Oct. 16, 2002
Al Gore and his allies in the media have popularized the notion
that an election loser can use the courts to change the rules.
Activist judges have been rewriting laws for many years, but now the
trend is for activist state judges to try to rig an election.
This is a very bad idea. Not even banana republics let judges
interfere with elections.
U.S. Senator Robert Torricelli (D-NJ) has been facing corruption
allegations for several years, and a man who paid him bribes is now in
jail. Many thought that Clinton's Department of Justice was going to
indict Torricelli, but somehow that never happened.
The Senate Ethics Committee, controlled by Democrats, gave
Torricelli a pass. The Democrats closed ranks around him, Senate
leader Tom Daschle (D-SD) campaigned for him, and Torricelli easily won
renomination in New Jersey's primary this year.
Everything was going smoothly for Torricelli until he dropped
dramatically in the polls following a sensational TV interview with his
convicted benefactor, David Chang. The Democrats became desperate to
save the seat in order to hang on to their one-vote majority in the
By the time Torricelli announced his intention to drop out, the
election had already begun. Ballots had been printed, overseas
military ballots had been mailed, some servicemen had already voted,
and the legal deadline for substituting another candidate had passed.
New Jersey law clearly states that a name can be substituted on
the ballot "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." But when Torricelli
announced his intention to withdraw, it was only 36 days before the
election, so the Democrats asked the New Jersey Supreme Court to
rewrite the law.
The New Jersey Supreme Court accommodated the Democrats, changed
the rules, and simply declared that the change was fair. The court
held that it "should invoke its equitable powers in favor of a full and
fair ballot choice for the voters of New Jersey."
One has to wonder about the remarkable confidence the Democratic
Party had that the New Jersey Supreme Court would maneuver around the
clear deadline in the law. Was the fix in before they pressured
Torricelli to pull out?
The problem with the court's decision is that no change in the
rules during or after an election can ever be fair unless the change is
to accommodate an absolutely unforeseen circumstance (such as the World
Trade Center collapse). There was nothing sudden about Torricelli's
unfitness to be a Senator because news of his criminal associations had
been circulating for a long time.
The only way to hold a fair election is to have an agreed-on
procedure in advance. Even seemingly fair changes in the rules can
unfairly change the outcome of any close election.
In 2000, the Florida Supreme Court had to be stopped from a post-
election rewriting of the procedures for counting ballots. It was
wholly necessary and proper for the U.S. Supreme Court to preserve the
integrity of the presidential election.
The U.S. Supreme Court decision in Bush v. Gore in 2000 stands for
the principle that the rules for a federal election must be determined
in advance by the legislature, and that the state must stick to those
rules. But once again, the Democrats have proved they can get state
appellate judges to jimmy an election.
In response to complaints about butterfly ballots, some areas are
experimenting with electronic voting machines, but those machines make
it easy to substitute a name on the ballot only hours before an
election. Should a party be allowed to do that if polls show a
candidate is about to lose?
The purpose of the deadline in the law is not merely to allow time
for ballots to be distributed. It is also to allow time for the
candidates to debate the issues and the voters to become informed.
The New Jersey story gives us a bitter lesson in how Republicans
are betrayed by RINOs (Republicans In Name Only). RINO Governor
Christine Todd Whitman appointed six out of the seven New Jersey
Supreme Court judges, several of whom were Democrats. Two of the
judges (plus the spouses of two others) had made political donations to
Whitman selected judges who could be counted on to implement her
liberal pro-abortion agenda, and now Republicans can see the fruits of
her appointments: violation of election law and possibly the loss of
the U.S. Senate. This is the same New Jersey Supreme Court that
unanimously ordered the Boy Scouts to change its rules and employ gay
scoutmasters (fortunately, reversed by the U.S. Supreme Court).
Elections should follow pre-election rules, whether one side later
objects or not. If courts are allowed to manipulate elections by
changing the rules in the middle of or after the election, then we can
expect crooked elections all over the country.