On September 30, U.S. Senator Robert Torricelli, the Democratic candidate for that office in New Jersey, withdrew his candidacy. On October 1, the Democratic Party of New Jersey filed a lawsuit in state court, to obtain an order removing Torricelli's name from the ballot and letting the party substitute a new candidate. Later that day the State Supreme Court accepted the case.
On October 2 the State Supreme Court held a two-hour hearing. All four of the minor party candidates for U.S. Senate were invited to participate (the Conservative, Green and Libertarian candidates did so; the Socialist did not). A few hours later the Court ruled in favor of permitting the withdrawal and substitution. A few hours after that, the Democratic Party chose former U.S. Senator Frank Lautenberg as its new candidate. On October 8 the Court issued a 37-page opinion, explaining the basis for its action. New Jersey Democratic Party v Samson, A-24-02.
In the meantime, the Republican candidate for the U.S. Senate, Douglas Forrester, had appealed to the U.S. Supreme Court to stay the order of the New Jersey Supreme Court, but on October 7, the U.S. Supreme Court refused. However, still pending before the U.S. Supreme Court is Forrester's request that the Court hear his appeal on its merits (even though it would be too late for any relief). Forrester v New Jersey Democratic Party, number not assigned yet.
The California Secretary of State has already filed an amicus brief, asking the U.S. Supreme Court to hear the case. Six other states filed letters of support for Forrester.
The New Jersey Supreme Court decision engendered much criticism. The issue was, on its face, narrow. State law already permits withdrawal for any reason. Any party, whether it is qualified or not, can then substitute a new nominee (if an unqualified party seeks a substitute, it must re-petition, but no petition for minor parties or independents in New Jersey requires more than 800 signatures).
The only question in this case was timing. The law says that substitution can be made up to 48 days before the election. However, the Democratic Party was trying to substitute only 33 days before the election. The basis for the decision was that, whereas it is clear that substitution can be made 48 days before the election, the statute is silent as to whether substitution can be made, beyond that deadline. Laws in some other states say explicitly that substitution cannot be made after that deadline. The New Jersey law does not. Although a reasonable person might assume that the law implies that substitution cannot be made after the deadline, the Court ruled that since it was still physically possible to reprint ballots, and mail out new absentee ballots, the substitution should be made. The Court wrote eloquently about the interests of the voters.
Decision Draws Criticism
The decision engendered much criticism. Political scientist William G. Mayer published an op-ed piece in the New York Times of October 2, making two points: (1) late substitution is bad public policy because the public doesn't have enough time to evaluate the new candidate; (2) it is immoral to change the rules of an election, during a campaign season. Republicans made an additional point in their legal briefs and in their public statements, that allowing the New Jersey Supreme Court to alter the rules violates Article I, §4 of the Constitution, which says "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof, but the Congress may at any time by Law make or alter such Regulations".
Rebuttal to the Criticism
All three of these points, if allowed to prevail, have the potential to cause great harm to minor parties and independent candidates. They also have the potential to harm the nation.
It is in the interest of all the people of the United States, that all political parties be permitted to choose the finest possible candidates for public office.
Senator Torricelli had shown himself to be dishonest and unfit to be re-elected. It is in everyone's interest that any political party which made a mistake, and nominated an unfit person, should be permitted to change its mind and replace that candidate with someone better.
The core function of a political party is to nominate candidates. An ideal election is one at which all political parties have chosen candidates of the greatest character, honesty, capability and ability to communicate. The voters are then free to choose the candidate whose philosophy most closes matches their own. If one of the candidates is unfit for office, voters are then put in dilemma of having to choose between ideology and character. Any election law that helps parties nominate the best possible candidates is an invaluable law.
Courts Must be Permitted to Invalidate Unfair Ballot Access Laws
The notions that courts have no ability to "change the rules in the middle of the game", or that Article I of the Constitution prevents courts from altering election laws, are extraordinarily dangerous to minor parties and independent candidates.
If courts couldn't hear challenges to unfair election laws, and if state legislatures exercised total power over election laws, minor parties would now be extinct in the United States. Every time a minor party or independent candidate challenges an unfair ballot access law, that is an attempt to "change the rules in the middle of the game".
Ballot access laws have been held invalidated by courts in 47 states during the last 40 years (only Montana, New Hampshire and Minnesota have escaped). It would be a radical setback if this type of litigation were suddenly halted. By definition, a lawsuit, if successful, has "changed the rules in the middle of the game". There is no other way to bring lawsuits, except "in the middle of the game". Courts will only hear actual controversies, not mere theoretical complaints against laws. There must be real candidates in an actual election, for a lawsuit to be filed.
Furthermore, if Article I is to be construed to mean that only legislatures can write election laws, then even the initiative process couldn't be used to improve ballot access laws. The greatest improvement to ballot access laws in the last 30 years, anywhere in the U.S., was made by the voters of Florida in November 1998. The voters of Massachusetts also improved their laws in 1990.
But under the argument that only state legislatures can write ballot access laws, the voters of Florida and Massachusetts would not have been able to make those improvements.
Late Entry of Candidates
The argument that it is dangerous to let candidates enter the race at a late date is unsound. Election laws outside the U.S. usually set deadlines of only a few weeks before the election.
South Africa's first free election, in 1994, allowed a party to qualify as late as one week before the election. Great Britain requires candidates to file for the ballot only three weeks before the election. And historically, parties in the United States were able to nominate very late, relative to the date of the general election. The original ballot access laws of each state (mostly passed in the 1890's) most commonly set a 20-day or 30-day deadline for parties to certify their nominees. The median of the 50 states (some of whom passed their first ballot access laws while they were still territories) was 29 days before the general election; the average was almost the same, 28.5 days.
Professor Mayer's op-ed piece in the New York Times mentions major party presidential candidates who did well in the New Hampshire presidential primary, but who later faded as the voters learned more about them. From this, he generalized that it is dangerous in general to permit candidates into a race at a late date.
But New Hampshire primary voters understand that they are not electing a president. They know that the winner of their primary will be subject to considerable scrutiny, before he or she is actually nominated.
If New Hampshire Republican primary voters were actually choosing a president, they surely would not have awarded a victory to Pat Buchanan in 1996, or to Henry Cabot Lodge in 1964 (Lodge won by write-ins and had never declared himself a candidate).
Minor Parties Need the Ability to Substitute Nominees
Minor parties have a particular interest in the ability to substitute new nominees, if the original nominee withdraws. The Libertarian Party went to great trouble, between 1993 and 1996, to win the right to substitute a new presidential nominee, in place of stand-in presidential candidates, in many states. The party lobbied or sued all thirteen states where a change was needed. The result of this campaign was that minor parties are now free to choose their actual presidential nominee as late as July of an election year.
Previously, certain states had required minor parties to choose their presidential nominees before those states began their petition drives, but now it is possible to use a "stand-in" presidential candidate on the petition, and let that person withdraw later in favor of the actual candidates.
Thus it is especially ironic that the New Jersey U.S. Senate candidate, Elizabeth Macron, opposed the Democratic Party's position in court, and that the national Libertarian Party featured her statement prominently on the party's website.
Major Parties Also Need Substitution
Major parties need the ability to substitute as well. The Democratic Party 1972 vice-presidential nominee, U.S. Senator Thomas Eagleton, resigned from the ticket, and the laws of all states permitted the party to replace him with Sargent Shriver in August. The Republican Party of Minnesota replaced its gubernatorial nominee in 1990 only five days before the election, and the Democratic Party did not try to stop the replacement (the original Republican nominee had withdrawn due to an ethical lapse). The replacement candidate won the election even though he had been a candidate for only five days.
As to absentee voters who had already been mailed a ballot with Torricelli's name on it, those ballots (should anyone use them) will be valid, if the voter voted for anyone other than Torricelli. For instance, votes on those ballots for the Republican nominee will be valid. Therefore, it is somewhat hypocritical for the Republican Party to express concern for the absentee voters who used one of the original ballots, since only Democrats will be disenfranchised. The effect on Republican absentee voters in Minnesota in 1990 was far more severe, when the Republicans made a late substitution.
There are weaknesses in the New Jersey Supreme Court's opinion. That opinion needlessly paid homage to the "two-party system" (which the Opinion does not define). It also required the Democratic Party to pay $800,000 toward the cost of reprinting ballots that had already been printed. One would think that if the Court were confident that it is correct, and that parties have a right to make a substitution as late as 33 days before the election, such a party should not be penalized for exercising its right, and should not be required to subsidize the costs of election administration.
This article will appear in the November 2002 issue of Ballot Access News.