I’m posting the full text of this story from today’s New York Times (with thanks to appellateblogger Howard J. Bashman for finding it). If I tried to paraphrase it, you would suspect me of making it up. In fact, I lack the talent, if not the gall, to invent anything this silly.

I’ve highlighted the good part. It probably doesn’t matter at all legally, but it might matter to the Justices, and it ought to matter to the voters

A couple of questions:

Did Bill Frist know about this when he hand-delivered those pleadings to the Supreme Court?

If so, how DARE he?

If not, how does he feel about being sandbagged this way? (If RNCC keeps giving money to Forrester, we have to conclude that Frist either knew he was conveying a lie to the Supreme Court and to the American electorate, or didn’t much care.)

How come it took until today for someone to find it?

And what do all the Republicans who were shocked — shocked! — about anyone asking a court to waive an election deadline have to say for themselves now?

In New Jersey Senate Race, Another Day Spent in Court


TRENTON, Oct. 4 — New Jersey Democrats asked the United States Supreme Court today to reject a Republican appeal seeking to block Frank R. Lautenberg from taking the place of Senator Robert G. Torricelli on the November ballot. They argued that the Republicans had neither shown any injury to their candidate or to the voters nor demonstrated a constitutional issue.

The Republican National Senatorial Committee, in an emergency appeal, had asked the court on Thursday to block the printing of new ballots and to overturn Wednesday’s ruling by the State Supreme Court that Mr. Lautenberg could replace Mr. Torricelli. The senator withdrew from the race on Monday as his chances for re-election faltered because of ethics allegations against him.

Today, Republican Party lawyers also brought suit in United States District Court here on behalf of two absentee voters, one living in Hawaii and the other in Paris. The suit alleges that the two, and others like them, could have their voting rights abridged because there was not enough time to deliver the new ballots. Judge Garrett E. Brown Jr. accepted the case and set a hearing for Monday.

In their brief to the United States Supreme Court, the Democrats argued that there was plenty of time to get absentee ballots to overseas voters, and that the case was a state matter, without a federal constitutional issue for the Supreme Court to decide. By day’s end, there was no word from Associate Justice David H. Souter, who handles emergency appeals from New Jersey, on whether the high court would hear the case or block the reprinting of ballots.

In an almost mocking tone, Angelo J. Genova, the Democratic Party’s lawyer, suggested in the brief that the Republican candidate, Douglas R. Forrester, was angling to run unopposed.

Mr. Forrester “does not allege irreparable injury to his position as the Republican nominee for the office in question,” Mr. Genova wrote. “Nor could he.” Mr. Forrester “will remain on the revised ballot, and the voters inclined or decided to vote for him may still do so,” Mr. Genova continued. “Applicant’s complaint appears to be that he would prefer to compete with the withdrawn candidate — hence, to compete not at all.”

Mr. Genova also uncovered a legal memorandum from Mr. Forrester’s lawyer written in April, when State Senator Diane Allen, one of Mr. Forrester’s opponents in the Republican primary, was trying to block him from taking the ballot position of James W. Treffinger. Mr. Treffinger, the Essex County executive, had resigned from the race because of scandal three days earlier, or 40 days before the primary.

Senator Allen maintained that moving Mr. Forrester’s name to Mr. Treffinger’s place on the ballot would come too late under Title 19 of the state election law, which sets a deadline of 51 days before an election for ballot substitutions. It is the same argument that Mr. Forrester’s lawyer, Peter G. Sheridan, made before the State Supreme Court on Wednesday, opposing Mr. Lautenberg’s placement on the ballot. The Democrats said that the deadline was merely a guideline.

In April, Mr. Sheridan read the law the way the Democrats do today.

“Strict compliance to statutory requirements and deadlines within Title 19,” Mr. Sheridan wrote, “are set aside where such rights may be accommodated without significantly impinging upon the election process.”

Mr. Genova said the Forrester campaign was trying to have it both ways. But Mr. Sheridan said today that the two situations were not analogous because “no primary ballots had been issued” in April.

In the current case, some 1,600 absentee ballots with Senator Torricelli’s name have been sent out.

As one of the most tumultuous weeks in New Jersey politics stumbled toward the weekend, Mr. Forrester went to work reinventing a campaign that no longer had Mr. Torricelli and the senator’s ethical problems as a punching bag. Today, he broadcast a one-minute radio ad titled “Purpose” as a rebuttal to the Lautenberg campaign’s messages that, without Mr. Torricelli, the Republican has no reason to run.

“Every day, there seems to be some dramatic change regarding the race for U.S. Senate in New Jersey,” Mr. Forrester says in his rich baritone. “But I want to assure you one thing hasn’t changed: my reasons for running for the United States Senate.” He goes on to stress his interest in protecting national security, safeguarding Social Security and protecting the environment, among other issues.

This evening, Mr. Forrester held a news conference at Newark Liberty International Airport with Senator Fred Thompson, Republican of Tennessee. Mr. Forrester said he would defeat Mr. Lautenberg as, he said, he had beaten Mr. Torricelli.

Meanwhile, greeting homebound commuters at the Rutherford train station, Mr. Lautenberg, who served in the United States Senate for 18 years, immersed himself in the handshaking and the backslapping, the joking and the gibing of his earlier campaigns.

“This is familiar territory,” he said.

NOTE: The argument about primary ballots having been mailed is about as silly as they come. (Unlike the argument that the 51 day deadline ought to be enforced simply because it’s the law, which isn’t silly at all.)

Let’s say the courts allow Lautenberg to substitute for Torricelli, but some voters have already been mailed ballots showing Torricelli as the Democratic candidate. Forrester is on the ballot in any case, so they haven’t lost the chance to vote for him, and it’s hard to see how he has been damaged by the act of mailing out the now-obsolete ballots. (Obviously, he’s damaged by being given a real opponent to replace a withdrawn one.) Those who don’t want to vote for Forrester can still vote for Torricelli. That will be a futile gesture, but it would be the same futile gesture in any case. Or they can write in Lautenberg, which might not be a futile gesture. Or they can write in Ghengiz Khan. A voter who gets a Torricelli v. Forrester ballot for a Lautenberg v. Forrester race will be infinitesimally worse off than if he’d gotten a correct ballot — writing in isn’t really that hard — but not at all worse off than if he’d gotten a ballot with the name of a withdrawn candidate.

And who says there isn’t enough time? Never heard of FedEX? The New Jersey Democrats are already paying $800,000 to reprint the ballots; sending out 1600 absentee ballots by overseas overnight, with return envelopes, shouldn’t add more than $50k to that cost.

What frustrates me is that, if the shoe were on the other foot, the Republicans would do a good job of getting the word out, and the whole country would be laughing at the Democrats. I have no confidence that the Democrats will be as efficient. Note that the Times reporter doesn’t even lead with it. [On the other hand, Joshua Micah Marshall is, as usual, on the case.]


So far, the story seems to have no journalistic “legs;” neither AP nor the Washington Post has picked it up. It’s bouncing around the blogosphere, but so far only on the left. Eugene Volokh, who doesn’t post on weekends, is sure to have something worth reading on Monday; nothing yet on the latest development from Glenn Reynolds, who had been all over the story earlier, including a link to Virginia Postrel’s delicious earlier comment that election law in New Jersey proceeds under the rules of Calvinball.

Ignatz (Sam Heldman) who picked it up before I did, has some useful reflections, and clarifies a point I had slurred over: the Forrester case in the spring was about where he would be on the ballot, not whether he would be on the ballot. Apparently New Jersey still has official party endorsements in primaries, with the endorsee getting the top spot on the ballot; Forrester, having been chosen by the party machinery to replace a candidate who had been forced to drop out due to scandal (his office had just been raided by the FBI) sued for, and got, the improved ballot placement, against the opposition of another Republican candidate.

But the underlying legal question is the same, it seems to me. The legislature set a 51-day-before-the-voting deadline for dropping out and being replaced, and the court then had to decide whether that was a firm deadline or just a guideline for administrative convenience. Forrester took the “administrative convenience” line, and won on it, in the spring; he’s now taking the “firm deadline” line. Does it matter that that was a primary and this is a general? Does it matter that that case involved ballot placement and this involves being on the ballot at all? Does it matter that some absentee ballots have now been sent out, where they hadn’t in the spring? If the courts have some leeway in enforcing the deadline — which Forrester said they did in the earlier case — then only the courts can decide how far that leeway extends. This being a question of New Jersey law, the highest authority is the New Jersey Supreme Court, which has just decided it in favor of giving the voters two real candidates to choose between. End of story, except for the horselaugh Forrester, Frist & Co. have earned for pretending this was a matter of principle, and the secondary horselaugh earned by those of us who were taken in by them.

Having been taken in myself, I can’t criticize anyone else for having been similarly victimized. But everyone who said anything in print or cyberspace about how the New Jersey Democrats were cheating, monkeying with the law, displaying contempt for the rules of fair play, etc., now owes it to his or her readers to take it back, to criticize the New Jersey Republicans for the fraud they attempted to perpetrate, and to remember this the next time one of these tempests-in-a-teapot comes along. There’s an old Texas saying, “Fool me once…”


The Daily Pundit has a long argument that the two cases aren’t parallel. But it doesn’t seem to me to hold together. The statute he cites has to do with a case in which it is determined that “the nomination for an office of a successful candidate at any primary election is null and void.” Nothing had made Treffinger’s designation “null and void;” the raid had merely made him a sure loser, just as the prosecutors’ report had made Torricelli a sure loser. Note that Forrester’s lawyer didn’t even argue that the change complied with the statute, only that the statutory deadline should be “set aside.”

Am I missing something, or is the Daily Pundit stretching?


Eugene Volokh weighs in, sensibly and wittily as usual:

“BANG! — OW! — YOU IDIOT!” That is the sound of the Republican politicos shooting themselves in the foot, if the story about Forrester — that he violated the same deadline in the primary that the Democrats violated with the Lautenberg switch — is correct.

This will now be an interesting case study in blogospherics. Your obedient servant still has a small (or, should I say, “select”?) readership of about 150 a day, and mostly on the Democratic side. The Volokh Conspiracy is more widely read by an order of magnitude (one-and-a-half orders, to be more precise), including mostly folks on the other side of the fence. In particular, Eugene is both read and respected by the blogger-of-record, Glenn Reynolds.

So the right blogosphere may now be assumed to be aware of the new development. Now we get to see how many right-bloggers pass this news along to their readers, and what if any comments they have on having been snookered.

The huge advantage of blogging over print is the capacity to take something back, or say something different, when new information arrives. But it seems to me that some bloggers tend to under-exploit that advantage. I’ll be watching with interest who does, and who does not, make use of it in this instance.

[Early returns: Lee, at Right Thinking from the Left Coast, and Glenn Reynolds, the Instapundit himself, have both linked to Eugene’s note and provided their own frank comments; neither is happy about having been sandbagged.

That’s more testimony to the awesome nature of Volokh Power, as is the fact that this humble page has had more hits in the four hours since the Volokh Conspiracy post than in any previous 24 hours, virtually all of them Volokh Conspiracy referrals.

The Right-Thinker notes that I didn’t provide a link to the New York Times story; instead, I quoted the full text. But here’s the link.]

I will also be watching with interest the capacity of the left blogosphere to pound the drum.


Several readers write to argue that the Forrester case in the spring and the Lautenberg case now aren’t parallel, because Forrester was already on the ballot and Lautenberg wasn’t. It’s true that the facts are different. But they differences aren’t legally relevant.

Here are the facts as I understand them:

In New Jersey, the party machine in each county gets to designate an “official” or “regular” candidate in a primary. That person gets the top spot on the ballot. If the official designee drops out 51 days before the primary, the party can designate a new person, who then gets that slot.

The Bergen County Republicans designated a candidate named Treffinger as their official candidate for governor, giving him the top spot on the ballot in that county. Forty days before the primary, his office was raided by the FBI in a corruption probe. He then dropped out of the race for governor. He hadn’t been disqualified from serving; he simply decided he couldn’t win. When the party tried to give Forrester the top spot in his place, but another Republican candidate challenged that decision in court, arguing that the deadline had passed.

Forrester’s lawyer argued, successfully, that the deadline should not be strictly enforced as long as it could be ignored without fouling up the administration of the election.

Obviously, getting on the ballot is more important than placement on the ballot. So the legislature could rationally have made one rule for changing ballot position and a different rule for getting on the ballot in the first place. But in fact the legislature made a single rule covering both situations: 51 days, unless something intervenes to make a nominee or designee ineligible to serve.

In the spring, Forrester argued that the 51 day deadline shouldn’t be regarded as binding if it could be waived without impinging on the need to administer the election fairly. Now Lautenberg is arguing the same thing. The NJ Supreme Court agreed with Lautenberg.

Maybe that court was wrong to do so, as Eugene Volokh argued (and I agreed). But if the law is to be interpreted liberally rather than strictly, that means the courts get to make the call. And on a matter of New Jersey law, the New Jersey Supreme Court has the final word.

Forrester may well be right that the New Jersey courts had no authority to overrule the New Jersey legislature on the law concerning elections to Congress, since the Constitution gives authority over those elections to the legislature. But if so, then he was asking the court last spring to do what it had no authority to do. That makes his current posture of wounded innocence, with his supporters shouting “lawbreaker” at Frank Lautenberg, a little bit hard to take.


Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: