WASHINGTON – Democrats asked the U.S. Supreme Court Friday to allow former Sen. Frank Lautenberg's name to be swapped in for Sen Robert Torricelli on the ballot in New Jersey's November Senate election.
Torricelli unexpectedly withdrew from the race on Monday.
Democratic lawyers argued that Republicans merely want to avoid a competition and have offered no adequate reason for the high court's intervention.
GOP candidate Douglas Forrester's complaint "appears to be that he would prefer to compete with the withdrawn candidate — hence, not to compete at all," the Democrats wrote. "This is not the basis for a federal constitutional claim."
Republicans filed an appeal to the Supreme Court Thursday seeking a stay after New Jersey's Supreme Court ruled Wednesday evening that the state Democratic Party can change its Senate candidate.
The suit was filed with Justice David Souter, who handles appeals from New Jersey.
There was no immediate word whether the justices would block the lower court ruling or agree to hear the case.
Republican Senatorial Campaign Committee Chairman Bill Frist, R-Tenn., delivered his side's papers personally to the court on Thursday. The suit argues that the state Supreme Court erred when it ruled 7-0 that election law should be broadly interpreted to "allow parties to put their candidates on the ballot, and most importantly, to allow the voters a choice."
"It is clear that the New Jersey Supreme Court overstepped their authority, overriding the will of the people," Frist said after delivering the paperwork. "The change and switch on the ballot is illegal."
Election law states that candidates can not be swapped out within 51 days of an election. The Republicans argue that election dates written into the law are up to the states to decide, not for courts to arbitrarily alter.
The GOP argues that absentee, military voters who have already sent ballots back will be disenfranchised by the change of candidate.
A separate lawsuit would be filed in U.S. District Court on behalf of overseas military personnel who have requested absentee ballots.
"Federal law requires they should already have gone out," said GOP attorney Alex Vogel.
California's secretary of state plans to file a friend-of-the-court brief on the issue Friday, said Beth Miller, a spokeswoman for Republican Bill Jones. He is "very concerned about the potential precedence it could set in terms of federal elections in California," she said.
Democratic Sen. Robert Torricelli dropped out of his re-election race on Monday after ethics violations hounded him throughout the summer. Falling far behind Republican candidate Doug Forrester, Torricelli said he did not want to be responsible for the loss of the one-seat Democratic Senate majority.
Democrats scrambled to find a replacement and selected 78-year-old retired Sen. Frank Lautenberg on Tuesday night to take Torricelli's place.
Thirteen of 21 counties had already printed out ballots when Torricelli withdrew from the race. Five had already sent out the ballots, and one had received responses.
State Attorney General David Samsun and county clerks testified before the state Supreme Court that if expense were not an issue, then they could reprint and mail out ballots in time for the Nov. 5 election, now 33 days away. On Friday, the Mercer County court ordered the Democrats to pay the courts $800,000 to cover initial costs of reprinting and miling out new ballots.
Republicans recognize that the Supreme Court gambit is a long shot, but if nothing else, the headlines are worth it. The political payoff is worth the challenge. It also keeps their candidate Forrester, who led Torricelli by 14 points in the last poll taken, in the headlines.
The GOP also recognizes that they will probably need to schedule a debate between Forrester and Lautenberg.
Lautenberg, who retired in 2000 after three terms in the Senate, met Thursday with Senate Majority Leader Tom Daschle, D-S.D., who along with state Democrats filed quickly behind Lautenberg.
On Wednesday night, more than 300 union members crammed into the Trenton War Memorial to cheer Lautenberg, who was greeted by a lively crowd with cheers of "We Want Frank."
"Thank you very much," Lautenberg said. "Frank wants you!"
Lautenberg must surmount a monetary challenge. One month's campaign could end up costing $4 million dollars. The Democratic Senatorial Campaign Committee won't say how much they expect to spend, but say the race could cost several million dollars.
At the end of June, Torricelli had $6 million. He has expenses and legal bills to pay, but he could end up giving some or all of the remainder to a party committee for "issue-advocacy" advertisements on behalf of Lautenberg.
Torricelli could also refund the money to donors and suggest they contribute to his successor, create his own political action committee or donate the money to charity.
Torricelli and Lautenberg have a long history of animosity, but Thursday, in his first appearance on the Senate floor since he announced his withdrawal, he said he would do "everything I can to get Frank Lautenberg elected" and was exploring ways of making his remaining campaign funds available.
Asked whether his commitment included a willingness to resign -- a step that would permit Gov. James McGreevey to appoint Lautenberg to the seat -- Torricelli bristled. "You're irresponsible," he replied.
Fox News' Carl Cameron and The Associated Press contributed to this report.
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