High Court Allows N.J. Ballot Change

Frank Lautenberg, Former Senator, New Jersey, NJ, Supreme Courte, Justice, Ballot, Senate
CBS/AP
The Supreme Court refused on Monday to be drawn into New Jersey's Senate dispute, allowing the Democrats to replace their candidate one month before the election.

The Democrats may now go ahead with plans to replace Sen. Robert Torricelli with former Sen. Frank Lautenberg on the Nov. 5 ballot in their effort to retain their one-seat hold on the Senate.

The case resurrected memories of the court's intervention in the Bush-Gore presidential contest. But this time the justices stayed out and let the decision of a Democratic-dominated state Supreme Court stand.

New Jersey Republicans had called the switch a political ploy intended to dump a candidate who seemed sure to lose in favor of a potential winner. They had asked the Supreme Court to stop the Democrats, arguing that the candidate swap came too close to Election Day.

The high court did not explain its reasons for rejecting the GOP appeal.

CBSNews.com Legal Analyst Andrew Cohen says the Republicans were trying to convince the court that the New Jersey case was "Florida Recount Part II and should be decided similarly."

Cohen says it's unclear if the justices stayed away from the New Jersey dispute "because of the bad aftertaste from the Florida recount fight, but the fact that the Court didn't want to touch the case means the Democrats, at least, were able to distinguish the circumstances of the New Jersey dispute from those that occurred during the last presidential election."

What's next? Cohen says, "Whatever legal options are left are so remote and would take so much time to evolve that they are, or ought to be, political non-starters."

After all, says Cohen, if Al Gore couldn't for political reasons continue his legal fight after the Supreme Court issued its Florida Recount ruling on December 12, 2000, why would anyone think the Republicans could continue to fight this fight now with a straight political face?

About the only real legal choice here for the Republicans is to wait and see how the election plays out and then perhaps explore the option of mounting a post-election challenged based, perhaps, on ballot confusion or the way the old and new ballots were handled overseas and by the military, says Cohen.

Meanwhile, Republicans were asking the FEC to stop Democrats from using Torricelli's $6.1 million war chest to fund Lautenberg's campaign. Torricelli is not too keen to see that money used to help his old nemesis, but sources tell CBS News that he may give a chunk of that money to the Democratic Senate Campaign committee.

Word from the high court came on the first day of the new Supreme Court term, and a week after Torricelli bowed out of his re-election race.

Torricelli said he would step aside after polls showed him losing ground to Republican challenger Douglas Forrester who had made Torricelli's ethics problems the focus of his campaign.

"Game on," Forrester campaign manager Bill Pascoe said after the Supreme Court announcement. "Now we've got the legalities out of the way. That means we've got a race on our hands."

Polls released over the weekend showed Lautenberg with a slight lead, 49-45 and 46-40 with a margin of error of plus or minus 4 percentage points.

After the Democrats chose Lautenberg as a replacement, the Republicans went to court.

New Jersey's highest court unanimously approved the candidate switch, a decision that Forrester's lawyers had said "opens the doors of American elections to considerable mischief."

The Republicans appealed to the high court last Thursday, arguing that the candidate swap was both illegal and unconstitutional. State law prevents such an 11th hour switch, and it could strip voting rights from absentee and overseas voters, the GOP argued.

About 1,700 absentee and overseas military ballots have already been mailed with Torricelli's name on them.

If the state ruling stood, "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," Republicans argued to the justices in a court filing last Thursday.

There was plenty of time to reprint ballots, Democrats assured the Supreme Court in paperwork filed Friday.

"It may be that Forrester believes he will be politically hurt by the New Jersey Supreme Court's judgment and is simply unwilling to say so," Democrats wrote.

As in the 2000 election fight, Republicans contested a ruling from a majority-Democrat state court.

The Supreme Court surprised both sides by jumping into the fight two years ago, ending ballot recounts in Florida by a bitter 5-4 vote. Democrat Al Gore had sought the recounts in hopes of erasing George W. Bush's tiny lead.