January 03, 2004

The Law vs. The Courts: Entrenchment of the Incumbent Party

It may seem like old news now, but when all this talk of election campaigns starts raging, my thoughts often turn to that travesty of a New Jersey Supreme Court decision made in October 2002.
You remember the one: Robert Torricelli--in a scandal induced freefall in the polls--bowed out of the race in order to be replaced on the ballot by a Democrat who had a chance of winning. The one where State law was tossed aside by the Democrat-packed bench. The one where the so-called "two-party system" was officially codified into law.

In 2000, Sen. John McCain threatened court action in the case of the New York state Republican primary--where George W. Bush was the only one of the several contestants listed since, by law, the Republican Party of New York had the right to list only the candidate(s) it wished to list. Steve Forbes, in a televised debate, spoke against the practice as the institution of "a Soviet-style" forced party conformity. Shouldn't Republican primary voters have a choice among willing candidates? While the inner-workings of a political party may seem out of the jurisdiction of a state court; the outer-workings of a general election are clearly subject to existing statute.
If McCain had decided to seek a "third-party" nomination in '04, he may have found his tussle with the New York Republicans to have been inadequate preparation for what might have laid ahead.

There are many reasons to protest the 2002 NJSC ruling. Sure, they ignored the statutory 51-day deadline for a party to change it's Statewide ballot. Sure, they substituted their definition of a "right to vote" for the Legislatures Constitutional authority to proscribe the voting process. Sure, they invoked their "duty" to divine the legislative intent of a statute that was wholly unambiguous. But those aren't my main concerns with the ruling. (Those are, of course, important concerns. But, for the sake of this post, I'll confine myself to the most unprecedented aspect of the ruling.)

Consider this seemingly high-minded portion:

"...the Court being of the view that -(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 all other qualifying parties and groups." "And the Court remaining of the view that the election statutes should be liberally construed --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."

Since they are claiming that this ruling, on the clear and unambiguous election law, is to "preserve the two-party system", and to make sure that candidates "of the two major parties" get on the ballot, they are stating in no uncertain terms that the Democrat and Republican parties (the Incumbent Party) are to be treated, in a court of law, with priviledge and deference not to be extended to any other party.
The "Soviet-style" establishment of political parties has taken root in the New Jersey Judicial branch.

Political parties are not government institutions, they are associations of citizens pooling their resources and working together toward a common cause. The candidate on the New Jersey ballot was Bob Torricelli, not the Democratic Party.

Their defense of voter choice, as they consider that to be "most important", is completely indefensible. The voters had, as allowed by law, a Democrat candidate on the ballot--and his name was Torricelli. There were also six other candidates on the ballot. The fiat that there would have been no choice without both major-party's fronting of a candidate establishes that "third-party" candidates are henceforth functionally illegitimate; they offer no choice: they are not an option.

One can only conclude that if the 17th Amendment were repealed and the New Jersey Legislature were to exercise their constitutional authority and appoint their Senators, the NJSC would have to rule that action unconstitutional.
Also, if the justices of the NJSC were instead in Massachusetts, or Virginia, or any of hundreds of other states, towns and districts, that had uncontested elections (such as the uncontested re-election campaigns of John Kerry [D-Ma] and John Warner [R-Va]), those elections would have had to be ruled unconstitutional.

Has the NJSC effectively mandated that political parties must sponsor a candidate in order to guarantee the voters' newly found Constitutional right to have a choice between the two "major" parties? Should that mandate be restricted only to the "major" parties?. Is that any of the Courts damn business?

New Jersey may have saved the Democratic Party from defeat in the last cycle, but they've paved the way for all "non-major" parties to be lawfully discriminated against in the future. These "third parties" are also associations of citizens pooling their resources and working together for a common cause, and entitled to equal protection under the law. Yet the NJSC -- by virtue of the stated rationale that formed it's judgement in the Torricelli case -- has ruled against them.
Perhaps it's just that, while settling election disputes, Supreme Court justices -- who have all been appointed by members of the Republican and Democrat parties -- are more loyal to their Incumbent Party patrons than to their sworn duty to apply the Law.

Posted by Tuning Spork at January 3, 2004 05:08 PM

You're right, Spork; Democrats & Republicans should have no more standing than the Vegans From Venus Party. NJ is whack; Torch totally skated on taking bribes. And this is the court that ruled unanimously that the Boy Scouts had no free association rights. Not even O'Connor could stomach that. Or maybe she just had gas that day.

The Legislature largely went along with the State Court because they approved of the outcome. But someday they may regret ceding their power to the Court. They said, in effect "The laws we pass are meaningless". Proper process, not just desired outcomes, also secures the peoples' right to self-governance.

The Supremes washed their hands; if they had to spend all their time on Democrat election fraud, they'd have no time to re-write the Constitution themselves.

Posted by: Noel at January 4, 2004 06:05 PM


Good posting. Just a couple thoughts...

1. IF this had been in Mass., the court would have required that any candidate be a part of some legally recognized union founded upon sodomy. ;-) Presumably the court would want proof that candidates could bend the public over and $@&% it.

2. You're totally right. This ruling makes the two-party system the official model to be preserved. On the other hand, the Supreme Court of the US has recently decided that pooling of resources within political parties is not a particularly protected activity.

3. The most important factor was that there was no LEGAL bar to Torch's candidacy at all, and there was not even an issue that was totally a surprise BEFORE the primary. I would almost have sympathy for the argument if credible information surfaced without warning a couple weeks before an election that candidate X was a mass murderer with a graveyard under his basement. That would *probably* be a big surprise to the party that nominated him (or her, to be fair). A surprise like that would be tantamount to fraud against the primary voters.

Lacking this level of deciet, each party should be allowed to nominate THE candidate they choose and then be forced to play by the rules... what a quaint idea. I know, I know, the "rulese" exist to cripple the competition, not to hinder the aspirations of our benevolent leaders. What was I thinking?!

Posted by: Bronson at January 5, 2004 10:07 AM
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