Seeking for Righteousness

The Personal Blog of Kaimi Wenger

New Jersey Politics

There’s a lot of talk in the blogosphere about the Democratic Party’s bid to have Toricelli replaced on the ballot; the change was recently approved by the New Jersey Supreme Court (link via Howard Bashman). Critics include Eugene Volokh, William Safire, and John Rosenberg; a defense has been offered by, inter alia, Josh Marshall.

Arguments of principle made by both parties are for show — if a Torch-like scandal had happened to Republicans, they would be arguing for inclusion of a new candidate, and Dems would be arguing against it. The Republican and Democratic parties have no permanent position on the issue, and any statement to the contrary is probably false.

The most powerful argument that Republicans have is that Democrats are tinkering with the rules after the neutrally-fixed deadline. This charge is absolutely true. Republicans also get bonus points from vague, sloppy statements from the New York Times (which supported the change) and the court decision itself, seeming to rely on a nebulous “right to a competitive election.” Such statements are justly criticized. There is no “right” to a “competitive” election. Such a right would be a nightmare to enforce in courts, and could be bizarrely countermajoritarian — where a candidate is justly popular, that “right” might suggest gerrymandering until some “competitive” result could be reached.

Yet, fuzzy logic of its decision aside, the New Jersey Supreme Court got the outcome right. Lautenberg should replace the burned-out Torch on the ballot.

A key issue is whether election rules may be changed prior to an election. There are good reasons why one might not want to allow changes. Bush v. Gore highlighted to volatility of making any changes to agreed-upon rules. The newspapers and the NJ Supreme Court, by suggesting a “right to competitive election,” are engaging in exactly the kind of after-the-fact tinkering which should always be discouraged.

But in this instance, firm application of the rule is not required. It is an accepted maxim of statutory interpretation that where a statute will give an absurd result, it may be appropriate to construe the statute so as to give a reasonable result. Hart and Sacks have famously written that laws ought to be interpreted as if written by “reasonable persons pursuing reasonable purposes reasonably.”

Legislatures establish deadlines in order to force parties to move forward when they might otherwise delay. Deadlines are arbitrary; where deadlines are the law, they should be read as if written by reasonable persons pursuing reasonable purposes reasonably. As helpful as running against a candidate who had announced his withdrawal might be for Republicans, it is not a reasonable outcome. After all, if both candidates had withdrawn, then the law, interpreted strictly, would apparently allow no viable candidate at all to run. Absent a clear statement in the legislative history that this was the intent (I haven’t reviewed the history, but assume that if a clear statement existed, the parties would have made it known by now), it does not seem reasonable that the legislature meant to enact a strict bar on post-deadline changes, provided first that the changes could be made in an orderly way (allowing people to get them in time for the election), and second that not allowing an exception would result in an unreasonable outcome (as it would here).

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October 6, 2002 - Posted by | Uncategorized

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