Democrats To Court: Stay Out Of Jersey

Democratic lawyers told the Supreme Court Friday that Republicans are trying to dictate voters' choices in a New Jersey Senate race.

The Democrats urged the court to stay out of a fight over a last-minute candidate switch, prompted by Sen. Robert Torricelli's abrupt cancellation of his re-election bid early this week.

"All voters will be given a ballot and an opportunity to cast that ballot, without any possibility of disenfranchisement or dilution," the Democrats said in a court filing.

Republicans had asked the justices on Thursday to intervene in a case recalling the court's role in the Bush v. Gore dispute that settled the 2000 presidential election. The GOP argues it is too close to Election Day to substitute Former Sen. Frank Lautenberg for Torricelli and that the Democrats should not be allowed to dump a candidate just because he's trailing. Torricelli's ethics problems had become the focus of the race after he was admonished by the Senate.

GOP lawyers, representing candidate Douglas Forrester, told the court that "political parties will be encouraged to withdraw losing candidates on the eve of election, replacing them with candidates who have not gone through the rigors of the nomination process in hopes of snatching victory from the jaws of defeat."

Democrats countered that Forrester's "complaint appears to be that he would prefer to compete with the withdrawn candidate - hence, to compete not at all."

"Every (voter) remains able to vote for him regardless of who else is on the ballot," the Democrats argued.

The justices could block the lower court ruling and agree to hear the Republicans' broader constitutional complaints — or stay out of the fight. There was no timeframe for their decision. Republicans could file more paperwork to respond to the Democrats.

New Jersey law bars replacement of candidates less than 48 days before an election, the GOP said, and the state court ruling would switch the candidates 33 days before Election Day.

Democrats control the Senate by one seat, so the New Jersey race could be key in next month's elections.

What will happen? It's too close to call, says CBSNews.com Legal Analyst Andrew Cohen.

On the theory that if it works once it ought to work twice, the Republican brief asks the Supreme Court to evaluate the New Jersey court ruling the same way the high court evaluated the Florida court ruling in the election 2000 fiasco. The GOP figures that the closer it can tie this case into that case the better its chance of success will be.

The Republicans are, literally, making a federal case out of this, figuring that it increases their chances — not just of having the Court accept the case for resolution, but of resolving the dispute in favor of the GOP. And the main argument is that the New Jersey Supreme Court violated the U.S. constitution Wednesday when it interpreted the state's election laws.

This is a razor close case and almost impossible to predict. If the Court agrees with the Republicans that as a legal matter this dispute is like the Bush vs. Gore dispute, than I think the justices will again side with the GOP.

If the Court agrees with the Democrats that a pre-election ballot change is factually different from a post-election challenge for the purposes of constitutional analysis than the Democrats ought to win, says Cohen.

Torricelli said Monday that he would drop out of the campaign against Forrester out of concern that a New Jersey loss could cost his party the Senate. Democrats chose as his replacement the 78-year-old Lautenberg, who retired from the Senate in 2001 after three terms.

Forrester was a virtual unknown before his nomination, but made rapid gains as voters soured on Torricelli. Torricelli was admonished by the Senate this summer after an ethics investigation.

The high court heard two election-related cases after the too-close-to-call voting in 2000. The Bush v. Gore ruling ended ballot recounts in Florida sought by Democrat Al Gore and effectively called the election for George W. Bush.

Richard Hasen, an election law professor at Loyola Law School in Los Angeles, said the court has far less reason to get involved this time around, and justices may be gun-shy.

"It may well end with a fizzle instead of a bang like last time," said Hasen, who consulted with the Gore campaign in 2000.

Thursday's Supreme Court filing calls the state court ruling unconstitutional and asks the court to place it on hold.

Republicans argued the lower court violates the Constitution's requirement that state legislatures set the "times, places and manner" of congressional elections. In this case, the New Jersey court usurped that power, the GOP contended.

Republicans also contended the state court decision could improperly strip voting rights from New Jersey residents overseas, such as those serving abroad in the military. About 1,700 absentee and military ballots have already been mailed with Torricelli's name on them.

The state GOP has also said it plans to pursue the overseas ballot issue in a separate case in federal court.