I think SCOTUS will take this one

Ad Hoc | 10-05-02 | Jonathan M. Stein

[jmstein7]

I read the news today (oh, boy), and the stories on the appeal to the U.S. Supreme Court gave the impression that it was a real long shot – i.e. having certiorari granted. Why would that be?

The relevant NJ election statute (19:13-20) is very clear and reads as follows:

A selection made pursuant to subsection (c) and a statement of the selection SHALL be filed not later than the 48th day before the election.

The relevant portion of subsection (c) says simply:

. . .for a statewide office, the candidate shall be selected by the State committee of the political party where the vacancy occurred. . .

This is probably the most unambiguous language I have read in the month or so I’ve been in law school. The language seems to be very clear and airtight; particularly the word “shall” that I have emphasized. To read it any other way would necessitate reading in words that are not there. Even taking into account the “spirit” of the law, i.e. the public policy behind the statute, it would still read the same way. The public policy behind this statute is, intuitively, to keep a party from swapping out losing candidates at the last minute in an effort to gain an unfair advantage. This is exactly what the NJ Democratic Party is doing, and I don’t understand how the New Jersey Supreme Court could miss that. Additionally, these rigid timetables promote consistency, predictability, and fairness in the election system. We have election laws, in general, to promote consistency and stability and to make sure everyone who plays the game plays by the same rules. It is completely unjust to allow one party to change the rules to its liking in the middle of the game. As Jonah Goldberg avers,"[another reason] we have complicated rules for when and how elections are to be held is so that we can educate the public about the issues and personalities involved. If this educational process didn't matter — if people didn't need to know anything about the candidates — we would simply hold election day the same day as we announced the candidates, and people could flip a coin inside the voting booths."

Regarding the federal question involved, Article I, Section 4 of the U.S. Constitution reads as follows:

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof. . . .

I must have missed the part where it says “subject to the approval of the judiciary”. Again, the language could not be more unambiguous.

So, my question is (yes, there is a question forthcoming), since no reasonable man could dispute the fact that the New Jersey Supreme Court erred in usurping the authority of the New Jersey legislature granted to the said legislature by the Constitution, would it not be just and reasonable for the U.S. Supreme Court to grant certiorari and, subsequently, reverse the New Jersey Supreme Court? That said, why is it such a “long shot”?

Letting the decision stand as precedent could have terrible repercussions. In New Jersey, statute 19:13-20 would be constructively repealed, leaving a vacuum in the election law. Parties would be able to strategically swap candidates in and out of races at will, creating chaos and strategically disenfranchising absentee voters who may have unwittingly filled out invalid ballots. Other state courts could look to the decision as persuasive authority and, in the absence of a U.S. Supreme Court ruling, the chaos could spread to other states as state parties that can’t win at the ballot box playing by the rules choose to sue their way into office. That's why other states, such as California, are filing amicus briefs -- they are afraid of the chaos spreading.

This case is very different from Bush v. Gore. In that case, you had two conflicting statutes that the court -- arguably -- had to synthesize, which severely weakened the Article II argument. In this case, you have one unambiguous statute, so there is a very strong Article I argument.

I predict that the court will take this one.

[11th Commandment]

Although Gore v Bush was different. SCOTUS made it clear that the court need to stay out of elections.

[CyberAnt]

Oh, but it wasn't different - in that the FLSC and the NJSC did the same thing - they both legislated from the bench and rewrote the law.

In the Bush v. Gore case, the USSC said the judiciary cannot write election law - only the legislature can do that. If it was true for the FLSC, it's also true for the NJSC. And ... that vote by the USSC was 9-0.

This is why I think the USSC will get involved - because it is the same law we are talking about - writing legislation from the bench.

[jmstein7]

Sort of. The problem in Bush v. Gore was that the court took a SHALL and a MAY and got a SHALL NOT. While courts are allowed to interpret statutory law, they are only "legislating from the bench" when they cross the boundary and read in words that aren't or couldn't be there. Courts "legislate" all the time, as not all American law is codified -- we have a common law system. But, codified law, such as statutes, always takes precedence over commmon law, and judges are bound by codified law.

In the New Jersey case, there is no latitude for interpretation, as the statute is crystal clear. Thus, there is a very strong Article I argument because the court blatantly disregarded an unambiguous statute -- and THAT is a no no.

[jmstein7]

bump

[CyberAnt]

Thanks for that clarification. It encourages me. I totally believe this is a BIG thing and the USSC needs to nip it in the bud before it becomes a precedent.

I was watching FOX this morning and neither Tony or Brit seemed to think this was any big deal. You can bet they will be hearing from me. In fact, if I can use your statement, I would appreciate it. They need to hear the "fact of law" which they seemed to think was just the dems playing their games again.

[jmstein7]

Be my guest. I give you permission to use my words for what I agree is a good cause.

[CyberAnt]

Thanks so much! I'll get back to you if they send me any comments.

[jmstein7]

You're welcome.

[jmstein7]

bump

[Greeklawyer]

I agree, this is the "slippery slope" argument. In one state the party is allowed to keep the dead on because she is winning, in another state the living resigns because he is loosing.

If the had a defensible argument they would have put in the democratic primary runner up. (was there even a democrat primary? This was not a choice this was a backroom deal in the clearest definition.) How is this a citizen legislature? This is rule by oligarcy not election.