Inimicus Curiae

Scenario: Robert Torricelli is losing the race for Senate in New Jersey, so he drops out in favor of former Senator Frank Lautenberg, who both state and national Democratic officials hope will keep the NJ race from tipping the Senate back into Republican hands. Problem: State law says there are to be no ballot substitutions if there are less than 51 days to go before the elections, and the Democrats want a substitution with only 34 days to go. Solution: A state supreme court appointed by one of the nation’s most liberal Republican (former) governors, Christine Todd Whitman, which ignores both the letter and spirit of the law entirely, ruling in favor of the Democrats. As Robert George points out, the Lautenberg substitution is exactly the kind of scenario the law in question was meant to prohibit. Yet the New Jersey Supreme Court is allowing it anyway. The Democrats knew that Torricelli was vulnerable – he has been facing credible accusations of corruption for years. This was not a last minute scandal, or even an unexpected problem. They took a calculated risk, hoping the advantages of incumbency would give them the edge, and they lost. Now they’ve managed to get the NJ Supreme Court to essentially overturn state election law to keep from having to deal with the consequences of backing a loser. See also Mark Levin's close review of the Court’s opinion today.

Compare this situation with a similar one in Hawaii where Representative Patsy Mink died a few days after the ballot substitution deadline. Even in this extreme circumstance, the state is keeping her name on the ballot and will hold a special election if her name “wins” the election.

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