Here are a few paragraphs from an article about the Supreme Court decision regarding the New Jersey Senate race. Like the court said in 2000, Bush v. Gore does not, apparently, establish precedent. Forrester's mistake was not coming from a family that the majority of the judges felt beholden to. Poor guy. He should have won. Pusillanimous Supreme Court! I bet it was O'Connor who switched. http://www.washingtonpost.com/wp-dyn/articles/A57208-2002Oct7.html The U.S. Supreme Court announced yesterday that it would not stop New Jersey from replacing Sen. Robert G. Torricelli (D) on the ballot for the Nov. 5 election, a move that hands the Democratic Party a major victory in its struggle to retain a majority in the U.S. Senate. The justices' decision to avoid the political thicket they entered during the 2000 presidential election came in a one-sentence order rejecting Republican candidate Douglas Forrester's request to block an Oct. 2 New Jersey Supreme Court order. That order permitted New Jersey Democrats to substitute former senator Frank R. Lautenberg for Torricelli, who bowed out amid an ethics scandal on Sept. 30, 36 days before the election... Forrester issued a statement calling the high court's action an "unfortunate" triumph for "a few establishment elite Party Bosses who will do WHATEVER IS NECESSARY to keep their grip on to power." ... Though the Supreme Court's terse statement, unaccompanied by any comment or published dissent, left the precise nature of the justices' thinking unexpressed, it clearly showed that the court had no appetite in this case for a return to the political world they forged into during the 2000 presidential election. The court's decision to halt the Florida recount, effectively ending the election in favor of George W. Bush, set off sharp internal divisions at the court and harsh criticism of the justices from legal scholars. It would have taken a five-vote majority of the nine-member court to grant Forrester's application. Under Supreme Court precedent, the justices would have granted a stay if they believed Forrester would suffer "irreparable harm" without one, and that there was a "fair prospect" that he could have persuaded them later to overturn the New Jersey court's ruling on the merits. But a majority of justices apparently were not swayed by the legal arguments in Forrester's application papers, which contended that the New Jersey court unconstitutionally rewrote a state law banning ballot changes within 51 days of an election, violated a federal law on absentee voting and denied due process to absentee voters who had already received their ballots. Forrester's effort to liken the potential disruption in an election that could make or break the Democrats' one-vote majority in the Senate to the impending power vacuum at the top of the national government that the court averted in 2000 also did not move the justices to take action. "The court would have been chastised no matter what it did," said Douglas W. Kmiec, dean of the Catholic University's Columbus School of Law. "If it took the case, it would have been perceived as an instrument of partisan interests . . . . Now, in not taking it, the court can be accused of disregarding its own legal principles and leaving us in total wonderment as to what they were trying to say in Bush v. Gore."
The problem is that the Court disregarded what they wrote in Bush v. Gore. In that case the Cout said: They then said... Near the end of the opinion they said: All of this ties into one theory. The right to vote is given to the people by the Legislature. Once the Legislature sets rules for the elections via the enactment of an Election Code, the court cannot ignore the Election Code provisions in order to obtain the result they desire. The New Jersey Supreme Court is tasked with interpreting the law given by the Legislature. They failed to do that. They did not strike down the statutory 51 day window. They ignored it in allowing the Democratic Party to remove their candidate's name and insert another name on the ballot. I wish that the Supreme Court of the United States would have made a definitive pronouncement in this case so that we could have in writing whether the logical implications of the court's wording in Bush v. Gore is what they actually meant. Now all we seem to have is legal limbo which will be revisited with great frequency when there is an unusual situation revolving around an election.
So if one party's getting crushed in the polls they can just sub in a new candidate whenever they want?
Refman, just a quick post. Glad to see you got it. After making fools of themselves to elect Bush there was no way they would take the heat to do it again. At the Supreme Court level legal precedent is followed if it leads to the desired decision, if not screw it.. Legal realism: the theory that says "What is Consitutional is whatever the current Supremne Court says it is." All in all a very predictable decision from a political point of view.
The concurrers in B v. G. (the conservative ones) seem to make clear that intervening (and thus going against their normal hard core federalism-states rights approach) in that case was only because of the extraordianry circumstances. So it's not totally inconcsistent for Rehnquist, scalia, and thomas to decline to intervene here. . What screwed Forrester the most was prior New Jersey case law, especially the case where he won back in april to get himself onto the republican primary ballot, 11 days after the same statutory 51 day deadline had passed.
Even as democrat, I think that you have to live and die with your initial decision to pt him on the ballot. There can be no last minute subsitution. That's just unfair.
What screwed Forrester the most was prior New Jersey case law, especially the case where he won back in april to get himself onto the republican primary ballot, 11 days after the same statutory 51 day deadline had passed. Seriously? I'd love to hear his argument on the differences between the two cases.
Have you heard the discussion as regards how this will fit in with the new Campaign Reform laws? What is it--- not issue ads in the 60 days before an actual election? Run puppet candidates who are beyond criticism (i.e. they have no positions) and then slip in the real candidate after the deadline when the ads have been neutered. It works the same for both sides, but it doesn't seem to do much for informing the electorate. Is this a right and proper explanation?
Actually glynch...you're DEAD WRONG. The Supreme Court was correct in its jurisprudence in Bush v. Gore. Read it...in that case they were stating that the recount was unconstitutional because the recount process rules varied not only from county to county but from team to team within the same county. You can't run a recount that is fair to EITHER PARTY that way. In any event...the Legislature gives the right to vote to the people and makes the rules for the elections. It is not for the judicial branch to overturn the legislation. That is what the New Jersey court did, and should have been overturned. And yes...had Forester been the one to bow out I would feel the same way. The rules and laws regarding elections must be followed TO THE LETTER in order to be fair to all.
Wrong schmong, apparently the courts of NJ have decided otherwise. The trend in borderline cases in NJ is to put the other guy on no matter what. Forrester benefitted from it during the primary, and now Lautenberg did during the general election. As Forrester's own attorneys wrote in their briefs "Strict compliance to statutory requirements and deadlines within Title 19 are [sic] set aside where such rights may be accommodated without significantly impinging upon the election process," Should the people of NJ be forced to be represented by somebody they don't want by procedural default? That is what I would call a "wrong".
So where do you draw the line? If a candidate is way behind in the polls can their party remove them and place a popular figure in their stead the day before the election? When should we have certainty instead of musical chairs merely because it looks like a candidate would lose?
So where do you draw the line? If a candidate is way behind in the polls can their party remove them and place a popular figure in their stead the day before the election? When should we have certainty instead of musical chairs merely because it looks like a candidate would lose? If the party is willing to pay for the ballot changes, why not? It seems to me that this would just improve the quality of candidates in the races. Obviously, the candidate has to first agree to be pulled. In most cases, the best candidate will win the primary anyway, so there's no real problem. In general, a late replacement is likely not to be as popular due to less time running, unless the opponent is really crummy. But if both sides can change out candidates to offer someone better, what's the real harm?
Well... 1) Fairness -- It simply isn't fair to have one candidate who has been through the battles for the entire campaign and then have one side "tag in" a fresh candidate. 2) Absentee ballots -- The 51 day window isn't arbitrary. It was set because that is when they start getting absentee ballots returned. Take this hypothetical scenario: Kathy Whitmire is running for state Senate. I like her more than the Republican candidate. I vote for her absentee. But with 3 weeks left until the election she is down in the polls and the Democrats decide to have her drop out and run Bob Lanier instead. I don't like Lanier and would NEVER vote for him. What happens to my vote? Does it go to Lanier (which would be unfair) or does it get discarded (which would be disenfranchisement). Keep in mind that in many absentee situations there would not be enough time to have new ballots printed, sent out and returned. There are other reasons but these are the 2 biggest reasons.
Well... 1) Fairness -- It simply isn't fair to have one candidate who has been through the battles for the entire campaign and then have one side "tag in" a fresh candidate. I could see this, but it seems to me the point of the campaign is to get yourself better known and your views out there (at least in theory). If that's true, then tagging in a fresh candidate would actually hurt that party in general, no? 2) Absentee ballots -- The 51 day window isn't arbitrary. It was set because that is when they start getting absentee ballots returned. Take this hypothetical scenario: I agree with this, and I think this should be the standard for when a candidate can be changed. Absentee ballots absolutely have to have the right candidates listed. If a party pays for these to be mailed within a reasonable time-frame though, I have no problem with it.
mav3434, I wasn't being serious. That's just a typcial response I get whenever I point out someone's hypcorisy (not necessarily on this BBS, even though I have been chastised for saying something similar here a long time ago).
Rules v. discretion is one of those age old jurisprudence debates that wil never be solved, O'connor and scalia debate it a lot. There's a good argument for both sides. In the real world people (myself included, I must admit) will generally choose the one that has the most advantageous outcome for them if the stakes are high enough (witness the stunning role reversal on both sides during Bush v. Gore, with rehnquist, et al assuming the mantle of federal government power and ginsberg and the rest becoming one-time federalists)
Not necessarily...and certainly not in New Jersey. The people there knew the candidate and had sent him to the Senate. Now they decide (in the way of polls) that they would not send him to the Senate again. So now the party asks him to bow out...and they tag in the fresh and relativly politically unscarred replacement. The New Jersey state Legislature deemed 51 days to be a reasonable time frame. That is one of the rationales for having the 51 day law.
I have definitely read a lot of outcome determinitive jurisprudence, but Bush v. Gore is not one. I read the entire unabriged opinion, and it seems sound. They relied heavily on Supreme Court precedent from the time when states were enacting their Election Codes. The court indicated that had Florida devised set standards for the recount (which they failed to do) that the recount would have been Constitutionally permissible. That is a decsion that I think was sound logically.
