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The Supreme Court should overturn the New Jersey election decision.


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Deroy Murdock

As its first order of business when it returns Monday, the U.S. Supreme Court should reverse the New Jersey supreme court’s ruling in that state’s U.S. Senate fiasco. With stunning disdain for the United States Constitution, federal statutes, and state law, the Trenton Seven ruled unanimously last Thursday that former Democratic senator Frank Lautenberg may leave retirement to oppose Republican nominee Douglas Forrester, 49. The 78-year-old Lautenberg would replace incumbent Torricelli, 51, who withdrew from the race on September 30 under an ethical cloud.

The New Jersey decision should be vacated for three key reasons:

First, the Garden State ruling violates the United States Constitution, federal election statutes and the laws of New Jersey.

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Article I, Section 4 of the U.S. Constitution states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof…” The Trenton Seven contravened this constitutional principle and illegitimately asserted their power to overturn the legislature’s duly expressed will as set forth in the law.

The New Jersey decision also violates Section 1 of the 14th Amendment.

As Bill Baroni, counsel to Forrester 2002 explains, the amendment’s due process provision is in jeopardy. New Jersey’s 21 counties normally start printing and mailing out ballots 40 days before the election. Now they are doing so 29 days before voting.

“You may have two Navy shipmates from New Jersey, one from Monmouth county, another from Mercer county,” Baroni says by phone. “The counties border each other. The sailors live across the street from each other. One gets a ballot. Another doesn’t. You have a due process problem.”

The decision also undermines the 14th Amendment’s equal-protection language. “Some overseas absentee voters may be able to vote on a Torricelli ballot and again on a Lautenberg ballot; some only on the Torricelli ballot and not the Lautenberg ballot,” Baroni says. “Others will get both, but the Lautenberg ballot gets there too late to be counted. And others perhaps no ballot at all.” He adds that this could be a bigger problem this year than most given the war on terror. “We have more military people fighting overseas, and further away than they have been before, and many in locations that are far more secret than before.” Imagine having to get ballots into and out of Tora Bora, Afghanistan on a timely basis.

The Trenton Seven’s ruling also stomps on federal statutes. The Uniformed and Overseas Civilian Absentee Voter Act of 1986 (42 USC 1973ff), an amendment to the Voting Rights Act of 1965, grants a federal right to vote by absentee ballot in federal elections. It requires states to develop systems to enfranchise civilians living overseas as well as uniformed men and women serving abroad. It specifically says that states must mail out absentee ballots starting 40 days before each federal election. New Jersey’s supreme court has created a scenario outside those federal statutes.

The Trenton Seven torched the Garden State’s legal code, too. New Jersey law, passed by the state legislature as the U.S. Constitution requires, says that any candidate on the ballot who decides to withdraw from the race must do so at least 51 days before an election. Any replacement for that candidate must be named by the political party in question no later than 48 days before voting begins. Torricelli dropped out of the race 36 days before the election, and Lautenberg was selected 34 days prior to November 5.

What part of 51 and 48 is unclear to New Jersey Democrats and their supreme court? Can’t these folks count that high?

The Trenton Seven’s attitude can be summarized as “Deadline, schmedline.” They utterly ignored this crystal-clear provision of the law and wrote their own statute.

In doing so, the Jersey justices expressed the view that “the election statutes should be liberally construed.” That argument might hold some weight were the entire state laboring under some extraordinary circumstance, say if Torricelli lay in a coma or were actually dead. But no such crisis exists. Indeed, Democrat Mel Carnahan remained on Missouri’s senatorial ballot after he died in a plane crash just before the 2000 election. The late Rep. Patsy Mink’s name will appear on Hawaiian ballots even though she died at age 74 of viral pneumonia on September 28.

Bob Torricelli is alive and well. His heart beats, and he can speak up for himself. Torricelli only suffers from a stunningly mundane condition: political unpopularity. If that alone merits the naked violation of the U.S. Constitution, federal statutes, and state law, why not simply discard such inconvenient scraps of paper and allow politicians do whatever maximizes their pleasure?

Second, the New Jersey ruling is built on a lie.

The Trenton Seven claim they acted “to allow parties to put their candidates on the ballot, and most importantly, to allow the voters a choice on Election Day.” This suggests that voters would have no choice absent the court’s intervention. This is patently false.

As the website of the New Jersey Division of Elections indicates, even if Democrats ran no one for Senate, voters already could choose from among Republican Forrester, the Green Party’s Ted Glick, Libertarian Elizabeth Macron, Socialist Gregory Pason and Conservative Norman E. Wahner. Nothing anywhere indicates that voters must be able to choose from the two main political parties. In fact, in New Jersey’s first congressional district, Democratic Rep. Robert Andrews faces no Republican opponent. Some might say that having a Republican run only against nominees of smaller parties is unfair. Why, then, has it been okay for Vermont voters to elect Socialist Bernie Sanders to the House of Representatives?

All that aside, keeping Torricelli on the ballot would give voters a choice. True, polls showed him 13 points behind Forrester when he quit. But Torricelli is like a soldier who volunteered for combat, then deserted the battlefield as soon as the sound of his enemy’s artillery got too loud. Instead, Torricelli should stand and fight. He could argue that helping to maintain Democratic control of the Senate by reelecting him is far more important than his own legal and ethical problems. Most Republicans and free-marketeers would reject that rationale, but enough Democrats and swing voters might be persuaded to return Torricelli to the Senate. Despite the Trenton Seven’s claim, that would be a very clear choice for New Jersey voters.

Third, the Garden State ruling would set a monstrous precedent for future abuses and the disposal of the choices of primary voters. If New Jersey Democrats and their black-robed enablers get away with this, why couldn’t a weakened Forrester yield to former GOP governor Christie Todd Whitman? Embattled Senator Paul Wellstone (D., Minnesota) may wish to let retiring governor Jesse Ventura run for his seat. If Republican challenger Bill Simon cannot catch up to incumbent Governor Gray Davis (D., California), why not recruit former governor Pete Wilson to finish the race?

“The New Jersey Supreme Court’s decision is the Election Lawyers’ Full Employment Act,” Bill Baroni says. “We’re going to be busy for years.”

If the U.S. Supreme Court lets the Trenton Seven’s decision stand, it will signal Americans that the U.S. Constitution, federal statutes, and state laws are not strict rules, but mere suggestions.

And if deadlines mean nothing, will Americans still have to submit our 1040s by April 15? Why not April 25? Or May 7? If the IRS complains, just tell them your senator ate your tax return.



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