Following up on this post about Rep. Gallegly’s withdrawal, a few readers have written to ask why the rules should be different here than they were for the withdrawal of Sen. Robert Torricelli (D-NJ), who was replaced by the Democratic Party of New Jersey with former Sen. Frank Lautenberg, who then went on to win the race.
The reason is simple: Article I, section 4 of the Constitution gives the state legislatures the power to set the rules for congressional elections, subject to override by Congress. New Jersey’s rules provided that a party could replace a candidate for office who withdrew for any reason, provided that the withdrawal took place at least 51 days before the election (NJSA 19:13-20). California law, as I’ve detailed, is much stingier with its withdrawal rules.
The Torricelli situation was complicated because he tried to withdraw in fewer than 51 days before the election. The New Jersey statutes said nothing explicit about a withdrawal in the shorter period, and some (reasonably) interpreted that silence to mean that withdrawals in fewer than 51 days were not permitted. The New Jersey Supreme Court disagreed, relying upon earlier precedent (in my view, also reasonably), indicating that the 51 day period was for the convenience of election officials in administering the election. Absent proof that the election officials would be prejudiced, the substitution could go forward. New Jersey Democratic Party v. Samson, 814 A.2d 1025 (N.J. 2002).
Doug Forrester, the Republican candidate in that New Jersey Senate election, then sought cert. in the United States Supreme Court, arguing that the New Jersey Supreme Court usurped the power of the New Jersey legislature to set the rules for congressional elections. (You may recall that the Republicans made a similar argument in Bush v. Gore under Article II of the Constitution, which gives state legislatures the power to set the rules for choosing federal electors; the argument that the Florida Supreme Court usurped that power with its interpretations of Florida election rules garnered the votes of Chief Justice Rehnquist, and Justices Scalia and Thomas.) The Supreme Court denied cert, 537 U.S. 1083, and Lautenberg went on to defeat Forrester. For more on the case, see the Lowenstein and Hasen casebook at 138-39.
So….if a California court were asked to read the California elections code to allow withdrawal of Gallegly’s candidacy and a reopening of the nomination period, I could imagine an opponent raising the Article I, Section 4 argument against such an interpretation, which would appear to go contrary to the California legislature’s rules for withdrawals and vacancies.
UPDATE: Roll Call reports that Gallegly will announce today his is back in the race. According to the California statutes, he never left it. (See also this LA Times report on a dropout on the Democratic side of the race as well.)