In an election crucial to Democratic Party hopes of retaining control of the U.S. Senate, the New Jersey Supreme Court ruled Wednesday that Sen. Robert Torricelli can be replaced with a new candidate on the November ballot.
Torricelli set off a scramble Monday when he withdrew from the Senate race because of sagging poll numbers and political scandal. After consultations, former Sen. Frank R. Lautenberg agreed to become the party's candidate.
"It is in the public interest and the general intent of the election laws to preserve the two-party system and to submit to the electorate a ballot bearing the names of candidates of both major political parties as well as of all other qualifying parties," all seven justices of the court decided.
The state's deadline for changing a party nominee is 51 days before an election. There are 33 days before the Nov. 5 vote.
But in its seven-page order, the court said state election statutes should be "liberally construed to allow the greatest scope for participation in the electoral process to allow candidates to get on the ballot and, most importantly, to allow the voters a choice on election day."
Lawyers for the Republican Senate candidate in New Jersey, Doug Forrester, said they planned to file a motion today in U.S. District Court in Trenton opposing the decision. They also said they would petition U.S. Atty. Gen. John Ashcroft to order that all absentee ballots, which already have been printed with Torricelli's name, be mailed immediately.
Forrester's legal team had pledged that, if necessary, it would seek to take the case to the U.S. Supreme Court, and election law experts said the judges' decision Wednesday could pave the way for such an appeal.
The New Jersey battle is vital to both parties. The Democrats have a one-seat advantage in the closely divided Senate.
During Wednesday's arguments before the New Jersey high court, a Democratic Party lawyer said that unless Torricelli's name is replaced on the ballot, voters will be disenfranchised by taking part in a "neutered" election.
"This is not about candidates. This is about voters and their ability to participate in a contested election," Angelo J. Genova argued at the expedited hearing.
Lawyers for Forrester cautioned the court that it would be treading on a "very slippery slope" if it allowed Lautenberg on the ballot and that the election law should be strictly enforced.
State Atty. Gen. David Samson told the justices that he thought the court could "craft a remedy that allows a substitution."
"It may be costly and inconvenient, " he said, "but I think it is feasible."
John M. Carbone, who represented the 21 county clerks in New Jersey who have a central role in elections, cautioned that the process of changing the ballots would require at least $729,000 and that if the court didn't decide by Wednesday, "it's not going to be doable no matter how deep the pockets."
"I would like to see a decision by the end of the day," he said, provoking laughter in the packed courtroom.
The justices took Carbone seriously. They ordered the Democratic Party in New Jersey to pay for the ballot change, estimated at $800,000, and also required an explanatory letter to be sent to 1,600 absentee voters who already had been sent ballots naming Torricelli as the Democratic candidate.
Legal scholars said the GOP's decision to go to a federal judge amounts to a new lawsuit, rather an appeal of Wednesday's ruling.
"If I were them, I would do both. Send their lawyers into federal court and ready [an appeal] to the Supreme Court," Stanford Law professor Pamela Karlan said.
She said there's a legitimate case to be made to the Supreme Court. "They can make straightforward due process argument, that it is unfair to change the rules in the middle of the game," she said.
This was precisely the argument GOP lawyers made two years ago on behalf of then-presidential candidate George W. Bush in the Florida case. On a 5-4 vote, the Supreme Court reversed Florida's highest court and halted a statewide manual ballot recount.
"This would be a similar argument, and they could point to Bush vs. Gore as a precedent," said Richard L. Hasen, an election law expert at the Loyola Law School in Los Angeles.
Although New Jersey law says that the parties can change their nominee 51 days before the election, it does not specify what happens if the candidate quits closer to the balloting, as Torricelli did.
"They can argue that the Legislature has made this determination and that this [decision] is making new law," Hasen said.
But Karlan and Hasen thought that the Supreme Court would be wary of intervening this time.
"Do they really want to decide who controls the Senate as well as who is president?" Karlan asked. "There is a limit on how many times they want to intervene to help the Republicans. This would look blatant because a ruling [in the Republicans' favor] would guarantee a win for the Republicans."
By the tone of the questions the justices asked during the oral argument, it was clear that they were leaning toward letting Lautenberg on the ballot.
At the same time, they expressed concern about future candidates quitting races because they plummet in the polls.
"These are difficult choices," Associate Justice Peter G. Verniero said at one point. "There is no easy answer to this. Isn't the most sensible relief to provide a fund, monitor this and allow ... a fair and full election?"
Times staff writer David G. Savage in Washington contributed to this report.