Law Is No Trivial Pursuit

I wonder if people treated the law as they treat the rules in games, would we really have all of the legal wrangling we’ve seen in New Jersey lately? I wonder if the judges on that state’s Supreme Court play “Trivial Pursuit” the same way they practice law.

Consider this scenario: You roll the die, land on blue, and instead of a Geography question your opponents give you a History question. When you object, they reply: “The purpose of the game is to test trivia knowledge and grant victory to the player or team that has demonstrated to be the most proficient in six subcategories thereof. You’ve been hitting those Geography questions all game long, while you’ve only landed on History once and got an easy question for that damn pie-slice. You have not shown proficiency in trivia knowledge over a wide area of subjects. Therefore, it is in the interest of the game and in fairness (justice?) that you be given a History question instead.”

Do you buy it? I’d think that anyone who stuck to that kind of argument was trying to cheat. Yes, the game has the purpose of rewarding knowledge in a variety of areas, but it does this only by requiring you to answer at least one question from each of those areas correctly. The rules define how the purpose is achieved.

Admittedly in law there are many areas that are left open to personal perspective that game rules are not–there’s no “reasonable person” on the field of play, so to speak–but many areas of the law are very rigidly defined. Take New Jersey’s election law regarding a candidate for office dropping out: “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, . . . a candidate shall be selected in the following manner . . . .” This rule clearly says that the replacement process for a vacancy on the ballot only occurs for vacancies created 51 days or more away. Land on blue, you get a Geography question. Simple.

The New Jersey Supreme Court couldn’t get this right. Its embattled Sen. Robert Torricelli (D-N.J.), realizing he likely would have lost his seat and might have cost his party the Senate, dropped out of the race a mere 35 days before the election, and the Democrats swiftly moved to put former Sen. Frank Lautenberg in Torricelli’s place. Instead of citing the language of the statute as I did–which you’d think would be important considering it was the law that was being applied–the court started off by citing the principles that were to guide its analysis. (That’s a red flag letting you know that the language of the statute doesn’t fit with the court’s opinion.) Those principles were as follows:

  1. “[It] is in the public interest and the general intent of the election
    laws to preserve the two-party system”;
  2. “to allow the greatest scope for public participation in the electoral process”;
  3. “to allow candidates to get on the ballot [and] allow parties to put their
    candidates on the ballot”;
  4. “and most importantly, to allow the voters a choice on Election Day.”

Then the court simply decided that the election law “does not preclude the possibility of a vacancy occurring within fifty-one days of the general election,” and thereby brushed aside the election law to place Lautenberg on the ballot.

First off, the election law most certainly does envision and handle the event of a vacancy occurring less than 51 days before an election. The language says the vacancy “shall occur not later than the 51st day” before the election in order for the replacement process to go into effect. The “shall” part clearly indicates that if a particular situation does not meet this requirement, it is excluded from being eligible. A vacancy closer to the election is not eligible to be filled. The language does not leave that potential situation unaddressed.

In other words, the court’s reading basically says that if a law requires X but doesn’t explicitly reject not-X, not-X also meets the requirement. So a law that says you must be 21 to drink alcohol doesn’t preclude a 10 year-old from lawfully drinking alcohol unless the law also states that those under 21 are not allowed to drink. This goes against basic logic. Establishing a requirement automatically implies that those who don’t meet it aren’t embraced.

As for the principles espoused, while I wonder exactly how the “public interest” is served by preserving the “two party system” (watch out for those evil third parties!), I must also wonder whether the New Jersey Supreme Court ever considered other possible principles. For example, in one of the cases the court cites, Catania v. Haberle, the same court reminded us of “the important state interest of assuring the selection of a candidate as early as possible so that the public would have a chance to evaluate his or her merits.” Hmmm. How would we make sure that the public would have enough time to evaluate the merits of a candidate? Perhaps by preventing new candidates from coming on board less than, say, 51 days before an election?

Indeed, the precedent set by this balloting move is to give the green light for losing candidates to jump ship close to election-time so that their party can put in someone new and hopefully get the drop on opponents. Torricelli’s former opponent, Doug Forrester, now only has a little over a month to find out what Lautenberg has done and stands for and argue against those positions. There is a scramble to arrange a debate. This is fair to the voters?

And let’s not forget the new McCain-Feingold legislation that will go into effect this November, which bans issue advocacy mentioning candidates from for-profits and labor unions within 60 days of an election. If it were in effect today, not only would there be little time to examine Lautenberg, but those groups would be unable to say anything about him.

With so much more on the line in an election than a game of “Trivial Pursuit,” you’d think that the rules of an election would be even more strictly enforced. So if law isn’t trivial, how come even top judges sometimes just throw out the rules? Maybe the answer is the same in law as it is in games: The ones who cheat are the ones who want to win more than anything else.

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