by David Pittelli

[Reference: Vox Populi of 3 October 2002 - Editor]

Thank you for posting an addressing to my response. Here's my counter-response:

I agree that the Supreme Court of New Jersey has a role in interpreting statutes, even those concerning elections. And I agree that it has a fair amount of leeway in reconciling vague language with its sense of the overall intent of a statute. So that, if the statute's only deadline-related language were "In the event of a vacancy... which vacancy shall occur not later than the 51st day before the general election... a candidate shall be selected in the following manner": the Court could argue that the law is silent on what can happen after that deadline. And so the Supreme Court of New Jersey could get away with using its sense of the purpose of Title 19 to obtain its result, "the Court having concluded that the equitable relief sought herein is not inconsistent with the precedent of this Court and the terms of the statute."

However, while the Court's decision may appear "not inconsistent with... the terms of the statute" if one only looks at the "51-day" paragraph and liberally construes it, the decision is clearly inconsistent with the "48-day" language: "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..."

I wrote that the New Jersey Supreme Court had no "legal grounds" for its decision because it made no attempt to look at the text of the statute and reconcile it to its decision. Generally, legal decisions do this for a number of reasons, not least so people can decide whether the decision is wholly specious and purely results-oriented.

The fact that you directly addressed the 51-day paragraph in your legal argument shows, I think, that you know that legal arguments are, at the least, much stronger when they actually address the text of the law. The fact that you did not address the 48-day paragraph similarly shows that you have no argument that can overcome that language. Similarly, the Supreme Court of New Jersey's decision virtually refutes itself by virtue of the fact that it nowhere addresses the text of the law, and thus nowhere attempts to reconcile the text with its conception of its "equitable powers." As such, the Court's decision is a "fairness" argument (an argument about what is equitable), not a legal argument.

Courts commonly overturn laws, or "liberally construe" them (sometimes out or existence), when they are found in conflict with the Constitution or another law. Of course, many judges do this primarily when they think a law is inequitable or unfair, but they are supposed to make an argument that they have some legal backing. If a court can ignore (not just liberally construe) the plain text of any statute, without reference to a Constitution or conflicting law, but merely to its conception of what is "equitable," then there are no limits on its power at all, and we are not living under the rule of law.

In this case, the New Jersey Supreme Court has claimed that it "is in the public interest and the general intent of the election laws to preserve the two-party system and to submit to the electorate a ballot bearing the names of candidates of both major political parties as well as of all other qualifying parties and groups."

There are several problems with the statement:

First, the statement is deliberately unclear about whether other parties are given the same ballot access rights as the two major parties, or whether the word "qualifying" means that their mention is a meaningless sop designed to obscure the fact that the court wants to give special recognition to the Republicans and Democrats. (It appears now that major party candidates don't have to be "qualifying," while minor party candidates do.)

Second, there are often elections which are uncontested by a "major party." I was once faced with the choice of Tip O'Neill and a Communist for a U.S. House seat back in 1984. Would such a situation in New Jersey mean that the Republicans could throw a candidate on the ballot without regard to any legal deadlines? Or is the Court claiming that a last-minute pullout is somehow more inequitable than there never having been a candidate?

Third, the new Jersey election can go on even with a clearly moribund candidate. Torricelli might have won the race; if his chances are truly awful now, that's because of his decision to pull out. Or Torricelli could make a promise (albeit probably not legally binding) to resign, and the New Jersey governor could promise to appoint Lautenberg to his seat if Torricelli won. Alternately, the Democrats could launch a write-in campaign. Naturally, that's an uphill battle, but that is the established method of dealing with not making the printed ballot.

Fourth, the people writing the law had at least as important a conception as the Supreme Court of New Jersey of what was "in the public interest and the general intent of the election laws." And the Court can't reasonably argue that recent events were beyond the scope of the law, or were unforeseen by the legislature. After all, the law does explicitly address the issue of replacement candidates in great detail, the law says it applies "In the event of a vacancy, howsoever caused," and the law sets a fixed deadline of at most 48 days before the election for a candidate's replacement.

David Pittelli
DWPittelli@aol.com

Mr. Berg-Andersson responds:

Mr. Pittelli raises some good points to be seriously considered. Before I myself consider them, I want to say- for the record- that I have not (at least I don't think I have!) taken a public position on whether or not I think Senator Torricelli's name SHOULD be replaced on the New Jersey General Election ballot; much of what I do here on this website is often along the lines of playing "devil's advocate" by presenting possible alternatives and options to a given line of legal thinking or a given example of political activity. So, when Mr. Pittelli writes "The fact that you did not address the 48-day paragraph similarly shows that you have no argument that can overcome that language", I want to make it abundantly clear that I am not at all trying to justify the New Jersey Supreme Court's ruling as a matter of personal viewpoint but merely pointing out various means and methods of how it might be so justified by those who would disagree with, in this particular case, Mr. Pittelli.

Having said this, I did address the 48-day paragraph (subsection d. of the statute) in my original response to Mr. Pittelli where I wrote

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?'... 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.

However, I admittedly gave subsection d. rather short shrift- so I'd better explain my thinking (again, largely as a "devil's advocate") further:

Think of a flowchart... there are two possible options: option A is a major Party candidate withdrawing up to 51 days before the General Election; option B is a major Party candidate pulling out of the race (as Senator Torricelli has done) 50 days or fewer before Election Day. In the case of option A, the law clearly prescribes the manner in which the withdrawing candidate can be replaced (the header to NJSA 19:13-20) and then further states that "[a] selection" of a replacement candidate "made pursuant to this section shall be made not later than" 48 days prior to Election Day. There is, however, no verbiage at all regarding option B.

So, if the question on the flowchart "Is the withdrawal of the given candidate under the terms of option A (that is, did he/she withdraw no later than the 51st day prior to the General Election)?" is answered with "YES", we simply move on to the next box on the flowchart reading "Replacement of candidacy must be made by the 48th day prior to that General Election". But what happens if this question on the flowchart is, instead, answered "NO" (as in the case with which we are currently dealing)? The statute itself does NOT say "No candidate nominated at primaries can withdraw from an election contest once the 50th day before the General Election has arrived" NOR does it specifically say "If a candidate nominated at primaries withdraws after the 51st day prior to the General Election, his/her name must still appear on the General Election ballot"; it might well have been nice if, back in the Spring of 1985- when this statute was last altered- the New Jersey State Legislature had, in fact, explicitly added either of these additional provisions-- but the fact remains that it didn't!

The former option (not allowing a candidate to withdraw at all 50 days or fewer before Election Day) would be of dicey constitutionality in any event (one cannot possibly be forced to continue to run for office even if nominated previously-- I don't even see how such a provision could be enforced!-- is the reluctant candidate, perhaps, to be dragged kicking and screaming from campaign rally to campaign rally by a contingent of the State Police?); the latter option (specifically stating that the withdrawing candidate's name must remain on the ballot once the 50th day before Election Day has arrived) would obviously have been the better one, but my State's lawmakers- in their allegedly "infinite wisdom"- did not see fit to provide the law with just such a provision and, apparently, then-Governor Tom Kean apparently had no problem with any of this when he signed this statute into law.

Now Mr. Pittelli has already well stated his own views that his reading of the phrase "which vacancy shall occur not later than the 51st day before the general election" makes the statute mean pretty much the same thing as the phrase "If a candidate nominated at primaries withdraws after the 51st day prior to the General Election, his/her name must still appear on the General Election ballot": at the same time, however, his contention regarding the language "a vacancy, howsoever caused... which vacancy shall occur, etc." must also mean that, in his view, no vacancy at all can occur after the 50th day prior to Election Day has arrived (and, if that is not his view, then his whole argument makes no sense) because, if the fact that the Legislature did not provide for any candidate being replaced on the ballot after the 48th day prior to the Election has passed means- as Mr. Pittelli so well argues- there can be no replacement thereafter, then the Legislature not providing for any vacancy after the 51st day before Election Day also means that there can be no vacancy thereafter; if that be true, then the phrase "which vacancy shall occur, etc." also pretty much means the same thing as "No candidate nominated at primaries can withdraw from an election contest once the 50th day before the General Election has arrived" and we are back to the problem of how do you force a candidate previously nominated at a primary to continue to run for office?

Back to the flowchart (and I know that Mr. Pittelli- having stated an argument that logically contends that no vacancy can even legally exist after the 50th day before Election Day- will not accept any of this, but it fills out my "devil's advocate" argument regarding the relationship of the 48th day paragraph to the 51st day provision): what if we answer the question "Did the candidate withdraw prior to the arrival of the 50th day before the General Election?" with "NO"... what happens then? The law is silent (again, my contention here is based on the fact that the statute does not specifically say that a candidate cannot withdraw once the 50th day before Election Day has arrived: it seems to me that the only logical conclusion flowing from Mr. Pittelli's argument would be the opposite- that the statute, indeed, implies this very thing- that a candidate cannot withdraw once the deadline is passed- and that is why he would almost certainly not accept my statement that the law is, indeed, so silent). If a candidate DOES withdraw once the 50th day before the General Election arrives and an attempt is then made to replace him or her on the ballot, he or she cannot possibly be selected "pursuant to this section" [that is, NJSA 19:13-20] because that section only deals specifically with withdrawals up to the 51st day prior to Election Day; thus, any selection of a replacement relative to a withdrawal on or after the 50th day prior to the General Election is, by definition, not at all "a selection made pursuant to this section" and subsection d. (which, after all, begins with the words "A selection made pursuant to this section shall be made not later than the 48th day preceding the date of the general election...") cannot possibly apply. It is, therefore, possible to argue that the 48th day paragraph would be just as irrelevant to the current situation surrounding Senator Torricelli's withdrawal as the 51st day provision would be (per the arguments I myself made in my previous response to Mr. Pittelli).

Now, let me make this clear- if I haven't already: Mr. Pittelli's argument is a valid one; I have no quarrel at all with his reasoning: the only point I have been trying to make- in both my Commentary of 1 October as well as in my responses to Mr. Pittelli himself- was that there are other valid arguments which can be made in opposition to his position, such as that I have just posed. Since the Legislature is, at least according to the line of reasoning I have just outlined, silent, it would then be left to the Judiciary to sort it all out (hence my comment in my previous response to Mr. Pittelli- quoted earlier in this response- to the effect that the question 'what if a selection is NOT made pursuant to this section?' possibly being an open one [if one accepts the above reasoning, which Mr. Pittelli- and quite understandably so, based on his own reasoning- would not] was the basis of the New Jersey Supreme Court's intervention).

As for the New Jersey Supreme Court's exercise of its powers of providing equitable relief to the instant case, an exercise which Mr. Pittelli decries:

The concept known as Equitable Relief goes back to the legal situation found in Norman England and has its roots in the so-called "Civil Law" system still found on the continent of Europe, such roots going back to at least Roman Imperial Law. Although I am here forced to greatly simplify a rather complicated history here, I will try my best to do so and start off with noting that, prior to the Norman Conquest, local courts of the shire determined the substance of the law as well as the procedures to be used in applying and enforcing it: as a result, the law in one shire of Saxon England might vary considerably from that in a neighboring shire on the same subject (in this sense, the shires had much the same relationship to the Saxon English monarchy as the States of the Union have to the United States as a whole today).

With the Norman Conquest came the "Civil Law" notion that the Crown of England (in the personhood of the King) was the Fountainhead of Justice and, throughout the reign of the Normans and Plantagenets, there was to be- in fits and starts- established one "Common Law", called by this name because it was to be common throughout the English Realm, enforced by the Court of King's Bench (since this court was originally personally attached to the King himself) hearing appeal from decisions of the courts of the old shires (now called "counties") to make sure that, say, the definition of the crime of burglary and the punishments to be meted out to one convicted of that crime were no more to be different in one county than in another.

Yet there were "holes" in the emerging Common Law, particularly when it came to Private Law (what we today call Civil Law, as opposed to Criminal Law); for example, one could bring suit in a Common Law court on the county level (with appeal to King's Bench) for monetary damages but what if that were not enough, because it did not fully restore the one so damaged to as close to the status quo ante as humanly possible? what if, instead, restitution beyond damages would be a more appropriate reward for the plaintiff? Thus, the concept of Equity side by side with the Common Law: a plaintiff could petition (from which we get the legal term "petitioner") to the Crown (in the form of the King and his Privy Council) to rectify a situation not properly addressed by the Common Law and the King-in-Council could grant such equitable relief on the theory that it was a prerogative of the Crown to thereby dispense Justice. This, then, is the root and branch of the legal concept of Equitable Relief.

Now, if only to bring the story as briefly and quickly as possible up to the present (and I apologize for the necessary oversimplification): in the midst of the Plantagenet period, the barons- as vassals to the King- demanded to have more of a say in the workings of the Common Law (the famous Magna Carta was, in part, a response to this demand- for example, the famous phrase "judgment by one's peers" was a concession to the barons that they should not be judged by persons of lesser status than them). From this demand came the institution of what evolved into the House of Lords (originally, a council of barons- hence the name) and, later, the House of Commons (originally made up of baronets [the knights of each county] and free burgesses [residents of chartered municipalities known as "boroughs"]), both of which would make up what would come to be called Parliament. The King-in-Parliament would have the authority to alter Common Law made by the judges at the county level- as well as those of King's Bench- by specific statute (the origins of the legislative branch of government making the laws) but the King-in-Council would continue to have the prerogative of dispensing Equitable Relief through his Courts in Chancery.

Early Americans, of course, were quite familiar with these concepts- since what became the United States of America was, prior to Independence, made up of English colonies- and utilized the Common Law in their colonial courts. When, in 1776, 13 of these colonies declared themselves to be "free and independent States", what then happened to the concept of Equitable Relief? Simply put, the Crown was replaced by the written Constitutions of the several States as the Fountainhead of Justice (technically, in America the People are the Fountainhead of Justice in place of the King of England but this Fountainhead works in the name of the People through a Constitution which the People formally establish and ordain) and the courts of these States became the ultimate arbiter of Equitable Relief (in many of the earliest State Constitutions, the Chancellor- the State's judge in Chancery- was viewed as the head of the State's judicial system rather than the Chief Justice of a State's highest court of appeal; only later did Chancery [courts of Equity]- along with ordinary courts of Law- come to be subsumed into unified judicial systems headed by the State's court of last resort). This, then, is the origin of the power to grant Equitable Relief claimed nowadays in New Jersey by that State's Supreme Court.

I only bring all this up to illustrate that the concept of a State's highest court having such "equitable powers" is a valid one in American law (I am not here saying that I necessarily agree- or, for that matter, disagree- with the current application of those powers to the New Jersey Supreme Court's recent ruling in the case flowing from Senator Torricelli's withdrawal as a Senate candidate; however, I will here briefly note that I happened to watch much of the oral argument before the court this past Wednesday [2 October] on television and there was a lot of "back and forth" that indicated, to me as a watched all this transpire, that the Justices of the court were of the mind that such equitable relief as they might grant was largely based on the idea that Title 19 of the New Jersey Revised Statutes was, indeed, intended to facilitate the conduct of competitive elections and that, in their opinion, NJSA 19:13-20 had to be read in light of the concept that it could not be so construed as to undermine the purposes of Title 19 as as whole: if, as Mr. Pittelli has indicated, the court then made no overt reference to their view of a 19:13-20 subservient to the overall purposes of Title 19 in the opinion underlying the court's ruling, then that was certainly bad form!) A "fairness" argument based on granting equitable relief is, by the very definition- as well as the history- of the court's equitable powers, a "legal argument" and I, therefore, again strongly disagree with Mr. Pittelli's notion that the court did not at all provide "legal grounds" for its decision (then again, apparently Mr. Pittelli's concept of what constitutes "legal grounds" is narrower than my own; we are, thus, back to the issue of the semantics involving the term "legal grounds" which is- based on my own experience in writing Commentaries and responding to 'vox Populi' during the 2000 Florida debacle- evidently rather subjective!).

As to Mr. Pittelli's comments about the New Jersey Supreme Court's contention that it "is in the public interest and the general intent of the election laws to preserve the two-party system and to submit to the electorate a ballot bearing the names of candidates of both major political parties as well as of all other qualifying parties and groups", I first want to note the fact that a cursory perusal of Title 19 shows that New Jersey Election Law does seem to favor the two Major Parties over all others. Even in NJSA 19:13-20 itself we see the words "among candidates nominated at primaries"; in order to hold a primary in this State, a political party has to first poll at least 10 percent of the vote in the most recent General Election for seats in the General Assembly, the lower house of the State Legislature: so far, the only political parties to so qualify are the Democrats and the Republicans (surprise! surprise!); all other parties- like Independent candidates- can only get their candidates on the ballot by petition. This may well answer a valid question as to why minor parties have seemingly not at all gotten involved in this legal dispute over whether or not the Democrats can replace Senator Torricelli on the ballot.

As I have noted in my most recent Commentary, that of 3 October, I myself don't understand- from a solely political strategy perspective- why the Democrats even bothered to try and replace Torricelli on the ballot in the first place (Mr. Pittelli's comments in his "Third" of his problems with the statement by the New Jersey Supreme Court are, thus, very well taken); my assumption, as expressed in that 3 October Commentary, is that there are legal issues revolving around campaign financing that likely require a candidate to actually be on the ballot to raise money and/or qualify for matching funds. As a purely political matter, the Democrats throwing this whole issue into the courts makes no sense!