Friday, October 04, 2002


IANAL is online chatspeak for I Am Not A Lawyer. It's a play on words, see? Ah, well.

I just wanted to clear that up before diving headlong into the NJ GOP's pleading to the Supreme Court. If one thing is clear about the pleading, it is this: if a non-lawyer like me can pick it apart, then perhaps it's not the most watertight document ever. Here we go.....

The main thrust, as it were, is this:

On October 3, 2002, the New Jersey Supreme Court, notwithstanding the plain 48-day statutory deadline, authorized the party to fill the vacancy 33 days before the general election. By sousurping the power of the state legislature, the Supreme Court of New Jersey violated Art. I,Sec. 4 of the United States Constitution. By delaying the mailing of absentee ballots, and voiding the ballots already requested (and in some cases cast) by overseas citizens, the Court violated the state’s requirements to provide sufficient time for the casting of such ballots under the Uniformed and Overseas Citizens Absentee Voting Act. Because the actions of the Supreme Court of New Jersey retroactively change the law passed by the legislature, and because it threatens to disenfranchise thousands of overseas voters, a stay of its order should issue immediately.

Having laid out it's main points, the pleading then gets into the nitty-gritty. The pleading first addresses the actual number of ballots imperiled by the NJ Supreme Court's order. The brief states that "More than 18,000 (eighteen thousand) absentee ballots have already been requested and have been authorized to be mailed. Sixteen hundred (1,600) absentee ballots have been mailed already, and 106 military ballots have been mailed already."

There is a bit of sleight-of-hand here. While the number of 18,000 sounds like a lot of ballots (especially given the recent hostory of the Florida debacle of 2000), notice that the 18,000 are authorized to be mailed, not actually mailed. As such, these ballots, for all intents and purposes are NOT 'in play'. It is reasonable to assume that the NJ Supremes understood that replacement ballots could be made for these 18,000 ballots, and the recipients of those ballots will get the new corrected ballot on time. Eighteen thousand ballots is something a single Kinkos outlet could do in a night shift. It is the equivalent of about six 'banker's boxes' and easily handled.

That leaves the number of ballots actually at issue to be around 1700; the 1600 absentee ballots that have already been mailed, and the 106 military ballots. Since these are already in the mail, and it is likely that some of them have been returned, these voters are the most at risk of disenfranchisement. We'll get back to these 1700 ballots in a moment. Right now, it is time to take a journey through the Florida fiasco, as the pleading turns to them as precedents for the current case.

The NJ GOP likens the current New Jersey legal dance as very similar to the one in Florida with hanging chads, and dimpled chads and other such exciting, heady topics. But there are two key differences between the Florida Presidential election of 2000 and the New Jersey Senate election of 2002.

First and foremost, the SCOTUS was compelled to act because the time frame was so short. After all, the case in Florida became a Court matter because of the short time required to certify the election. The Constitution and other supporting statutes required that certain things happen by certain dates, and it was unclear that these events would take place. So while the SCOUTUS' decision was based on the conservative jurist principle of 'making stuff up', it was nevertheless neccessary because Constitutional deadlines were hanging in the balance. Contrast that with the current situation in New Jersey. The election has not taken place yet, and no one (desppite the pleading stating otherwise) will 'suffer irreperable harm' if the NJ SC's order stands. No one is stopping the Forrester campaign from their right to run, and no one is denying the voters of NJ a choice in the election. Furthermore, there is no election outcome to adjudicate, as there has been no election. This case has none of the pressures to compel the SCOTUS to act: there is no disputed election, there is no 'drop-dead' timeline, and there already is a governing body in place that has the full authority to make it's decision (the NJ SC is fully vested to handle NJ election law, whereas the Florida SC is not vested in handling federal election law).

Secondly, the specious claims brought forth by the Forrester campaign should be exposed:

In addition, the timing at which a party’s candidates for federal office become “final” for purposes of the ballot is of profound national importance. If the lower court ruling is allowed to stand, political parties will be encouraged to withdraw losing candidates on the eve of election, replacing them with candidates who have not gone through the rigors of the nomination process, in hopes of snatching victory from the jaws of defeat. Such an outcome is fundamentally unfair to opposing candidates, who have been afforded little opportunity to challenge their new opponents’ records or behavior, as well as to voters, who may know little about the new candidates.

The NJ SC was very clear about how it felt on this. In a nutshell, they said that this was not the case, because there was still ample time before the election to address these issues. Had they not felt this way, then they couldn't have ruled otherwise. This case is no more likely to encourage similar tactics because there is a fundamental, real deadline; the time to prepare and send out the ballots. The NJ SC says there is enough time to rectify this situation; the NJ GOP arrogates that their judgement is superior.

Moving on. The Forrester pleading then proceeds for more diggling of the corpse of Bush v. Gore. The court cites that case as the reason why the general rule of the Supreme Court deferring to state courts for state stautes should be ignored: "While '[i]n most
cases, comity and respect for federalism compel [the Supreme Court] to defer to the decisions of state courts on issues of state law,' in a few cases, in which the United States Constitution imposes a duty on a particular branch of a State’s government, 'text of an election law itself, and not just its interpretation by the courts of the States, takes on independent significance,'” as cited from Rehnquist's concurring opinion on Bush v. Gore. Again, it looks the same, but it's not the same. The reason why the interpretation of election law of Florida was significant was because of the apres-election nature of the Florida case. The election had already happened, and the outcome was in dispute, and the Bush camp applied for relief from the Supreme Court, fearing that state law was inadequate to cover for the impending Constitutional crisis. Again, you may, as I do, quibble with the actual decision, but it was clear that someone would have to step in to save us from a full-blown electoral meltdown. Without beating this expired equine, the case in New Jersey does not have the same emergency nature, nor are Constitutional issues involved.

Forrester et al., move on to attack other areas, with equally ineffectual arguments. They claim that Constitution gives direct and exclusive power to the NJ state legislature to the manner in which Senators are chosen. They claim that the NJ SC has no authority over state statute, even though it is the highest legal body in New Jersey. There is a hand-off of powers here. While no one denies the US Supreme Court has a higher authority than the New Jersey Supreme Court, it is specious to claim that the NJ SC does not have first shot at NJ law. Strictly as a process, the NJ SC gets first shot at NJ law, and then the Supremes may review it, especially if there are rights at stake. To claim that NJ has no standing on it's own laws violates the concept of the 10th Amendment.

The Forrester camp then sets its sights on the two precedents the Supremes of NJ used in justifying their unanimous decision. Without going into to in excruciating detail, the NJ GOP would have the Supreme Court of the US substitute its interpretation of state stature of NJ's own. It again flies in the teeth of the idea that the State of New Jersey is well-equipped to handle it's own legal code. I'd restate the arguments here, but it would just be a rehash of what I've said previous. The basic issue here is not the one of Bush v. Gore, which adjudicated a disputed election after the fact, but one of a disputed ballot before the fact, as it were.

After all the legal jousting over interpretations over statute, case law and precedent, and the argument over jurisdiction and Constitutional issues, the Forrester camp returns to the only place where they really have any traction: the overseas and military voters. It is clear that many of these ballots have gone out, and perhaps that some of them have been returned. The pleading gravely intones that Federal law puts a 35 day guideline in place by which all ballots must be mailed to overseas and military voters, and that New Jersey is seeking to contravene that requirement.

Remember the 1700 or so ballots that have already been sent out? Well, the pleading effectively admits that most of them will be able to get new ballots in a timely fashion. But there are a few select few who might not: "While New Jersey may attempt to locate
many of these individuals and send them new ballots, in times of war, when military personnel overseas are on ships or in remote locations, many of these attempts will obviously fail and these voters will be disenfranchised." First of all, the 'time of war' is a cheap attempt to inculcate the GOP's pleading with the War on Terror. I cast Shame upon the legal hack who inserted it. More importantly, the GOP pleading has abandoned most of the overseas voters for a select few: the military voters. And not all of them; just the ones who might be difficult and remote to find.

Don't get me wrong; I know the military is mobilized and forward-deployed in many dangerous areas of the world, and that some of the sons and daughters of NJ are in harm's way. Nevertheless, it seems entirely reasonable that a strong good faith effort to locate those few soldiers who are remotely posted is well within the bounds of reasonably accomplishable (which, I admit is not a 'legal principle'). What the GOP is really talking about when they talk about 'disenfranchisement' is a handful of ballots. And when you weigh the perhaps a few dozen (at most) voters who might not get a new ballot with the million who will get one that inaccurately lists Toricelli a candidate, ask yourself which scenario is the real disenfranchisement?

Thursday, October 03, 2002

Politician Gets Blue in The Face

Meet Montana Senate candidate Stan Jones, winner of the SdB Award for Smurfiest Politician. Apparently, he turned himself blue by ingesting silver to ward off the FEMA black helicopters and the UN New World Order, or whatever it is that makes Montanans so fidgety. (Of course he's a Libertarian, which is codespeak for 'short on sense'.)

I'm green with envy because I ususally get red-faced while spouting purple prose.

Wednesday, October 02, 2002

Torch Song

Folks, I've got a million of 'em. Anyway, Instapundit has the most comprehensive Toricelli coverage from around the web, so why bother re-inventing the wheel? Check it out. The Supreme Judicial Court of New Jersey's opinion is here, but basically, the court is saying that the principle of the two-party system is greater than the statutes covering the matter, so we're going to allow it, as long as the Democrats pay for this mess.

Anyway, SdB is not entirely pleased with this decision. Granted, it is a Good Thing (TM) to get the weasel Toricelli off the ballot, and it is fair that Jerseyans (Jerseyites? Jersese? which one?) get a choice in this election. But what is to stop any losing candidates from stepping aside when the odds don't look good? This will cause more headaches than it solved. It is extreme wishful thinking that we can keep this law pimple confined to the Garden State; it will spread.

The NJ SJC's court has already had one very important effect: it cancelled SdB's carefully reasoned and brilliantly thought-out solution to the problem. I would have liked the Torch and the Dems to declare a virtual-Mel-Carnahan scenario, with the politically dead Toricelli promising to step aside the day after the election in favor of [Candidate X], so a vote for the Torch would be a de facto vote for [X]. Ah, well. I guess this is one of the perils of insta-journalism.

The Daily Bummer

Apres Saddam, le deluge? It seems the Bushies and the Iraqi dissidents have not decided who gets to be tinpot dictator--err, deomcratically elected leader--after Saddam.....Who knows? Maybe we'll get a kind and gentle soul that the Halliburton Faction and the Arbusto Faction in the Bush Adminstration can agree to.

Tuesday, October 01, 2002

Blow, Torch

Really, there's not much to add to this from my POV, but I will say that it should be fun to watch the Republicans send up the hue and cry that the electoral process is being railroaded by partisans.....Sounds awfully familiar to a certain 2000 fiasco down south. Of course, I'm not saying that the outcome would have been different had the process in Florida been fair and non-partisan, but thanks the Jeb Bush and Kathleen Harris, we've been spared the national trauma of actually finding out (with a good dollop of help from the Furious Five on the Big Bench). And if the NJ Democrats do manage to push through their compromise candidate (latest: Big Bill Bradley is out, the Torch hates Lautenberg, and the other small fries have yet to secure the party machine favor), the NJ Republicans will only have themselves to blame for running a stuffed-shirt against Torricelli.

In other news.....

Pitchfork Pat has a new magazine! The man moved to moved to poltical irrelevance by standing against the economic boom of the 90's has finally settled to the lowest level of political discourse, the conservative magazine. It is theoretically possible with American xenophobia being brought to the fore by terrorism that Pat's message of Hating Everyone could come to prominence again.....but not by this messanger.

Buchanan has always been too smart and too stupid for his own good at the same time. While cranking up the populist rhetoric plays well to the working class (and when Pat's on, he's on), Buchanan has always shot himself in the foot with his barely concealed bigotry, sexism and racism. He missed the boat on the American working class: yes, he captured their fears about overseas labor and free trade, but he missed the whole era where the middle class, through it's exposure to the politcal movements of the 60's and 70's, by and large shed it's ignorance and hate. Sure pockets of it remain, but for the most part, middle-class America has come to tolerate faggots, niggers, kikes, greasers and spics, err--homosexuals, African Americans, Judeo-Americans, Eye-talians, and Hispanicans. Still, we've come a long way, baby. It's too bad no one told Pat.

The only good news is that Pat is against the War in Iraq, arguing that there are other nations out there who are more of a threat to the US than Saddam. Weird day when I find myself and Pat on the same side of an issue.

The Daily Bummer

Welcome to a new feature at SdB! "The Daily Bummer" is our attempt to find the truth behind the War on [Whomever] from around the Web.

Today's Daily Bummer on the War on Iraq/Terror/Drugs/Liberals/Whoever: Maybe It is about the oil, after all! Turns out that (what a coincedence!) Iraq just happens to have the greatest untapped oil reserves in the world! Golly, who would have figured?

Monday, September 30, 2002


SdB's round-up of why the War is a Bad Idea (TM).

Linky the first: "All these-a peoples gonna die?!?!" - Resonable estimates of American dead are in the thousands, and that's before the weapons of mass distraction.

The best analogy for what such combat is likely to involve is not Desert Storm, but the 1989 U.S. invasion of Panama—and on a much larger scale. There is a very real possibility that American deaths could exceed 1,000 in number, and several thousand deaths cannot be ruled out. To count on easy victory, as many American proponents of war seem to do, is not only unsupported by the available evidence and by the methodologies of combat prediction. It's also an irresponsible basis on which to plan military strategy in any future war against Saddam Hussein.

Linky the second: Who's on First? - The Defense Department recounts the hilarious comedy of Abbott and Costello while drawing up war plans.

According to one knowledgeable source, Defense Secretary Donald Rumsfeld has engaged in frustrating, circular discussions with his generals. In a scene that has repeated itself more than once, Rumsfeld, an impatient questioner, demands to see a plan of attack. The generals respond that they can’t plan without knowing exactly what they are planning for and with what tools, i.e., what bases and what forces. Rumsfeld becomes vexed and insists on “out of the box” thinking. The generals look perplexed or exasperated and fall back on traditional notions of the American way of war, which is to overwhelm the enemy with superior firepower. Such a campaign takes a long wind-up and a massive attack, which prompts the basic questions—from where? with what forces?—all over again.

Linky the third: It's the Economy, Stupid - At least you can still burn your stock certificates for warmth this winter.

But "six months down the road then you have to take another look and say what have we done? What have we gotten ourselves involved in? Because the issue is not just the war, the issue is changing the fundamental culture of the region and that's a longer term task," Smith said. "You get a 'down' trade, followed by an 'up' trade, followed by grave concerns."

Well, I'm sure the Rummy will come up with more secret information that he can't share showing that he was wrong: Saddam isn't secretly attached to Al-Qaeda, he's secretly attached to America's most feared enemy: file-sharers who do Ecstasy while chatting to kids online. Details at 11.