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GOP turns to Supreme Court

Forrester's attorneys warn of 'considerable mischief'

From Dana Bash and Jamie McShane (CNN)

Douglas Forrester, the Republican nominee for U.S. Senate in New Jersey, was trailed by supporters Thursday on a campaign walk through Princeton.
Douglas Forrester, the Republican nominee for U.S. Senate in New Jersey, was trailed by supporters Thursday on a campaign walk through Princeton.

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Former Sen. Frank Lautenberg was named to replace scandal-tainted incumbent Robert Torricelli as candidate for New Jersey's U.S. Senate seat. CNN's Deborah Feyerick reports (October 2)
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Sen. Robert Torricelli, D-New Jersey, announced Monday he was dropping his bid for re-election (September 30)
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Part 3 of a five-part miderm elections preview: Fight for control of the Senate 

Read the legal documents: 
(FindLaw documents; PDF format) 

WASHINGTON (CNN) -- Republicans on Friday are looking to the Supreme Court of the United States for word on their objections to the process that put former Sen. Frank Lautenberg on the midterm election ballot in New Jersey instead of embattled Sen. Robert Torricelli.

As the Democrats' newly minted Senate nominee made the rounds on Capitol Hill Thursday, attorneys for GOP nominee Doug Forrester petitioned U.S. Supreme Court Justice David Souter to stay Wednesday's ruling by the New Jersey Supreme Court allowing Democrats to switch candidates.

Fearing that such candidate-switching may "corrupt the process" beyond New Jersey, California Secretary of State Bill Jones, a Republican, plans to file a brief Friday supporting Forrester's position before the high court, his chief counsel, Bill Wood, told CNN.

"In California, we have a great number of ballots that are out, and we're worried that decision could set something up for us here that could have candidates trying to get on and off the ballots right before an election," said Wood, who noted that ballots in California are printed in about 20 languages.

Forrester's attorneys said the decision will cause "considerable mischief" in American politics. They also asked the full court to hear the case.

"If such tactics are allowed to stand, voters in every election will face uncertainty, as candidates who appear to be losing drop out of the race on the eve of the election and are replaced by individuals who have not undergone the rigors of the nomination process," the petition said.

"Candidates who undergo bruising primaries may be replaced at leisure by party bosses with candidates about whom the public knows little."

Lautenberg: 'Outrageous'

Lautenberg, meeting with Senate Majority Leader Tom Daschle and other Senate Democrats, called Forrester's court challenge "outrageous."

"I'm concerned about the notion that my opponent wants to take an action in court that would eliminate the choices the people of New Jersey have," Lautenberg said. "He's really saying to them, 'Listen, I don't even want you to have an opponent. Just give it to me.'"

Torricelli, ensnared in an ethics controversy that caused his poll numbers to plunge, dropped out of the race Monday, saying he did not want to be responsible for Democrats losing control of the Senate, where they now hold power by a single vote.

The New Jersey Supreme Court ruled Wednesday that Lautenberg could replace Torricelli, who has withdrawn from the Senate race.
The New Jersey Supreme Court ruled Wednesday that Lautenberg could replace Torricelli, who has withdrawn from the Senate race.

Republicans insist that under state law, it was too late for Garden State Democrats to strike Torricelli's name from the ballot and replace him with Lautenberg, who retired from the Senate two years ago. But the state's top court disagreed, saying the need to give voters a genuine choice in November should trump administrative deadlines set in election laws.

Gov. Jim McGreevey, a Democrat, called the ruling a "reasoned, equitable decision."

"The state Supreme Court said, 'Elections are about contests, and we need to have an individual representing the Democratic Party. We can clearly do it within the time frame,'" the governor said on CNN's Crossfire.

Forrester's petition was filed with Souter, who hears emergency appeals for stays from the 3rd U.S. Circuit, which includes New Jersey. It will be up to the full court to decide whether to take the case and, if so, whether to overrule New Jersey's justices.

The court is currently in recess, but its new term begins Monday.

In an interesting twist, the petition cites as legal precedent the case of Bush v. Gore, in which the Supreme Court two years ago overruled a decision by the Florida Supreme Court for a statewide vote recount in the presidential race. Souter was one of the dissenting justices in that case.

Frist: 'Clearly illegal'

Sen. William Frist, center, chairman of the GOP campaign committee, was accompanied by attorneys Thursday as he walked to the Supreme Court in Washington.
Sen. William Frist, center, chairman of the GOP campaign committee, was accompanied by attorneys Thursday as he walked to the Supreme Court in Washington.

Underscoring the importance of the New Jersey race to the balance of power in the Senate, Forrester's petition was delivered to the Supreme Court in Washington by Tennessee Sen. Bill Frist, chairman of the National Republican Senatorial Committee.

"What the Democrats have done is clearly illegal. They are attempting to steal an election they could not win," Frist said.

Daschle vowed that Democrats will do whatever they can to help Lautenberg's abbreviated campaign.

"We want to make this as competitive a race as there is in the country," Daschle said. "Frank Lautenberg's record, his reputation and the kind of candidate he is assures that, but we want to give him the resources to make sure he's got what he needs to get over the top."

The GOP's legal fight before the U.S. Supreme Court centers on a New Jersey law that says a candidate who wants to get off the ballot must do so at least 51 days before the election, and a replacement must be selected at least 48 days before the vote.

Neither Torricelli nor Lautenberg met those deadlines, but the New Jersey Supreme Court ruled unanimously that election statues should be "liberally construed" to provide a "full and fair ballot choice for the voters of New Jersey."

Forrester's petition calls on the U.S. Supreme Court to overrule that decision on three different grounds:

  • That under Article 1, Section 4 of the U.S. Constitution, state legislatures have the exclusive power to decide the "time, place and manner" of elections for federal offices, precluding the New Jersey high court from disregarding deadlines set by the legislature.
  • That under a federal law called the Uniform and Overseas Citizens Voting Rights Act, absentee ballots must be mailed no later than 35 days before an election. That deadline passed on Tuesday.
  • That reprinting the ballots will violate the Constitution's due process clause because some voters who have already received and cast absentee ballots will have their votes invalidated, with "no guarantee that they will be able to receive and cast further absentee ballots in this election."
  • Letter to Ashcroft

    In addition to the Supreme Court petition, the Republican members of New Jersey's congressional delegation fired off a letter to U.S. Attorney General John Ashcroft Thursday, asking him to use his authority under the Voting Rights Act to order absentee ballots with Torricelli's name to be mailed immediately.

    The letter notes that the Justice Department has sued states in the past for failing "to mail ballots overseas with sufficient time to allow them to be returned validly." It was signed by Reps. Rodney Frelinghuysen, Chris Smith, Jim Saxton, Frank LoBiondo, Mike Ferguson and Marge Roukema.

    The Justice Department said the letter will be reviewed to determine whether it has jurisdiction to act.

    Republican attorneys also said they would raise the same Voting Rights Act challenge in U.S. District Court in Trenton, although that suit was not filed Thursday.

    A state judge in Trenton who is overseeing the process of reprinting the ballots held a lengthy hearing Thursday to hammer out administrative procedures. The state Democratic party, which must pay the costs for the candidate switch, was ordered to deposit $800,000 with the court by noon Friday.

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