N.J. Senate Fight Heads To Court

Will 78-year-old former U.S. Senator Frank Lautenberg's name appear on New Jersey ballots next month as he tries to retain a pivotal U.S. Senate seat for Democrats as a last-minute substitute?

He's already said he's willing to take the spot on the ballot vacated earlier this week by Sen. Robert Torricelli after a series of scandals.

The question is whether the state Supreme Court will grant him permission. Republicans are arguing against the move, saying the change comes after the filing deadline. Democrats counter that the voters' right to a choice supercedes such technical election guidelines.

Leaving Torricelli's name on the Nov. 5 ballot would only confuse voters, said Angelo J. Genova, a lawyer for state Democrats.

"I think he has withdrawn," Genova told the court Wednesday. "He's not a candidate for public office."

Genova said the intent of the 51-day rule is meant solely to ensure there is enough time to prepare ballots. Only about 1,600 ballots have been mailed, and there's enough time to make new ones, Genova said.

But Peter Sheridan, attorney for Republican candidate Douglas Forrester, said: "I believe the statute should be enforced as it presently reads. We don't believe there are any extraordinary circumstances."

State Attorney General David Samson told the justices — four Democrats, two Republicans and one independent — that replacing Torricelli on the ballot would be inconvenient and costly but "administratively feasible."

John Carbone, an attorney representing the state's 21 county clerks, said any change would cost hundreds of thousands of dollars.

"If we go beyond Wednesday of next week, Tuesday of next week, it's not going to be doable no matter how deep the pockets," Carbone said.

Two third-party candidates also argued against allowing a replacement.

After hearing arguments for about 2½ hours, the justices adjourned without indication when they would rule.

The Democrats hold a one-vote majority in the U.S. Senate, and recent polls showed Torricelli's Republican challenger, Douglas Forrester, leading and gaining ground.

What makes this so important on a national level is that the party that has the majority sets the agenda in the House and Senate, and chairs the committees where legislation is crafted, points out CBS News Chief Washington Correspondent Bob Schieffer.

Many Senate races are considered toss-ups just five weeks before the election, which makes what happens with Torricelli's seat in New Jersey very important.

"I believe the courts will say that this is a circumstance that allows voters in New Jersey, who had no say over any of this, to have a free fair election," said Sen. Patty Murray, D-Wash., chair of the Democratic Senatorial Campaign Committee.

Her Republican counterpart disagrees.

"The New Jersey Law is crystal clear. The Democrats are trying to rewrite the ballot because they know they're losing and that's wrong and against the law," said Sen. Bill Frist, R-Tenn., chairman of the National Republican Senatorial Committee.

Under New Jersey law, a party can replace a statewide nominee on the ballot if the person drops out at least 51 days before the election. Torricelli missed the deadline by 15 days, setting the stage for a court fight five weeks before Election Day.

"This is one for the books," said Larry Sabato, a political scientist at the University of Virginia. "It will long be remembered."

CBSNews.com Legal Analyst Andrew Cohen believes it comes down to a choice for New Jersey judges between the letter of the law and the spirit of the law. Clearly there is enough time left as a practical matter to take Torricelli's name off the ballot and replace it, but the law is pretty clear that there is a cutoff date and that it already has passed.

If New Jersey's judges interpret the law literally and narrowly the Republicans ought to win. But if those judges interpret the language of the election law in a broader context — looking, for example, at the practical ability to take Torricelli's name off and put on another name — the Democrats have a decent chance of prevailing.

Even if the Democrats lose this fight they still will have a few cards up their sleeves and one of those cards would be to have Torricelli resign his seat in the Senate, have the Democratic governor appoint a successor and then have the successor run in the November election. That scenario, too, is a part of New Jersey's election laws.

Lautenberg, who retired two years ago, said he was ready to run.

"None of the enthusiasm has died," Lautenberg said. "I will fight just as hard. I am just as energized."

"When it comes to Mr. Lautenberg, the voters are going to say, 'Been there, done that,'" said Bill Pascoe, Forrester's campaign manager. "It's time for new leadership."