Why let the law get in our way?

By Thomas Jipping

Mired in scandal with his poll numbers tanking, Sen. Robert Torricelli, D-N.J., announced on Sept. 30 that he will not be a candidate for re-election this year after all. Democratic party bosses scrambled and, with the help of the New Jersey Supreme Court, have rigged the election by substituting someone they think can win.

Under New Jersey law, a political party may replace a candidate after a primary, but only if the vacancy occurs “not later than the 51st day” and the replacement is chosen “not later than the 48th day” before the general election. This year, these deadlines were Sept. 15 and 18. Not even close.

What do those words mean to you? Here’s what they mean to The New York Times: “New Jersey election law allows political parties to change candidates 51 days or more before the election, but the law is unclear about making a switch after that point.” Unclear? What part of “not” does the Times not understand? Prohibiting replacement of a candidate less than 51 days before an election is precisely what the statute is clear about.

You’d think that lawyers, and hopefully judges, could figure out what “not later than the 51st day” or “not later than the 48th day” mean. You’d think that, but you’d be assuming they care. On Oct. 2, the New Jersey Supreme Court unanimously allowed what the law forbids by ignoring the law altogether. They may as well have ruled legislatures unconstitutional.

Lawyers for the New Jersey Democratic Party argued that not allowing a viable Democratic candidate on the ballot would not be “fair to voters.” I can think of at least three things that are less fair. The first is Sen. Torricelli, after asking for and receiving the nomination in the June 4 primary, taking his marbles and going home because he expects to get beat. The second is breaking the law to rig the election. The third is the court’s failure even to explain why it was breaking the law to rig the election.

New Jersey Democrats said they asked the court to rewrite the statute “because of the unusual circumstances.” Remember when Missouri Gov. Mel Carnahan died in a plane crash a few days before the 2000 Senate election? Now that was an unusual circumstance. There’s nothing unusual about Sen. Torricelli quitting because he didn’t want to lose, except maybe the unusually poor character it demonstrates.

The one precedent involving this statutory provision, Kilmurray v. Gilfert, did involve a truly unusual circumstance and shows why the court’s decision in the present case was so wrong. In 1952, this same statute had a vacancy deadline of 37 days and a replacement deadline of 34 days. A candidate died 36 days before the general election, just one day past the vacancy deadline (a truly unusual circumstance). The court said that missing the vacancy deadline by a single day could be tolerated where the political party nonetheless selected a replacement “within the time prescribed by statute.”

So, even if Sen. Torricelli up and quitting is the same as a candidate up and dying, the replacement deadline is still the law. He missed it by a mile. Yet in its entire seven-page order, the court not once even quoted from the statute it was sweeping aside. The court not once discussed its precedent that made the Democrats’ position untenable.

The court’s entire statutory “analysis” consisted of its observation that the statute “does not preclude the possibility of a vacancy occurring within 51 days of the general election.” That statement is absolutely incomprehensible. Of course the statute does not preclude the possibility of a vacancy occurring. How could it? No mere statute could preclude the myriad of situations potentially causing a vacancy such as, say, a candidate dying. No legislature would presume such power; only judges are that arrogant.

The court could just as easily have said in its 1952 decision that the statute “does not preclude the possibility of a vacancy within 37 days of the general election.” It said no such thing, at least because saying it is so absurdly and utterly irrelevant to the case. The statute does not preclude the possibility of a vacancy, but most certainly does preclude substituting another candidate after the deadline. That’s precisely what the court did in 1952 and what the Court should have done this week.

The very body to which Sen. Torricelli belongs recently defeated one of President Bush’s judicial nominees. Senate Democrats criticized her for not stepping aside when cases before her involved campaign contributors. Two members of the New Jersey Supreme Court contributed to Sen. Torricelli and yet joined in granting his request to rig the election.

Perhaps all the candidates in the Senate race should drop out. The judges can handle the legislating by themselves.