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October 7, 2002

ED100702:  A Statute a Seven-Year-Old Would Understand

By

The New Jersey election statute permits substitutions to be made on the ballot "not later than the 51st day before the general election." The infamous New Jersey supreme court said the statute was unclear regarding what to do on days closer to the election. So, in keeping with its cousins in Florida, the court ignored the statutory deadline, and declared that whatever the Democrats wanted the Democrats got. That's not exactly what the court said, but that seems to be what animated the decision.

How clear would such language be to the average seven-year-old? Suppose the hypothetical second grader asked his nanny on the way home from school if he could have a cookie. The nanny replies: "Dinner is at 6:00, and your mom doesn't want you to eat anything too close to dinner time. She said you may have a treat if you finish it not later than two hours before dinner, which is 4:00."

In this hypothetical, the nanny does not place the word "only" before "if," but isn't that implied? Let's pretend the child forgets about the cookie until 4:30. He might try to sneak a cookie or needle the nanny to allow it anyway, but he would not actually believe his mother had been unclear about the situation.

The contrary argument would go something like this: "Mom said I could have a treat if I finished it 'not later than two hours before dinner time.' That much we know. But she really didn't say anything about one and a half hours before dinner. So its up to you."

We know that nannies sometimes violate the wishes of their employers, so the kid may get the cookie. But is there really any doubt about what the mother intended in this situation, either to the nanny or to the average child?

- Todd F. Gaziano is the director of the Center for Legal and Judicial Studies at the Heritage Foundation.

Originally appeared in National Review online.

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