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GOP takes N.J. ballot issue to Supreme Court

Fighting for control of the U.S. Senate

The New Jersey Supreme Court ruled Wednesday that Lautenberg could replace Torricelli, who has withdrawn from the Senate race.

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TRENTON, New Jersey (CNN) -- Republican Senate candidate Doug Forrester filed a petition Thursday with the U.S. Supreme Court challenging a state supreme court decision to allow former Sen. Frank Lautenberg to replace Sen. Robert Torricelli on the New Jersey ballot.

The dispute has drawn national attention because the New Jersey race is one of several close races that could determine who will be in charge of the Senate.

Tennessee Republican Sen. Bill Frist -- who delivered the challenge to the Supreme Court on behalf of Forrester and the New Jersey Republican Party -- charged that "what the Democrats have done is clearly illegal." He said New Jersey Democrats intend to "steal an election they could not otherwise win."

VIDEO Former Sen. Frank Lautenberg was named to replace scandal-tainted incumbent Robert Torricelli as candidate for New Jersey's U.S. Senate seat. CNN's Deborah Feyerick reports (October 2) PLAY VIDEO Sen. Robert Torricelli, D-New Jersey, announced Monday he was dropping his bid for re-election (September 30) PLAY VIDEO RELATED Part 3 of a five-part miderm elections preview: Fight for control of the Senate  Special election report  Read the legal documents:  • Order Certifying Case  • Order to Show Cause  (FindLaw documents; PDF format)

He said the petition asks for a hearing before the full U.S. Supreme Court and a stay of the New Jersey supreme court's order.

In addition, the Forrester campaign fired off a letter to Attorney General John Ashcroft asking him to use his authority under the Voting Rights Act to order the immediate mailing of absentee ballots. That letter was signed six Republican members of Congress.

Those absentee ballots would have Torricelli's name on them.

The Forrester campaign said it would also ask a federal district judge to order the mailing of the absentee ballots.

The New Jersey Supreme Court ruled Wednesday that Lautenberg could replace Torricelli, who has withdrawn from the race. The court ordered attorneys from both sides to meet with a judge to discuss reprinting the ballots.

GOP: Too late to change

Republicans argued that under state law, the name of a replacement candidates must be filed with election officials at least 48 days before the vote. Though Wednesday was the 34th day before the election, New Jersey's high court ruled a unanimously that election statutes should be "liberally construed" to provide "a full and fair ballot choice for the voters of New Jersey."

Forrester's attorney, Bill Baroni, said the Supreme Court appeal would be based on Article 1, Section 4 of the U.S. Constitution, which gives state legislatures the power to decide the "time, place and manner" of elections for federal offices.

"State law, as passed by our state legislature, says 51 days before an election, a candidate for federal office -- a candidate for any office -- can leave the ballot. After 51 days, you can't leave the ballot. Now, the state Supreme Court has overridden the state legislature," Baroni said. "It's not up to the state Supreme Court to overrule the legislature. That's cut and dried."

If Republicans prevail at the U.S. Supreme Court, Torricelli would appear on the ballot in November, rather than Lautenberg. Baroni said the appeal would cite the 2000 case of Bush vs. Gore, in which the high court overruled a decision by the Florida Supreme Court for a statewide recount of ballots.

Forester argued to Ashcroft that the failure to send out the absentee ballots immediately disenfranchises thousands of people in the military.

The New Jersey Supreme Court ordered elections officials to give precedence to mailing military and overseas ballots.

Torricelli -- trailing Forrester badly amid an ethics scandal that led to an admonishment by the Senate Ethics Committee -- dropped his re-election bid Monday, saying he did not want to be responsible for the Democrats losing control of the Senate.

Normally a Democratic stronghold, New Jersey hasn't elected a GOP senator in 30 years. But Forrester was poised to win against the unpopular incumbent.

Democrats now control the Senate by a single vote, and retaining the New Jersey seat is considered key to keeping power.

Lautenberg, 78, who retired from the Senate just two years ago, was selected by Democratic Gov. Jim McGreevey to replace Torricelli after three other potential candidates, including popular former Sen. Bill Bradley, opted not to enter the race.

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