decision, Frank Lautenberg replaced Torricelli and defeated Forrester in the general election. The decision, said the court, was motivated in part because of the strong public interest in giving voters a choice of candidates. The court’s idea of a “choice,” however, was contestable (and at any rate should not have overcome the clear implication of the statutory language): Apparently the court believed there should be a Democratic and (presumably) a Republican nominee — third party choices were deemed insufficient.
Posted by Michael Dimino on September 28, 2006 at 03:07 PM
Comments
Florida is encountering a similar situation with the resignation of Rep.Foley. See http://electionlawblog.org/archives/006857.html
Posted by: Mike Dimino | Sep 30, 2006 9:58:59 PM
Matt–
By “the millennium” I meant “since 2000” rather than “in the last thousand years.” I did not mean to compare Samson to Bush v. Gore, and still less to Dred Scott. I think all three were wrong (though some parts of Bush v. Gore are arguable, the remedy makes absolutely no sense if the Equal Protection Clause was to be the basis for the holding), and did not want to claim that Samson was *the* worst decision. The 2003 Nevada case, Guinn v. Legislature, which held unconstitutional a portion of the Nevada Constitution, is another contender for the title of this millennium’s worst judicial decision.
The other point is worth considerable thought. I suppose one might think the case is less terrible than it could have been because the result allowed the people to elect their preferred candidate. (I think Mike Paulsen’s article on the worst constitutional decision of all time, for example, rests not just on reasoning but on the effect of the decision as well.) My point, however, was simply the legal one — Samson was as wrong on the law as a decision can be. It’s a horendous misinterpretation of a statute and leaves the distinct impression that the court was politically motivated.
Posted by: Mike Dimino | Sep 28, 2006 9:57:20 PM
Let me push you on this a bit.
– Is New Jersey worse off now because the judiciary allowed Lautenberg to replace Torricelli? A majority of New Jerseyians (New Jerseyites?)did, after all, vote for Lautenberg.
– You say this is “one of the worst judicial decisions of the millennium.” A millennium is a long time. Is this decision even the worst election law decision of the decade, when we have Bush v. Gore?
Posted by: Matt Bodie | Sep 28, 2006 6:52:03 PM