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Election "Law" in America

"[The right to vote] is regarded as a fundamental political right, because [it is] preservative of all rights." — United States Supreme Court Yick Wo v. Hopkins (1886)

  • Herbert W. Titus,
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"[The right to vote] is regarded as a fundamental political right, because [it is] preservative of all rights." — United States Supreme Court Yick Wo v. Hopkins (1886)

In January 2001, George W. Bush was sworn in as the 43rd president of the United States. In January 2003, Lord willing, Mr. Frank Lautenberg (D-NJ) will be sworn in as the newly elected United States Senator from New Jersey. Each man obtained his election to office not according to a preexisting rule of law, but by court order.

In the case of George Bush, a bare majority of five justices on the United States Supreme Court ruled that the popular vote for president in Florida had to be "recounted" according to procedures that were the same, county by county, to the end that no voter's vote would be "diluted," not, as the Florida Supreme Court had ruled, according to differing procedures as determined by each Florida county to the end that no voter's vote would be left "uncounted."1

In the case of Frank Lautenberg, a unanimous New Jersey Supreme Court required that Mr. Lautenberg be placed upon the New Jersey senatorial ballot in the place of Robert Torricelli who had "withdrawn" from the race to the end that the people's "right to vote" would not be "emptied" by depriving the people of the "right to vote" for a viable senatorial candidate nominated by one of the two major parties.2

Democratic Equality vs. The Rule of Law
Both courts rested their opinions upon the United States Supreme Court's democratic ideal of "one man/one vote." In the case of Bush, the United States Supreme Court majority recalled that one man/one vote meant that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." In the case of Lautenberg, the New Jersey Supreme Court remembered that one man/one vote meant that "the right to vote freely for the candidate of one's choice is of the essence of a democratic society and any restrictions on that right strike at the heart of representative government."

For both courts, the goal of democratic equality trumped the rule of law. While the United States Supreme Court majority acknowledged that Article II, Section 1, Clause 1 expressly delegates the power to choose the president of the United States to "electors" who, in turn, are to be "appoint[ed] in such Manner as the Legislature [of each State] may direct," only three justices of the five were willing to rule that the Florida Supreme Court's decision to disregard the state legislative mandate contravened this written constitutional delegation of power.

As for the New Jersey Supreme Court, the justices simply ignored Article I, Section 4 which provides that the "Times, Places and Manner of holding elections for Senators and Representatives ... shall be prescribed in each State by the Legislatures thereof." According to statute, officials had not been granted authority to substitute a candidate for one previously nominated at a primary after "the 48th day preceding the date of the general election." Since Robert Torricelli had withdrawn from the senatorial race on September 30, 2002, just 35 days before the general election, November 5, then no state or county executive official had any authority to substitute Mr. Lautenberg for Mr. Torricelli.

That is why the Democratic Party went to court — to force the county clerks to do what they were not authorized to do by statute. Instead of the New Jersey Supreme Court ruling that according to the Article I, Section 4 of the United States Constitution, only the State legislature had authority to determine the "manner" of the election, the justices substituted their judgment for that of the legislature, "construing" the statute "to promote the goals underlying our election laws — to ensure an opportunity for voters to exercise their right of choice in the November 2002 senatorial election consonant with an orderly process for handling of ballots."

Above the Law
By departing from both the text of the New Jersey statute and of Article I, Section 4 of the U.S. Constitution, the New Jersey Supreme Court substituted its opinion for the rule of law. Likewise, by departing from the text of Article II, Section 1, Clause 2 of the U.S. Constitution, the United States Supreme Court substituted its opinion for the rule of law. Both courts did so because most of today's judges do not perceive themselves as bound by any written text, but as above it.

It was not so in the beginning. When Chief Justice John Marshall ruled that, because it is written, the United States Constitution was the Supreme Law of the land, he also stated that the Constitution, as it is written, governed the courts, as well as the legislature and the executive.3 Marshall understood this because he, like Sir William Blackstone4 and Moses,5 understood that judges do not make law, but merely discover it and state it.6 Until this nation's judges return to that original understanding of the limited role of the judge, they will, both "conservative" and "liberal," give only lip service to the rule of law, while their rulings are far from it.


1. Bush v. Gore, 531 U.S. , 148 L.Ed.2d 388 (2000).

2. New Jersey Democratic Party, Inc. v. Samson, Atl. 2d (2002) http://lawlibrary supreme/a-24-02.opn.html.

3. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, (1803) "[T]he particular phraseology of the Constitution of the United States confirms and strengthens the principle supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument."

4. "[Judges] are the depositary of the laws; the living oracles, ... who are bound by oath to decide according to the law of the land...[s]o that the law, and the opinion of the judge are not always ... one and the same thing; since it sometimes may happen that the judge may mistake the law." W. Blackstone, Commentaries on the Laws of England 69, 71 (Univ. of Chi. Facsimile ed. 1765).

5. "And it came to pass on the morrow, that Moses sat to judge the people ... And when Moses' father in law saw all that he did ..., he said, What is this thing that thou doest to the people?... And Moses said unto his father in law, Because the people come unto me to inquire of God: When they have a matter, they come unto me; and I judge between one and another, and I do make them know the statutes of God, and his laws."

6. "Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are mere instruments of the law, and can will nothing ... Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect ... to the will of the law." Osborn v. The Bank, 9 Wheat. 738, 866 (1824).

  • Herbert W. Titus

Mr. Titus practices law in association with Troy A. Titus, P.C., in Virginia Beach, Virginia and is of counsel to the law firm of William J. Olson, P.C. of McLean, Virginia. He specializes in constitutional litigation and appeals.

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