GARDEN STATE ELECTION FOLLIES
The Legal and Political Ramifications of Senator Bob Torricelli's Withdrawal
Tuesday, October 1, 2002
by RICHARD E. BERG-ANDERSSON
The reason why courts have and exercise the power of interpretation is the fact that, when it comes to deciding a concrete case under a statute, a court often finds itself presented with two or more applications of the statute to the facts, each application being as much within the frame of the statute as the others.--
Orville C. Snyder: Preface to JURISPRUDENCE (1954)
I now feel compelled to comment on the legal and political fallout from Senator Robert Torricelli's withdrawal from the New Jersey U.S. Senate race, not only because I am the designated Commentator for 'The Green Papers' but also because I happen to be a resident- and, therefore, a voting citizen- of the Garden State. Yes, indeedy... here I am right smack dab within the "vortex", as it were, of the legal and political battle now having been joined between my State's Democrats and my State's Republicans over whether or not a new Democratic candidate for my State's "Class 2" Senate seat can legally replace Mr. Torricelli on the General Election ballot. In fact, I grew up and came of age (indeed, cast my very first vote in anger back in the State primary of June 1974) in New Jersey and, thus, have had long acquaintance with this State's politicolegal dynamic and I think I can, therefore, bring something of the unique perspective of the "insider" to the "real story" behind the whole courtroom bru-ha-ha that will begin with a State Supreme Court hearing on the morning of Wednesday 2 October!
Putting aside the political issue involved- if only for the time being, the legal issue, in a nutshell, is relatively simple: what do the following words found in New Jersey Revised Statutes Title 19, Chapter 13, section 20 actually mean?:
In the event of a vacancy, howsoever caused, among candidates nominated at primaries, which vacancy shall occur not later than the 51st day before the general election,...a candidate shall be selected in the following manner: [i]n the case of an office to be filled by the voters of the entire State, the candidate shall be selected by the State committee of the political party wherein such vacancy has occurred...
Does the language of the above-quoted provisions demand that a Party nominee's withdrawal take place before the 50th day before the General Election in order for a replacement candidate to be named by that Party (as the Republicans in general, and the Forrester campaign in particular, claim)? Or does the above statute merely state the procedure to be followed in New Jersey should a Party nominee withdraw prior to the 51st day before the General Election without any reference or effect on what the procedure might be once the 50th day before Election Day hath dawned?? The questions are simple to pose; they are far from simple to answer, however. In order to attempt to answer them at least somewhat, one must take a brief look at statutory interpretation based merely on the internal language of a given statute (since, as a layman non-lawyer, external factors [such as, to take one obvious example, the intent of the state legislators who drafted and passed the latest version of this piece of New Jersey's Election Code back in early 1985] cannot be dealt with here because they are not immediately available to me [I don't have access to the transcripts of committee meetings and the debate on the floor of the State Senate and General Assembly from which such legislative intent can best be discerned]):
The internal meaning of statutes is determined (and the same could apply to determining the meaning of statute-like constructs such as administrative rules and regulations or the provisions of the Federal or a State Constitution, by the way) according to so-called "Canons of Interpretation". There is not enough room- even in one of my lengthier Commentaries- to go through every single one of these interpretive devices, so I will only touch on a few of them- if only by way of example and for purposes of illustration:
In the law textbook/casebook Legislation by Charles B. Nutting and Reed Dickerson, five basic assumptions about the drafting of a statute and necessary to a proper construction of same are laid out, as follows:
1. that the draftsman used his words in their normal senses, and that he meant what he said;
2. that the draftsman did not intend to contradict himself;
3. that the statute is intended to produce a reasonable, constitutional result;
4. that the legislature was made up of reasonable persons pursuing reasonable purposes reasonably;
5. that the draftsman did not include language unless it contributed to the ideas expressed.
Affiliated with these basic assumptions as to the attitude and intent of the legislators who drafted and then passed a given statute are those "canons of interpretation" of which I wrote earlier and that are known primarily by their Latin phraseology... there are, among others:
Noscitur a sociis ("it is known from its associates")- that is, the notion that the meaning of a word can be discerned from its accompanying words;
Ejusdem generis ("of the same kind")- that is, the notion that where more general words follow a particular enumeration of specific persons or things, these general words are not to be taken too broadly but, rather, narrowly construed so as to only apply to those items of the same class or kind as the particular specifics mentioned;
Inclusion unius est exclusio alterius ("the inclusion of one [thing] is the exclusion of another")- that is, the notion that when certain persons or things are specified, an intention to exclude all others can then be inferred.
Now, it has to be understood that these "canons" are merely guides to interpretation and that they cannot possibly apply when the context clearly indicates a contrary intention. A 19th Century Missouri appellate decision, for example, once noted that (to touch on only one of the "canons")
The rule of ejusdem generis, in statutory construction, is by no means a rule of universal application, and its use is to carry out, not to defeat, the legislative intent. When it can be seen that the particular word by which the general word is followed was inserted, not to give a coloring to the general word, but for a distinct object, and then to carry out the purpose of the statute, the general word ought to govern. It is a mistake to allow the ejusdem generis rule to pervert the construction. [State v. Broderick]
The cautionary warning of that last sentence above quoted might well apply to any "rule" of statutory interpretation/construction!
It is simple common sense that a statutory interpretation that permits that which is expressly prohibited by the statute is just such a "perversion" as the Missouri court long ago mentioned; likewise, a construction which prohibits that which the statute expressly permits is also just as improper. In the case of NJSA 19:13-20, however, we are faced with the following dilemma: the statute neither expressly prohibits, nor does it expressly permit, the replacement of a withdrawing Party nominee with another candidate 50 days or less before Election Day. The argument, by the Forrester camp, that the "clear intent of the statute" (their words) would be violated should the New Jersey Democratic State Committee be allowed to replace Senator Torricelli's name on the General Election ballot doesn't, in fact, well hold-- for the legislative intent regarding what is prohibited and what is permitted re: a Party nominee's withdrawal from an election contest after the 51st day before Election Day is not at all clear!
The statute merely reads: In the event of a vacancy, howsoever caused, among candidates nominated at primaries, which vacancy shall occur not later than the 51st day before the general election... (i.e. 'if a vacancy by a Party nominee should occur by the 51st day before the general election...')-- nowhere does it say 'By the way, fellas! Don't bother trying to vacate a candidacy from 50 days before Election Day on!!'-- but neither does it say 'Hey, guys! If you withdraw a candidacy after the 51st day prior to Election Day, you can come up with a solution to the problem of your own devising!!' But the Democrats are arguing that the lack of prohibition equals permission, while the Republicans are just as vociferously arguing that the lack of permission implies prohibition; neither side is inherently wrong- yet, of course, they both cannot be right! We are here basically left with Professor Snyder's "two... applications of the statute to the facts, each application being as much within the frame of the statute as the other"!!
What we also have here is a classic conflict between Substantive Law (that part of Law that actually creates, defines and regulates) and Procedural- also, at one time, more well known as Adjective- Law (that portion of "the Law" that prescribes methods for the enforcement of the stuff of Substantive Law). The Republican (Forrester) camp is essentially arguing that there is Substantive Law underlying the Procedural/Adjective Law inherent in 19:13-20: that the outlining of the procedure to be followed up to and including the 51st day prior to Election Day implies that there is no procedure (and hence no substantive legality) for a situation in which a Party nominee drops out of a race for elective office from 50 days before the General Election on; the Democrats, on the other hand, are arguing that the statute is wholly Procedural Law- that there is no Substantive Law to be had from what is merely the outlining of a process- a method- to be followed 'if a vacancy by a Party nominee should occur by the 51st day before the general election...' and nothing more.
In the end, of course, neither of these theoretical legal machinations much matter as regards the more practical aspects of the upcoming Senate election in my State of New Jersey itself, for- should Robert Torricelli's name be forced to remain on the ballot- those Democrats, Independents who trend Democratic and any others who would otherwise vote for a Democrat to be the next Senator from this State will, in fact, simply pull the lever, push the button or make a mark next to the Senator's name on the assumption that, even though Senator Torricelli's name appears on the ballot on the Democrat line, a possibly re-elected Senator Torricelli will not be a serving Senator after next 3 January. And there is nothing Doug Forrester or the Republican Party of New Jersey can really do about any such voting behavior in any event!
I am not so naive- or, for that matter, stupid- enough to engage in the rather silly belief that there is much real altruism involved here. Just this very evening of Tuesday 1 October, I received an e-mail (in my personal, not my REBA@TheGreenPapers.com, Inbox, by the way) from firstname.lastname@example.org in the name of Bill Pascoe, the Campaign Manager for 'Forrester 2002', and addressed to "Dear Friend" in which was written the following regarding the recent actions of the New Jersey Democratic Party:
It makes no difference to them whether what they're demanding is LEGAL (it's NOT).
It makes no difference to them whether what they're demanding is FAIR (it's NOT).
It makes no difference to them whether what they're demanding is RIGHT (it's NOT).
But, of course, Legality, Fairness and Rightness actually have very little to do with it... all this is- in the main- basic, clawing/scratching in the gutter, "Joizey" Politics- pure and simple, for ahead of the above-quoted words are the following admonitions:
Some of our fellow New Jerseyans have even VOTED ALREADY.
You read that right - SOME OF OUR FELLOW CITIZENS HAVE EVEN VOTED ALREADY.
In other words … this election is ALREADY UNDER WAY.
What is going on here is quite clear: those who have already voted by absentee or overseas military ballot obviously did so with Bob Torricelli still in the race and with absolutely no idea he would drop out; presumably, an at least fair number of those who have already voted were people who might have otherwise voted for a Democrat but for the presence of Senator Torricelli on the ballot and who, therefore, voted for Doug Forrester instead. There is no doubt that Mr. Forrester would not at all wish to lose any of those votes already cast for him, regardless of their actual source (his political base or no).
Mr. Forrester's own dilemma is that he gained on and then surpassed Senator Torricelli in the polls of late largely because Torricelli was still an active, while at the same time more and more repulsive- to the "bell curve" of the New Jersey electorate, candidate -- that is, a healthy chunk of those who shifted to Forrester and away from Torricelli over the last several weeks were not necessarily from Forrester's own Republican base (here including Independents that trend Republican) but, rather, were Democrats or Independents who usually vote for Democrats but who just couldn't bring themselves to vote for Torricelli. The Senator's withdrawal from active candidacy now allows these people to abandon any notion of voting for Forrester and "come back home"-- again, there is absolutely nothing Mr. Forrester and the Republicans can do about whomever voters might choose in the privacy of the voting booth, regardless of what the New Jersey Supreme Court should decide or whatever further legal action might yet be heard in Federal court on appeal by either side!
It all puts pay to the statement, in the email@example.com e-mailing I so recently received that- again, re: the Democrats in this whole sordid affair-
But that won't stop these powerful special interests from trying to play politics. They don't care what effect their actions have on us - all they care about is their own partisan political interests.
Of course, the same could easily be said about the Republicans in my State as well... this is all merely the proverbial "Pot Calling the Kettle Black"!!
the e-mail from the Forrester campaign further notes that
[t]hese special interests have the finest attorneys money can buy. They have powerful allies in high places. And they are DETERMINED to do whatever they can - NO MATTER THE COST - to get what they want.
Are we to then suppose the Republicans' attorneys are that incompetent- as well as so underpaid- to advocate the Republican/Forrester statutory construction re: NJRS 19:13-20? Wouldn't one consider the Administration of President George W. Bush a "powerful ally" of Mr. Forrester's Senate campaign in a "high place"?? Are New Jersey Republicans really so woefully UNdetermined to do whatever they can to get what they want?! Aren't Mr. Forrester's own "deep pockets" already being used to try and win the "Class 2" Senate seat more or less "no matter the cost"??!! Pardon me while I weep for the Forrester campaign's alleged poverty of legal and financial resources!!!
Now I am more than well aware (and, if I weren't so aware prior to 'The Green Papers' first coming online three years ago, I certainly am- given all the junk I regularly receive via e-mail at REBA@TheGreenPapers.com- by NOW!) that much of what this campaign e-mail contained was pretty much "preaching to the choir" (as is the case with the vast majority of all political "spin"- which is primarily geared to highly motivate [where not also agitate] the political base, as opposed to attracting new adherents to the cause)... but puh-LEEZE!!!
Forrester's campaign rightly points out, in the e-mail I received, that
One of the things that makes America unique is the notion that this is a nation under the rule of LAW - NOT the rule of MEN.
The Republican candidate should, therefore, well realize that this is precisely why we have an independent Judiciary (a uniquely American innovation, by the way) in the first place!
Nor can canons of construction save us from the anguish of judgment. Such canons give an air of abstract intellectual compulsion to what is in fact a delicate judgment, concluding a complicated process of balancing subtle and elusive elements... [there must be] a recognition that these rules of construction are not in any true sense rules of law. So far as valid, they are what Mr. Justice [Oliver Wendell] Holmes [Jr.] called them, axioms of experience.-
Mr. Justice [of the U.S. Supreme Court] Felix Frankfurter: Lecture before the New York City Bar Association re: 'Some Reflections on the Reading of Statutes' (1947)