Posted 4:18 PM by Robert

The Latest Torricelli Folly

As expected (at least in this space) the New Jersey Supreme Court will allow the Democrats to place a new name on the state ballot, holding in a unanimous decision:

"It is in the public interest and the general interest of the election laws to preserve the two-party system and to submit to the electorate ballot bearing the names of candidates of both major political parties as well as of all qualifying parties and groups."

There's more than one problem with this "reasoning", but one could start with the fact that neither the United States Constitution nor the constitutions of the various states establishes or enshrines "the two-party system."

In fact, with this amazingly undemocratic wording, the New Jersey Supreme Court may have accomplished the near-impossible: providing the United States Supreme Court with grounds to reverse the decision. The states are allowed a lot of leeway under the federal Constitution. But one thing they are absolutely and clearly prohibited from doing under the federal constitution is establishing a two-party system. Has the New Jersey Supreme Court never read the First Amendment? I suppose the United States Supreme Court will now get to determine whether the New Jersey Supreme Court can exercise its equity jurisdiction "to preserve the two-party system," with this decision as a kind of confession of unconstitutional intent in the New Jersey court's own hand

Bizarre.

UPDATE: Volokh has some musings, but I can't say they strike me as getting to the core of the issues here - and they don't even try to come to terms with the issues posed in a federal appeal (other than the military ballot side issue). But the Republicans had already said they would appeal such a ruling even before the New Jersey Court hearing. Still, the musings are interesting in their own way. And the "military ballots" issue (already out, hard to get replaced) is an interesting sideshow. It's odd how the Democrats keep trying to screw the guys in the military in these election dust-ups. Is there a message in that? In addition, there are federal statutes that rather strictly protect the rights of those serving in the military to vote. It would be odd if that particular side issue drove this case on appeal. Odd, but possible.

FURTHER UPDATE: To get some idea of how bizarre the New Jersey Supreme Court's reasoning actually is from a First Amendment perspective, consider what would happen if New Jersey passed a law (or, since the New Jersey legislature seems to have become essentially irrelevant, the New Jersey Supreme Court issued an equity ruling) providing that only the names of Democrat and Republican candidates will appear on New Jersey ballots - everyone else must be a write-in. No exceptions. Also, all Republicans and Democrats can vote at a polling place within 1/2 mile of their homes - but only five locations in the state will accept write-ins. Or suppose New Jersey passes a law requiring that driver's licenses be issued only to registered Republicans and Democrats.

Now suppose the reason stated for these new laws is to "preserve the two party system" (that is, burden the minor parties).

Can any sensible person doubt that these new laws would fail to pass First Amendment scrutiny? An intent to "preserve the two party system" is nothing but another way of describing an intent to discriminate against people not in those two parties for their political views. We went through all that in the McCarthy era! Indeed, the Federal Civil Rights statutes would probably be violated by these laws. And the reason is that it clearly violates the First Amendment for a state to pass a law specifically intended to discriminate against specified political parties.

It's one thing for a state to say it is imposing election laws and restrictions to address the practical realities of voting - even if those restrictions have the effect of favoring one or two parties. But for the state to actually come out and say it did what it did expressly to favor some political parties over others clearly violates the First Amendment. The New Jersey decision is therefore vastly more egregious than the gerrymandering cases with which it is being compared.

What is particularly strange here is that it is the New Jersey's Court's superfluous explanation of its ruling that establishes its unconstitutional intent, thereby exposing its decision to reversal on these grounds.

Is Trenton still part of the United States? How can these New Jersey "justices" have done something like this on these particular, express weird grounds? How could any American judge do something like this?

Some relevant Constitutional law appears here [cite via MinuteMan]. Too bad the New Jersey Supreme Court didn't bother to read it.

It will be interesting to see where the ACLU weighs in on this one. I have some lingering faith in that organization - at least in some cases. My guess is that the ACLU will argue at least that the justification given by the New Jersey Court be expressly repudiated by the United States Supreme Court. Won't that be comfortable for the Democrats?

Whoa! Even Tony Adragna thinks this decision is bad law.

And, of course, there are some alternative theories.