Unbelievable. Decisions like this make me glad that, though raised in New Jersey, I was actually born in Manhattan. I had expected this farcical D attempt to rewrite state law when an election turned against their boy to evoke a judicial laugh and a pimp slap, but the court ruled unanimously to allow Torricelli’s name to be replaced by Frank Lautenberg’s on the ballot. The court cites two cases as their precedent. In one, the court wrote:
“[it] is in the public interest and the general intent of the election laws to preserve the two-party system and to submit to the electorate a ballot bearing the names of candidates of both major political parties as well as of all other qualifying parties and groups.” [emphasis mine]
Wow. I can conceive of few things as grossly hostile to democratic ideals as the notion that a court should be explicitly guided by the end of further entrenching a two party hegemony, and indeed, be willing to kick the rule of law in the nuts in order to do so. Note that the defendants included not just the Republican candidate and a welter of NJ election officials, but also the Green, Libertarian, Socialist, and Conservative candidates! (Talk about odd bedfellows!) The ecumenical afterthought about “all other qualifying parties” notwithstanding, I wonder how accomodating the court would have been if the Green or the Libertarian had suddenly decided they’d like to drop out and put in a more attractive substitute.
The purpose of all this, according to the second case cited, is:
“to allow the greatest scope for public participation in the electoral process, to allow candidates to get on the ballot, to allow parties to put their candidates on the ballot, and most importantly, to allow the voters a choice on Election Day.”
It’s astonishing how many things are wrong with this line of argument. Most obviously, there’s the surreal notion that “public participation in the electoral process” is somehow enhanced by allowing party elite to ignore the results of a primary election and put a new candidate on the ballot by fiat. Then there’s the idea that an election is not “full and fair” — that voters are somehow deprived of choice — when a candidate’s own gross criminality makes him so unattractive that nobody would want to choose him! Or that this is somehow in the interests of voters, who are still free to write in whomever they please — as they recently did here in D.C.’s Democratic primary — rather than D party bosses. It’s sort of embarassing to have to point this out, but the case thery’re citing there, Catania v. Haberele, was one in which someone had missed a filing deadline, and there was going to be no D candidate on the ballot. As opposed to this case, where there is a candidate, he just sucks and would like to have someone else run in his place. Given the centrality of “choice” in that opinion (as opposed to “a really good choice” — politics seldom gives us that) isn’t that an incredibly obvious basis upon which to distinguish here? Aaaargh. I mean, for god’s sake, who needs The Onion when stuff like this is on the front page of the Times? When did Wonderland get its own senatorial district? And how many cereal boxtops did these robed jokers have to send in for their law degrees? In the immortal words of Charleton Heston, it’s a madhouse, a maaaadhouuuuse!
Oh, but it gets worse. At Lautenberg’s first campaign rally, immediately following the ruling, he said: “The enthusiasm of this crowd is created by the fact that they tried to take away our rights, to smother our choice at the voting booth.” Say what? If this had been a 3rd party candidate placed on the ballot by petition, would it be “smothering” to forbid the candidate to hand off that status to a buddy? It’s not even like Torricelli had really left the race — he was dropping out conditional on being able to pass off to a non-crook. If they’d gone the other way, he would’ve fought out the rest of the campaign, and yes, lost. In the days before polling technology, nobody would have dreamed of calling that a deprivation of choice. It would’ve been a clear exercise of voter choice. It’s just that polling now (in clear cut cases) allows us to call these things pretty confidently in advance, making more obvious what a non-starter Torricelli’s going to be.
There’s going to be an appeal, naturally, and the Republicans seem to be on pretty firm ground. First, this flies in the face of the constiutional (that’s the supreme-law-of-the-land Constitution, not Joisey’s) power of state legislatures to decide the time, place, and manner of elections. If the public’s interest in “true” choice, as perceived by a state court, trumps statutory election procedure, why bother with such formalities at all? There’s potentially an equal protection challenge in the wings as well, given that some absentee ballots apparently had already been mailed out. (And cast?) Well, if they lose, then I at least hope that Bill Simon takes a clue and hands the baton to Riordan. Or a stuffed goat, for that matter, since almost anyone but Simon would easily hand Davis his ass on a platter.
Ok, slow deep breaths. Now that I’ve got the rage out, a little flashback to political science 101. One of those wacky features of democracy they teach you about in the mathy-er polisci courses — a kind of cousin of Arrow’s theorem — is that for a multidimensional race (e.g. one in which there are several issues, variously salient to different voters), there’s almost never an equilibrium pair of positions for candidates to take. That is, there’s usually going to be a positional shift one candidate can make so as to beat the other, who in turn can beat the opponents new position by shifting herself, and so on. Candidates don’t actually do this, because you lose credibility when you change your platform every few minutes. If, however, a party can just switch candidates once the other side is committed, they can indeed play this strategy. And if “I’m losing and I’m going to hand off to someone else” is all the justification you need for a switch (gotta have that “full and fair choice”), it’s not clear what sort of principled objection the court could raise to the other party following suit, perhaps more than once. After all, the GOP would doubtless have run someone more serious than this neophyte nobody Forrester had it been clear back before that crazy “deadline” thing that this would not, in fact, be a typical incumbent lock-up race. But of course, such frequent switching would pretty obviously be detrimental to the “full and fair” (not to mention fully informed) choice of voters. It would seem, then, that at some point the court would have to arbitrarily disallow further switches (since, again, the fact that the switch was a naked political maneuver apparently doesn’t disqualify a substitution). Or, if they want to do something really wacky, they could just decide that the lawmaking body legally empowered to make these decisions is no less qualified than some toga wearing technocrats to decide what rules are most conducive to “full and fair” voter choice. But hey, what do legislatures know, right? They’re picked by the same yahoos who elected Torricelli, after all.
