Torricelli Fight Headed To Court

The New Jersey Supreme Court decided Tuesday to hear arguments over whether Democrats can replace Sen. Robert Torricelli on the November ballot, a day after the senator dropped out of the race.

The court issued an order saying it would hear the case directly instead of waiting for a lower court to act. As a result, a hearing set for Tuesday afternoon in Middlesex County Superior Court was canceled.

The Supreme Court scheduled a hearing for 10 a.m. Wednesday.

Torricelli's abrupt end to his scandal-tainted re-election campaign forced Democrats to scramble for a candidate. Democratic officials said Monday they would announce a new candidate within 48 hours, but they may need court approval to get the candidate on the ballot.

Party officials were considering a list that included former Sens. Frank Lautenberg and Bill Bradley and current House members Frank Pallone and Rob Andrews, according to sources in Washington and New Jersey.

Pallone said Tuesday that he would consider replacing Torricelli, but said he had not been asked. Lautenberg said he would "seriously consider serving again if asked."

An associate said it was unlikely Bradley would accept.

When asked if he would recommend any candidate, Torricelli said Joseph Roberts, majority leader in the state Assembly, and Pallone and Andrews would be competitive.

Another rumored replacement possibility, Rep. Bob Menendez, said Tuesday that he was not interested, CBS News Correspondent Bob Fuss reports.

Republicans are fighting Democratic attempts to put a new name on the ballot, saying they shouldn't be able to change candidates this close to the election.

"(Torricelli) had enough time to drop out. We don't want the political process to be manipulated so badly just because they're behind in the polls," Republican nominee Douglas Forrester said Tuesday during a television interview.

Under New Jersey law, a political party can replace a statewide nominee on the ballot if the person drops out at least 51 days before the election. But only 35 days remain as of Tuesday, meaning Democrats have to go to court to get a new candidate approved.

Democrats argue that they should not be bound by the deadline. County clerks have "ample opportunity" to replace Torricelli's name, and if his name is not withdrawn, voters will be confused, they contend.

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 the senator 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.

The Democrats' chances of holding onto their majority in the U.S. Senate took a hit Monday when Torricelli said he was ending his re-election bid after a bruising year marked by ethics questions and a rebuke from his Senate colleagues.

Both Torricelli and his party had come to the conclusion that he simply couldn't win after a weekend poll showed him lagging 13 points behind Forrester after leading comfortably earlier in the year.

"I will not be responsible for the loss of the Democratic majority in the United States Senate. I will not let it happen. There is just too much at stake," said a tearful Torricelli at a news conference Monday in Trenton.

He called the decision to withdraw from the election "the most painful thing I have done in my entire life."

Torricelli, 51, was admonished over the summer by the Senate Ethics Committee, which investigated allegations that he had accepted gifts from David Chang, a businessman that the lawmaker aided. He took a fresh hit last week with the release of a prosecutor's memo saying Chang had made credible accusations of wrongdoing against him.

Torricelli was elected to his seat in 1996, and quickly made clear his leadership ambitions. He helped raise more than $100 million for the Democratic Senatorial Campaign Committee as its chairman in the last election cycle.

That was before Chang's allegations of illegal gift-giving began to take a toll.

Seven people pleaded guilty to making illegal donations to Torricelli's campaign in 1996. Chang told investigators he gave the senator Italian suits and a $8,100 Rolex watch, among other gifts, in return for Torricelli's intervention in business deals in North and South Korea.

Torricelli has denied any illegality or violations of Senate rules.

The government investigated the allegations against the senator, but brought no charges. But the ethics committee issued its admonishment, and Torricelli's poll numbers began dropping rapidly.

"Don't feel badly for me," Torricelli said at the news conference. "I've changed people's lives. I'm proud of every day of it, and I wouldn't change a bit of it."

CBSNews.com Legal Analyst Andrew Cohen says the NJ case is similar to the election 2000 mess. And he offers a new scenario that might still allow a new democratic candidate to go on the ballot.

One of the many striking things you notice when you read these court papers is how similar the arguments are to the ones made nearly two years ago during the Florida recount fiasco, writes Cohen. And how each side in THIS fight was on the SAME side then. The Republicans now -- and then -- argue in favor of a strict, narrow construction of New Jersey's voting laws; the Democrats now -- and then -- argue in favor of a broader, contextual approach.

The Democrats are offering the New Jersey court plenty of other upcoming deadlines to focus upon aside from the 51-day one the party already has missed. The gist of THEIR argument is that the deadline is a technicality that even the county clerks haven't paid much attention to. The Republican lawyers claim that the deadline is black-letter law designed to prevent precisely this sort of chaos close to an election.

The Republicans keep hammering home the notion that the 51-day deadline the Democrats have just missed would be meaningless if it could be ignored in this fashion. And the Democrats want the Court focused upon the notion that, as a practical matter, the election process in New Jersey hasn't gone forward so far that it would bullocks up the works to switch candidates.

I think it's likely that there will be an appeal of whatever the New Jersey Supreme Court rules, particularly if the Republicans lose at this level. And the next appeal likely would be to the U.S. Supreme Court, which hasn't exactly shied away from these sorts of state disputes in the past.

The Republicans should win this battle; the letter of the law is on their side. But they still might not win the war. Senator Torricelli could resign his seat within 30 days of the election -- that means sometime next week -- and that would allow the Democratic governor to appoint a successor and then suspend the election for a year, Cohen conludes.