Here’s my take on the New Jersey Senate debacle from a legal perspective. (IANAL, at least not yet, although this kind of analysis should help me for when I do take the LSAT.)
First, there’s the issue of the state law mandating that no changes can occur to the ballot after 51 days prior to the election. What the Republicans want to argue is that under Article I, Section IV of the US Constitution "the Times, Places, and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature thereof." What that means is that the NJ Supreme Court cannot rule against an election statute unless there is a specific legal reasoning for doing so.
The decision of the New Jersey Supreme Court does not give a very specific legal reasoning behind why they feel the ballots should be reprinted. They say that they want to preserve a competitive race and the two-party system. However, the argument that not replacing Torricelli on the ballot deprives voters of choice doesn’t necessarily hold water – the voters always have the option of writing in Lautenberg if they so choose.
If this were simply the matter of the NJ SC rewriting state law, then the Democrats would likely be in the clear, as the Supreme Court is unlikely to interfere in what is essentially a matter of state law. Yet there is a federal law which comes into play that makes this a case in which the Supreme Court may intervene.
That law is the Uniformed and Overseas Citizens Absentee Voting Act, which has been interpreted by the case United States v. Florida, No. TCA-80-1055 (N.D. Fla. 1982) that all absentee ballots must be sent out to military and overseas voters in advance of 35 days prior to the election. (This case comes from a 1980 federal lawsuit in which the government overturned a Florida statute that allowed counties to wait until 20 days prior to the election to mail out ballots – proving the Florida’s problems with election law stretch back some time…) This statute would be violated by the NJ SC decision. Basic federalism says that states cannot violate federal law. Therefore, the New Jersey decision is not only inconsistant with New Jersey state law, but federal law as well. This point alone obligates the USSC to intervene in the matter.
The third argument is that by changing the ballot you potentially disenfranchise military and overseas voters who already turned in their ballots and cannot be reached before the election, thus violating the Due Process clause of the US Consititution. It seems that if the second contention is true, then by application this charge must be true. If the Supreme Court states that the NJ SC decision does not violate the UOCAVA then there’s little argumentation that would support this contention. However, considering the explicit nature of the federal law, I doubt that the USSC would fail to hear the case.
This could be another 5-4 decision, but the basis for not removing Torricelli for the ballot seems to have a sound legal basis. The decision hinges on the issue of harms – is it a greater harm to reprint the ballot and violate federal law designed to prevent the disenfranchisement of voters, or deny the Democrats the ability to change the ballot. As far as I am concerned, the Torrricelli affair and the Democrat’s handling of it are a grossly partisan attempt to alter the course of the election far too late. The Democrats were aware of Torricelli’s ethical problems when they nominated him. It is profoundly unethical for them to force these changes because they feel that they can’t win.
No matter what the legal outcome, this case can only be seen as a grossly partisan and horrendously unethical trick to pull on New Jersey voters. The Democratic Party has once again attempted to use the legal system for their political gain. This is a move that is as ethically egregious as Torricelli himself, and it may be a move that will hurt them no matter whose name is on the New Jersey ballot.
