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October 3, 2002

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New Jersey Supreme Court Ignores Rule of Law, Say Legal Experts
Torricelli, not Lautenberg, should be on ballot

WASHINGTON -- In response to yesterday's New Jersey Supreme Court ruling on the Torricelli case, Cato scholars Robert Levy, senior fellow in constitutional studies, and Roger Pilon, director, Center for Constitutional Studies, issued the following statement:

The New Jersey Supreme Court, disregarding utterly the rule of law, has chosen to circumvent the state legislature and interpret a provision of New Jersey law to mean the opposite of what the law expressly says. Nothing could be clearer than the procedures duly enacted by New Jersey's lawmakers "in the event of a vacancy, howsoever caused, among candidates nominated at primaries." Those procedures apply only when the "vacancy shall occur not later than the 51st day before the general election." Ignoring that crystalline text, the seven Supreme Court justices declared, in effect, "We will write the law as we prefer it to be, no matter what the voters of New Jersey, through their elected representatives, have decided."

As a result, unless the U.S. Supreme Court intercedes, ex-Senator Frank R. Lautenberg's name will appear on the ballot instead of the Democratic Party's nominee, Sen. Robert G. Torricelli, who resigned from the campaign not 51 but 35 days before the general election. Rationalizing its power grab, the state court invoked "the public interest," "the general intent of the election laws," and "the two-party system" - terms that appear nowhere in the relevant statute. In short, by assuming legislative functions, the New Jersey court has made a mockery of the doctrine of separation of powers - a centerpiece of federal and state constitutions and a bulwark against governments that might otherwise abuse their citizens.

Reasonable people can disagree about whether the U.S. Supreme Court should play a role in this controversy. Certainly, after Bush v. Gore, the political cost if the high court intervenes could be substantial. But more important, there are powerful reasons, based on federalism, for the court not to get involved. This case is not Bush v. Gore, in which the Florida Supreme Court acknowledged that the Florida legislature had intended that votes be counted by a specified date. In this instance, the New Jersey Supreme Court has determined that the state legislature meant for a vacancy to be filled even though nothing in the law permits such an outcome. That determination is a perversion of the rule of law, but it is better left to the judgment of New Jersey voters than to the federal government.