September 30, 2002
From the desk of Jane Galt:So it looks like the
So it looks like the Torch is going to drop out of the New Jersey Senate race.
Democrats are getting slightly hysterical, because it's not clear that it's legal to replace him after the primary. It would be nice if they could pull a Jean Carnahan -- run Torricelli on the tacit understanding that after he is elected, he will resign and the governor will appoint a replacement -- but they can't, because the governor gets to appoint a replacement, and the governor of New Jersey is a Republican. They're in a nasty, nasty spot. If Torricelli runs, he's going to lose; if he doesn't, whoever replaces him will probably lose anyway, with only a month to campaign.
Meanwhile, Republicans seem to be talking about suing to keep him on the ballot. I can see why they want to, but they shouldn't. This is more important than control of the Senate; this is about saying that neither party supports putting a Senator in office who takes bribes. The Democrats dropped the ball on this one, to their eternal shame. Now the Republicans have an opportunity to do the right thing, and forestall any risk that a man who takes bribes might end up in our legislature.
Update
Oops, governor of New Jersey is a Democrat. I was flashing back to Whitman. Hmmm. This opens up new possible strategies.
Update II A reader sends in the applicable law:
§ 19:13-20. Vacancy procedure
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.
(2) In the case of an office to be filled by the voters of a single and entire county, the candidate shall be selected by the county committee in such county of the political party wherein such vacancy has occurred.
(3) In the case of an office to be filled by the voters of a portion of the State comprising all or part of two or more counties, the candidate shall be selected by those members of the county committees of the party wherein the vacancy has occurred who represent those portions of the respective counties which are comprised in the district from which the candidate is to be elected.
(4) In the case of an office to be filled by the voters of a portion of a single county, the candidate shall be selected by those members of the county committee of the party wherein the vacancy has occurred who represent those portions of the county which are comprised in the district from which the candidate is to be elected.
At any meeting held for the selection of a candidate under this subsection, a majority of the persons eligible to vote thereat shall be required to be present for the conduct of any business, and no person shall be entitled to vote at that meeting who is appointed to the State committee or county committee after the seventh day preceding the date of the meeting.
In the case of a meeting held to select a candidate for other than a Statewide office, the chairman of the meeting shall be chosen by majority vote of the persons present and entitled to vote thereat. The chairman so chosen may propose rules to govern the determination of credentials and the procedures under which the meeting shall be conducted, and those rules shall be adopted upon a majority vote of the persons entitled to vote upon the selection. If a majority vote is not obtained for those rules, the delegates shall determine credentials and conduct the business of the meeting under such other rules as may be adopted by a majority vote. All contested votes taken at the selection meeting shall be by secret ballot.
b. (1) Whenever in accordance with subsection a. of this section members of two or more county committees are empowered to select a candidate to fill a vacancy, it shall be the responsibility of the chairmen of said county committees, acting jointly not later in any case than the seventh day following the occurrence of the vacancy, to give notice to each of the members of their respective committees who are so empowered of the date, time and place of the meeting at which the selection will be made, that meeting to be held at least one day following the date on which the notice is given.
(2) Whenever in accordance with the provisions of subsection a. of this section members of a county committee are empowered to select a candidate to fill a vacancy, it shall be the responsibility of the chairman of such county committee, not later in any case than the seventh day following the occurrence of the vacancy, to give notice to each of the members of the committee who are so empowered of the date, time and place of the meeting at which the selection will be made, that meeting to be held at least one day following the date on which the notice is given.
(3) A county committee chairman or chairmen who call a meeting pursuant to paragraph (1) or (2) of this subsection shall not be entitled to vote upon the selection of a candidate at such meeting unless he or they are so entitled pursuant to subsection a.
(4) Whenever in accordance with the provisions of subsection a. of this section the State committee of a political party is empowered to select a candidate to fill a vacancy, it shall be the responsibility of the chairman of that State committee to give notice to each of the members of the committee of the date, time and place of the meeting at which the selection will be made, that meeting to be held at least one day following the date on which the notice is given.
c. Whenever a selection is to be made pursuant to this section to fill a vacancy resulting from inability to select a candidate because of a tie vote at a primary election, the selection shall be made from among those who have thus received the same number of votes at the primary.
d. A selection made pursuant to this section shall be made not later than the 48th day preceding the date of the general election, and a statement of such selection shall be filed with the Secretary of State or the appropriate county clerk, as the case may be, not later than said 48th day, and in the following manner:
(1) A selection made by a State committee of political party shall be certified to the Secretary of State by the State chairman of the political party.
(2) A selection made by a county committee of a political party, or a portion of the members thereof, shall be certified to the county clerk of the county by the county chairman of such political party; except that when such selection is of a candidate for the Senate or General Assembly or the United States House of Representatives the county chairman shall certify the selection to the State chairman of such political party, who shall certify the same to the Secretary of State.
(3) A selection made by members of two or more county committees of a political party acting jointly shall be certified by the chairmen of said committees, acting jointly, to the State chairman of such political party, who shall certify the same to the Secretary of State.
e. A statement filed pursuant to subsection d. of this section shall state the residence and post office address of the person so selected, and shall certify that the person so selected is qualified under the laws of this State to be a candidate for such office, and is a member of the political party filling the vacancy. Accompanying the statement the person endorsed therein shall file a certificate stating that he is qualified under the laws of this State to be a candidate for the office mentioned in the statement, that he consents to stand as a candidate at the ensuing general election and that he is a member of the political party named in said statement, and further that he is not a member of, or identified with, any other political party or any political organization espousing the cause of candidates of any other political party, to which shall be annexed the oath of allegiance prescribed in R.S. 41:1-1 duly taken and subscribed by him before an officer authorized to take oaths in this State. The person so selected shall be the candidate of the party for such office at the ensuing general election.
HISTORY: L. 1988, c. 126, s. 1.
LexisNexis (TM) Notes:
CASE NOTES
1. Purpose of N.J. Stat. Ann. § 19:13-20(e) is to prevent a person whose party affiliations are unclear from assuming elective office under a party banner; such restriction is enforceable, assuming its constitutionality; challenge to the constitutionality of § 19:13-20(e) is merited. Mays v. Penza, 430 A.2d 1140, 1980 N.J. Super. LEXIS 791 (Oct. 28, 1980).
2. Where the county clerk rejected a candidate's petition as being defective because it had been faxed, and the candidate amended his petition and filed it personally, the candidate was entitled to have his name placed on the ballot; the amended petition was filed before the 48th day preceding the primary, within three days of his filing of the original in accordance with N.J. Stat. Ann. § 19:13-20, and before he received a notice of defect. Madden v. Hegadorn, 565 A.2d 725, 1989 N.J. Super. LEXIS 364 (May 3, 1989).
3. Where one political party and its candidate filed suit to disqualify a candidate of another party from participating in the general election for failure to comply with requirements of N. J. Stat. Ann. § 19:13-20(d), the trial court dismissed the suit as moot because the election had been held and the vote resulted in a tie; accordingly, under N. J. Stat. Ann. 40A:16-16, the office was vacant and the trial court had no authority to declare a winner. Mays v. Penza, 430 A.2d 1145, 1981 N.J. Super. LEXIS 609 (Jan. 12, 1981).
4. County clerk fulfilled her duty by accepting a candidate's certification as a candidate under N.J. Stat. Ann. § 19:13-20(e); clerk had no power to rule the candidate off the ballot due to a failure to comply with requirements of residency as that issue should have been determined by a court. Mays v. Penza, 430 A.2d 1140, 1980 N.J. Super. LEXIS 791 (Oct. 28, 1980).
5. Purpose of N.J. Stat. Ann. § 19:13-20(e) is to prevent a person whose party affiliations are unclear from assuming elective office under a party banner; such restriction is enforceable, assuming its constitutionality; challenge to the constitutionality of § 19:13-20(e) is merited. Mays v. Penza, 430 A.2d 1140, 1980 N.J. Super. LEXIS 791 (Oct. 28, 1980).
6. Pursuant to former N.J. Stat. Ann. § 19:13-20, the county committee had the power to fill a vacancy caused by the death of a candidate 36 days before the general election, so long as it made and filed its selection with the clerk 34 days or more before the general election. Kilmurray v. Gilfert, 91 A.2d 865, 1952 N.J. LEXIS 259 (Oct. 20, 1952).
7. Where a "write-in" candidate nominated in a primary election failed to file a certificate of acceptance, a vacancy of the nomination was created, and the county committee was permitted to fill the vacancy. Fiscella v. Nulton, 92 A.2d 103, 1952 N.J. Super. LEXIS 738 (Oct. 16, 1952).
8. Where nominee died 36 days before the general election and a political committee filed notice of its selection of a replacement candidate 34 days before the general election, the replacement nomination was timely, and the statute requiring 37-day (now 51 days) notice were merely directory in nature. Kilmurray v. Gilfert, 91 A.2d 859, 1952 N.J. Super. LEXIS 727 (Oct. 15, 1952).
9. N.J. Stat. Ann. § 19:13-20 unconstitutionally regulated elections so as to deny or impair the rights of electors and effectively granted a party committee the right to nominate a person to fill a vacancy and then, in turn, deprived it of the right to nominate someone who may have previously been a member of another political party. Gansz v. Johnson, 75 A.2d 831, 1950 N.J. Super. LEXIS 629 (Oct. 13, 1950).
10. Pursuant to N.J. Stat. Ann. § 19:13-20, the county committee was without authority to designate a candidate where no one had been nominated at the primary, and therefore a vacancy did not exist to give the county committee authority to make such designation. Cleveland v. Woolley, 68 A.2d 666, 1949 N.J. Super. LEXIS 725 (Oct. 11, 1949).
11. Complaint by candidate against election officials, which sought his selection as the Republican party's candidate, was properly dismissed where his rival was still eligible to stand for election in his party even though he had accepted nomination of the Democratic party; rejecting the contention that, by accepting the "write-in" Democratic nomination the candidate had identified himself with that party and would, therefore, be unable to sign the required certificate, the superior court held that the statute required that the certificate accompany the statement of the selection, but did not purport to obligate the candidate to execute the certificate until after the selection had been made. Brower v. Gray, 68 A.2d 553, 1949 N.J. Super. LEXIS 637 (Sept. 30, 1949).
12. Where one political party and its candidate filed suit to disqualify a candidate of another party from participating in the general election for failure to comply with requirements of N. J. Stat. Ann. § 19:13-20(d), the trial court dismissed the suit as moot because the election had been held and the vote resulted in a tie; accordingly, under N. J. Stat. Ann. 40A:16-16, the office was vacant and the trial court had no authority to declare a winner. Mays v. Penza, 430 A.2d 1145, 1981 N.J. Super. LEXIS 609 (Jan. 12, 1981).
13. Candidate for a party nomination for member of state legislature was not entitled to nomination where a vacancy was created in the nomination by the death of his opponent prior to the election, and the opponent still received more votes than the candidate did; the deceased candidate's nomination was not null and void but, rather, created a vacancy to have been filled in the manner pursuant to N.J. Stat. Ann. § 19:13-20. Petition of Keogh-Dwyer, 256 A.2d 314, 1969 N.J. Super. LEXIS 486 (Aug. 6, 1969).
14. N.J. Stat. Ann. § 19:13-20 unconstitutionally regulated elections so as to deny or impair the rights of electors andeffectively granted a party committee the right to nominate a person to fill a vacancy and then, in turn, deprived it of the right to nominate someone who may have previously been a member of another political party. Gansz v. Johnson, 75 A.2d 831, 1950 N.J. Super. LEXIS 629 (Oct. 13, 1950).
15. Complaint by candidate against election officials, which sought his selection as the Republican party's candidate, was properly dismissed where his rival was still eligible to stand for election in his party even though he had accepted nomination of the Democratic party; rejecting the contention that, by accepting the "write-in" Democratic nomination the candidate had identified himself with that party and would, therefore, be unable to sign the required certificate, the superior court held that the statute required that the certificate accompany the statement of the selection, but did not purport to obligate the candidate to execute the certificate until after the selection had been made. Brower v. Gray, 68 A.2d 553, 1949 N.J. Super. LEXIS 637 (Sept. 30, 1949).
Update III On Fox News, they're reporting that the statute is unambiguous: candidates can't be replaced less than 51 days before the election, which would have been September 16. Whee! More electoral fun and games! Maybe repealing the 17th Amendment isn't such a bad idea.
Posted by Jane Galt at September 30, 2002 2:29 PM | TrackBack | Technorati inbound links"); ?>