by David Pittelli

[Reference: Commentary: GARDEN STATE ELECTION FOLLIES ... The Legal and Political Ramifications of Senator Bob Torricelli's Withdrawal - Editor]

Your argument that New Jersey law (Stat. 19:13-20) requires that a replacement be allowed up to 51 days before the election, but is silent about replacements after that date, does not stand up to a full reading of the statute -- even if I were to concede your questionable position that "which vacancy shall occur not later" means the same thing as "if a vacancy occurs before," and would combine with silence about later periods to give the New Jersey Supreme Court carte blanche. Note this later paragraph in the statute:

d. A selection made pursuant to this section shall be made not later than the 48th day preceding the date of the general election, and a statement of such selection shall be filed with the Secretary of State...

With this "shall be made" language you clearly cannot evade the 48-day limit unless your actions are not "pursuant to this section."

But if you argue that a selection can be made that's not "pursuant to this section," then all of the section's many rules about exactly who (in short, the Democratic State Committee) will vote to decide on a replacement, and how such a vote will be undertaken, are also not applicable. But without rules on how a replacement is to be chosen, we have anarchy. Anyone, or any New Jersey Republican, can claim to be the next Republican choice for Senate, with as much right as Lautenberg or anyone else.

At any rate, a reading of the New Jersey Supreme Court's "argument" shows that they could find no actual legal grounds for their decision, but rather an extra-legal claim based on fairness and the perceived need to seek competitive elections. They were unwilling to put a claim such as yours, or any other specific arguments about the law, in their decision. Perhaps they were afraid that any legal argument they could make would be weaker than no argument - weak enough to be overturned by the United States Supreme Court.

David Pittelli
Needham MA
DWPittelli@aol.com

Mr. Berg-Andersson responds:

Before I begin my response, allow me to restate the quotations from the statute in question as posted elsewhere on this website so that all who are reading this can see the provisions at issue in Mr. Pittelli's 'vox Populi' (and which will also come up in my response to him) without having to now go to another web page:

NJSA 19:13-20. Vacancy procedure

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, or in the event of inability to select a candidate because of a tie vote at such primary, a candidate shall be selected in the following manner:

a. (1) In 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...

d. A selection made pursuant to this section shall be made not later than the 48th day preceding the date of the general election, and a statement of such selection shall be filed with the Secretary of State or the appropriate county clerk, as the case may be, not later than said 48th day, and in the following manner:

(1) A selection made by a State committee of political party shall be certified to the Secretary of State by the State chairman of the political party.

I will gladly concede that my position on the phrase "which vacancy shall occur not later" in NJSA 19:13-20 (that it can very well be construed to mean the same thing as "if a vacancy occurs before") is certainly arguable but I will not concede that it is at all questionable. We are here dealing with the assumption- one of the five basic assumptions going into any interpretation/construction of a statute I outlined in my Commentary- "that the draftsman used his words in their normal senses, and that he meant what he said". Mr. Pittelli's interpetation of the phrase, in that it impliedly prohibits the replacement of a candidate with 50 days or fewer before Election Day is clearly a valid one- I don't see how it could be considered otherwise; but it is, again arguably, not the only possible valid interpretation.

For example, if I tell the Webmaster of TheGreenPapers.com, Tony Roza, about some issue regarding some item I am supposed to be sending on to him for posting on this website, something "which shall be completed by [whenever]" and 'whenever' passes without it having been done, this does not necessarily mean I cannot complete it thereafter. The issue here is what does the use of the word "which" in combination with "shall" actually mean? Mr. Pittelli has one view-- yet, apparently, others have another, no less valid, view.

The phraseology of subsection d.- "A selection made pursuant to this section..." well begs the question 'well, what if a selection is NOT made pursuant to this section?' Mr. Pittelli has- in his above 'vox Populi'- provided his view of what that subsection portends from his point of view; the New Jersey Supreme Court, however, saw it a different way. I am not going to beat a dead horse here and only note the obvious, that until the court ruled, the question begged was still an open one insofar as the State's Judiciary was concerned and this was the basis of the New Jersey Supreme Court's intervention.

I will here take issue with Mr. Pittelli's notion that the New Jersey Supreme Court "could find no actual legal grounds for their decision". Of course, a lot of this kind of disagreement is a matter of semantics- that is, one's opinion on this largely hinges on one's answer to the question 'what is the precise definition of the term "legal grounds"?' This aspect of the problem was touched upon in a number of my Commentaries for 'The Green Papers' during the Florida election debacle of November-December 2000 along with more than a few 'vox Populi' from that same period (all of which are archived on this website and, thus, easily accessible should one wish to go through them and read them).

Back then, there were people from whom I received e-mails who felt that the Florida courts had no authority to interpret laws related to a Federal election to begin with (and there were people on the other side who felt that the Federal Judiciary should not be able to interpret the application of Florida's election laws), there were those who felt that the Judiciary (Federal or State) should have no authority whatsoever to construct/interpret legislative acts of Congress and the State Legislatures at all (citing, for example, the Jeffersonian concept of Legislative Supremacy). To these people, no interpretation along the lines of that of the New Jersey Supreme Court would be "legal grounds" in any event since they would feel that any construction of a statute by a court would be inherently illegal to begin with.

Now, I have no idea whether Mr. Pittelli falls into the above category or not, of course; I will, therefore, proceed herein on the assumption that Mr. Pittelli accepts at least the gist of the premise that was put forth in the quote from Professor Snyder at the beginning of my Commentary that "courts have and exercise the power of interpretation" because "a court often finds itself presented with two or more applications of the statute to the facts":

There is a concept in statutory construction that goes something along the lines of "the part cannot be so construed as to undermine the whole"-- that is, that a portion of a statute cannot be construed to undermine the entire statute (I presume that Mr. Pittelli agrees with at least the logic behind this premise, since he himself cited subsection d. as an element of his own take on NJSA 19:13-20 as a whole) nor can a statute (or a provision of a Constitution, for that matter) be so construed as to undermine the purposes of the Code of which the statute is a part (or, in the case of a constitutional provision, the purposes of that Constitution).

In a response of mine to a 'vox Populi' dealing with a completely different subject ('Killing Free Speech, Campaign Finance Reform & Election Reform- 2 September 2002), I quoted somewhat extensively from the Court opinion written by Mr. Justice Harlan Fiske Stone re: the US Supreme Court's decision in the case of United States v. Classic [313 U.S. 299 (1941)], in which Stone wrote:

[I]n setting up an enduring framework of government [the Framers] undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes of which were intended to be achieved by the Constitution as a continuing instrument of government. If we rememeber that "it is a Constitution we are expounding", we cannot rightly prefer, of the possible meanings of its words, that which will defeat rather than effectuate the Constitutional purpose.

Now I present this quote herein only for purposes of illustration and analogy, since even Mr. Justice Stone himself distinguished between a Constitution "as the revelation of the great purposes of which were intended to be achieved... as a continuing instrument of government" and mere "legislative codes which are subject to continuous revision with the changing course of events"; clearly, NJSA 19:13-20 is only a part of just such a "legislative code"- in this case, merely one section of Title 19, New Jersey's Election Code. But there are those people who sincerely and most strongly believe that- to paraphrase Mr. Justice Stone- we also cannot rightly prefer, of the possible meanings of its words, that which will defeat rather than effectuate the legislative purpose and that such a position would be their "legal grounds". This is precisely the position that the New Jersey Supreme Court took on the issue: that the purpose of Title 19 in its entirety is to facilitate the conduct of competitive elections for political office and that to not allow the Democrats to replace their withdrawing nominee (so long as they can do so and still get the new ballots out in time) would be the antithesis of this overall purpose of New Jersey Election Law.

Mr. Pittelli is, of course, free to disagree with the ruling of the New Jersey Supreme Court (after all, he has availed himself of said freedom in his 'vox Populi' above and, in keeping with many of the aims as well as the overall mission of this website, his so availing himself is now viewable by a potentially global audience via the Internet). He is free to think- should he so desire- that the premise that NJSA 19:13-20 cannot be so construed to undermine the entirety of Title 19 is, in and of itself, not at all a constitutional method of statutory construction; or he is free to think, even given him accepting that this is a valid method of statutory construction, that the ruling by the New Jersey Supreme Court is an inappropriate exercise of that particular canon of interpretation. But, in my opinion, for him to then claim that applying this "the part cannot be so construed as to undermine the whole" canon to this particular case evinces a court decision wholly lacking "legal grounds" is most unfair (although, again, he is free to have so stated this- as were those who e-mailed me back during the 2000 Florida debacle).