Posted 8:23 AM by Robert

If You're Going to Make Federal Case Out of It

According to the New York Times and many others, Republicans have already indicated that if today's New Jersey Supreme Court decision goes against them — and a ruling could come as early as this afternoon — they will appeal it to the United States Supreme Court. A Fox News talking head even predicted last night that the same 5-4 majority of the United States Supreme Court would reverse the New Jersey Court.

Not very likely.

The United States Supreme Court decision in Bush v. Gore was bottomed on two independent arguments: first, part of the majority subscribed to the argument that the Constitution assigned a special role in United States Presidential elections to the state legislature - separately from the state. Without going into details, suffice to say that this argument is specific to Presidential races and would not apply to the New Jersey Senate race.

Some Bush v. Gore majority justices relied on a different "equal protection" argument which terminated the counting on the grounds that given the amount of time left in that case there was no practical way to formulate and conduct a constitutionally fair recount. Since over a month remains before the New Jersy election, it would be a stretch for the Court to find that there is no practical way for New Jersey to conduct a fair election with Lautenberg as the Democratic candidate. Indeed, as pointed out in a prior post, some countries call "snap elections" on less notice than that. Looked at from another perspective: if New Jersey law squarely allowed substitution now, would anyone be arguing that the law was unconstitutional because it would impose an "unfair" election? Of course not.

That means the entire federal case would have to be spun out of the proposition that it is somehow "constitutionally unfair" to change the election laws now - even though the resulting scheme would have been fair if it had been in place previously. That is a weak argument, and, to my knowledge, is not supported by any precedent whatsoever. For such a change to be "constitutionally unfair" it would have to somehow violate the basic principles of American democracy. It's silly to suggest such an inconsistency in this case, where a perfectly good argument can be advanced that the change will actually increase the voters' choice and therefore make things "fairer" and "more consistent" with democratic principles than not changing (or twisting) the law. This is not a "strict scrutiny" case - so the Supreme Court will let it go at that. So there is no federal case worth the name - unless somebody can come up with a federal voting rights statute that supposedly applies, and to my knowledge there is none.

All of which means that the entire matter will turn on New Jersey law, including the power of the Supreme Court of that state to craft free-form "equity" remedies that override statutes. The Supreme Court of New Jersey is, in fact, the appropriate court of last resort for constructions of New Jersey law - not the United States Supreme Court.

There will be no United States Supreme Court reversal.

Of course, the Democrats control both the Governorship and the New Jersey legislature - so they could change the law today. There is no need for an extraordinary New Jersey Supreme Court equity remedy. Under basic principles of equity the New Jersey Supreme Court should not grant any such relief. Also the Democratic Party should be charged with the decision of its nominee, Mr. Torricelli, to remain in the race past the statutory deadline. It is improper and inequitable for the Democratic Party to ask for extraordinary relief from the consequences of its own decision. A hundred other good reasons could be provided to defeat this attempted Democratic burlesque. But all of that is for the New Jersey Supreme Court to decide, not the people in the marble palace at the base of Capitol Hill.

And my guess is that the Democrats will probably win this one - even though not the law, nor the facts, nor equity is on their side. But I'm not taking any bets.

UPDATE: Jacob Levy has some good thoughts on the matter.

FURTHER UPDATE: The argument that this case before the New Jersey Supreme Court is not "about" the political parties, but "about" the right of the voters to have a choice could hardly be more specious. Of course it would be nice for the voters to have a broad choice. It would be nice if everyone who wanted to be on the ballot could be on the ballot. But that is quite properly not allowed by the election laws. Here, the Republicans and various minor parties have complied with those laws and the Democrats have not. The Republican, the Libertarian and Green parties all argued to the New Jersey court against allowing a replacement. This case is very much about "the parties." In particular, it is "about" the right of one particular party - the Democratic Party - to name one of the choices on the ballot even though they have not complied with the law, where other people do not have that right exactly because they have not complied with the law. For example, I repeat my demand to be personally named on that ballot. Of course, I have not complied with the election laws, but neither have the Democrats. Why should the ten or twenty big-shot New Jersey Democrats who have picked Mr. Lautenberg as the "consensus candidate" of the Democratic Party have more power than I do? They are in effect asking the State Supreme Court to declare them a "natural party of New Jersey governance." If the New Jersey Court thinks it has that much power, why doesn't the court just by-pass the election and the legislature entirely and effectively appoint the Senator by naming its favored candidate on each and every ballot line.