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Wednesday, October 02, 2002

Coments on the Torricelli Debacle

Sorry, you may have to do some homework to follow all this. A lot of discussion is swirling around different legal strategies that Torricelli might employ to get off the ballot and get Lautenberg on. So, I hope to provide summaries, links, and comments.

First, "Nuclear Autumn": the idea is that the Democrats can use election law to threaten to delay the election unless Lautenberg is put on the ballot. The Times described this:

"Democratic leaders also say privately that if the courts keep Mr. Lautenberg off the ballot, and Mr. Torricelli resigns from his Senate seat within 30 days of the election, Mr. McGreevey could appoint a successor and the election could be postponed. While such a move would open Mr. McGreevey up to fierce criticism from Republicans, the prospect could compel Republicans to drop their court fight."

Some wit described this as the "nuclear option", and here we are. Well, it has eventually occurred to Mickey Kaus, and others, that this is a nuclear warhead without a missile - if the Democrats show this sort of disregard for democracy, they will blow up only themselves in a public relations disaster. Cancelling elections that are not going your way? Great idea.

Now, this next bit is absurdly complicated. Dave Kopel of NRO had a piece outlining the election law issues. A question - if Torricelli resigns within thirty days of the election, what happens?

The statute in question is here:

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.

So, it seems that, if a vacancy occurs more than thirty days before the election, the seat will be filled at the next election. If the seat is vacated "close to" the election, i.e., within thirty days, then it will be filled at the next regularly scheduled general election, unless a special election is called.

So, a simple scenario: Torricelli resigns within thirty days of the election. McGreevey appoints his succssor, who would serve until the next general election in Novermber 2003 (elections are annual nightmares in NJ).

Wrong! says Kopel - the US Constitution trumps the NJ State Law - Senate terms are for six years, and NJ can't change that.

Right!, say others, with ghastly perma-links - scroll down like crazy, then really scroll down: The Seventeenth Amendment to the US Constitution applies, and it says that States may make reasonable provisions to fill vacant seats. Is the NJ provision reasonable? Lots of states have similar language.

But wait!, says Eugene Volokh: there are a lot of sensible scenarios where this statute makes no sense. Suppose, for example, Torricelli were not a candidate, but simply the retiring incumbent. Two (or more) candidates are campaigning for the seat in an election scheduled for Nov. 5. The Democrat is trailing in the polls on October 25. No problem - Torricelli resigns, the Democratic Governor appoints a successor who serves until November 2003, and the Democrats try again then. Is that really what the statute is saying?

Good point! So, to help resolve this seeming paradox, and in what surely represents hard times all around, I have some simple, clear, and free legal advice for everyone: statutes are generally the beginning of the story, not the end.

Courts will often look at legislative history, legislative intent, and past precedent in interpreting a statute - I mean, hello! We all know this, but, given the excitment, has anyone actually had time to do this? Absent research into those points, staring at this statute is intriguing, but not definitive.

So, a possible interpretation, based on wild surmise - the legislature seems to have two objectives:

(1) they want offices to be filled by election, rather than by appointment.

(2) elections should be properly scheduled. A vacancy could occur "too close" to an already scheduled election. If a seat became vacant a week before an already scheduled election, the process of selecting candidates, preparing ballots, and having a sensible campaign would be impractical. Hence, the thirty day window.

So, as to the "Volokh paradox" - what is the law when the election, as in the current case, is already scheduled? Well, the legislature seems to like prompt elections. Are there serious problems with proceeding with an election where the candidates have been campaigning and the ballots are set? No. So, the legislative intent would be that this portion of the statute does not apply. If there is no precedent on this point, and no legislative history, the NJ Supreme court may let stand a statute that clearly could, in easily imagined circumstances, be abused by the party in power.
Notice that it is not the withdrawal of a candidate that creates a vacancy; it is the withdrawal of the incumbent. If Torricelli the incumbent chooses to resign, fine, a vacancy occurs. If Torricelli the candidate chooses to withdraw from the race, well, State election law offers guidance there. But, since he has not died or experienced unusual circumstances other than hideous poll numbers, special relief does not seem to be appropriate.

Is this interpretation correct? Further research is needed,and I won't be doing it. I am not familiar with whether these legal research tools kick out every relevant precedent and the legislative history when they deliver the statute, so it is possible that these points have already been looked at, and dismissed. In which case, I am a little embarrassed, and a lot surprised. But my guess is that when the plain language if the statute is puzzling, other sources will be used to provide guidance.

And, a ray of light for Democrats: a reasonable interpretation of this statute is that the State needs thirty days to prepare for an election. So, what is magical about the "51 day" rule that guides the candidate selection process? OK, the only magic is that it is what the legislature wrote, but clearly they contemplated special circumstances in which 30 days was enough. The Republican response? What is special about a candidate trailing in the polls?

UPDATE: Was it obvious when I requested more research into "legislative history, legislative intent, and past precedent" that I was including, in legislative history, other relevant statutes? Having done more research, Eugene Volokh drops this on us:

"In fact, another statute, N.J. Stat. 19:27-4, seems to recognize that vacancies that happen right before a seat is about to be filled in a normal election should generally be taken care of through the normal electoral calendar:

When any vacancy happens in the representation of this State in the United States Senate or in the House of Representatives, the Governor shall issue a writ of election to fill the same unless the term of service of the person whose office shall become vacant will expire within six months next after the happening of the vacancy and except as hereinafter provided.

So if Torricelli resigns within 30 days before the November 2002 election, the Governor wouldn't even have the power to call a special election (note that 19:27-4 was enacted after 19:3-26, so if the two conflict, 19:27-4 prevails)."

Well, well. Look, politically this strategy is a loser. And legally, it may be dead as well.

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