OK, you legal beagles, test out your theoretical thinking on this: the case is going to the Supremes, who will decide in favor of the Pubbies. On what basis will they do this?
I’m betting they will deny cert. Bricker’s right about one thing: the NJSC is the final arbiter of what the law of New Jersey is. Stupidity on the part of the NJSC is not grounds for the Supreme Court to consider the issue.
Dewey -
But couldn’t you say the same about Bush v Gore and the FL courts being final arbiters on FL election law? How is this different? Because it’s a state vs. federal election, or because of jurisdiction, or ?
If I could rub the crystal ball, I’m kinda with elucidator on this one – SCOTUS will take the case, and decide against NJSC. The dissenting opinions will make interesting, and I’m sure scathing, reading.
I wasn’t getting on the expert for his opinion, (turns out he was right, more power to him) but his summation of the case. I again quote the relevant bit of his statement:
Either:
a) He was misquoted (certainly not out of the realm of possibility)
or
b) He was dead wrong in stating that there would only be one name on the ballot.
That is all.
sqeegee: In Bush v. Gore, SCOTUS at least had some (admittedly very arguable) provisions in the federal constitution to claim jurisdiction (namely, the Equal Protection Clause of the 14th amendment, and the provisions of Art. II, s.1, cl.2 for selecting a state’s slate of presidential electors). I just don’t see those in the present case. Unlike Bush v. Gore, you don’t have inconsistent measures in use across New Jersey (and thus an equal protection argument), and since this isn’t a presidential race the Art. II stuff is right out.
Thus, you’re left with, basically, “NJSC didn’t read the statute right.” Which isn’t a decision the SCOTUS can properly make – the NJSC is the final arbiter of the meaning of New Jersey statutes.
N.B.: Please, people, I’m not looking to reargue Bush v. Gore here. My only point here is that certain critical elements to that case are not present in NJ. I will happily cede that reasonable minds can differ as to whether those elements should have been sufficient for SCOTUS for Bush v. Gore.
Dewey - thanks for the clarification. I have heard some folks making Equal Protection noises, but have no opinion on whether this is based on a sound theory or just hopeful spin.
I agree: let’s not rehash Bush v. Gore. It’s been done.
Then again, if SCOTUS accepts this case, the usual rehashing & bickering on that point will inevitably follow, and it will be Flame-shields to maximum power.
Well, this article describes the GOP appeal as thus:
The first grounds will be premised on Art. I, s.4, cl.2 of the U.S. Constitution, which reads:
I note this is similar to the clause in Art. II relied on by the SCOTUS concurring opinion in Bush v. Gore. My prior comment that Bush v. Gore is inapplicable here may thus have been incorrect. It is still likely to fail, though – only Scalia, Thomas and Rehnquist thought this was a worthwhile argument in Bush v. Gore, and (IIRC) it takes four justices to grant cert.
The second grounds sounds like those Equal Protectoin murmurings you’ve been hearing, sqeegee. But I don’t think those grounds will be effective – any problem with early balloting can be remedied by sending out revised ballots. You don’t have the same inconsistent standards problem that you had in Florida in 2000.
Obviously, I’m inferring stuff from two brief paragraphs. I’d like to see the briefs so that I can make a more informed evaluation.
Here’s what the Reps’ grounds are for requsting SCOTUS review:
In this quote, Volokh is laying out the theory; farther up the page he says the Reps are indeed arguing on these grounds.
Yes, However, are the interests of the two party system served with Torricelli’s name on the ballot?
The key question, and where I think the New Jersey Supreme Court went wrong is, whether a candidate who is losing remove him or herself from the ballot in order to subsitute another candidate with a better chance of winning?
What purpose is there of the present system with the primaries and campaigns if any candidate can be put on the ballot at the last minute.
The cut-off point serves two purposes: 1. Logisitics. Getting ballots printed etcc. 2. Allowing the citizenry a chance to get to know a candidate’s views and positions. This allows us to really hone in on our candidates and examine them and put them thru the paces of being evaluated.
This is a bullshit, partisan effort on the Democratic Party to salvage a Senate Seat that they, up til now, had no chance of winning. It is obvious – to all but the most willing to come up with bullshit reasons about why the law doesn’t really mean what it means – what the law is.
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Wasn’t the Florida Supreme Court the final arbiter of how Florida’s presidential electors were selected? SCOTUS wasn’t impressed by that one, although all the federal appeals courts that led up to it were. That won’t work for New Jersey, either, even with all the NJSC’s Republicans and Republican appointees voting for Lautenberg.
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Bush v. Gore isn’t a precedent, anyway - remember those ringing words of principle, still moistening the eyes of conservative partisans today: “Our consideration is limited to the present circumstances”.
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Do we still get to see december’s head explode?
Well, yes, within the constitutional constraints of the 14th amendment’s equal protection clause. Bush v. Gore basically said the state supreme court can’t interpret the election code in such a way as to violate equal protection of law (in the case of Florida, by allowing wildly inconsistent recount approaches in each county). That type of fact pattern just isn’t present in this case. The only plausible way to make that stick would be to say early balloters are being treated unequally – but that can be remedied relatively easily by sending out new ballots.
Unless the SCOTUS were to adopt the reasoning of the concurring justices from Bush v. Gore regarding Constitutional requirements that “Legislatures” determine the time, place and manner of elections – and that seems unlikely – I don’t see how the NJSC decision could be overturned.
Thermalribbon
How would you go about proving that? Short of a psychic intrusion into Mr. Torricellis mind? He says his motives are noble, you insist he is a Democrat. In my view, he is a middling corrupt member of a Parliament of whores.
If the protection of the two party system is a valid legal motivation, then yeah, they’re right. Clearly, Torricelli’s name cannot be on the ballot because he is not a candidate. You may suspect that he is walking the plank at the parties insistence, but that has no bearing. He is not a candidate, and if the people of NJ are to have a more or less normal election, as is thier due, then the candidate must be replaced.
I am heartened by more knowledgeable opinions to the effect that the SCOTUS hasn’t got a handle on this, legally, but remain skeptical. Where there’s a will, there’s a way.
I do not wish, in any way, to discourage Pubbies from posting thier outrage and fury. Hell, I haven’t laughed this hard since they shot Old Yeller.
“They’re stealing the election!!” Very droll.
The federal Constitution clearly states that U.S. Senators shall be elected according to procedures set forth by the state legislature. For any other body (such as the NJSC) to enter into that process raises an obvious Consitutional issue.
Dewey is entirely correct in that last post. Only Rhenquist, Scaliam, and Thomas bought the argument that the Florida Supreme Court was “legislating” by interpreting the state’s statutes. If that’s the R’s position, they’re toast–it takes four votes to grant review.
It strikes me, friends and neighbors, that we’re now seeing the terrible offspring of Bush v. Gore. Thanks to the Supreme Court so stupidly getting involved in the political process, every election dispute–and as we see here, every pre-election dispute–is now a matter for the federal courts to resolve. Idiots.
Steve MB: Yeah, that’s why I corrected myself in a subsequent post.
So sorry, but that position has already been rejected by a solid majority of the Supreme Court. You’ll have to find another argument, I’m afraid.
Isn’t another likely scenario that, per the first round of Bush v. Gore, SCOTUS will remand the case back to NJSC with catch-22 instructions that permit no remedy ?
And then I guess the NJSC’s heads explode.
Both Sam Stone and thermalribbon have brought up the issue that (at least) one reason the 51 day deadline exists is so that the people can become “familiar” with the candidates before the election. Does anyone have any evidence or cite that this was/is the legistlative intention of the deadline? Frankly, I don’t believe it, and I think the only reason the deadline exists is for the practical purpose of allowing the Secretary of State to conduct the election, and hence subject to interpretation by the NJSC within the intent of the legistlation.
Other than the word “bullshit” in the first sentence, I think I could agree with you. And given the same circumstance, I would expect no less of the Republicans.
But I think this thread has established that the New Jersey statutes really don’t address this case at all. Perhaps you are suggesting that no changes beyond the 51 day deadline should be allowed, but I didn’t see that in the statute.
As I theorized earlier, if changing the name on the ballot was practical, I could understand how the NJSC could allow the change. Much closer to the election, and I doubt they would have ruled as they did.
But I still don’t get the second issue I mentioned, so perhaps someone can educate me. What allows the democratic party leaders in New Jersey to select the “new” candidate? It kinda makes the whole primary process moot, doesn’t it? Are the primary elections held simply for the convenience of the two major parties as a “suggested” method of selecting their candidates? Do the parties decide how their candidates are selected, and if they happen to select a primary election, the state will pay for it? How does this work?
It’s always about the heads exploding with you, isn’t it? 
BTW, apparently it is convention (don’t think it’s in law) in NJ that when the governor appoints judges, he replaces the Democrats with Democrats and Republicans with Republicans, with the exception of the chief justice. That way, the court is always nearly evenly divided.
Side note: With all the polemic being thrown around (“Pubbies”, “Reform Party fuehrer” for crying out loud, etc.), I wonder how minty and elucidator feel about appearing to be the left-equivalent of Ann Coulter?
On the issue of Katherine Harris, the difference is that she had announced intentions to run before the deadline but failed to resign from her old job–she said she overlooked it, but her intent was clear wrt the election. Torricelli had every intention of running up until the courts made more incriminating evidence public, and he was no longer politically viable.
However, as a card-carrying Republican, I agree that Harris shouldn’t be allowed to run. If we’re going to enforce the rule of law, we need to at least be consistent.
Let’s ratchet the ad-hominem down a notch, shall we?