Public Nuisance

Random commentary and senseless acts of blogging.

The first Republican president once said, "While the people retain their virtue and their vigilance, no administration by any extreme of wickedness or folly can seriously injure the government in the short space of four years." If Mr. Lincoln could see what's happened in these last three-and-a-half years, he might hedge a little on that statement.
-Ronald Reagan

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Monday, October 07, 2002
Whose Franchise?

The petition of the New Jersey Republicans to the Supreme Court bases a substantial portion of its argument on the claim that changing the ballot would disenfranchise overseas voters.

Whether the Due Process Clause of the United States Constitution prohibits the disenfranchisement of American military personnel and citizens by replacing candidates on the ballot after these citizens have already cast their vote?...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.

But who is being disenfranchised and in what way? The petition repeatedly asserts that this disenfranchisement will take place. I haven't read the whole document, but I can't see that it ever explains why.

The petition makes a great deal of ballots which have already been sent out; but there are fewer than 2,000 of these on a close reading. (The petition is deliberately worded to make it appear, on a casual reading, that there are more.) All others can be sent the new ballot, as can those who were already sent the old.

We know that, aside from pious declarations, the only persons whose franchise the Republicans really want to protect is Republicans. But those who want to vote for Forrester are clearly not being injured, since his name is on both ballots and they can vote for him either way. The same is true for those who want to vote for 3rd party candidates. So apparently the only voters who are endangered are Democrats, or at least those voting for Democratic candidates.

But those who have received ballots with Torricelli's name can still write in Lautenberg if they so choose. Indeed, there seems to be no problem for anyone except those who have already sent in their absentee ballots, certainly a subset and probably a small subset of those who were mailed ballots.

Those who have already voted for Torricelli are pretty much out of luck, since he has removed himself as a candidate. (Republicans continued to call for Torricelli to resign his candidacy after the first absentee ballots had been mailed out, in spite of all risks of disenfranchising overseas voters.) Those who have already voted for other candidates and don't want to change their vote are unaffected. Those who have already voted for Forrester and now would rather vote for Lautenberg are denied the ability to vote for the candidate of their choice, but they presumably would prefer to see their candidate on the ballot so that others can vote for him.

The only group I can see that is legitimately harmed by this is those voters who already voted for Torricelli but now would prefer to vote for Forrester. This can be assumed to be a small group, since all polls indicate that the replacement of Torricelli by Lautenberg has significantly reduced, rather than increased, Forrester's support. In fact, there is no evidence that a single voter is in this category.

A great deal is also made of the theory that any delay in the mailing of ballots to overseas voters is in itself a disenfranchisement of those voters. But in fact the delay is now being caused by the Republicans continuing to litigate the case, which does lead to a real threat that the ballots won't get out in time for overseas voters.

This is not the most audacious reason given by the Republicans for preventing New Jersey voters from exercising a choice. The following line (I could never make this up) appears on page 9: Prompt action from this Court is required to prevent growing public cynicism regarding evenhanded application of election law rules. Remember, this application is being filed on behalf of a candidate who, in this very election, has already requested, and obtained, a ballot change within the 51 day limit of New Jersey law. But it's essential that the same privilege be denied to his opponent "to prevent growing public cynicism" and demonstrate that laws are equally enforced.

Note: Also blogging on the same subject, Eugene Volokh asks a rhetorical question to which the answer is, "George Bush".