Posted 9:54 AM by Robert

Now the Appeal

The Republicans, at least, and perhaps other political parties, are appealing the New Jersey Supreme Court ruling which overrode that state's election law to allow Frank Lautenberg's name to be substituted for Bob Torricelli's.

We may he hearing as much about certain provisions of Article I of the Constitution as we heard about Article II in 2000.

I am frankly amazed that the New Jersey Supreme Court did not attempt to base its decision as much as possible on New Jersey statutes, precedent and state constitution. I had predicted that there would be no meaningful chance of appeal to the United States Supreme Court. I was wrong - although I still do not count the prospects for a successful federal appeal as strong.

But the prospects for such an appeal have been greatly enhanced by the New Jersey Supreme Court's outlandish admission that its decision is not guided by statute but is a frank exercise of unbounded equity power (thereby opening the ruling to attack under Article I - although the full Bush v Gore majority did not subscribe to the corresponding Article II argument in that case, and therfore is unlikely to accept that Article I requires the federal courts to look only to the state legislature and not to state courts for state "time, place and manner" laws in Senate elections), an exercise which is confessed in the ruling itself to be based on a prohibited intent to "preserve the two-party system" (thereby opening the ruling to attack under the First Amendment). The New Jersey court's failure to account for New Jersey's noncompliance with federal laws guaranteeing those in the military the right to vote is yet another amazing omission on that court's part.

It could have all been so easy for them.

UPDATE: Volokh elaborates somewhat and without enthusiasm on the Article I challenge to the New Jersey opinion. The point is made there that the United States Supreme Court seemed to be embracing the Article II version of this "the-legislature-makes-the-rules,-not-the-courts" argument in Bush v. Palm Beach County Canvassing Bd, but since no majority of the Court embraced this argument in Bush v. Gore, that's not much to go on. On the other hand, it's hard to read much into Justices shifting from one argument to the other where there is no express repudiation of the prior argument. Perhaps if there were no alternative a majority of the Court might embrace the Article I argument.

There are no reports that the Republicans plan to advance a First Amendment argument (although they do advance an argument based on the rights of military voters), which (if this argument is indeed not being made) may be a mistake. The Court has shown edginess over embracing the Article I -style argument and previously sought cover (in Bush v. Gore) in other precedent they considered "more established." However, at least some of the First Amendment objections could be corrected by the New Jersey Court simply withdrawing the justification that it intended to "preserve the two party system." Indeed, if the New Jersey Court issues a full opinion, much of the First Amendment problem could probably be fixed there. A federal victory on those grounds might not hold up on remand to the New Jersey Court. So not making the First Amendment arguments may be a reasonable strategic decision.