Tuesday, October 08, 2002
I said I'd get off the Lautenberg/Forrester stuff, but I'm back in again -- because, like Profs Kleiman and Volokh, I believe that it's important to try to be factually correct in one's spouting-off (aka blogging). My inference as to what the legal contexts and arguments probably were -- and I say "probably," because none of us has seen the briefs yet -- is a lot like Prof. Kleiman's, but with one wrinkle. (Go read his first, and come back). What I am guessing different is based on my understanding -- from articles like this and this -- that what was at stake here was a top slot on the ballot in some counties by virtue of having been the choice of the local party notables. Now, why the local party notables get to designate a favorite to receive the top slot is beyond me -- I can't see it in the law, and it doesn't seem just to me -- but this is the pretty clear implication of news stories like this. And when Treffinger dropped out, the party notables wanted to give their nod instead to Forrester. I'm inferring that one of the big arguments was whether this change was to be governed by the time limit of code section 19:23-12, and, if so, whether it was too late. This would make perfect sense of the quote (in NYT) from Forrester's lawyer, arguing -- just as the Democrats later did -- that missing an election-law deadline can be forgiven. As I mentioned to Prof. Volokh yesterday by email, I don't think that Forrester was doing anything wrong in this, any more than the Democrats were; the wrongness came when the Republicans made a legal argument later, that was (based on my educated but not demonstrably perfect understanding of the facts) flatly contrary to an argument that they had successfully made a few months before.
UPDATE: Further thought: If none of us lawyers and law-profs can figure out where in the New Jersey Code it says that a County's party organization bigdogs get to designate somebody for the "organization line" on the ballot (as referred to in the news stories above), yet this practice exists without express legislative authorization (if it does), and Forrester doggedly fought through the courts to get the benefit of it -- then isn't this, in an even broader but equally stark sense, inconsistent with Forrester's argument to the U.S. Supreme Court that, under Art. I Sec. IV of the Constitution, defining the protocols for Senate elections is the sole province of state legislatures? Yes, I know -- New Jersey voters don't care about this, and neither should I. But I told you below, I'm a nerd.
UPDATE UPDATE: Prof Kleiman has a further, and utterly convincing to me, articulation at a temporary site (due to blogspot/blogger malfunction) here. Definitely worth reading. Now I'm really done with it, at least til somebody comes forward with Forrester's briefs as filed in the New Jersey courts.
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