Tuesday, October 08, 2002


The silence of the press on the New Jersey ballot fiasco (as chronicled here with all the relevant links) has been deafening. So the Republicans have come out ahead on the deal in PR terms: the whole country knows that the Democrats and the New Jersey Supreme Court cheated outrageously (today's LA Times had a letter to that effect), and only a small part of the blogosphere and a few very careful readers of the inside pages of the Saturday New York Times know better.

Having been caught, the Republicans sensibly decided to shut up about it. No letter to the Times from Forrester's lawyer, for example, defending himself and his client against the charge of having taken two grossly inconsistent positions on the question of whether the deadlines in the New Jersey election code must be taken seriously. That should answer any question about the basic accuracy of the story.

But I have been inundated with email on the topic from people desperate to acquit their beloved GOP of hypocrisy, and to convict their hated Democrats of cheating. Apparently Eugene Volokh has as well. Having at first agreed with my interpretation of the situation, he has backed off in the face of what seemed like a serious look at the statute in question. (Eugene's preference for being right now over seeming to have been right in the past deserves wider imitation.)

I, too, am willing to back off when I have to, but in this case it seemed unlikely that Iver Peterson had gotten matters fundamentally wrong without attracting any protest, or Sam Heldman, Josh Marcus, and I had all misread the story. (As it turns out, I did make two errors, neither of them critical; see below.) So I looked up the statutes myself. You can, too, in Title 19 of the New Jersey Statutes Annotated, or see the relevant sections below.

There are two provisions that govern the situation in the spring. 19:23-24 sets out a procedure for determining ballot position, and 19:23-12 sets out a procedure for replacing a candidate who drops out. [The numbering is a little strange: 19:23-24 is subsection 24 of section 23 of Title 19; 19:23-12 is subsection 12 of the same section]

Ballot position is determined by lot on a county-by-county basis, and the lots are drawn on the 47th day before the election. Apparently Treffiger, the candidate whom Forrester replaced, drew the first position in Bergen County. Once the ballot positions are drawn, there is no provision for changing them. But that's where the "vacancy" question comes in.

In order to get on the primary ballot, each candidate must be nominated by petition. The petitioners designate a "Committee on Vacancies," which can, by filing a certificate in the required form, replace a candidate who drops out. The law says, The certificate so made shall be executed and sworn to by the members of such committee, and shall upon being filed at least 48 days before election have the same force and effect as the original petition of nomination for the primary election.

What must have happened -- because nothing else fits the facts -- is that, when Treffiger dropped out in the wake of an FBI raid 40 days before the primary, Treffiger's "Committee on Vacancies" wanted to substitute Forrester for Treffiger in order to give Forrester the first ballot position. Otherwise Forrester would have no claim to that position, having lost it in the lottery. (One news account said he was placed fourth, and the move was challenged by the candidate who had placed second.)

Note that the 48 day deadline in this case serves a real purpose, of requiring that the substitution be made BEFORE the lottery; otherwise people could file election petitions without intending to run, merely in hopes of winning the lottery and being able to make deals for ballot position with the serious candidates. (No, that's not far-fetched for New Jersey.) Note also that, unlike Lautenberg, Forrester couldn't even argue that waiving the deadline would give the voters more choice; he was on the ballot already.

So I was wrong twice. First position was determined by lot, not by the party machine, and the deadline waived for Forrester in the spring was a different deadline than the deadline waived for Lautenberg in the fall.

But that doesn't change the logic here. Either the New Jersey courts have power to waive statutory election deadlines, or they don't. If they don't, then Forrester asked for, and received, an unlawful advantage in the spring. If they do, then his petition to the United States Supreme Court -- hand-carried by a senior United States Senator -- was little better than an attempted fraud on the court, and on the voters.

So the charge of hypocrisy stands. If Frist didn't know -- if he was an innocent victim of Forrester's fraud, rather than a fellow perpetrator of it -- then let's hear his complaint. If he did know, let's not forget it.

The relevant statutory sections follow:

19:23-12. Committee on vacancies The signers to petitions for "Choice for President," delegates and alternates to national conventions, for Governor, United States Senator, member of the House of Representatives, State Senator, member of the General Assembly and any county office may name three persons in their petition as a committee on vacancies.

This committee shall have power in case of death or resignation or otherwise of the person indorsed as a candidate in said petition to fill such vacancy by filing with the Secretary of State in the case of officers to be voted for by the voters of the entire State or a portion thereof involving more than one county thereof or any congressional district, and with the county clerk in the case of officers to be voted for by the voters of the entire county or any county election district, a certificate of nomination to fill the vacancy.

[Note: there must be a lacuna here. Some phrase such as "the inability to serve by reason of" must come before "death." But the meaning is clear.]

Such certificate shall set forth the cause of the vacancy, the name of the person nominated and that he is a member of the same political party as the candidate for whom he is substituted, the office for which he is nominated, the name of the person for whom the new nominee is to be substituted, the fact that the committee is authorized to fill vacancies and such further information as is required to be given in any original petition of nomination.

The certificate so made shall be executed and sworn to by the members of such committee, and shall upon being filed at least 48 days before election have the same force and effect as the original petition of nomination for the primary election ...

19:23-24. Primary election ballots; position

The position which the candidates and bracketed groups of names of candidates for the primary for the general election shall have upon the primary election ballots, in the case of candidates for nomination for members of the United States Senate, Governor, members of the House of Representatives, members of the State Senate, members of the General Assembly, choice for President, delegates and alternates-at-large to the national conventions of political parties, district delegates and alternates to conventions of political parties, candidates for party positions, and county offices or party positions which are to be voted for by the voters of the entire county or a portion thereof greater than a single municipality, including a congressional district which is wholly within a single municipality, shall be determined by the county clerks in their respective counties; and, excepting in counties where R.S.19:49-2 applies, the position on the primary ballots in the case of candidates for nomination for office or party position wherein the candidates for office or party position to be filled are to be voted for by the voters of a municipality only, or a subdivision thereof (excepting in the case of members of the House of Representatives) shall be determined by the municipal clerk in such municipalities, in the following manner: The county clerk, or his deputy, or the municipal clerk or his deputy, as the case may be, shall at his office on the 47th day prior to the primary election at three o'clock in the afternoon draw from the box, as hereinafter described, each card separately without knowledge on his part as to which card he is drawing. Any legal voter of the county or municipality, as the case may be, shall have the privilege of witnessing such drawing. The person making the drawing shall make public announcement at the drawing of each name, the order in which same is drawn, and the office for which the drawing is made. When there is to be but one person nominated for the office, the names of the several candidates who have filed petitions for such office shall be written upon cards (one name on a card) of the same size, substance and thickness. The cards shall be deposited in a box with an aperture in the cover of sufficient size to admit a man's hand. The box shall be well shaken and turned over to thoroughly mix the cards, and the cards shall then be withdrawn one at a time. The first name drawn shall have first place, the second name drawn, second place, and so on; the order of the withdrawal of the cards from the box determining the order of arrangement in which the names shall appear upon the primary election ballot. Where there is more than one person to be nominated to an office where petitions have designated that certain candidates shall be bracketed, the position of such bracketed names on the ballot (each bracket to be treated as a single name), together with individuals who have filed petitions for nomination for such office, shall be determined as above described. Where there is more than one person to be nominated for an office and there are more candidates who have filed petitions than there are persons to be nominated, the order of the printing of such names upon the primary election ballots shall be determined as above described.

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