New Jersey Election Law?

[Ilya Somin]

Well, this is an interesting and well-argued point, but I remain
unrepentant. I certainly agree that "the full normative responsibility . .
.  is the state's." However, the Constitution goes beyond this general
conclusion and also specifies, to some extent, how the state is supposed
to carry out that responsibility, i.e. "in such manner as the legislature
thereof may direct." To extend the probate analogy made by Prof. Maule, a
decedent may appoint an executor for his/her will and the executor then
would have the "full normative responsibility" for executing the will. But
the decedent may also place various procedural constraints on how the
executor should exercise his discretion and the executor would be obliged
to follow them.

There is a similar flaw in the the purpose-based argument used by the
Florida Sup. Ct. I agree that the purpose of the statute is probably to
provide for orderly and democratic elections. However, the statute sets
out not only a purpose but also a means of acomplishing the purpose (here,
the 50 day deadline). This is the "manner" referred to by the
Constitution. A court that purports to interpret state law rather than
trump it must respect the means chosen by the legislature and not just the
end, especially if the former is clearly and explicitly delineated in the
statute in a way that strikes me as much more unambiguous than was the
case in Bush v. Gore (where, as I have already said, I would not have
voted to ovverule the Florida Sup. Ct., despite the fact that they may
have misinterpreted the Florida electoral law).

Ilya Somin



On Thu, 3 Oct 2002, Robert Justin Lipkin wrote:

> In a message dated Thu, 3 Oct 2002 3:13:20 AM Eastern Standard Time,
> isomin at FAS.HARVARD.EDU writes:
>
> "If the Constitution was intended to refer to the general "legal authority of
> the state," it could have referred to it as, well, "the state," rather than
> specifying the legislature."
>
>    I have always found arguments like Ilya's perplexing.  Article II, Section
> 1. [2] says "Each State shall appoint, in such Manner as the Legislature
> thereof may direct . . ." It could have said "The Legislature [or the
> Legislature of the State, or the State's Legislature) shall appoint . . ." if
> the purpose was to preclude any role for other branches of state government
> in the selection process; it does not. Indeed, one possible reading of the
> language is that the full normative responsibility for appointing electors is
> the State's, and the Legislature is the constitutionally chosen means to
> express this authority.  This does not entail, in my reading, that the
> constitutionally chosen means trumps all other state agencies from having a
> role in the selection, especially in crises. For example, suppose all the
> members of a state legislature lost their lives in an airplane accident, and
> no replacements were possible due to time constraints.  Does that necessarily
> disable that State from appointing the electors through an alternative means?
> I do not think so. If I'm I right, then the Legislature's role is
> instrumental and dependent on the Constitution's designating the State as the
> ultimate appointor. Of course, nothing in this argument suggests that the
> Legislature is not the constitutionally designated vehicle for appointing
> electors in normal politics.
>
> Bobby Lipkin
> Widener University School of Law
> Delaware
>