NEW YORK – With only 34 days left until Election Day, Democrats may have an uphill battle in the courts in their fight to replace Sen. Robert Torricelli’s name on the November ballot.
The New Jersey Supreme Court in Trenton, N.J., heard arguments on Wednesday on whether the Democrats can put a new candidate on the ballot to replace Torricelli, who withdrew from the race Monday. Upon Democrats’ request, the court said it would hear the case directly instead of waiting for a lower court to act. The Middlesex County Superior Court canceled its Tuesday hearing in deference to the higher court's decision.
Democrats are scrambling to try to bend state law to replace Torricelli's name with another candidate, whom Democrats hope will win the November election that Torricelli looked set to lose. Democrats maintain a one-seat majority in the Senate and the loss of Torricelli's seat could shift back power to a Republican majority.
State law says that if a U.S. Senate candidate drops out at least 51 days before the general election, the state committee of his party has three days to name a replacement.
The GOP has vowed to fight "vigorously" any move for a replacement candidate on the grounds that the deadline for a candidate to drop out of the race came and went Sept. 15.
Democrats have chosen former Sen. Frank Lautenberg to replace Torricelli if permitted. They argue that if voters aren't given a choice of candidates, they are being denied their democratic right to a free and fair election.
A Democratic majority leads the state Supreme Court but the legal fight may be decided based on more than just political affiliation.
"I doubt the makeup of the court is going to affect it that much," said Frank Askin, a law professor at Rutgers University in New Jersey. "I think the court, whatever it decides, will be unanimous. They won’t vote on it on a split vote."
The current makeup of the court is divided into two Republicans, Deborah Poritz and Peter Verniero; four Democrats, James Coleman, James Zazzali, Virginia Long and Barry Albin; and one Independent, Jaynee LaVecchia.
All but Albin were appointed by former Republican Gov. Christine Todd Whitman. Albin took the bench last week, appointed by Democratic Gov. James McGreevey, whom Torricelli praised in his departure speech Monday.
McGreevey's appointment of Albin is a bit of a switch in New Jersey politics. In general, governors have replaced departing justices with justices of the same political orientation. Albin is an exception, and experts say McGreevey's decision was based in part on his critical view of the court.
With Republican Judge Gary Stein in Albin's place last year, the court allowed Republicans, who were then in control of the state Legislature, to reschedule the primary election so that acting Gov. Donald DiFrancesco, who was plagued by questions about his ethics, could drop out of the race and allow Rep. Robert Franks to take his place. Franks lost the Republican primary to Bret Schundler, who in turn lost the general election to McGreevey.
Even with a new member on the bench, Askin said the court tends to be "very protective" of individual rights and very liberal in election law.
But, he added, it's unlikely a Democratic-majority court that leans toward a liberal interpretation of election law will rule for a replacement candidate.
"The Democrats are grasping at straws," Askin said.
As to whether the case may go all the way to the U.S. Supreme Court, Askin said he doubted it would get that far.
But, he added, "I wouldn’t swear to it because I didn’t think Bush v. Gore would make it to the Supreme Court."
The Torricelli ordeal is leading many experts to postulate whether this case may mirror the 2000 presidential election debacle that ended up in the U.S. Supreme Court after Democrats demanded a ballot recount. The Supreme Court begins its fall term on Monday.
GOP attorney Bill Baroni said the case could be appealed directly to the U.S. Supreme Court because both are expected to claim voting rights are at stake.
In Bush v. Gore, the U.S. Supreme Court decided 5-4 to put a stop to the ballot recounts the team of former Vice President Al Gore had wanted to continue. The high court's ruling was sought because of the confusion in Florida election law.
Democratic analysts say New Jersey law is also unclear. However, they believe the state Supreme Court's decision will stand.
"First of all, I think the law is not clear at all, it doesn't say what happens in this circumstance, and that's why we have courts, to interpret the laws when the laws are unclear. In this case, the law is unclear, the New Jersey Supreme Court will make a decision," said Democratic strategist Mark Mellman.
Askin agreed that it is the place of New Jersey courts to deal with New Jersey law.
"It’s hard to imagine how the U.S. Supreme Court would get involved in this," he said.
The Associated Press contributed to this report.