By Dave Kopel
National Review Online, October 7, 2002 9:00 a.m.
The New Jersey Democratic machine, and its press allies, are threatening that if the U.S. Supreme Court interferes with its lawless substitution of candidates, the election will just be cancelled. The alleged power of the New Jersey machine to cancel the November election for U.S. Senate does not exist, despite politically motivated claims to the contrary.
Let's start with the United States Constitution. The Seventeenth Amendment mandates that:
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years. . .
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This means that every six years, the people of a State get to choose a new senator. Indeed, the very purpose of the 17th Amendment was to place the election of senators in the hands of the people, rather than of the political establishment of a state. (Formerly, the Constitution had allowed senators to be chosen by state legislatures.)
If a Senate seat becomes vacant (e.g., a sitting senator dies or resigns), New Jersey law (19:3-26) details how the vacancy shall be filled:
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 therefore, 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.
The anti-democracy faction of the Democratic party of New Jersey claims that the first paragraph of this statute means that if Senator Torricelli resigns within 30 days of November 5, 2002, the state's election for United States senator is cancelled, and Governor McGreevey can appoint a replacement who will serve until 2004. This is nonsense.
A fundamental rule of statutory interpretation is that, if at all possible, a statute must be read so that it does not violate the United States Constitution. The reading proposed by the New Jersey Democrats would mean that the voters of New Jersey would spend eight years (from 1996 to 2004) without the opportunity to choose the person who holds one of their Senate seats. This eight-year period without an election is in plain violation of the 17th Amendment's requirement that senators be chosen by the people every six years.
The Seventeenth Amendment replaced a system under which senators were chosen by a small group of people — the legislature of a state — and replaced it with direct election of senators by the people of each state. The New Jersey machine's rule would be even more undemocratic than the system reformed by the Seventeenth Amendment. Rather than being elected by millions of citizens or by dozens of state legislators, a senator would be chosen by the fiat of a single man.
Let's consider some scenarios for application of the New Jersey statute.
Hypothetical A: Imagine that Senator Snort is elected in 11/00, for a term from 1/01 to 1/07. On July 4, 2002, he is killed in a disastrous fireworks explosion. The New Jersey statute says that the governor appoints a replacement. The appointee serves until the 11/02 general elections. (Or the governor has the option of calling for a special election sooner.)
Now suppose that Senator Snort survives the July 4 explosion, but on October 31, 2002, he dies from drowning while bobbing for apples at a Halloween party. Then, the New Jersey 30-day rule is operative. We're too close to the imminent general election (November 2002) for the vacant Senate seat to be added to the ballot. So the governor's appointee to the Senate serves until the next general election, November 2004. (Or until an earlier special election which the governor has the option of calling.) The winning candidate of November 2004 serves the remainder of the term, until January 2007.
Hypothetical B: Imagine that Senator Snort is finishing 30 years of Senate service. His term will expire in January 2003. He is not running for reelection. The parties have nominated candidates for the open seat being created by Snort's retirement. The election will be held on November 5, 2002. On October 25, 2002, Senator Snort dies of a heart attack. The governor of New Jersey gets to appoint a person to finish Snort's current term. Would anyone argue that Snort's death cancels the election for the open seat?
Consider the hypothetical as applied to the actual candidates this year. Suppose that the U.S. Supreme Court fails to take up the New Jersey case. On October 29, the polls show that Lautenberg is far behind Forrester. On October 30, Torricelli resigns from the Senate. According to the election-cancellation lobby, the November 5, 2002, New Jersey Senate election is then cancelled. Governor McGreevey gets to appoint a replacement senator who serves until 2004.
If we agree that in Hypothetical B the imminent election is not cancelled, the non-cancellation rule must likewise apply to Hypothetical A. Nothing in New Jersey law or the Constitution suggests that the application of the laws pays any regard to whether an incumbent is or is not on the ballot seeking a new term.
In short, if Bob Torricelli resigns a few weeks before the November election, and a few months before the January 2003 end of his Senate term, the resignation does not cancel the election for a new senator, whose term begins in January 2003.
If one accepts the argument of the election-cancellation lobby, then New Jersey need never hold another Senate election. According to the lobby's theory, Torricelli can resign on October 30, 2002, and thereby cancel the November 5, 2002, election for the Senate term beginning in January 2003. The governor would appoint a senator who would serve until a Senate election that would be scheduled for November 2004. On October 30, 2004, the appointed Senator could resign, thereby canceling the November 2004 Senate election. The governor would then appoint another senator who would serve until the election that would be scheduled for November 2006. On October 30, 2006, that senator could resign, thereby canceling the election. The governor would appoint a replacement who would serve until the November 2008 election. And so on.
If a single resignation can cancel one Senate election, then successive resignations could cancel every future election.
The election-cancellation lobby might argue "But look at the literal language of the statute. Maybe the statute might be found unconstitutional, but the statute still says that elections can be cancelled." Well, not really. The statute speaks about filling vacancies, not about canceling elections. The theory of the cancelled election is purely an inference invented by the Democratic machine of New Jersey.
The second paragraph of the statute explains that the governor's appointment power applies to all vacancies except those caused by "expiration of the term." So if Torricelli resigns on October 30, the governor gets to appoint a replacement. When the new Senate takes its oath of office in January 2003, then the vacancy caused by Torricelli's resignation disappears. Instead, we have a vacancy caused by "expiration of the term." The statute does not address how to fill an "expiration of the term" vacancy, for the obvious reason that such a vacancy is, as the United States Constitution requires, filled by the voters during the general election preceding the expiration of the term.
Let's be blunt: The New Jersey Democratic machine is claiming that it can cancel an election if polls show that the party might lose. This is the standard for a banana republic, not an American state. It is shocking to see some government officials, party apparatchiks, and ultra-partisan writers claiming the government can prevent an election from being held. How can the same people who in late 2000 proclaimed their determination to "make every vote count" now claim that an election itself can be cancelled?
The Democratic party has become one of the two great American political parties by championing the right of the common man to choose the government. Every year Democratic parties around the nation hold "Jefferson-Jackson Dinners" in honor of the party's heroic founders, who both fought for the right of the people to select who will serve in the government, and who opposed the notion that government should be imposed on the people by an elite class. The recent actions of the New Jersey Democratic party are directly contrary to Democratic principles. In the New Jersey primary, the Democratic voters of New Jersey nominated one candidate to carry their party's banner, but that candidate has been pushed off the ballot in favor of a candidate chosen only by the governor and a few other insiders. The New Jersey Democratic machine is threatening to eliminate the election entirely, so that one of New Jersey's senators would be selected by a single man (the governor) rather than by the people of New Jersey.
One day, the Democratic party — of which I am a lifelong member — will reclaim its Democratic principles. Good Democrats who believe in their party's true values should repudiate the anti-democratic, anti-constitutional, lawless usurpation of the New Jersey Democratic machine and its national allies.
— Dave Kopel is research director of the Independence Institute.