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N.J. Election Dispute Goes to High Court

Politics: The GOP seeks reversal of an 'unfair' ruling that allowed Democrats to make a preelection switch of Senate candidates.

October 04, 2002|DAVID G. SAVAGE | TIMES STAFF WRITER

WASHINGTON — Two years after the Supreme Court sided with the GOP in the disputed presidential race, the justices now must decide whether to intervene on behalf of New Jersey Republicans in a race that could decide which political party controls the Senate.

Lawyers for GOP Senate candidate Doug Forrester urged the high court Thursday to reverse a ruling of the state's judges and to block New Jersey Democrats from switching Senate candidates just a month before the election.

It is "fundamentally unfair," they said, to allow the "party bosses" to bring in a fresh candidate to replace a sure loser. They also accused New Jersey's highest court of "amending the law to endorse their partisan manipulation."

On Monday, Sen. Robert Torricelli (D-N.J.), tainted by scandal and sinking in the polls, announced that he was dropping his reelection bid. A day later, New Jersey's Democratic leaders chose former Sen. Frank R. Lautenberg to run in his place. The New Jersey race is one of several critical in the parties' battle for control of the Senate, where the Democrats have a one-seat advantage.

On Wednesday, the New Jersey Supreme Court ordered that Lautenberg's name replace Torricelli's on the state ballot, although the Democrats were ordered to pay $800,000 to cover the cost.

New Jersey election law describes the procedures for replacing a candidate "in the event of a vacancy ... which shall occur not later than the 51st day before the general election."

The Democrats switched candidates 33 days before the election, but the state judges upheld the move because it would give the voters "a full and fair ballot choice." In a brief opinion, the judges explained that the 51-day rule was intended to further "the orderly administration of an election," and that an orderly election can be held even with the late switch on the Democratic side.

The New Jersey high court is known as a rather liberal court, even though six of its seven justices were named by then-Gov. Christie Whitman, a Republican.

In their appeal Thursday, the GOP lawyers said the state court decision "threatens to change the face of American politics.... Prompt action from this court is required to prevent growing public cynicism regarding even-handed application of election law rules."

And lest the justices have forgotten, Thursday's appeal recalls that the high court intervened "in very similar cases arising out of election disputes in Florida."

The Supreme Court had no response to the emergency appeal filed at midday Thursday. If the justices see merit in the claim, they are likely to ask for a quick response from the Democratic side. It was unclear when the justices might act. It takes a vote of five justices--a majority--to block a lower court's order.

In December 2000, the Supreme Court surprised many legal experts by intervening twice in the Florida recount in the presidential election.

In one unanimous decision, the justices faulted the Florida Supreme Court for having extended the deadline for counties to submit their votes.

And in a subsequent ruling in Bush vs. Gore, the justices, on a 5-4 vote, stopped a statewide hand recount of punch-card ballots on the grounds that it could be unfair to then-Texas Gov. George W. Bush.

The New Jersey dispute has several parallels to the Florida litigation. In both, the Republicans argued that the Democrats were seeking to change the rules in the midst of an election battle.

"What the Democrats have done is clearly illegal. They are attempting to steal an election they could not win," said Sen. Bill Frist (R-Tenn.), who heads the Republican Senatorial Campaign Committee.

They also argued that the state Legislature sets the rules, not the state courts. They point to the clause in the U.S. Constitution that says "the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof."

Just as in Bush vs. Gore, the court is "confronted with the situation of a state Supreme Court rewriting an express statutory scheme," the Republicans said Thursday.

However, the New Jersey case--also like the Florida disputes--puts the Republicans in the somewhat awkward position of urging federal judges to second-guess a state court's interpretation of state law.

In the past, conservatives have faulted federal judges for intervening in state affairs.

Separately, the Republicans are urging Atty. Gen. John Ashcroft to enter the case on their side. They say the last-minute switch by the Democrats violates the federal law that regulates absentee ballots for overseas citizens and military personnel, and that Ashcroft should intervene to defend the law.

Justice Department officials had no comment on the request.

Legal experts said Thursday that they were wary of predicting what the Supreme Court might do.

"There's a pretty strong argument to say the New Jersey Supreme Court made up this rule, and that Bush vs. Gore says you can't do that," said UCLA law professor Eugene Volokh. "I would be surprised if they took it, but I was surprised by Bush vs. Gore."

"If it was five years ago and you asked me about the Republican position, I would say it's frivolous," said Georgetown University law professor Mark Tushnet. State courts routinely interpret state law, he said. "But after Bush vs. Gore, who knows?"

Two years ago, the New Jersey judges and the Supreme Court clashed over a gay-rights case.

The state's judges, citing a New Jersey anti-discrimination law, said the Boy Scouts violated the law by dismissing James Dale, a well-regarded scoutmaster who acknowledged he is gay.

The Supreme Court reversed that decision on a 5-4 vote and said the Scouts have a constitutional right to exclude gays.

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