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Dems to Court: Stay out of N.J. case

Federal district court to hear related case


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A dispute over which Democrat should appear on the U.S. Senate ballot in New Jersey is headed for the U.S. Supreme Court. CNN's Deborah Feyerick reports (October 3)
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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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Respondents' Opposition:Forrester v. New Jersey Democratic Party (FindLaw document, PDF format)external link

WASHINGTON (CNN) -- New Jersey Democrats Friday asked the U.S. Supreme Court to stay out of the battle over the state's ballot for the U.S. Senate, but, on a separate front, a lower federal court entered the fray.

The U.S. District Court in Trenton, N.J. will hear arguments Monday morning on whether the Voting Rights Act was violated when Democrats switched nominees for a U.S. Senate seat after the deadlines to withdraw had passed.

The case was brought on behalf of two voters who say they already cast their ballots in the race and would be disenfranchised if the change goes through.

The legal battle -- closely watched by both parties because it could well determine control of the U.S. Senate next year -- began Monday when Democratic Sen. Robert Torricelli suddenly dropped out of the race, and Democrats replaced him with former Sen. Frank Lautenberg.

Republicans insist that under state law, it was too late for Garden State Democrats to make the change. But the New Jersey Supreme Court approved the move, saying the need to give voters a genuine choice in November should trump administrative deadlines set in election laws.

In response, GOP nominee Doug Forrester petitioned U.S. Supreme Court Justice David Souter to stay the New Jersey Supreme Court ruling, saying the decision will cause "considerable mischief" in American politics. He and his attorneys also asked the full court to hear the case.

Forrester's appeal to the Supreme Court is separate from the case before the federal district court.

"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 from Forrester said.

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.

But the GOP challenge, the Democrats said, fails to present a basis for a federal constitutional claim, and therefore a stay from the Supreme Court is not supported.

The Democrats noted that since Forrester would remain on the ballot as the GOP nominee, Forrester did not and could "not allege irreparable injury to his position as the Republican nominee for the office in question."

Republicans, however, charge that Democrats are seeking to replace a candidate on the way to certain defeat with one who has a better chance of winning -- and preserve the Democrats' one-vote majority in the U.S. Senate.

"What the Democrats have done is clearly illegal. They are attempting to steal an election they could not win," said Sen. Bill Frist of Tennessee, chairman of the National Republican Senatorial Committee, who delivered the challenge to the Supreme court.

New Jersey election law

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 statutes should be "liberally construed" to provide a "full and fair ballot choice for the voters of New Jersey."

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.

Forrester's petition calls on the U.S. Supreme Court to overrule the state 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."
  • Torricelli

    In an interesting twist, the petition cites as legal precedent the case of Bush v. Gore, in which the U.S. 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.

    The Democratic brief disputed that citation, arguing that the use of Bush v. Gore did not apply since it was limited by the Supreme Court itself "to its extraordinary facts" and that it has no bearing "on a state court's application of state law."

    The Democrats also countered the Republican concerns about absentee ballots, insisting that those voters' rights "can be and will be protected under the carefully designed process now in place for the preparation and mailing of revised ballots."

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

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

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