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