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.