Saturday, October 05, 2002


DISCRIMINATIONS is joining the crowd moving to a Sekimori-designed Movable Type blog, hosted on HostingMatters. Please make note of our new address:

Yes, that is a .us extention.

The new site is up and running now, and I encourage you to visit. For the next several days, until we feel comfortable in our new home, we (Jessie promises to start posting again soon) will be posting to both old and new sites. After that a splash screen will appear directing visitors to the new site.

Another Democrat Demands a Do-Over! - Reader Fredrik Nyman has written to report a mind-boggling article on reporting that five supporters of everyone's favorite Democrat, Cynthia McKinney, asked the U.S. District Court in Atlanta on Friday to reverse the results of her primary and declare McKinney the winner.

The state of Georgia does not require voters to register by party and allows them to vote in the primary of their choice. Nevertheless, McKinney, who is black, is blaming Republicans for jumping the political aisle in droves to help her Democratic opponent, who is also black, to oust her.

The suit claims that black Democratic voters in the 4th District had their voting rights violated and interfered with by the crossover votes. It asks that those crossover votes be declared unconstitutional and invalid and that McKinney be declared the winner of the Democratic primary.

"The issue is that black Democratic voters in the 4th District had their voting rights interfered with and violated," said Atlanta lawyer J.M. Raffauf, who represents the five black plaintiffs.

"Malicious crossover voting occurs when one party invades another party's primary to sabotage that party's choice of its own nominee for political office," the lawsuit reads. "The Republican Party voters crossed over and affected the outcome" of the Democratic primary.

I can't wait to learn something about the legal theory under which malicious Republican crossovers interfered with the rights of "black Democratic voters" for McKinney but not black Democratic voters for Majette or white Democratic voters for McKinney. (Maybe there were no white Democratic voters for McKinney.)

State officials pointed to the law Friday and said it was clear that Georgia voters can vote for whomever they want in the primaries; there are no restrictions on preferred political party affiliation.

"I am simply unaware of any provision of law that prohibits voters from making a choice as to which party primary they will participate in," said Chris Riggall, a spokesman for the secretary of state.

Hah! Wait'll he sees what happens if that "clear" law is "liberally construed."

Friday, October 04, 2002

Construing Liberal Construing, Or: Construe You - I'm still fascinated by the ongoing discussion of "construing liberally," also known as "reading loosely" (WaPo editorial: "The Supreme Court of New Jersey read quite loosely state election law....").

Linda Greenhouse, the New York Times Supreme Court reporter who is usually quite balanced and reliable (and with whom I once served on a panel so long ago that she will have forgotten the panel, much less me), writes today of the NJ Supremes' decision to allow the substitution of Lautenberg's name on the ballot "after the formal deadline for a ballot substitution had expired." Excuse me, Linda, formal deadline? Do New Jersey statutes have degrees of deadlines? If so, I missed that. In any event, are formal deadlines less binding than informal ones? Did the august justices sit around and say, "Oh, the 51 day cutoff is not a real deadline, it's only a formal deadline"?

Greenhouse also quoted an "expert," Prof. Richard Hasen of the Loyola College of Law in Los Angeles, who said the injury to the Republicans had not been established. "The worst that can happen is that their guy has to run in a competitive election," he said. That's a rather partisan way of putting it, which might be explained by something left unmentioned in Greenhouse's story that was mentioned in todays Associated Press story: that Hasen has been a consultant to the Gore campaign.

Similaly, the WaPo also turned to an expert who is well-known as a consultant to Democrats, Pam Karlan of Stanford (She's currently advising Gov. Mark Warner of Virginia on a gerrymander case), and she also minimized the seriousness of the injury as a way to distinguish New Jersey from Florida. "Here, there's no constitutional train wreck coming," she said.

Now, if I were the polemical type I would say, "Well, yes, but it's equally true that 'the worst that can happen' is that the Democrats get stuck with the name on the ballot that they, in their wisdom, chose because the Constitution assigns the rule (not recommendation)-making power to the legislature, and the legislature adopted a rule making it too late to substitute a newer, more attractive name. If they now don't like their choice, they could always write in Lautenberg's name." But I would say that only if I were being polemical.

If I were being partisan, I would say that the Democrats have handed Forrester a solid gold campaign issue: the politics of judicial selection. It is the perfect combination of an ideal issue, and one that he could not avoid even if it weren't. "My friends," he could say,

our Democratic opponents are right about one thing: this election will indeed have a significant impact on the direction of our country. The one-vote Democratic majority in the U.S. Senate has been blocking the nomination of judges who will apply the law as written. They prefer judges who will ignore plain text and "liberally construe" statutes when it suits their own partisan purposes. If you want judges who will "liberally construe" a 51 day deadline so that it is no deadline at all, then by all means vote for my opponent, who benefited from their liberal construing. If you want judges who will be bound by law rather than who feel free to create it, then vote for me." etc.

Wednesday, October 02, 2002

"Construed" Once Again... - The NJ Supremes, holding (Link via Eugene Volokh) that "the election statutes should be liberally construed," have proved they were up to the task. (Not surprisingly, liberals are very, very good at liberally construing.)

They have "construed" the statutory authorization (Link via Dave Kopel) to replace a candidate's name on a ballot "[i]n the event of a vacancy, ... which vacancy shall occur not later than the 51st day before the general election" in such a manner that the words "not later than the 51st day" don't really mean "not later than the 51st day." How did they manage that? By observing that the language "does not preclude the possibility of a vacancy occurring within fifty-one days of the general election."

True enough. All it did was say that you could fill the vacancy with another name if it occurred before the cut-off, which to most people means that you can't if it comes later. But never mind.

My mother would have been right at home in the New Jersey Supreme Court. Local lore has it that one day she pulled up and parked right in front of a "No Parking" sign and was getting out of her car when a policeman walked up, shaking his head. "But officer," she is said to have said, "it doesn't say 'positively.'"

UPDATE - And I thought that comment my mother is supposed to have made-- "But officer, it didn't say 'positively'" -- offered a humorous if telling take on the NJ Supremes' decision. But with reality like this (Link via Howard Bashman), sarcasm hasn't a chance:

Chief Justice Deborah Poritz observed that the 51-day rule for substituting a candidate appeared to be arbitrary. She added that other states had deadlines ranging from 30 days to a handful, noting that New York state's statute says that failure to meet the deadline is a "fatal defect."

"Our statute says nothing of the kind," she said.

The Red and the Blue, and Yellow Dog No More - Shiloh Bucher has a terrific post -- short, but deep -- about why she's no longer a Democrat, and it has generated a bevy of interesting comments. Take a look.

One of her reasons is that she believes in the rule of law while the Dems don't seem to. I think this point is of increasing importance, and I'd like to try to say why since I'm convinced there is more to it than mere political expediency. Republicans, after all, are not incapable of expediency, and yet I think there are real differences between the parties on the rule of law, important differences.

This may be a stretch, but I'd like to argue that the two parties are separated by some fundamental philosophical differences that operate below the more familiar differences, even more familiar philosophical differences, such as different approaches to taxes, or states rights, or big government. Everyone is now familiar with the Map of Red and Blue, but I'd like to suggest that the Red and the Blue represent more than geography. In part reflecting the urban/suburban v. rural/small town split, but also drinking from different intellectual currents, increasingly the Democrats are more sophisticated, the Republicans more simple-minded (which I mean in a non-pejorative sense) and common-sensical.

To return to where I started, take laws. Sophisticated Democrats see them as malleable; simple-minded Republicans see them as meaning what they say. Democrats see constitutions as "living," the meaning of statutes as fluid and adaptable -- in short laws as recommendations or suggestions rather than commands. Republicans tend to see meaning as more fixed.

Assuming for the sake of argument that these distinctions have some merit, I think the explanation can be found in a powerful modern intellectual current that has cut something of a philosophical chasm between the two parties, leaving them further apart than at any time I can recall and at least resembling, if not more, the profound party differences that separated the Jeffersonians and the Federalists in the new nation or the regionalized parties that resulted in civil war.

This current is called many things, depending on which eddies that ebb and flow in it one wants to emphasize, but let me highlight two: multiculturalism and relativism. In a number of different arenas today the Republicans are like the Lone Ranger: as often as not, when he comments to his colleague some version of "we're surrounded," the Democrats reply, "Speak for yourself, white, male, Euro-American!"

More seriously, multiculturalists oppose any judgments that require "privileging" (for some reason, they like to turn nouns into verbs) the principles and values of one "culture" over those of another. They regard what were formerly (and still by Republicans) regarded as American principles as simply the culture-bound preferences of one sub-group of Americans. Multiculturalism, then, goes hand-in-hand with relativism, a rejection of absolutes -- whether derived from our history, the Constitution, or laws passed by state legislatures. Plain text ceases to embody plain meaning, and is subject to more and more interpretation. In a world where principles no longer bind and no law is final, the importance of lawyers -- who are increasingly trained to manipulate text -- and courts become more and more important.

C.D. Harris makes what I take to be a similar, or at least a compatible, point on his excellent blog, Ipse Dixit. He mentions a number of current campaigns where it might well be in the Republicans' interest to drop their current candidate and substitute a stronger one, and then comments:

I'll be blunt: Any leftie who would argue that none of these scenarios should be allowed, but that the NJ Democrats should be allowed to replace The Torch is completely unprincipled. It's all or nothing, folks.

I think this is literally true. By "literally," I mean that I'm not using "unprincipled" as a synonym for bad person but simply as a description of an intellectual tradition and position in which principles are minimized, meaning is fluid and not fixed, and rules are recommendations. I should add that although I myself have little sympathy with this tradition (as if you couldn't tell), it has an ancient and honorable lineage, and many people far brighter than I adhere to it. Indeed, some of my best friends are "unprincipled" in this sense. (Someone is sure to raise the objection, so let me reply now: I do not regard the argument that electing Democrats is the highest principle as what I mean by a principled argument.)

In short, the NJ Dems are a perfect expression of their party. And now here's a truly frightening thought: insofar as they succeed, the whole country becomes more like New Jersey.

Can New Jerseyites Write? - I may have missed it, but I've seen surprisingly little discussion, pro or con, of the NJ Dems mounting a write-in campaign for Lautenberg. True, there has been at least one recommendation:

"Bill Clinton is suggesting Bruce Springsteen," the Hotline's Craig Crawford told a stunned John Batchelor and Paul Alexander on their nightly WABC Radio broadcast.

"Bill Clinton is pushing New Jersey native Bruce Springsteen," he repeated, adding, "particularly if they have to do a write-in ballot."

But I mean suggestions from serious people. (Oh strike that; we're supposed to be moving on.)

There have been a few other references. One of Forrester's lawyers suggested a write-in campaign to the Dems. And another:

Vincent Panvini, a lobbyist for the Sheet Metal Workers' International Association, a major Democratic donor, said he believed Lautenberg is popular enough with organized labor and other crucial voting blocs to win the seat even if Democrats have to start a write-in campaign for him

Still, you'd a thunk there would be more discussion of this obvious solution to providing poor NJ voters with a "choice." My goodness, even Washington, D.C., voters were able to deal with Mayor Anthony Williams failing to be listed as the Democratic nominee in the recent election, and he managed to mount a write-in campaign and win.

The NJ Dem leadership, in short, had and has it within its own power to provide a "choice" to NJ voters on November 5 without asking a court to ignore statutes and grant them special favors. But Democrats feel more at home in courts these days.

What If ... ? - I know this may appear unlikely, but what if a court with a Democratic-appointed majority were to conclude that a statute means what it says, that a clear deadline is not merely an "administrative convenience" (as the attorney for the NJ Dems put it)?

So, let's say Torricelli's name remains on the ballot, with the Dems building their campaign around the argument that a vote for Torricelli is really a vote for Lautenberg.

But what if Torricelli wins and then doesn't step aside? He hates Lautenberg so much he would no doubt be tempted to claim that his name was on the ballot and he was elected. Recall that his self-congratulatory resignation statement said only that he was choosing not to run. He did not add the customary Sherman-esque follow-up: "and if elected I will not serve." Would the Dem lawyers go back to court and claim that he wasn't "really" elected? Would a Senate controlled by Democrats refuse to seat him? One controlled by Republicans?

This could get good before it's over. But let's say the NJ Supremes vote the way they're told, Lautenberg's name is on the ballot, and he wins. Maybe there's a silver lining even in that cloud: the Democrats could no longer harp on the 2000 election being handed to Bush by the Court.

Florideja Vu All Over Again? - The Washington Post's "Talking Points" that appeared online Tuesday afternoon discusses the brief the New Jersey Democrats have filed with the state supreme court.

The brief argues that if

"the 51 day technical requirement" prohibits Democrats from replacing Torricelli on the ballot, it would "deprive [the Democratic party] of the fundamental right of ballot access as contemplated by our election laws and as envisioned by our two party political system, and would further deprive a political party of fielding a candidate at the general election."

Another Post story, this one appearing online at 9:30PM Tuesday night, had more deja vu-ish quotes from the Dems.

Senate Majority Leader Tom Daschle, D-S.D., said that by objecting to Torricelli's request, Republicans were "denying the people of New Jersey a choice" in the election.

On the contrary, it would be allowing the Democrats a second choice, since the first one didn't work out so well for them. The Dems are like a pouting consumer who bought a risky campaign product with a short warranty. The warranty expired, the defective campaign product disintegrated after the warranty expired, and now the disappointed Dems are asking the courts to save them from the consequences of their own mistake by letting them return to the store, long after business hours, and choose a shiny new (or perhaps old and used but still serviceable) campaign product.

Democrats say decades of state court decisions put voters' rights above filing deadlines and other technical guidelines.

Attorney General David Samson argued in papers filed with the court Tuesday that the justices have the power to relax the deadline to withdraw and allow Democrats to post another candidate. Samson, who was appointed to his job by McGreevey, said election laws have long been interpreted liberally to allow voters every opportunity.

Hmm. Plain text, filing deadlines, etc., in statutes passed by the legislature and signed by the governor are merely "technical guidelines" that courts can revise or disregard at will? We've heard this somewhere before. In fact, it's becoming a theme song of the Dems, a tune they can't get out of their head.

Tuesday, October 01, 2002

Bush v. Gore II? - Dave Kopel makes a powerful case on NRO that New Jersey law will not allow replacing Torricelli's name on the ballot. The Democrats obviously know this, and thus Governor McGreevey intends to ask the state supreme court to make an exception in this case because of "unusual circumstances."

If the state supreme court complies with the Democrats' request, would not the Republicans (the McGreevied party?) be in a position similar to that of the Bush campaign in Florida after the last election, when it successfully requested the federal courts, ultimately the U.S. Supreme Court, to intervene in order to reign in a runaway state court that was intent on ignoring state election law?

"Don't Feel Badly For Me" - ... was the extinguished Torch's request in his maudlin resignation speech.

O.K. That's easy. In addition to his documented difficulty in distinguising right from wrong, the Senator also can't tell the difference between adjectives and adverbs. He performed badly in office, but his speech was a bad performance.

Actually, his resignation makes me feel quite happily.

Has the New York Times Come to its Senses? - No. On first reading the NYT's editorial this morning on the Torricelli affair it appears the editors have discovered the virtues of competition. "The guiding principle," they write, "should be the voters' basic right to a genuine election." But that appearance is misleading. What the Times really wants is for the courts to step in and protect some of the voters -- the Democrats who made the bad choice of selecting Torricelli as their nominee -- from the consequences of their decision. More precious to the Times than competition is protecting people from the unwanted results of competition.

There are, the Times acknowledges, some petty obstacles, like statutes, that stand in the way of doing what should be done, but apparently only pea-brained Republicans worry about little things like that, for "legal wrangling" should not undermine the right of New Jersey voters to "a competitive race."

Now that the Times has discovered, just in the nick of time, a shiny new previously unknown right -- to "a competitive race -- it will be entertaining to observe their comments on the other races this fall, inasmuch as roughly 90% of the voters live in House districts that are by no stretch of the imagination competitive. Are their rights being violated? Is gerrymandering illegal? Inquiring minds want to know.