MORE ON THE NEW JERSEY BALLOT FLAP
Blogger isn’t happy in its work, so I’ve had to set up a temporary site to report the earth-shattering results of my legal research.
Bottom line: The Times had it about right. The deadline Forrester successfully asked to have waived in the spring was a different deadline than the one that Lautenberg successfully asked to have waived in the fall, but if the question is whether the courts can waive election law deadlines, the two cases are precisely parallel.
Eugene Volokh reasonably asks whether the memo by Forrester’s lawyer was purely internal, in which case it would be the lawyer’s opinion and not necessarily the Forrester campaign’s settled view of the matter. It’s a good question, but I don’t think the answer is essential.
Whatever the status of the memo, Forrester did ask to have his ballot position changed, and that request was granted by a court, over the objection of another candidate. Forrester had no right to that change, which was requested after the deadline, unless the courts could waive an election-law deadline.
If it’s Forrester’s position that the New Jersey courts have no right to waive election-law deadlines, then he asked for, and was granted, an illegal advantage in the spring. If the New Jersey courts do have a right to waive election-law deadlines, then asking the US Supreme Court to overrule the New Jersey Supreme Court was an outrage.
Defendant Forrester is convicted of hypocrisy in the first degree and conspiracy to hocus the voters, and is sentenced to be laughed at unmercifully.
“But see,” as the law review footnotes have it, this item from a website called politicsnj.com from last spring, which seems to support my original idea that the top spot is (in some convoluted way) in the gift of the party organization. I can’t find that in the statute, but maybe I missed it. Anyway, the article leaves no doubt that (1) there was a deadline; (2) the deadline had passed; and (3) Forrester won in court. Once again Sam Heldman at Ignatz found the facts the rest of us were vainly looking for.
It turns out that the precedents in New Jersey all point toward the liberal construction of elections-law deadlines. See the opinion of the NJ Supreme Court.
Strict statutory construction is one possible view of how the law should work, and I add my poorly-informed assent to Eugene Volokh’s well-informed assertion that it is in general the better view. But stare decisis — precedent — is the only possible view of how the courts should work. Otherwise the law becomes utterly unpredictable, depending on which judge you drew and what she had for breakfast this morning.
So, given the line of precedents in New Jersey favoring the waiving of deadlines — stretching back half a century, and as recent as this spring, when Forrester asked for and got a waiver of his own — it seems to me that the New Jersey Supreme Court probably did the right thing. The least that can be said is that their action was clearly reasonable. [Jeffrey Cooper, who is, unlike me, qualified to have a professional opinion — he teaches law for a living — lays out the argument in detail.] The seven-member court includes two Republicans and an independent, and six of its seven members were nominated by Republican governors. That a court so constituted reached a unanimous decision should suggest that the decision was not the product of partisan cheating.
That’s what I find outrageous here — an attempt by Forrester and his allies to discredit both the court and the Democrats as having somehow done something sleazy and underhanded. I’m especially annoyed because I was one of the ones taken in. But I think the record is now clear, and those accusations ought to be withdrawn by those who have made them.