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Fed court wades into NJ dispute

Forrester: 'I feel like bringing Jimmy Carter in to monitor'

From Deborah Feyerick (CNN)


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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

TRENTON, New Jersey (CNN) -- Attorneys for GOP Senate candidate Doug Forrester are to go to federal court Monday to argue that the Voting Rights Act was violated when Democrats were allowed to switch nominees for a U.S. Senate seat after a deadline specified in state law had passed.

A hearing has been set in a suit brought on behalf of two voters -- a U.S. Army doctor and a man living in Paris -- who say they already cast their ballots in the race. They are being represented by Forrester's legal team.

"My whole focus is the sanctity of the ballot," said Dr. Kevin Reilly from Hawaii, who is registered to vote in New Jersey. Reilly would not disclose who he voted for, but said he would have brought the action regardless of which party tried to switch candidates.

While setting a hearing for Monday at 11 a.m. EDT, U.S. District Court Judge Garrett Brown refused to grant the GOP's request for a restraining order to stop the printing of new ballots. A source close to the election told CNN that new ballots reflecting the change in Democrats have already been printed in at least four of the state's 21 counties.

With barely a month to go before the election, a lawyer for county clerks who administer elections said any ballot decision made after next week could jeopardize the November ballot.

Waiting for Supreme Court response

Meanwhile, there was no word Friday on a separate Republican legal salvo, a petition asking the U.S. Supreme Court to overrule the New Jersey Supreme Court, which on Wednesday approved a request by Democrats to remove embattled Sen. Robert Torricelli from the ballot and replace him with former Sen. Frank Lautenberg.

"If you look at the photographs of the people who held their arms around Mr. Torricelli just a week ago, pledging their undying support and affection for him, are the same people who are now trying to do that to Frank Lautenberg. It's just the same crowd, and these people, we believe, are not honoring an election in progress," Forrester told CNN's Inside Politics.

"I feel like inviting Jimmy Carter in to monitor the election in New Jersey."

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 because state legislatures, not courts, have the exclusive power to decide the "time, place and manner" of federal elections under the U.S. Constitution. They also contend 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.

Forrester's petition asks U.S. Supreme Court Justice David Souter , who handles requests for emergency stays from New Jersey, to stay the New Jersey high court's ruling while the full U.S. Supreme Court reviews it.

Filing from Democrats

On Friday, New Jersey's Democratic State Committee filed a response to Forrester's petition to Souter, arguing that because Forrester will remain on the ballot, he cannot show that he would suffer "irreparable injury" if the Democrats were allowed to change candidates.

"[Forrester's] complaint appears to be that he would prefer to compete with the withdrawn candidate -- hence, to compete not at all," the Democrats' brief said.

"This is not the basis for a federal constitutional claim, and it does not establish the prospect of irreparable injury that must be alleged, not to mention established, for a stay from this court to be issued."

Torricelli, whose poll numbers plunged amid an ethics scandal, pulled out of the race Monday, saying he did not want to be responsible for Democrats losing control of the Senate, where they hold power by a single vote.

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