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 could be substantial if the high court intervenes. 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 U.S. Supreme Court mercifully ended the most contentious and turbulent election in modern American history.
There, seven of nine justices ruled that the Florida vote recounts, conducted pursuant to subjective and contradictory standards, were incompatible with equal protection guarantees in the U.S. Constitution. A five‐member majority accepted the Florida Supreme Court’s conclusion that the election scheme established by the Florida legislature was intended to secure a slate of electors immune from challenge by the U.S. Congress. To qualify for immunity, that slate had to be chosen by a specified date that could not possibly be met if further recounts were to ensue. Thus, to allow more recounts would contravene the intent of the legislature, which, under Article II, section 1 of the U.S. Constitution, has plenary power to set the rules for choosing presidential electors.
A parallel provision of the U.S. Constitution governs elections for the U.S. Senate. Article I, section 4 authorizes state legislatures to prescribe the “Times, Places and Manner of holding Elections for Senators.” And that’s precisely what the New Jersey legislature did. In this instance, however, the New Jersey Supreme Court determined that the 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 probably does not violate the equal protection guarantees of the federal Constitution. At oral argument, the state Supreme Court sought and received assurance from election officials that all voters would be provided with revised ballots in a timely fashion.
The New Jersey Supreme Court went a step further — announcing that the relevant state law “does not preclude the possibility of a vacancy occurring within fifty‐one days of the general election.” That astonishing statement, if carried to its logical conclusion, would establish this legal standard: All government actions that are not expressly precluded are permitted. Of course, such a standard turns the law on its head and arrogates powers to the judiciary that are quintessentially legislative.
Basically, the state Supreme Court, by its absurd interpretation of state law, has disenfranchised New Jersey voters, who elected the state’s legislators. Still, the U.S. Supreme Court generally defers to state courts on matters of state law, even when the state court has patently overreached. In Bush v. Gore, Chief Justice Rehnquist, joined by Justices Scalia and Thomas, thought that the Florida court’s distortion of state law rose to the level of an Article II constitutional violation.
But the other justices did not adopt that rationale. Instead, they looked to the Equal Protection Clause of the Fourteenth Amendment to find a constitutional infraction. In New Jersey, that option is probably foreclosed. Recourse, therefore, is better left to the judgment of New Jersey voters than to the U.S. Supreme Court.