October 2, 2002
MUTUAL ASSURED DESTRUCTION:
The New Jersey Democrats' Nuclear Weapon (Mickey Kaus, October 1, 2002, Slate)[I ] agree with Counterspin Central that Kopel is whistling past the graveyard when he breezily asserts that the Dems nuclear weapon in the Torricelli ballot dispute -- the "Heads We Win, Tails We Postpone" scenario in which Torricelli steps down in late October and New Jersey's Democratic governor appoints a replacement and simply calls off the election -- is unconstitutional. The N.J. statute Kopel cites seemingly allows just this possibility -- but Kopel says, with wild overconfidence, that it would be struck down because:"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."
Huh? There are at least a couple of seemingly powerful arguments against this reading, starting with Counterspin's point that Torricelli's term in office wouldn't be extended. Alternatively, you could say that his governor-appointed (and presumably Democratic) replacement would serve out his six-year term, and then serve the beginning of the next six-year term, the same way appointed Senators often serve for brief periods when a Senator dies or resigns. Maybe it would take two separate appointments -- so what? [...]
In short, it looks as if the New Jersey Democrats do already possess a weapon of mass destruction -- postponement -- that they can trigger should they lose the battle to take Torricelli off the ballot.
WHAT IF TORRICELLI RESIGNS WITHIN 30 DAYS BEFORE THE ELECTION? (Eugene Volokh, , 10/02/02)
Mickey Kaus argues that it's possible that "Torricelli steps down in late October and New Jersey's Democratic governor appoints a replacement and simply calls off the election,".... [...]Now I am not a New Jersey election law specialist, and the background law behind these statutes can get pretty complex; but as I read the statute, an appointee can only serve "until a special election or general election shall have been held pursuant to law." The next "general election shall have been held" in due course in November 2002; the new appointee "shall serve as such senator" only until that date.
But what about the first paragraph? Well, it does authorize the governor to call a special election, which he might often have to do: If, for instance, Torricelli's term expired right after the end of 2004 or 2006, and Torricelli resigned on October 31, 2002, then the governor could either call a special election, or let the next election happen in November 2003 ("the second succeeding general election" after October 31, 2002, the first being in November 2002). But if there is already an election for this very seat in November 2002, I don't see any provision granting the governor the power to "call off the election" -- quite a striking power for a governor to have, at least setting aside natural disasters and the like.
Ah, but this gets even more complicated. Mr. Kaus is really only talking about a tactical nuke; waiting in the background is a strategic nuke: the next Senate. Recall that Article 1, Section 5 of the Constitution states:
Each House shall be the judge of the elections, returns and qualifications of its own members...
Some folks urged the GOP to use this provision to block Jean Carnahan from becoming the new Senator from Missouri after the dubious way that the aftermath of her husband's death was handled. But Republicans refused to do so then. Suppose though, that the Democrats go and get an anti-legal ruling that allows Frank Lautenberg's name to appear on the ballot, or, even worse, that the Democrats play games with the timing of when the Torch technically gives up his seat. Further, suppose that the GOP were to win back the Senate in November, even without the NJ seat (it's unlikely even with NJ, but humor me a minute). They could then refuse to seat Mr. Lautenberg for his "new" term in January (recall that the Democrats have already said they'll refuse to allow the GOP to reorganize the Senate if Jim Talent beats Ms Carnahan and takes her seat immediately, as required by law). It would cause holy hell to break loose, but so will, or should, what the Democrats are contemplating. We may just be in the very early skirmishes of a long and bloody war in which both sides have nukes and the inhibitions against using them are steadily being worn away. Damn, is politics fun, or what?
Posted by Orrin Judd at October 2, 2002 12:51 AM
Not to be too prissy, but jeez, Kaus, did you have to frame the argument in terms of WMDs? I'd prefer some time to elapse and the situation to calm before WMDs join the Legion of Strawmen, alongside Hitler and the Holocaust.
Posted by: Just John at October 2, 2002 1:30 AMArticle 1, Section 5 does not apply to this situation. It could have been applied in Missouri, because Mel Carnahan, being dead, was ineligible to be in the Senate. (Being brain dead is apparently not a disqualifier, however.) Thus, his election was arguably void, and the next highest vote-getter Ashcroft, should have won. Torricelli, however, is eligible. Sleazy, but eligible.
Posted by: David Nieporent at October 2, 2002 2:55 AMI think you're missing an additional complication in this whole tsouris: the longstanding, and exceptionally vicious, feud between Torricelli and Frank Lautenberg, who has now been tapped to take over the candidacy (after all three of the other major possibilities took themselves out of the running!) Torricelli hates Lautenberg so much, in fact, that he has already refused to release any of his campaign warchest to the former Senator, and it's extremely unlikely that he'll make things any easier for Lautenberg by resigning; he's more likely to hold on grimly to the last minute.
Posted by: Joe at October 2, 2002 4:40 AMAnybody the governor appoints to replace Torricelli in the Senate can only serve until January 2003 because;
"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;...."
That is the second paragraph of the relevant state statute (that the dems are conveniently omitting from their arguments). As of Jan 2003 the NJ Senate seat held by the Torch will become vacant because of the expiration of the term, and NJ law specifically DENIES the governer the power to make an appointment to fill a seat under those circumstances.
"NJ law specifically DENIES the governer the power to make an appointment to fill a seat under those circumstances."
that should be governor...
Mr. Nierporent:
Actually the legality doesn't matter under that provision. It is simply left to the two Houses to determine themselves.
Actually, I think that Kaus dismisses the 17th Amendment too easily. If the governor claims that state law allows him to cancel the election then any vacancy in the next senate occurs solely because of that cancellation. In other words, NJ would be short a senator because of its choice under its state law; this is not functionally different from the NJ legislature deciding, because the decision to go to war is too important for politics, that it would postpone its elections for two years to allow its senator to decide whether to vote for war without the distractions of an election campaign. A state's choice not to have an election at the end of a term cannot be squared with the 17th Amendment.
Now, who has standing to complain? NJ voters. Because of the clause OJ cites, any complaint must be made in time to allow the courts to order an election be held. After January 3, the non-reviewable decision whether to seat someone who shows up claiming to be the senator from NJ rests entirely with the senate.