The "Illegal" Majority?

Mr. Right was admiring Tim Johnson's return to the Senate the other day after his serious illness. He thought it remarkable that Johnson could bounce back so soon, but his admiration for the man's recuperative powers quickly turned into another dig at the Democrats.

"Of course," he snorted, "His fellow Democrats were more concerned about whether they'd keep their majority in the Senate than in whether Johnson would live." From there he observed that the Democratic majority was illegal, anyway.

"How so?" I asked. He cited the New Jersey election of 2002. Robert Torricelli withdrew from the race and was replaced on the Democratic line with Frank Lautenberg, who won the election. Mr. Right asserted that state law forbade the Democrats from changing their candidate after a certain deadline which had passed after Torricelli withdrew.

"If that's so, why doesn't anyone challenge the election? Why don't they take Lautenberg to court?" I pressed. Mr. Right huffed and hemmed and hawed and finally muttered something about a court decision. It turns out that the New Jersey Republicans had challenged the replacement at the time, and that the state's supreme court had allowed the Democrats to make the switch. That seemed final, since it was a state court ruling on state election law, but that hadn't stopped the Republicans in Florida in 2000. Maybe they felt they couldn't win this one, or maybe they had a collective Al Gore moment like the former Vice President had when he stood counting Electoral Votes, in a position to speak for millions who disputed the Florida decision, but did nothing because he feared a constitutional crisis. Or maybe they just didn't care that much.

In an ideal polity there would be no deadline for anyone to be qualified to receive votes. If people wanted Frank Lautenberg to be their Senator, no one should have the right to tell them it's too late for them to choose him. For that matter, he should have been free to run, and voters should have been free to vote for him, even if Torricelli remained in the race. Our choices only seem to be restrained by the physical limits of the ballot, but once upon a time people voted without ballots, and in theory could name anyone they wanted. In the digital age, we should think about overcoming the limitations imposed by ballots. An election isn't a restaurant menu, after all; if you like something you don't see, you should still be able to order it.