Jumping To Conclusions

A couple of people have asked me about New Jersey's election law, so I thought I'd look at it more specifically. First, the current situation. 19:13-20 of New Jersey's election law -- entitled "Vacancy Procedure" -- says this, in relevant part, with some emphasis added:

19:13-20. In the event of a vacancy, howsoever caused, among candidates nominated at primaries, which vacancy shall occur not later than the 51st day before the general election, or in the event of inability to select a candidate because of a tie vote at such primary, a candidate shall be selected in the following manner:

a. (1) In the case of an office to be filled by the voters of the entire State, the candidate shall be selected by the State committee of the political
party wherein such vacancy has occurred.

The Democratic argument will be this: the statute specifies what happens if a vacancy occurs more than 51 days before the election. The statute is silent, however, about what happens if the vacancy occurs within the 51 day time limit. Therefore, they should be allowed to do what's in the interests of the electorate (as defined by the Democratic party, of course).

The problem is that this is a creative, but tortured reading of the statute. A standard rule of interpretation is Expressio unius est exclusio alterius. That is, the inclusion of one implies the exclusion of others. If the statute says that you can fill a vacancy with more than 51 days, that implies that you can't do it in other circumstances. Indeed, the Democratic approach would render the deadline explicitly mentioned in the statute to be meaningless. That's generally a no-no. 

Moreover, a related statute, 19:13-20.1, contemplates the possibility that a party will not have a nominee in the general election:

If there is no candidate on the primary election ballot of a political party for nomination for election to a public office in the general election and no write-in candidate for nomination for that office receives the minimum number of write-in votes necessary for nomination at a primary election pursuant to section 1 of P.L.1981, c.264 (C.19:14-2.1) and R.S.19:23-8, a vacancy shall not be deemed to exist and the provisions of R.S.19:13-20 shall not be applicable.

In short, if after a primary election, the party does not have a candidate,the party is not allowed to add someone to the ballot. This does not directly apply to this situation, but it does suggest that "the voters deserve a choice under all circumstances" was not a compelling argument to the legislature. It would be strange to argue that their failure to nominate a candidate is fatal, but their decision to nominate a lousy candidate can be reversed at any time. Still, I don't discount the possibility that the New Jersey courts will simply ignore the text of the statute in the supposed interest of democracy. This is, after all, what we saw in Florida, where the court decided that having ballots counted was more important than obeying the time limits specified in the law.

There is, however, another possibility being raised, which would involve Torricelli's resignation from the Senate. 19:3-26 provides:

If a vacancy shall happen in the representation of this state in the United  States senate, it shall be filled at the general election next succeeding the  happening thereof, unless such vacancy shall happen within thirty days next  preceding such election, in which case it shall be filled by election at the  second succeeding general election, unless the governor of this state shall  deem it advisable to call a special election therefor, which he is authorized  hereby to do.

    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;  and such appointee shall serve as such senator until a special election or general election shall have been held pursuant to law and the board of state canvassers can deliver to his successor a certificate of election.

In other words, if Torricelli resigns, that creates a vacancy. If the vacancy occurs more than 30 days before the general election -- which it is, currently -- then the governor can appoint a replacement, but the seat will be contested in the general election. If Torricelli waits until the 30 day window, however, then the statute provides that the governor can appoint someone, and the vacancy not be filled until the next general election, which isn't until 2004, unless the governor chooses to call a special election before then.

There are two problems with this approach. First, it's sleazy, even by the standards of New Jersey politics. Second, it goes against the spirit, if not the letter, of the law. It would allow the governor to effectively extend a senator's term by two years. Moreover, the statute specifically excludes vacancies caused by the "expiration of the term." As Torricelli's term expires this year, it's not clear that this gubernatorial power even exists. This provision of the statute is intended for off-year vacancies, not for Senators quitting just before their terms are up.

The final Democratic option would be the Missouri model: let Torricelli remain on the ballot as a placeholder, with the understanding of all concerned that if he wins, he'll resign his seat and be replaced by a gubernatorial appointment who would be specified in advance. This appointed senator would serve until 2004, when there would be a special election. This would certainly be legal, but it seems rather untoward. Elections are supposed to involve the candidates on the ballot, not other people who didn't bother to get nominated. Moreover, nothing could compel Torricelli to resign in such a situation; he would be a legally elected Senator. This wrinkle didn't apply in Missouri, since Mel Carnahan had the personal disadvantage of being dead. (Speaking of which, this hints at another approach the Democratic party could take. Torricelli could find himself as Jimmy Hoffa's roommate. Which would be a real shame.)