Missouri, Hawai and New Jersey

Great Debates
81

But clearly, there’s a lot of debate about what that little bit of legislature actually means. To me - and I know that my opinion is rendered completely invalid by minty because I’m not a lawyer or judge, but humor me - that line can have two possible meanings. It is not as “cut and dried” as you make it out to be. For example - you say that if they wanted to prohibit substitutions after the 51st day, they would’ve put in some blurb specifically stating that. But if they wanted to specifically allow late subs, couldn’t they have put in some statements outlining the procedure? That argument goes both ways. Try seeing the case from the other side.

Basically, isn’t it possible that the legislature thought they were being crystal clear when they wrote that that substitutions after 51 days were not allowed, and that’s why they chose not to include additional verbage to point that out?

Jeff

82

But Jeff, the most you’ve demonstrated there is that the statute is ambiguous, i.e., capable of more than one interpretation. Are you thereby conceding that the NJSC’s interpretation is a valid resolution of that ambiguity? And if so, what’s left to complain about?

(Note: I don’t actually think it’s ambiguous, I’m just carrying your position to its natural conclusion.)

83

SuaSponte

::sigh:: One more time. All the New Jersey legislature had to do to make 51 days before the general election the deadline for subsitution of candidates was to add to that statute the sentence “No vacancies on the ballot may be filled later than 51 days before the election.”

::sigh:: One more time here…The New Jersey legislature didn’t add another sentence (or two…or three…or four…) because they didn’t feel it was necessary. (I suppose. Please don’t ascribe to me any mind-reading techniques, OK? And then get on my case for it. I’m just making a best-guess here, OK?) The phrase “…which vacancy shall occur not later than the 51st day before the general election…” seems to me to indicate that they were talking about said vacancies not to occur after the 51st day. (checks words again…)

Here is a link (I hope I do this right; never having done a linking thingie before) from an editorial that SUPPORTS the New Jersey Supreme Court:

http://www.nj.com/opinion/ledger/index.ssf?/base/news-0/1033895773127400.xml

Note a few items from this SUPPORTING argument:

“But as several justices pointed out, the law is anything but clear.”
“Faced with that ambiguity…”
" We wouldn’t be in this mess if it were not for the ambiguity of our statutes."

Gee whiz, if the SUPPORTERS of the New Jersey Supreme Court can be so aware that there IS ambiguity in the statutes, why can’t you and Minty agree that there is ambiguity? This is not conceeding your opponents points or position, but just agreeing that Democrats and Republicans differ in their interpretation of the statute.

Cut-and-dried? End of story? Hardly. But this is typical of many Democrats who just can’t wrap their minds around the idea (fact, even) that there are people who disagree with them.

84

You got it right. The New Jersey legislature didn’t feel it was necessary to add another sentence because they didn’t intend to bar late substitutions. If they intended to bar late substitutions, they would have added the sentence. When a legislature doesn’t speak to an issue, they didn’t intend to speak to an issue.

Here is a link (I hope I do this right; never having done a linking thingie before) from an editorial that SUPPORTS the New Jersey Supreme Court:

Note a few items from this SUPPORTING argument:

“But as several justices pointed out, the law is anything but clear.”
“Faced with that ambiguity…”
" We wouldn’t be in this mess if it were not for the ambiguity of our statutes."

Gee whiz, if the SUPPORTERS of the New Jersey Supreme Court can be so aware that there IS ambiguity in the statutes, why can’t you and Minty agree that there is ambiguity? This is not conceeding your opponents points or position, but just agreeing that Democrats and Republicans differ in their interpretation of the statute.
[/QUOTE]

So an editorial board thinks there is an ambiguity. So what? Last I checked, editors are journalists, not attorneys. They are not “aware” there is an ambiguity - they THINK there is an ambiguity. They are wrong.
I acknowledge that some people differ in their interpretation of the statute. But the mere fact that people see this differently does not give their POV any validity. There is one right interpretation of the statute. There can be myriad wrong interpretations. I don’t care about the myriad wrong ones.

I’m wrapping my mind around the concept fine, thanks. I’m not speaking as a Democrat, but as a lawyer. I think my record on this boards makes me credible when I say that I would be writing the exact same thing if the GOP candidate had stepped aside.
As Ender pointed out, this ain’t a political debate. It’s a legal debate. And there are rules of statutory construction in the law that are to be applied when interpreting a statute. And under those rules, the statute provides no bar to late substitutions, but leaves the matter to the courts. And that is cut-and-dried.

Legislatures employ attorneys as well. They know the rules of statutory construction.

But let’s look at the possibility that the legislature thought it was being crystal clear. IOW, let’s look at the possibility that the legislature goofed.

Are courts supposed to make decisions in cases on the assumption that the legislature screwed up?
We can’t let courts act on that assumption. The legislature is the provider of laws in our system. We must assume that the legislature wrote what they intended to write, and no more and no less. To assume that the legislature must have made a mistake is to hand over law-writing powers to the un-elected judiciary. (“A $30.00 tax on vehicle registration is way too low. The legislature must have misplaced the decimal point. $300.00 sounds more realistic, and must have been what the legislature intended.”)

Judicial activism is bad enough without giving judges carte blanche to change laws on the assumption that the legislators goofed.

Sua

85

So here it is in simpler form.

We have two options:

  1. Read the statute and look for a deadline. Note that there is no deadline set out in the statute. Conclude there is no deadline.

  2. Read the statute and look for a deadline. Note that there is no deadline set out in the statute. Put yourself in the place of the legislature and try to read its mind about what it intended. Come to the conclusion that the legislature must have meant to place a deadline in the staute, and either screwed up or didn’t express themselves well. Decide what that deadline should be.

What is the better way to run this railroad? Looking to the language of what the legislature wrote, or make assumptions about what the legislature intended to write?

Sua

86

Oh, please. This isn’t a matter of the judiciary adding or subtracting dialogue that wasn’t there, it’s a matter of figuring out what the hell what is there is supposed to mean.

Okay, wait, just want to make sure I get this clear:

When the justices rule in a way that you agree with on a matter that, by their own admission, is ambiguous (and, by extension, could be interpeted and thus ruled upon in multiple ways), they are doing their job. If they had ruled the other way, however, it would’ve been changing the law?

Jeff

87

Nope. What is there is very straightforward - if a vacancy occurs on the ballot before the 51st day before the general election, here are the procedures for filling the vacancy.
To get the result that you wanted, the New Jersey Supreme Court would have had to add dialogue to that statute, that vacancies may not be filled after the 51st day before the general election.

You don’t have it clear. Where did the justices say the statute was ambiguous? The only thing I heard even close to that is when the GOP attorneys asserted that the law was clear and there was a deadline, several judges noted that the law was anything but clear. IOW, the statute did not say what the GOP attorneys claimed it “clearly” said.

What the justices acknowledged was that the law was silent. That is a very different thing than being ambiguous. When the law is silent on a justicable issue, it has been left by the legislature to the courts, which then rule based upon the facts of the case and the applicable precedent.

As for what would have happened had the justices ruled the other way, there are two possible answers.

First, if they had ruled against Lautenberg on the grounds that the statute establishes a 51st-day deadline, then yes, they would have been improperly changing the law.

Second, if they had ruled against Lautenberg on the grounds that the statute was silent and that there was insufficient time to properly replace Torrecelli’s name on ballots across the state, then the ruling would have been proper.

Sua

88

Oh, I’m sorry. In the world I live in, “anything but clear” and “ambiguous” mean pretty much the same thing. My bad. I am happy, though, that you admit that when forced to interpret this law that is “anything but clear” regarding the alleged 51-day deadline, the justices only had one answer that would’ve satisfied you. Most people try to deny their bias. Kudos to you for your honesty.

Jeff

89

Jeff, ambiguous and unclear are not always synonyms. In this instance, the statute is unclear as to what the legislature wanted to do to candidate vacancies less than 51 days before the general election. But the statute is not ambiguous as to whether or not the legislature intended to foreclose new candidates or changed ballots, because the legislature made no provision at all for those circumstances.

90

Since it seems that only lawyers opinions matter, and not those of the Great Unwashed…

http://www.nj.com/opinion/ledger/perspective/index.ssf?/base/news-0/1033895784127400.xml

Yes, this is an OPINION page, but please note: this gentleman is a former attorney general and is currently serving as a commissioner on the State Commission of Investigation. He states also (*in this piece[/]) that "This is, I know, a harsh statement, particularly about a court I deeply revere, whose jurisprudence I so frequently defend. " (bolding mine.

So please don’t try to cast him as a crazed “Pubbie”.

He states: " In any case involving the interpretation of a statute, as this one did, they are supposed to ask three fundamental questions."

1). What does the statute say?

answer: “First, the language of the statute is clear, as statutes go.”…and goes on to explain.

2). “Are there considerations of equity and fairness that preclude the literal application of the statute?”

answer: *What manifest injustice would have resulted from requiring Torricelli, the unopposed candidate in his party’s primary, to remain on the ballot?

Clearly, no manifest injustice would result to the candidate who seeks to withdraw."*…and goes on to explain.

3). "Finally, what precedent will be set by either adhering to the language of the statute or departing from it on equitable grounds? "

answer: “The election laws – the statutory framework designed to assure the integrity of the voters’ choice – are now a shambles.”
He also states: “Although the court’s order is fundamentally unfair to Torricelli’s opponents, its lasting casualty is the rule of law.”

And: “We cannot possibly know now the rules of the election game. That is the tragedy of this case. Voters may have choices in the future, but they will have no assurance that those choices are the product of an orderly process supported by the rule of law.”

And: “This is not, by the way, a partisan assessment. Eighteen months ago, as attorney general, I was approached by Republicans who wished to replace acting Governor Donald DiFrancesco on the primary ballot with Bob Franks after the statutory deadline had passed – for largely the same reasons cited by Democrats now. I informed them that any such move would be contrary to the legal deadline, with no extenuating circumstances, and that I could not support it. If they wanted to do it, they would have to change the statute – which they did.”

And: “While purporting to exalt the interest of voters in choice, last week’s ruling undermines the integrity of the process designed to safeguard that choice by introducing uncertainty into an area that requires clear rules.”

This is a man who was an Attorney General and as such probably knows more about the law than this entire board put together, who freely admits that he deeply reveres the New Jersey Supreme Court, and as such can hardly be considered to be a Republican hack…

…and HE says they are full of shit.

Now, can we PLEASE admit that there is NO cut-and-dried, that’s it, end-of-story, I’m right so therefore you’re wrong to this??? That REASONABLE minds can differ on this ruling??? That maybe, just maybe, Sua & Minty…you might be wrong?

91

OK, you got me. I wholeheartedly agree. What-his-name, the Former Attorney General, who is not a Republican hack, is full of beans as well. You have established this beyond any further contention.

Hey, when you’re right you’re right.

92

Toaster, how 'bout you drop the whining about how the lawyers in this thread are being mean to you and saying your opinion doesn’t count. Nobody has stated any such thing in this thread. All that’s happened is ordinary debate, during which your points have been repeatedly rebutted. Deal with it.

Next, whoever this John Farmer guy is, he’s demonstrably wrong in asserting that the statute requires any replacement candidates to be named more than 51 days out. Here’s Farmer’s paraphrase of the statute:

And here’s the statute itself:

Quite simply, Farmer describes the “shall occur not later than the 51st day before the general election” as an imperative. As a moment’s study of the statute reveals, the clause is emphatically not an imperative. It is a dependent clause, describing the circumstances of the vacancy it addresses.

By way of illustration, try this language on for size:

Under Farmer’s misreading of the statute, little Bobby is absolutely forbidden from having ice cream if he doesn’t get an A in Math or Science. No, sorry, that’s not the way the sentence works. In fact, it says nothing about what happens if he doesn’t get an A in Math or Science. Maybe Mom and Dad will buy little Bobby ice cream, maybe little Bobby will buy his own ice cream, maybe little Bobby will be prevented from so much as looking at a Baskin Robbins until he turns 18.

If Mom and Dad really want to prevent little Bobby from having any ice cream unless he gets an A in Math or Science, they can say exactly that. They didn’t. And neither did the New Jersey Legislature.

93

minty, I agree with your analysis of Farmer’s article. From a certain technical POV he was was wrong.

However, from a technical POV, ISTM there is no “vacancy among candidates nominated at primaries,” since Torricelli’s name was sitting there on the ballot on the Democratic line. The Torch was living and healthy and legally qualified to be a Senator. So, that entire provision would be inapplicable (if the NJ SC actually wanted to follow the law.)

94

Except that Torricelli was not a candidate. He may have once been a candidate, he may even still wish he was a candidate. But he wasn’t: living healthy and legally qualifired notwithstanding. He had ceased to be a candidate, he had rung down the curtain, joined the Choir Invisible, bereft of candidacy, he stands there…

This is an EX-candidate!

95

Hmmm. Suppose the SC had declined to change the ballot and Torricelli got the most votes. Wouldn’t he be elected?

96

Sure! If enough people wrote in “Mickey Mouse”, then another rodent would go to the Congress. What of it?

97

Legally, Torricelli was still a candidate, as long as his nmae remained on the ballot. His words of withdrawal would have had no legal force. If the ballot remained unchanged and he had won, Forrester couldn’t have become Senator just because Torricelli had said he was withdrawing from the race. Torricelli would have remained in the Senate.

98

december, this issue wasn’t about whether Torricelli was still a candidate - the Supreme Court didn’t have the authority to force the Torch to stay on the ballot. It was whether, once a vacancy had occurred - that is, after Torricelli was out of the picture - could the vacancy be filled. The ballot was already changed.
So no, Torricelli couldn’t win because, even if his name was physically on some ballots, a vote for that slot on the ballot would have been a vote for “none of the above.”

Tangentially, you touch on an interesting question that probably worthy of its own thread - probably GQ rather than GD, though. Say a candidate stays on the ballot and fights the election to the end. Does a concession have legal effect?
This idea first struck me during the 2000 election debacle - what if either Bush or Gore had conceded, but the final count indicated that the conceding candidate had actually won?

Sua

99

…and I wake up this morning to the hell that is a Democratically-controlled wrold, where rules apply only insofar as they advance the Higher Nobility of The Great Democratic Cause

…which is saving us from the Evil Republican Devils.
BTW, for those who don’t know yet, the U.S.Supreme Court refused to enter the fray, letting Lautenberg’s name stand on the ballot. So, Minty & Sua, you were right all along and I was wrong. I am deeply ashamed of myself and withdraw from the field, as it is obvious that I am a demonstratable moron.

100

No, you’re just a whiny martyr. Perhaps one of the less intellectually-demanding forums would be more to your liking?