New Jersey election law?

Fri Oct 4 12:13:42 PDT 2002

I am a little surprised that with all of the excellent discussion of doctrine on this list, few are paying attention to what will truly decide how the Court approaches this controversy.  It seems to me unlikely, though not impossible, that Justices Kennedy and O'Connor will want to decide another election in the manner of Bush v. Gore. Certainly, an analysis of that question, if such an analysis is possible, is as important as the doctrinal issues.

>>> oren at CAMDEN.RUTGERS.EDU 10/03/02 10:36PM >>>
I think this analysis fails to address the central question: does the N.J
election code simply establish a period in which a political party may
make a change as of right (leaving it to the courts to use their
discretion to decide what to do with an attempt to change after that
period), or does the N.J. election code, by providing a period in which a
change can be made, imply that a change may not be made after that period
is over. The provision below is consistent with either view. It can be
seen either as what a party has to do to take advantage of the safe harbor
where it makes changes as of right, or as an outer limit on any changes.

On Thu, 3 Oct 2002, Jonathan H. Adler wrote:

> If one wants to focus on New Jersey's election code, I think it is important
> that N.J.S. 19:13-20 goes on to provide the following:
>
> [The] selection made pursuant to this section shall be made not later than
> the 48th day preceding the date of the general election, and a statement of
> such selection shall be filed with the Secretary of State or the appropriate
> county clerk, as the case may be, not later than said 48th day, and in the
> following manner...
>
> This would seem to suggest that the actual substitution must be made within
> 48 days of the election.  That said, Professor Scheppele is absolutely
> correct that there is legal precedent in the Garden State suggesting that
> ensuring voter choice on the ballot is more important than hypertechnical
> reliance on legislative text.  The _Catania_ case relied upon by the SCONJ,
> for instance, excused a technical violation of election law that would have
> made a Republican candidate ineligible to appear on the ballot.
>
> JHA
>
> -------
> Jonathan H. Adler
> Assistant Professor of Law
> Case Western Reserve University
> 11075 East Boulevard
> Cleveland, OH 44106
> w) 216/368-2535
> h) 216/320-9821
> cell) 202/255-3012
> jha5 at po.cwru.edu
> jhadler at earthlink.net
>
>
>
>
>
>
> ----- Original Message -----
> From: "Kim Lane Scheppele" <kscheppe at LAW.UPENN.EDU>
> To: <CONLAWPROF at listserv.ucla.edu>
> Sent: Thursday, October 03, 2002 4:21 PM
> Subject: Re: New Jersey election law?
>
>
> > The relevant wording of the New Jersey Statute is as follows:
> >
> > º 19:13-20. Vacancy procedure
> >    In the event of a vacancy, howsoever caused, among candidates nominated
> > at primaries, which vacancy shall occur not later than the 51st day before
> > the general election, or in the event of inability to select a candidate
> > because of a tie vote at such primary, a candidate shall be selected in
> the
> > following manner:
> > [and then the statute goes on to specify how it should be done]
> >
> >
> > The statute does not say that a vacancy MUST NOT be filled in this way if
> it
> > occurs in less than 51 days.  The statute says nothing at all about what
> > should happen if the vacancy occurs in the period between 51 days and the
> > election. So the court was called upon to fill a gap in the statute, which
> > the justices attempted to do  by figuring out the rationale behind
> 19:13-20
> > as the best legislative guidance available.
> >
> > The Republicans argued that there was nothing that the Court could do
> > because the statute gave them no explicit power to do anything.  The
> > election had to proceed with a withdrawn candidate's name on it because
> the
> > statute gave the Court no specific direction to fix it.    Bad drafting -
> > you have to live with the results.
> >
> >  The Democrats argued that in fact the Court had done something in a
> similar
> > prior case, Kilmurray v. Gilfert, 91 A.2d 865 (1952).  In that case, the
> > candidate had died 36 days before the election and the court allowed
> another
> > candidate's name to be substituted on the ballot.  The New Jersey
> > Legislature, which had amended the election law in the meantime, did
> nothing
> > to alter the New Jersey election law to modify the holding in Kilmurray,
> > according to counsel for the Democrats.  In addition, the Democrats argued
> > that the "howsoever caused" language of 19:13-20 required that the court
> not
> > distinguish between physical and political death so that there was no
> > principled basis on which to distinguish Kilmurray.
> >
> >
> > Kim Lane Scheppele
> > Professor of Law and Sociology
> > University of Pennsylvania
> > 3400 Chestnut Street, Philadelphia PA 19104
> > Phone:  215-898-7674   Fax 215-573-2025
> > Email:  kimlane at law.upenn.edu
> > ----- Original Message -----
> > From: "James Maule" <maule at LAW.VILLANOVA.EDU>
> > To: <CONLAWPROF at listserv.ucla.edu>
> > Sent: Thursday, October 03, 2002 2:23 PM
> > Subject: Re: New Jersey election law?
> >
> >
> > > >>> kscheppe at LAW.UPENN.EDU 10/03/02 02:15PM >>> writes
> > >
> > > 1.  The New Jersey Supreme Court did not in the course of oral argument
> > > put
> > > the language of the statute aside and substitute equity as a source of
> > > law,
> > > but saw its primary task as trying to ascertain the meaning of the
> > > statutory
> > > language.  The justices found that the meaning of the 51-day provision
> > > in
> > > the statute was clear from its legislative history.   Everyone agreed
> > > (with
> > > only half-hearted objections from the Republicans on this point) that
> > > the
> > > purpose of the 51-day rule in the New Jersey statute was to ensure the
> > > orderly conduct of elections, nothing more.  As a result, if the
> > > orderly
> > > conduct of elections could be better assured making an exception to
> > > the
> > > 51-day rule than by adhering to it, the orderly conduct of elections
> > > should
> > > take precedence and the exception should be made.
> > >
> > > Query: Is the NJ SCT's approach equivalent to the following?
> > >
> > > "The [USSCT] justices found that the meaning of the 10%, 15%, 27%, 30%,
> > > 35%, and 38.6% amounts in the statute [IRC sec 1] was clear from its
> > > legislative history. Everyone agreed (with no objections) that the
> > > purpose of these percentages in the Code was to ensure the orderly
> > > raising of revenue sufficient to fund the expenditures of the federal
> > > government, nothing more. As a result, if the orderly raising of revenue
> > > sufficient to fund the expenditures of the federal government could be
> > > better assured, when otherwise there would be a deficit, by making an
> > > exception to these percentages through increasing them rather than by
> > > adhering to them, the orderly raising of revenue sufficient to fund
> > > expenditures of the federal government should take precedence and the
> > > exception should be made."
> > >
> > > In other words, if the court thinks it can do a better job than the
> > > legislature did (which very well could be the case on the merits of the
> > > policy, the style of the drafting, and the thoughtfulness of the
> > > thinking process underlying the statute) then it ought to substitute its
> > > will for the will of the legislature. Under this approach, it would be
> > > most efficient to have legislatures enact statements of broad policy,
> > > leaving the implementation to the court acting as some sort of
> > > administrative agency.
> > >
> > >
> > >
> > > Jim Maule
> > > Professor of Law, Villanova University School of Law
> > > Villanova PA 19085
> > > maule at law.villanova.edu
> > > http://vls.law.vill.edu/prof/maule
> > > President, TaxJEM Inc (computer assisted tax law instruction)
> > > (www.taxjem.com)
> > > Publisher, JEMBook Publishing Co. (www.jembook.com)
> > > Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
> > > Maule Family Archivist & Genealogist (www.maulefamily.com)
> >
> >
>

------------------------------------------------------------------------------
 Professor Craig N. Oren                    telephone 856-225-6365
 Rutgers School of Law-Camden               fax  856-969-7921
 Rutgers-The State University of New Jersey
 217 N. 5th Street
 Camden, N.J. 08102-1203                    oren at camden.rutgers.edu
------------------------------------------------------------------------------