Saturday, October 05, 2002

New Jersey, and the death of outrage Maybe it's just something about the way that we appellate lawyers think, but I was pleased to see this morning that Howard Bashman (no loony leftist, to be sure) focused on the same little aspect of this morning's NYT Lautenberg/Forrester story as I did. The odd thing is that it's buried in the middle of the story, when -- if anybody even cares any more about logic, and consistency, and honesty -- it ought to be the screaming headline. Ok, I'll get to the point, quoting the Times: that Democratic lawyers

uncovered a legal memorandum from Mr. Forrester's lawyer written in April, when State Senator Diane Allen, one of Mr. Forrester's opponents in the Republican primary, was trying to block him from taking the ballot position of James W. Treffinger. Mr. Treffinger, the Essex County executive, had resigned from the race because of scandal three days earlier, or 40 days before the primary.

Senator Allen maintained that moving Mr. Forrester's name to Mr. Treffinger's place on the ballot would come too late under Title 19 of the state election law, which sets a deadline of 51 days before an election for ballot substitutions. It is the same argument that Mr. Forrester's lawyer, Peter G. Sheridan, made before the State Supreme Court on Wednesday, opposing Mr. Lautenberg's placement on the ballot. The Democrats said that the deadline was merely a guideline.

In April, Mr. Sheridan read the law the way the Democrats do today.

"Strict compliance to statutory requirements and deadlines within Title 19," Mr. Sheridan [Forrester's lawyer] wrote, "are set aside where such rights may be accommodated without significantly impinging upon the election process."

Now, I haven't double-checked the Times on this myself, to make sure that the exact same law applies in the primary as in the general election. But I do know that Forrester's attempted distinction -- that a few absentee ballots have already gone out now, whereas they hadn't when he used the same "liberal" reading of the statute -- is absolutely irrelevant, from a legal perspective, to the argument that his lawyers are making in the U.S. Supreme Court about Article I, Sec. IV of the Constitution (which is his primary argument, the so-called "Bush v. Gore"-like argument). If 51 days is the absolute deadline because that's what the statute obviously means (as he has his lawyers saying now, in pleadings filed with the U.S. Supreme Court) then -- unless the Times is erring in its facts -- he is hoist by his own petard. (I love that phrase). If it's unlawful for Lautenberg to be on the ballot -- regardless of whether the majority of voters might favor him -- then it's likewise unlawful for Forrester, regardless of whether the majority of Republican-primary voters favored him. So either both major-party candidates must be taken off the ballot, or neither. The N.J. S.Ct. has already told us what state law requires; so if the U.S. Supreme Court wants to boot off Lautenberg, they'll have to boot off Forrester as well if there is any consistency left in jurisprudence.

If Democrats in New Jersey have any capacity for stirring up well-warranted outrage, this should be the end of the matter, both legally and politically. I eagerly await, also, a blast by the dude at Overlawyered against the Republican lawyers, because he's always looking for examples of lawyers who have filed baseless arguments.

UPDATE: On double-checking, it seems that in one factual respect the questions are not perfectly parallel. It seems that Forrester's successful argument for a liberal and non-literal interpretation of the election statute was a matter of where he would appear on the primary ballot (he apparently wanted, and obtained, the first spot because it would and probably in fact did enhance his chances for success in the primary); he got the top spot even after the putative deadline for making such changes had passed. Still, the legal question -- whether a state court can interpret an election statute as not presenting a strict deadline when the statutory words might at first blush appear to do so -- is exactly the same, to my eye. Thus, despite the difference in factual scenario (Forrester's manoeuver was intended to help him win, not to get him on the ballot in the first place), this is to my eye a perfectly clear bit of appalling hypocrisy that ought to make Forrester lose the legal and political battles.

posted by sam 2:21 PM 0 comments

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