Dems to court on NJ: No harm, no foul

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent  |  Oct. 4, 2002 at 12:19 PM
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WASHINGTON, Oct. 4 (UPI) -- New Jersey Democrats asked the Supreme Court of the United States Friday not to intervene in that state's ballot dispute, saying a Republican challenger had no right to ask the high court for help.

The Republican challenger, Douglas Forrester, filed an emergency application with the U.S. Supreme Court Thursday, asking the justices to block the substitution of Democratic Sen. Robert Torricelli on that state's ballot.

The outcome of the dispute goes far beyond New Jersey. Democrats control the U.S. Senate by the barest of margins and the loss of even one seat in November would give the Republicans control.

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.

Forrester then asked the U.S. Supreme Court to block the state court's ruling until he can file his case before the justices.

But in their own response to Forrester's filing Friday, Democrats said the GOP nominee had no "standing" to enter the case since the case before the New Jersey Supreme Court involved Democrats on one side and state officials on the other.

Forrester was not officially part of the case and could not show that he is being harmed by it, the Democrats argued.

Forrester "does not simply fail to prove that he will be irreparably harmed," the Democratic response said. "He fails even to allege it. ... Indeed, Forrester fails to allege irreparable injury to any potential petitioner in this case. For that reason alone, the stay application should be denied."

The ruling by the New Jersey Supreme Court does not even involve a federal question that needs reviewing by the U.S. Supreme Court, the Democrats said.

Thursday, 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.

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."

Torricelli, unable to shake 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.

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