by Dan McElwee

I discovered TheGreenPapers today and have read your essay about the follies in the New Jersey Senatorial contest. It was refreshing to read commentary presented in an unbiased fashion. I think you presented the legal issue pertaining to the election statute precisely: the dilemma being that the statute does not explicitly address processes for changing the ballot after the 51st day before the election.

However, I am concerned by the second issue which you addressed perfunctorily in response to the Forrester-campaign mailing. Namely, the election has already begun. Absentee voters have already voted; completed absentee ballots have already been received by the State election apparatus. Voters have submitted their votes on a legal ballot. How are these votes to be treated?

Several issues arise in answering this question:

• The ballot was a legal ballot when the votes were cast.
• A "new" legal ballot may soon be issued.
• The original ballot and the new ballot contain all the election issues and candidates, not just the Senatorial candidates.
• The vote is secret.

So, what of those voters who have already voted? Are the ballots already cast legal? Are the voters to be allowed to vote again? Are those who have already voted provided a complete new ballot, or just a Senatorial Race ballot? If so, what is to be done to their original ballots? What if a voter does not know the ballot has changed; is he simply disenfranchised? What if a voter knows the ballot has changed but has just departed the country for 2 months; is he disenfranchised? What if a voter who helped get Mr. Torricelli onto the ballot in the Primary insists that he be permitted to vote for Mr. Torricelli; is he disenfranchised?

Well, you get the idea.

It seems to me, aside from the statutory question of what procedure the courts may construct to alter the ballot, there is a bigger question: "Can an election be conducted with two different ballots?" This would seem a very unwise precedent to establish.

Sincerely,

Dan McElwee
YavapaiDan@aol.com

Mr. Berg-Andersson responds:

Mr. McElwee raises very valid points (but this is why I have said- in response to a previous 'vox Populi' from Daryle Hendricksen- that neither option [allowing a replacement candidate/not allowing a replacement candidate] is, in reality, any fairer or more just than the other: allowing a replacement naturally brings up all the issues Mr. McElwee has raised; not allowing a replacement, however, means that one of the two Major Parties has a moribund candidacy on the ballot-- neither is necessarily the stuff of a free and fair election).

The State's highest court's decision to allow Senator Torricelli's name to be replaced by former Senator Lautenberg on the ballot has now been handed down since Mr. McElwee wrote his comments above. It seems as if- on a surface glance over the ruling- the court has been convinced that new absentee/overseas and military ballots can yet be mailed out to all those who are eligible to receive same, including those who have already cast their votes (I presume that there will be appropriate ancillary orders- either from the court itself or from the New Jersey Division of Elections- that all already received completed ballots- as well as any "old" ballots yet to be received- be destroyed once all the new ballots are mailed out to all those who are entitled to receive them).

But Mr. McElwee's points are well taken and there will have to be enhanced oversight (by the court as well as by the usual election bureaucracy) of this whole process if we are to avoid this becoming a complete debacle due precisely to at least some, if not all, of the issues Mr. McElwee has correctly raised (and, of course, we have yet to see- as of this typing- if any of the appeals and/or petitions filed by the New Jersey Republicans with the Feds will yet stay the State's highest court's order and restore the status quo ante [that is, Torricelli's name as the Democratic candidate on the ballot come 5 November] in any event!)