The Supreme Court refused to get involved in the high-stakes political battle over the New Jersey Senate campaign Monday, clearing the way for Democrats to replace Sen. Robert Torricelli, who was tainted by an ethics scandal, with well-known former Sen. Frank Lautenberg.
Returning from its three-month summer recess, the court announced without comment that it would not take up the New Jersey case brought by Republicans, who argued that state law prohibited switching candidates so late in the campaign. The ruling lets stand a unanimous decision of the New Jersey Supreme Court allowing the switch.
This completes a striking maneuver by Democrats in a campaign crucial to control of the Senate. Two weeks ago, Torricelli’s poll numbers were plummeting after he had been chastised by the Senate Ethics Committee. After the switch of nominees, Lautenberg holds a slight lead over Republican Douglas Forrester.
Monday’s action means that switch will stand.
“The litigation is over,” said Bill Baroni, a lawyer for Forrester. “Let the campaign begin.”
New Jersey Democrats savored the victory and appealed for the rocky campaign to resume in earnest.
“It’s time for the lawyers to take their litigation bags and go home,” said Angelo Genova, counsel of the New Jersey Democratic Party. “The litigation and shenanigans in the courtroom should stop. The people of this state deserve a free and fair race.”
The Supreme Court’s hands-off approach markedly contrasted with its intervention in the 2000 presidential race, when the court halted a recount in Florida that had been demanded by Democratic nominee Al Gore. The decision in that case sealed George Bush’s victory, and many Democrats remain outraged at what they term a politically motivated ruling.
Although the court was silent Monday about its reasons for not hearing the New Jersey case, legal observers speculated that the justices were reluctant to jump back into treacherous political waters. Also, while the court may have seen its intervention as necessary to avoid a constitutional crisis in the presidential election, the stakes in a Senate race are considerably lower.
“The reason the Supreme Court didn’t take this case, No. 1, the most obvious, is that it didn’t deal with a presidential election,” said election lawyer Kenneth Gross. “Bush v. Gore is aberrational and is not typically a case they would take, since these issues of state law should be adjudicated in the state courts.”
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Republicans had argued in emergency court papers filed last week that New Jersey law prohibited the Democrats from replacing Torricelli with another candidate. Torricelli’s withdrawal from the race on Sept. 30, they said, was too close to the election for him to be replaced on the ballot under state law, which imposes a 51-day deadline for declaring substitution of candidates.
Torricelli announced his withdrawal 36 days before the election.
The New Jersey Supreme Court rejected those arguments, holding that Lautenberg could take Torricelli’s place on the ballot because state law should be read to give voters a “full and fair ballot choice.” Because Torricelli was withdrawing, leaving Lautenberg off the ballot would essentially have given voters only one candidate to vote for.
In asking the Supreme Court to review the case, the Republicans drew heavily on the court’s 2000 decision in Bush vs. Gore.
Republican argument
They argued that the New Jersey Supreme Court–much like the Florida Supreme Court in Bush vs. Gore–had run afoul of the Constitution when it allowed the ballot substitution. The Constitution gives state legislatures, not state courts, the power to set election procedures, they argued, and the New Jersey court essentially changed state law by fiat.
Democrats responded that Bush vs. Gore was “limited to its extraordinary facts” and that the two cases were not comparable. The New Jersey Supreme Court, the Democrats added, was simply interpreting state election law, as state courts around the country often are called upon to do.
A companion lawsuit, brought by the GOP in federal court in New Jersey’s capital, Trenton, also came to an end Monday, as a federal judge dismissed the case in light of the Supreme Court’s decision.
That suit had been filed as a second prong of attack. It was brought on behalf of two New Jersey voters, one in the military and one a civilian, who had mailed in their ballots and now feared their votes could go uncounted.
But after hearing arguments from lawyers in the morning, Judge Garrett Brown returned to the courtroom with the news of the Supreme Court ruling. Brown concluded that the second case had no grounds to continue because the two voters in question will be permitted to recast their ballots.
Senate veteran
Lautenberg, 78, is an 18-year veteran of the Senate who enjoys widespread name recognition. He retired in 2000.
Forrester, 49, is running in his first statewide election and was virtually unknown before last week’s publicity. Both men are multimillionaires.
Republicans had predicted that if the courts allowed the Democrats to switch their nominees, it could prompt a wave of late withdrawals by slumping candidates.
But Genova, the Democrats’ lawyer, said, “I think this case was always going to be decided on the basis of specific circumstances. . . . I’m not as concerned about the Armageddon predicted by the Republicans.”
The GOP has one final legal action under way. The National Republican Senatorial Committee said it plans to ask the Federal Election Commission to bar Torricelli from giving his campaign money to the Democratic Party or to Lautenberg, who has had to mount a campaign virtually from scratch.
Court’s other cases
The New Jersey case was not the Supreme Court’s only order of business Monday, the first day of its new term. But as in the Torricelli case, the court made news for what it did not do, turning down appeals in about 2,000 cases, including those by such high-profile petitioners as Oklahoma City bombing conspirator Terry Nichols and assisted-suicide advocate Dr. Jack Kevorkian.
Kevorkian lost his bid to set aside his second-degree murder conviction for assisting in the death of a man suffering from Lou Gehrig’s disease. He was sentenced to 10 to 25 years in prison but argued his prosecution was unconstitutional.
The court also refused to take up a plea by Richard Jewell, who was seeking to hold liable a newspaper that identified him as a suspect in the 1996 Atlanta Olympic Park bombing.
Chief Justice William Rehnquist caused a brief stir among the press corps and court personnel when he said from the bench that the “court today notes the retirement of chief justice,” before correcting himself and continuing “chief deputy clerk Frank Lorson.”
The court that returned to the bench Monday has been intact since 1994, the longest period of any court since the early 1800s. Observers for several sessions have been predicting a retirement and have paid close attention to Rehnquist, but the justices have stayed firmly in place.