Dem Hopes?

What the legal options are in New Jersey?

By Dave Kopel

National Review Online, September 23, 2002 9:00 a.m.

The New Jersey Democratic party's claim that it can anoint a new candidate, based on the political calculation that incumbent Robert Torricelli will probably lose, appears to be baseless.

Although news reports have not specified what parts of the law the Democrats are citing, New Jersey statutes are available on the Internet. Let's start with the basic statute on vacancy (NJ Statute 19:13-20):

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...

[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...

Since the Torricelli "vacancy" is well past the 51-day and the 48-day deadlines of the statute, there is, quite obviously, no procedure for replacing Torricelli's name on the ballot.

Yet according to the New York Times, "Democrats said that one provision of New Jersey election law allows the party to replace any candidate who dies or leaves office within 30 days of the election, leaving open the possibility that Mr. Torricelli might be asked to step down from his Senate seat before the election." Well, that's not really an accurate description of the law.

Governor titles the relevant statute. The statute (19:3-26) declares:

If a vacancy shall happen in the representation of this state in the United States senate, it shall be filled at the general election next succeeding the happening thereof, unless such vacancy shall happen within thirty days next preceding such election, in which case it shall be filled by election at the second succeeding general election, unless the governor of this state shall deem it advisable to call a special election therefore, which he is authorized hereby to do.

The governor of this state may make a temporary appointment of a senator of the United States from this state whenever a vacancy shall occur by reason of any cause other than the expiration of the term; and such appointee shall serve as such senator until a special election or general election shall have been held pursuant to law and the board of state canvassers can deliver to his successor a certificate of election.

This too is quite straightforward. If there is a Senate vacancy, the governor (Democrat James McGreevey) can appoint a Senator to serve until the next general election. A new Senator appointed to replace Torricelli would hold Torricelli's until the November 5, 2002 election, and on the next day, whoever wins that election would take the Senate seat.

Note that if a Republican wins, the Republicans could actually take back the U.S. Senate on November 6, since the newly elected New Jersey senator would take office immediately, and not in January 2003.

Also note that the statute says nothing about placing anybody's name on an election ballot. The statute is about filling vacancies in office, not about replacing names on the ballot.

By the way, don't worry about Torricelli waiting until less than 30 days before the election, and then resigning, and the replacement appointee serving until the 2004 election. The New Jersey provision about "the second succeeding general election" would only be relevant if the vacated Senate seat had more than two years left in its term. The U.S. Constitution specifies that Senate terms last for six years; the term of the New Jersey seat in the U.S. Senate currently held by Torricelli expires in January 2003. Nothing in New Jersey law could somehow extend the term of this seat to eight years, in violation of the U.S. Constitution's six-year term.

What the Democrats could do is this: Acknowledge that they are stuck with Torricelli on the ballot. Torricelli promises that if he is elected, he will promptly resign. Then, Governor McGreevey could appoint a Democratic replacement with fewer ethical problems. The replacement could serve until the 2004 general election (although another New Jersey statute gives McGreevey the discretion to call a special election sooner). The Democrats, Torricelli, and McGreevey could even announce in advance who the replacement would be. Voters who trust Torricelli to keep his promise and actually resign, and who want a Democrat to hold the seat, could then vote for Torricelli with a clear conscience.

Another strategy would be figure that since Torricelli's name can't be removed (indeed, about half the counties have already printed their ballot), he can change his mind about withdrawing from the race, and try his best to win.

A different approach would rely on the precedent from a 1992 municipal election in which a candidate was convicted of a crime, and therefore became ineligible to hold office. The trial court (emphasizing that the ballots had not yet been printed) created a special time extension to allow the substitution of a new candidate. In re 1992 Mun. Elections for City of Perth Amboy, 608 A.2d 462 ( N.J. Superior Court, Law Division, 1992). Thus, if Torricelli pleads guilty to a crime which makes him ineligible to serve in the Senate, the courts might allow the substitution of new candidate.

Since New Jersey's district attorneys are all appointed by the governor (New Jersey's governor has more power than the governor of any other state), Torricelli might strike a deal with a compliant district attorney that would make it impossible for him to serve in the Senate — perhaps a probationary sentence that requires one day of home detention per month, or which forbids him from being outside New Jersey more than 20 days a month.

The strategy which is actually being pushed by McGreevey, however, appears lawless. It is just about impossible to see how a statute about temporarily appointing someone to a vacant Senate seat, and setting the date for when the seat will be filled by election has anything to do with a political party being allowed to switch the candidate for a seat. Nevertheless, the Times reports that Governor McGreevey "said he and fellow Democrats would ask the State Supreme Court to allow the change because of the unusual circumstances."

The only "unusual circumstances" are that Torricelli's poll numbers are terrible. New Jersey law already has precedent for such an issue. In Thomasin v. Quinn, 376 A.2d 233 ( N.J. Superior Court, Law Division, 1977), a candidate for county sheriff withdrew, and another man wanted to take his place on the ballot. The court refused.

Should Torricelli be reelected, there is no factual or legal impediment to his serving in the Senate, and therefore there are no "unusual circumstances" to justify asking a court to invent an exception to the election statutes.

While the actions of the governor and his political minions appear to be a brazen campaign to get the New Jersey courts to nullify the state's election statutes, it is not impossible that a New Jersey court might acquiesce. In the spring of 2001, the legislature rewrote the election law in the middle of the primary election, in order to attempt to stop Bret Schundler from winning the nomination, and to allow Bob Franks to be substituted as Schundler's opponent, replacing Donald DiFrancesco. This act was upheld by New Jersey's intermediate court of appeals in Schundler v. Paulsen, 774 A.2d 585 ( N.J. Superior Court, Appellate Division, May 9, 2001). But even there, the court was upholding a statute against a constitutional challenge, rather than deciding to ignore a statute in order to benefit a political party.

It is difficult to see how an honest court could possibly agree to the Democrats' request.

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