NJ case and procedure

[Gene Summerlin]

I haven't been following this issue closely, so I apologize if someone else
has already raised the point, but as to the question of irrepairable harm is
it enough for the NJ Republicans to say that many absentee and military
voters have already submitted their ballots and we cannot guarantee that
each voter will receive a replacement ballot and be able to submit it within
the deadline?  Isn't the disenfranchising of these voters for this election
an irrepairable harm?

Gene Summerlin
Ogborn Summerlin & Ogborn
210 Windsor Place
330 So. 10th St.
Lincoln, NE  68508
(402) 434-8040
(402) 434-8044 (FAX)
www.osolaw.com
gene at osolaw.com


-----Original Message-----
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Tobias Wolff
Sent: Friday, October 04, 2002 12:21 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: NJ case and procedure


One procedural point of note: The NJ Republican Party is in a somewhat
awkward position in demonstrating "irreparable harm" in their application
for a stay.  Their principal argument before the NJ Supreme Court, on the
merits of their application, was that the reason offered by the Democrats
for substituting Lautenberg -- "Our current candidate can't win" --
provides no justification for extraordinary relief.  But, of course, the
only "harm" that the Republicans can now claim is that their current
candidate may not be able to defeat Lautenberg -- in other words, "If you
allow the switch, our current candidate can't win."

The issue of irreparable harm was tenuous enough in Bush v. Gore.  As
Justice Scalia memorably put it (if I may paraphrase, and not that
loosely), "The candidate whom we have already decided is the winner will
suffer harm to his legitimacy."  In the New Jersey case, I can't really
imagine how the Republicans will make a convincing showing on the issue,
given the position that they took below.

-- T