Perhaps Eugene or other wise (not otherwise) lawbloggers will wring some additional information or insight out of this opinion, but I didn’t see anything new of interest or significance. The Joisey Judges purported to find an “absence of explicit direction from the Legislature” because “the statute simply does not contain a legislative declaration that the filling of a vacancy within forty-eight days of the election is prohibited.” (“True, the posted speed limit was 55, your Honor, but all that means is that you are immune from speeding tickets if you drive 55 or less. The Legislature didn’t positively say you couldn’t drive over 55….”) This tortured interpretation was made possible by the now familiar conclusion that “election laws are to be liberally construed.”
So far the blogosphere debate over this matter has divided into two camps: those who believe that statutory deadlines are deadlines, and those who believe that deadlines should be liberally construed. Deadlines mean what they say, or they don’t. Legislatures rule, or judges do. By now it will come as no surprise to DISCRIMINATIONS readers that my preferences run toward principles, rules, bright lines, plain text. But putting those preferences aside for a moment, let me propose a middle course, a third way, one that has the benefit of more closely tracking how most debates like this are actually decided.
In doing so I will of course have to join the liberal construers in putting aside the actual words of the statute, but in this case I want to concentrate on different words — not the 51 day “deadline” (my quotes; I simply couldn’t resist), but “howsoever caused“:
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, ….
Accepting for the moment that it is legitimate for judges to be unconstrained by the unambiguous terms of the statute, then I think a good argument can be made that post-“deadline” (there I go again) candidate substitution is permissible if the reason is good enough. The candidate died, fled the country with his campaign funds, became critically ill, etc.
But that’s not what we had in Joisey. There, Torcho resigned simply because he was going to lose. Democratic primary voters gambled that they could win with an ethically challenged candidate, but when it became clear they were wrong party leaders decided they wanted a fresh (well, a different) face. If substitution is allowed in that circumstance, it’s hard to imagine any circumstance where it wouldn’t be allowed.
Even accepting the general approach of the liberal construers, I submit, this is not construing a statute. It is destroying it.