The New Jersey Supreme Court yesterday stood up for the principle of "full and fair" electoral choice. Or so the court said. In truth, the New Jersey Supreme Court yesterday upheld the authority of Tom Daschle, senator from South Dakota and majority leader of the U.S. Senate, to overturn the results of New Jersey's Democratic party primary election. The court treated one slot on the official election ballot in New Jersey as the property of the Democratic party, who, according to the court, has the right to do with it as it pleases. In doing so, the court substituted its own judgment of the orderly administration of a statewide election for that of the New Jersey legislature. The result is a disgrace.
First, let's talk about electoral choice. New Jersey Democrats held a primary election and chose Robert Torricelli as their Senate candidate. Democratic party leaders didn't mind at the time because it looked like Torricelli would win. But it became clear that a supposedly "safe" Democratic Senate seat wasn't safe at all. Indeed, thanks to well known ethical problems, Torricelli started falling so far behind in the polls that he started to look like a likely loser. So the Democratic party decided to forget about electoral choice and make its own choice. And when I say the "Democratic party" I don't even mean the New Jersey democratic party. Daschle, who has absolutely no connection to New Jersey whatsoever, participated in the selection of Torricelli's replacement to the point of vetoing one possible choice. In short, national Democratic party leaders have asserted the right to reject a statewide party primary if it threatens their hold on power. This runs counter not only to common sense, but to New Jersey law, which states that "the person having in the aggregate the highest number of votes [in a primary election] shall be the candidate of his respective party."
Obviously, the New Jersey Supreme Court cannot make Torricelli run for office. And the New Jersey Supreme Court can't prevent the Democratic party from persuading Torricelli not to run and from putting their money and party organization behind another candidate. Nothing in New Jersey election law prevents Torricelli from announcing that he would vacate his seat if elected. Nothing in New Jersey law prevents Governor McGreevey from announcing who he'd choose to replace Torricelli. And nothing in New Jersey election law prevents the party from putting all its resources behind that person. Jean Carnahan is a senator from Missouri today based on a similar, if substantially more tragic, turn of events.
But New Jersey election law does have something to say about the official ballots. If Democrats want to push out the candidate who won their primary (notwithstanding the law that says the winner of a primary "shall" be the party's candidate), they're supposed do so no later than the 51st day before the general election or their hand-picked replacement can't get on the ballot. In asking the court to ignore this deadline, the Democrats asserted that their party's slot on the ballot belongs to them, and that they can do with it as they please, so long as they assure the court that it won't be too much trouble, and so long as they pay for the extra cost. And when I say "them" I mean national Democratic party leaders concerned about the balance of power in the Senate. According to the New Jersey Supreme Court, equity, the traditional and amorphous power of a court to do justice, requires that a slot on the ballot be reserved for Tom Daschle to put up a candidate who will enhance his chances of remaining majority leader.
The only conceivable defense of this bizarre ruling is that an election deadline like the 51-day rule for ballots is arbitrary. Of course, the whole point of a detailed election code is to provide clear rules for the orderly administration of an election. Fidelity to such seemingly arbitrary rules is part of the way to ensure that an electoral outcome is deemed legitimate and fair by the losers as well as the winners.
What's more, an apparently arbitrary rule may not be so arbitrary at all. Statewide elections involve the timely coordination of the work of many across the state. When the legislature sets a deadline for finalizing a ballot, it does so with knowledge of the cost and effort that goes into the process. It does so aware of the problems that might arise during the process and the time needed to ensure that, come election day, everything will be in place so that everyone who wants to can vote. Do we really want a court, acting on the basis of information gathered by lawyers in haste, to make an on-the-spot judgment that a change in the ballot outside the statutorily permitted period won't result in election-day problems? The New Jersey Supreme Court thinks so.
The decision is hideous, and is also remarkable for its failure even to mention, in passing, that the whole reason the Democrats want to change the ballot is because they think they'll otherwise lose. If taken seriously elsewhere, the decision threatens to poison our electoral politics with last-minute manipulations, at least when the national stakes seem high enough. It is up to the voters of New Jersey to protect us from this fate. If those voters (at least those not rabidly committed to the Democratic party) reject Frank Lautenberg, Tom Daschle's chosen candidate, politicians may decide that playing games with the electoral process doesn't score points with the voters.
Robert N. Hochman, a former Supreme Court clerk, practices law in Chicago.