Asymmetrical Information

Someone who argued the 2000

Someone who argued the 2000 elections with me, who has asked to be referred to by the nom-de-bloggue of Horatio Hornswoggle, sends this in response to my post on Torricelli. I am not allowed to give too many biographical details, but I am allowed to say that he is the staunchest of Democrats, and that he and I had words -- many, many words -- on the subject of Bush v. Gore.

Dearest:

I am shocked, shocked, shocked by your essay on Torricelli. Two years ago you were arguing that it was unthinkable to re-write election law ex post facto. Now you want to let the Supreme Court waive electoral process so that the Democrats can stick someone else in at the last minute? Have we totally taken leave of our senses?

Oh, it does kill me to say this, but you were right, and I was wrong. At least about that. I am still apalled at the torturous logic of the ultimate Supreme Court resolution, and I don't like Republicans any more than I did back then. Nonetheless, we are finding ourselves with too many highly public cases in which we are bending the electoral rules in order to achieve the "just" result in elections. If we make a habit of this, we are going to lose the public faith in the electoral process that we depend on to make democracy work. Obviously, I would like to see Democrats control the Senate. I would even be willing to endure the Torch's sleazy ethics in order to maintain it. My problem is that it is the very importance of the race that makes it so important that we keep it honest. How can we sustain civil society if people think that the Democrats are willing to break the election law whenever it threatens their power? You and I know that it isn't true (or at least, any more true than it is of Republicans). But I'm afraid that we'll mow over the last hope anyone had of making our system more than a raw grab for power by whatever interest group can get a majority of judges. In 2000, I thought that the unique situation called for a unique response. Now it seems it isn't so unique.

They are my party, but --- let's be honest. This isn't an accident like 2000. This isn't an unforseeable death. The Torch had every opportunity to resign. My party had every opportunity to kick him out. They chose not to. Now, when the polls are down and there's no hope, they want to pull him out and put someone in who might win. That's a clear violation of both the intent and the letter of the law. The precedent it sets would be --- the legal term is "extremely icky".

You should have stuck to your guns. You can't re-write the rules when the game's in full swing.

(I am enjoying the Democrat lawyers *so* much though. They're all talking about the people's "right" to "a competitive election". I must have been out when we covered that one in Constitutional Law. If the court lets it stand, I am very much looking forward to the Republicans suing to axe Forrester in exchange for Colin Powell.)

As for my opinion on the law, I've got some money with my colleagues that it will be denied at the state level. The law is much clearer than it was in Florida, and the New Jersey court is more conservative. They have no interest in getting spanked by the Supremes. Plus one of the counties has already gotten some absentee ballots back, so there's all sorts of juicy legal issues. If they hadn't gotten the absentee ballots already, I could see a possibility, but I don't think it will fly. The rumor around here is that the Torch plans to resign on Saturday, when the governor is legally allowed to appoint a replacement who can serve for a full year before he faces a special election. However, with ballots already back in it's really tricky. I've got one friend who practices in New Jersey who thinks that the state court will order the resignation delayed until after the election, or order him to resign by Friday. But others don't agree. I think it's a disgusting mess, any way you look at it, and I'm mad as hell that the party leaders got us into it. Every morning I come out of the train, look across the river to New Jersey, and ask myself "What the [expletive deleted] were they thinking?"