New Jersey election law?

[lweinberg]

October 8, 2002
Dear Tim,
         In reply to your good point about the Guaranty Clause, and your
suggestion that the New Jersey court violated it.--   In struggling with
this class of problems recently,  I found that courts will use all the
powers of equity to ensure that elections reflect the will of the
electorate, including setting aside statutes.  I worked through a lot of
case law and found that courts tend to do this when the legislation is
inhibiting the expression of electoral will in the particular
circumstances.  In other words, it MATTERS whether the statute-altering
court is struggling to enhance or to carve down the electoral process.  For
obvious reasons, this distinction should also matter under a Guaranty
Clause analysis.  When the Florida court in Bush v. Gore did its activist
worst, nevertheless it was moving in the direction of a fuller statutory
recount.  This, in fact, distinguished its activism from the U.S. Supreme
Court's, which at best was trying to accomplish only a conclusion to the
chaos rather than a further or fuller resort to the electorate.  Applying
this reasoning to the New Jersey court, we can see that it was attempting
to ensure that a contested election would take place.  Assuming that a
contested election is a normal part of a republican form of government, New
Jersey's activism lies within the traditional powers of equity in such
cases and passes muster under the Guaranty Clause.  I am not going so far
as to say that there is a positive duty of courts to set aside legislation
that would impede the conduct of a practicable contested election, but the
argument might even be made.
Best,
Louise Weinberg



At 12:58 PM 10/7/02, Tim Sellers wrote:
>    You raise the question of republican government, not just as applied to
>the decisions of Florida and New Jersey courts, but more generally, in
>cases where courts disregard statutes and the state constitution in making
>their decisions.
>
>   Republican government requires both popular sovereignty ("imperium
>populi") and the rule of law ("imperium legum").   When state courts
>disregard their own state laws to alter the results of elections, the
>constitutional republican guaranty implies that the federal power should
>intervene to restore republican government.  How this intervention should
>take place is open to dispute.  Judicial construction by the Taney court
>and others since has (for the most part) taken the guaranty clause out of
>the courts, and perhaps out of politics altogether.
>
>    I suppose the main implication of the guaranty clause at this point is
>for citizens generally.  Whether or not the federal government or courts
>should intervene against lawless state courts, we should be critical, as
>citizens (and law professors), of trends in judicial practice that separate
>judicial decisions from the law.  Lawless courts destroy the republic, by
>undermining the rule of law. When courts feel free to interpret "51 days"
>to mean "30 days", something is amiss.
>
>t 02:12 PM 10/3/02 -0500, you wrote:
>>I'm interested in a point that Bryan makes just in passing.  Is there any
>>role for the republican form of government clause in a controversy like
>>this?  I say "like this" because I am not contending that anything that has
>>happened in New Jersey this week (or in Florida two years ago) reaches that
>>level, but I am intrigued by the potential application of that clause.  For
>>example, is there a point at which a state court acts so contrary to a
>>properly enacted statute that the court can be said to breach the
>>republican government requirement?  Again, I'm not confident that there is
>>such a point because I do not know enough about the meaning and history of
>>the guarantee, and I'm not sure that this case would reach such a point
>>anyway.  But I am curious about whether anyone else has any thoughts about
>>a possible relationship between state court statutory interpretation and
>>the republican form of government guarantee.
>>
>>At 11:52 AM 10/3/2002 -0700, you wrote:
>>>Amen.  This was my position throughout the Florida 2000 mess, and is the
>>>position very well articulated by Justice Stevens's opinion in Bush v Gore.
>>>On this point, I read the Court's vote as 4-3 for the position that Stevens,
>>>I, Tobias, and others have taken -- with O'Connor's and Kennedy's views not
>>>quite clear.  I continue to view the Rehnquist-Scalia-Thomas theory in Bush
>>>v Gore as just plain crazy.  It turns federalism on its head and would have
>>>federal judges intrusively second-guessing the internal legislative and
>>>constitutional processes of a state.
>>>
>>>What the "legislature" in a given state consists of (and what limits are
>>>placed on its law-making powers) are entirely up to state law in my view,
>>>absent some affirmative breach of a constitutional provision, such as the
>>>"Republican Form of Government" clause.  The notion that federal judges, as
>>>a matter of federal constitutional law, should step in and assert that a
>>>state high court (or governor) cannot interpret or participate in framing
>>>what Tobias nicely summarizes as "the positive legal authority of a state,"
>>>and should instead assert the sole, unilateral power of certain state
>>>legislative bodies to wield the sum total of state legislative power, just
>>>lacks common sense or reasonable support in the Constitution.
>>>
>>>If McPherson v Blacker is to the contrary (which I do not necessarily
>>>concede), it is in error and should be overruled.
>>>
>>>If the US Supremes have an ounce of common sense, they will not touch this
>>>trivial New Jersey state election law controversy with a 10-foot pole.
>>>
>>>Bryan Wildenthal
>>>Thomas Jefferson School of Law
>>>
>>> > -----Original Message-----
>>> > From: Tobias Wolff [mailto:tbwolff at UCDAVIS.EDU]
>>> > Sent: Wednesday, October 02, 2002 10:47 PM
>>> > To: CONLAWPROF at listserv.ucla.edu
>>> > Subject: Re: New Jersey election law?
>>> >
>>> >
>>> > There is a very interesting feature of the New Jersey Supreme Court's
>>> > opinion, now that the case is (Heaven help us) being submitted for
>>> > consideration by the U.S. Supreme Court.  The New Jersey
>>> > Court explicitly
>>> > rests its decision on the Court's equitable powers.  It does
>>> > not purport to
>>> > "construe" the statute's 51-day time limit.  Rather, it says
>>> > that nothing
>>> > in the statute explicitly forecloses creating an exception to
>>> > that limit in
>>> > the case of a candidate's withdrawal, and, on the strength of
>>> > that fact,
>>> > concludes that it has sufficient equitable power to derogate from the
>>> > statute in order to preserve larger state constitutional values.
>>> >
>>> > The opinion thus presents, much more squarely than the Florida Supreme
>>> > Court's opinion did, the question whether the Constitution
>>> > really means
>>> > "legislature" (here, in Article I Section 4) to constitute an
>>> > exclusive
>>> > delegation of authority to state legislative bodies,
>>> > unqualified by State
>>> > Constitutions or by the equitable powers of state courts.
>>> >
>>> > My view continues to be that the reference to state "legislature" in
>>> > Article I Section 4 and elsewhere is best understood as
>>> > referring to the
>>> > positive legal authority of the State.  Following Erie (and
>>> > the shift in
>>> > the understanding of the nature of state judicial authority that it
>>> > entailed), it makes sense to acknowledge state courts as
>>> > coequal exponents
>>> > of positive legal authority, so long as they are recognized
>>> > as such under
>>> > state law.
>>> >
>>> > -- T
>>> >
>>
>>John Copeland Nagle
>>Professor of Law
>>Notre Dame Law School
>>Notre Dame, IN 46556
>>(574) 631-9407
>>(574) 631-8078 (fax)
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