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Justices Allow Switch on N.J. Ballot

Politics: Supreme Court won't block Democrat Lautenberg from a run for Senate seat. Lawyer for GOP concedes the legal battle is over.

October 08, 2002|DAVID G. SAVAGE | TIMES STAFF WRITER

WASHINGTON — The Supreme Court refused Monday to block the New Jersey Democrats from switching candidates in a key U.S. Senate race.

The move cleared the way for former Sen. Frank R. Lautenberg to appear on the Nov. 5 ballot, and it increases the odds that the Democrats will retain a narrow majority in the Senate.

In weekend polls, Lautenberg, 78, held a slight lead over the Republican candidate, Douglas R. Forrester, 49.

"Certainly we're disappointed. The litigation is over," said William E. Baroni Jr., one of the GOP lawyers.

Hours after the high court turned away Forrester's appeal, a federal judge in Trenton, N.J., dismissed a GOP lawsuit brought on behalf of two overseas residents of New Jersey who feared their votes would not be counted. The judge said there was ample time to see to it that all the absentee voters had their ballots counted.

The Supreme Court justices gave no hint of whether they saw any merit in the GOP appeal.

They issued a one-line order in Forrester's appeal, saying, "The application for stay presented to Justice Souter and by him referred to the Court is denied."

The court rarely intervenes in pending cases, and it takes five votes to issue a stay order.

However, the parallels to the presidential election dispute between George W. Bush and Al Gore in Florida were apparent--and cited by the GOP lawyers.

They argued that New Jersey's state justices had changed the rules in the midst of the election contest by allowing the Democrats to put Lautenberg's name on the ballot 33 days before the election. Sen. Robert Torricelli, the scandal-plagued incumbent, quit the race a week ago.

New Jersey law describes the procedure for filling a vacancy that occurs 51 days before the election. It does not say what happens if a vacancy occurs later.

In a 7-0 decision, the state justices upheld the switch to Lautenberg in the interest of giving the voters "a full and fair ballot choice."

Despite the similarities, many legal experts predicted the justices would be wary of intervening in another election dispute on behalf of the GOP. After the 5-4 ruling in the Bush vs. Gore case, Justices Sandra Day O'Connor and Anthony M. Kennedy told friends they were surprised by the harsh criticism they received for what was derided as a partisan ruling.

Beyond that, a single Senate race in New Jersey did not have the same national significance as the contest for the presidency.

The hastily drafted GOP legal appeal had an apparent flaw that might have persuaded the court to dismiss it.

The Republican lawyers based their appeal on the Constitution's statement that "the times, places and manner of holding elections for Senators ... shall be prescribed in each state by the legislature thereof." And they argued that the state's court ruling ignored the state law.

However, they failed to make this argument in the New Jersey courts, and the justices almost never take up an appeal unless the lawyers have first made the claim in a lower court.

Until last week, GOP strategists saw New Jersey as their best chance for taking away a Democratic seat in the Senate.

One of the statewide polls made public Monday, by Quinnipiac University in Hamden, Conn., gave Lautenberg a lead of 49% to 45%. However, the respondents--by a 54% to 40% margin--said it was unfair for the Democrats to switch candidates.

"It's up to Forrester to try to tap voter outrage [over the Democrats' switch] if there is any," said Stuart Rothenberg, an independent political analyst. "The numbers tell me there is still a race there."

Rothenberg, who earlier had considered the country leaning toward electing a Republican-led Senate, now says the Democrats could prevail, although the race appears so close across the country that it could swing either way.

Ross K. Baker, a political scientist at Rutgers University in New Jersey, said the GOP's failure in court puts the Democrats "back in the game and then some."

"What the court was saying by not buying the Republican argument was that the letter of the law notwithstanding, there is a higher interest: Giving the voters a choice between two real candidates and not a candidate [who is] a phantom, which is what Torricelli would have been."

*

Times staff writers John J. Goldman in Trenton, N.J., and James Gerstenzang in Washington contributed to this report.

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