Dem Hopes?

NRO ^ | 10/01/02 | Dave Kopel

[Coop]

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[Howlin]

IMO, if the NJ court rules against them, we are going to see such a blatant play for power that even Democrats aren't going to be able to deny what is happening right in front of their own eyes.

Quite the dreamer, aren't I? And here we are again, arguing, "Just obey the laws."

[p. henry]

If the Pubbies take NJ, lose Ark, and hold Colorado and New Hampshire, the Dems would have to sweep the remaining close races to hold the Senate. That is obviously what this is all about. Any current info on the races in Minnesota, Missouri, South Dakota, and Iowa would be appreciated.

[Nick Danger]

If a vacancy shall happen in the representation of this state in the United States senate, it shall be filled at the general election next succeeding the happening thereof, unless such vacancy shall happen within thirty days next preceding such election, in which case it shall be filled by election at the second succeeding general election, unless the governor of this state shall deem it advisable to call a special election therefore, which he is authorized hereby to do.

The governor of this state may make a temporary appointment of a senator of the United States from this state whenever a vacancy shall occur by reason of any cause other than the expiration of the term; and such appointee shall serve as such senator until a special election or general election shall have been held pursuant to law and the board of state canvassers can deliver to his successor a certificate of election.

Hey look, here's a way we can get back to the original state-appointed method of selecting Senators.

1) Torricelli resigns from the Senate within 30 days of the election.

2) The governor, under this law, makes a temporary appointment. Since it is within 30 days of the election, this temporary appointee serves until the next election, two years from now.

3) But lo and behold, 29 days before that election, the temporary appointee resigns!

4) Repeat as necessary.

[mwl1]

Iowa: taping scandal is purported to hurt Harkin, but no polling to prove effects as yet. You can be damned sure that the DNC will be out with polls showing no slippage immediately. Ganske needs money, and fast. The social security scare ads by Harkin have been effective.

Minnesota: a better story. Wellstone is scared witless, which is still a stretch for him. Social Security ads are not working and his numbers are not budging. The race is a dead heat, and if Coleman can seal the soccer mom vote, he has the edge. www.colemanforsenate.com if you'd like to make a donation.

[Coop]

Any current info on the races in Minnesota, Missouri, South Dakota, and Iowa would be appreciated.

The Dems are leading in IA, though Harkin's taken a lot of bad press this past week. They are, at best, tied in the remaining three races. Their chances of sweeping these four races is not very good at this time.

[VRW Conspirator]

"But, Your Honor, he's LOSING!"

heh-heh

[San Jacinto]

You are absolutely correct that this is excellent analysis. It is a great post. I have been wanting to read that 51 day statute since yesterday.

The law is very straight forward. Under that law there is no provision fo letting the Dems do what they want to do. My current prediction is that the courts will let the Dems do just that.

The Dems argument is this:
The overriding purpose of the election laws is to provide for fairness and order in the election process. In weighing the fairness question against enforcement of a [necessarily] arbitrary deadline of 51 days, the court must give the most weight to fairness. The people of NJ should not be deprived of a choice between the two major parties under facts which establish the following: (1)With 35 days until the election there is time for the election officials to arrange orderly elections even with a new candidate listed in place of Torricelli; (2) Only a few ballots have been printed, and it will not be a hardship to issue sufficient ballots in a timely manner listing the new candidate (the Democratic Party has generously offered to pay the added costs, if the court so instructs);(3) The inherent power and duty of the court to protect the electorate, weigh the competing interests at issue, and carry out legislative intent that elections be conducted in a fair manner both empower and require the court to allow the new duly selected Democratic candidate be placed on the ballot for the coming election.

In my view, the best artgument the Republicans have for a strict construction of the statute and enforcement of the 51 day limit is to show that the purpose of the law is not to merely give time to print ballots and prepare for the election, but to prevent chicanery as well. To allow a party to switch candidates at the last moment just because it is losing the election smacks of manipulation of the election process. It is a way to blindside the opposition and nullify its election strategy. Furthermore, it renders the primary election results moot. The best way for the court to ensure "fairness" in the election process is to apply clearly drafted laws as the are written. Otherwise, the search for unwritten exceptions in the law and "hidden meaning" in an unambiguous statute to suit the current needs or desires of one political party is to invite partisanship into the judicial process, either in fact or in appearance. The Goose and the Gander Principle is the logical solution to such politically charged issues -- the law shall apply equally to both parties and it shall be applied as it is written.

Now, as these arguments are presented to the courts, I'm afraid the Dems may have the trump argument, which is this: Let the voters decide the issue with their votes in November. If they feel chicanery has been at play, they can simply reject the candidate who has been so placed on the ballot.

In any event, the Pubbies must live with the State Court result (Democrat, though it may be) because to take it to SCOTUS could be a political disaster.

[p. henry]

As a former Minnesotan, I contributed to Coleman quite some time ago.

[patton]

I am sitting here with a copy of the constitution in hand, and I still do not see a conflict with the NJ law. The demrat could appoint a replacement within the thirty-day window, and delay the election by two years. See amendment 17 - it leaves selection of senators up to the States.

[VRWC_minion]

The Gov cannot delay the election. The election for Senator is set by the US not the state. He could only delay a special election designed to appoint a replacement if the regularly elected senator cannot serve.

Besides being wrong, using your interpretation would yield a conclusion that voids two central themes of the senate. One is that the senator is popularly elected by the people of the state and not appointed by the gov and the second is the rotation of 1/3 of the senators every two years.

[patton]

What words in A17 support your conclusion?

[VRWC_minion]

Section. 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof [Modified by Amendment XVII], for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies [Modified by Amendment XVII].

---

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct

[patton]

until the people fill the vacancies by election as the legislature may direct

And they have directed that the election shall be delayed two years if the vacancy occurs less than thirty days before the election...

IMHO, many folks are concerned that this extends the Torch's term to 8 years; it does not. It puts an appointee into office for <30 days of the current term, and 2 years of the new term. Then, a special election for the remaining 4 years of the new term.

But, of course, the NJSSC will get to decide which interpretation is correct.

We are so hosed...

[VRWC_minion]

And they have directed that the election shall be delayed two years if the vacancy occurs less than thirty days before the election...

They cannot take more power than what has been given them. The const clearly states that the rules your are citing have only to do when there is a vacancy. In this case the vacancy ends when the start of the class of senators take office, which is 1/03.

IMHO, many folks are concerned that this extends the Torch's term to 8 years; it does not. It puts an appointee into office for <30 days of the current term, and 2 years of the new term. Then, a special election for the remaining 4 years of the new term.

This is all nonsense. You miss the beggining of the sentence. It only applies when a vacancy occurs. A vacancy can only occur during the original term, it is not extended. the original term is up every 6 years.

But, of course, the NJSSC will get to decide which interpretation is correct.

This will never be raised because its nonsense.

[Political Junkie Too]

The overriding purpose of the election laws is to provide for fairness and order in the election process.

Don't you just love it when the argument is reduced down to "It's not fair that my client is losing?"

Can that lawyer take that argument with him into court on any case that he's involved in?

-PJ

[San Jacinto]

But it's all they got!

(well, that and maybe collecting on some favors from dem joisey judges.)

[San Jacinto]

VRWC is right; patton is not. Torch's current 6 year term is up in January. If he resigns and a new guy is appointed, then the new guy only serves the rest of Torch's term. That's it. The new guy is out at the end of Torch's current term. Whoever wins on Nov. 5 takes the seat.

The Nov. election cannot be put off. The NJ statute that is confusing some people cannot be employed to cancel an election. It WOULD apply if Torch were up for election in 2004 and he resigned now. In that case the appointee would serve until the 2004 election or until a special election, if the gov. called one.

[IMRight]

I've said it before so I'll say it here. The NJ law states that the end of a term creates a vacancy. And it specifically states that the Gov can not fill that vacancy.

We know how the regular (six year) vacancied are filled.... by the preceeding November election.

In the scenario you postulate, the Gov will appoint someone and try to set a new date. But on Jan 3 that term (currently held by Torch, but the holder is irrelevant) becomes vacant and the Gov can not fill it.

This is one reason why that statute cannot be applied to cancel an election. That election is already mandated to fill a vacancy. A vacancy that by law will occur in January.

[hobbes1]

I pretty much agree with your assesment, except now the Voting, primarily Absentee Military has already begun
and I am all but sure,
SCONJ is quite as, if not more corrupt than SCOFLA, and this being
a case primarily about election law they cannot really appeal that to SCOTUS.

I am gravely concerned that they are not raising an Equal Protection claim,
simultaneously, and in concert with the NRC, NRSC, and the State party, as
ballotts have already been Voted, and that to me, seems the only way to get this issue
before SCOTUS. They, in all likelyhood, will defer to the state court in an election law matter,
by not hearing an appeal, if one is even proper, but I don't think the courts will allow
the Democrats to once again deny Equal rotection to absentee, chiefly Military Voters, and
potentially a lawsuit like that, could involve DOJ, and maybe get this godforsaken state cleaned
up...