The New Jersey Supreme Court ruled Wednesday that state Democrats could replace Torricelli, who has dropped out of the race because of ethics problems and declining support. State Democrats immediately picked former Sen. Frank Lautenberg, who retired in 2000, to replace Torricelli as their nominee.
But Republican nominee Doug Forrester asked the U.S. Supreme Court to block the state court's ruling until he can file his case before the justices.
Forrester's emergency request was delivered to the high court by Sen. Bill Frist, R-Tenn., one of a group of Republican senators who announced their support of the filing Thursday afternoon.
Frist handed the documents to Supreme Court Clerk William Suter outside the court building.
"It is clear that the New Jersey Supreme Court overstepped their authority," Frist said after getting a receipt for the filing.
Forrester's filing said the state court action violated Article I of the U.S. Constitution, which gives state legislatures the power to set the time, place and manner of elections. The New Jersey Supreme Court brushed aside a state law provision that said ballot changes must occur at least 51 days before an election -- a deadline that has long passed for the November ballot, a little more than a month away.
The filing also contended that the state court ruling violated federal law governing absentee ballots for the military, some of which have already been mailed in New Jersey, and the rights of military personnel who might vote absentee.
"More than 18,000 absentee ballots have already been requested and have been authorized to be mailed," Forrester's lawyers told the U.S. Supreme Court in the request. "Sixteen hundred absentee ballots have been mailed already, and 106 military ballots have been mailed already" back to New Jersey.
The state court action "opens the doors of American elections to considerable mischief," Forrester's filing said. "If such tactics are allowed to stand, voters in every election will face uncertainty, as candidates who appear to be losing drop out of the race on the eve of the election and are replaced by individuals who have not undergone the rigors of the nomination process."
New Jersey voters have already made their choice, the filing said.
"That choice was taken away from them by Sen. Torricelli and the Democratic Party, and the New Jersey Supreme Court has amended the law to endorse their partisan manipulation," Forrester's lawyers argued in his request.
The outcome of the legal dispute has implications far beyond New Jersey. Democrats now control the Senate by one vote, and the loss of even one seat in November would put the Republicans in control.
Torricelli, beleaguered by allegations he took gifts from a campaign contributor and far behind in the polls, withdrew from the race Monday.
Forrester's emergency application to the U.S. Supreme Court goes first to Justice David Souter, who oversees the 3rd U.S. Circuit, which includes New Jersey. Souter could grant or deny the request on his own, or, more likely, refer it to the full court for a vote.
Before the U.S. Supreme Court could block -- or temporarily "stay" -- the state court's ruling, at least five of the nine justices would have to vote in favor.
A conservative 5-4 majority on the U.S. Supreme Court has not been shy about reversing state supreme courts when it comes to elections. The slim majority last did so in December 2000's Bush vs. Gore, when it ended recount efforts in Florida following the presidential election.
In Wednesday's unanimous opinion, the New Jersey Supreme Court ruled that it was "in the public interest and the general intent of the election laws to preserve the two-party system and to submit the electorate a ballot bearing the names of candidates of both major political parties as well as of all other qualifying parties and groups."
The state court said, despite the long-past 51-day cutoff, election statutes should be "liberally construed to allow the greatest scope for public participation in the electoral process, to allow candidates to get on the ballot, to allow parties to put their candidates on the ballot, and most importantly, to allow the voters a choice on Election Day."
The state Democratic Party was ordered to pay the $800,000 needed to reprint the ballots.