I was supposd to be off blogging for the week, in order to get some grant applications out. But I can't resist the following.
The argumentative basket into which the New Jersey Democratic Party seems to be placing all of its eggs for replacing Torricelli on the ballot, the argument endorsed by the New York Times, is that there's some sort of right on the part of voters to have a choice. I think this argument has been suitably demolished already (notably by this NYT op-ed).
But it's also worth noting that the argument rests on a willful factual mistake. That is, even if there were some overriding right to have a choice of candidates-- a right that somehow doesn't invalidate all those House elections, and the vast number of state legislative elections, in which one candidate runs unopposed-- it wouldn't yield a right to put Lautenberg on the ballot, because the minor premise of the syllogism doesn't apply. To wit: Forrester is not running unopposed. Two minutes of web searching on the two leading third parties turned up Libertarian Elizabeth Macron and Green Ted Glick. (There may be more; I didn't keep looking.) I don't know anything about these candidates and am not endorsing either one. But the fact is that there will be a choice among candidates on the November New Jersey ballot.
The Democratic argument then has to make one of two moves. One would be to say that these candidates have no chance of winning and therefore don't offer a real choice to voters. But that, surely, is up to the voters. (And there would be more than a whiff of hypocrisy about the Democratic Party suddenly complaining that third parties, which they've spent years helping to keep off ballots and out of debates-- including this year's NJ Senate debates-- aren't viable!) Moreover, the "right" to two viable candidates is violated even more routinely than is the "right" to two candidates at all. After all, more than 90% of House races in most years are utterly non-competitive, partly due to the advantages of incumbency, partly due to gerrymandering. The second available move is to say that the Democratic and Republican Parties are constitutionally different from third parties, that only their candidates count for purposes of seeing whether the voters are being offered a choice. And this is utter constitutional nonsense. The courts haven't objected to differentiating parties on the basis of their popular support in regular election rules, i.e. to placing candidates on the ballot automatically only if their parties reached a threshold of support in the last election. But they have not endorsed rules that aren't at least formally neutral among parties-- that is, rules that formally hold the two big parties to be permanently legally unlike all other parties. Now we have (at least) three parties that have qualified candidates for the ballot according to the regular rules, and the Democratic Party is asking to have the rules be suspended, just because none of those candidates is a Democrat.
Neither of those argumentative moves succeed; neither has any grounding in the Constitution or in the presumptions in favor of contested elections found in some election law cases. The Democratic case should fail, and New Jersey voters who don't like Forrester should start to look around at their other options. If they find that they don't like any of them... well, we've all had at least one election like that, haven't we?
UPDATE: According to this AP article, "some legal experts agreed" with the Democrats' argument. "'It's almost as if the arguing parties – the Democrats and Republicans – are irrelevant in the legal analysis,' said Richard Perr, an election law professor at Rutgers University Law School. 'The focus is on the voters right to cast a meaningful vote and they can't do that if only one name is on the ballot.'" This is a novel principle in election law to begin with; but, again, it wouldn't apply here. Similarly, "Senate Majority Leader Tom Daschle, D-S.D., said that by objecting to Torricelli's request, Republicans were 'denying the people of New Jersey a choice.'" This is true only in the sense that the voters would be denied the particular choice of Lautenberg. It's not true that they would have no choice of candidates.
For more, see Man Without Qualities; several serious analyses by Eugene Volokh, James Lilek's dead-on Bleat, or Instapundit's round-up.
UPDATE: The New Jersey Supreme Court has ruled for the Democrats. State supreme courts are the final interpreters of state statutes; and the military-absentee-ballot route into federal court seems unlikely to succeed. (The federal statute doesn't incorporate the state's 51-day statutory rule.) So I suspect that's that. Color me disgusted. I wonder how the court is going to explain its interpretation of what would trigger the 51-day rule. I wonder whether we're going to see a) rampant candidate-swtiching in a way that turns our fairly-regular procedures into poll-driven banana republic populist plebiscites or b) a rapid abandoment of this precedent, so that the "competitive elections" principle will turn out to have been a one-time-only gift to the Democrats. And I wonder whether any court will subsequently allow a third-party candidate onto the ballot, despite failing to meet ballot access requirements, because the need for a contested election trumps election statutes.