Supreme Court May Duck New Jersey Case

Bloomberg, no url | 10/3/02

[NativeNewYorker]

Washington, Oct. 3 (Bloomberg) -- The U.S. Supreme Court,

still scarred by the fight over the 2000 presidential election

fight, probably will be reluctant to wade into the battle over New

Jersey's U.S. Senate race, legal experts said.

     Republicans today asked the nation's highest court to block

Democrats from putting former Senator Frank Lautenberg on the

state's Nov. 5 ballot. The New Jersey Supreme Court ruled

yesterday that Lautenberg could replace Senator Robert Torricelli,

who withdrew from the race Monday.

     The high court two years ago issued a 5-4 decision that

cleared the way for Republican George W. Bush to defeat Democrat

Al Gore and become the 43rd U.S. president. This time, Supreme

Court intervention would boost Republicans in their bid to

recapture the Senate, which Democrats now control by one vote.

     ''The U.S. Supreme Court would love to avoid getting involved

if they can,'' said Washington lawyer Thomas C. Goldstein, a U.S.

Supreme Court specialist at Goldstein & Howe who represented Gore

in 2000. ''The court really hated being involved in Bush v. Gore

and doesn't want to send a signal that every political fight

should be an issue for the court.''

     Republicans say Torricelli dropped out only because he was

losing to Republican Douglas Forrester -- by 13 points, according

to a Newark Star-Ledger/Eagleton-Rutgers poll released Saturday.

Torricelli was reprimanded by the Senate Ethics Committee in June

for taking gifts from a man who later went to prison for making

illegal contributions to the senator's campaign.

                         Unanimous Ruling

     The New Jersey Supreme Court, ruling 7-0, let Lautenberg

replace Torricelli on the ballot so that voters would have

candidates from the two major parties on the ballot.

     ''The court should invoke its equitable powers in favor of a

full and fair ballot choice for the voters of New Jersey,'' said

the court, which includes six members appointed by former Governor

Christie Whitman, a Republican. The seventh was appointed by the

current governor, Democrat James McGreevey.

     The Supreme Court appeal argues that some members of the

military have already received absentee ballots with Torricelli's

name on them, said Alex Vogel, general counsel for the National

Republican Senatorial Committee.

     ''The election has already started and now they're trying to

change the names on the ballot in midstream,'' Vogel said.

     Forrester and the Republicans also say the New Jersey court

violated a U.S. constitutional provision that gives authority for

setting election rules to state legislators, not judges. They

point to a New Jersey law that requires replacement candidates to

be named 51 days before the election.

     That issue may not be enough to get the Supreme Court to

intervene, said Jan W. Baran, an election law specialist at Wiley

Rein & Fielding who has represented Republicans in several Supreme

Court cases.

                        'Major Difference'

     There is a ''major difference'' between the New Jersey and

Florida cases, Baran said. ''Florida involved a presidential race

and federal laws that dealt specifically with presidential

electors.''

     The Bush v. Gore decision split the court along ideological

lines and drew criticism from some legal experts that the court

harmed its own credibility by taking on a political case.

     Weeks after the ruling, Chief Justice William H. Rehnquist,

who voted in the majority, said he hoped courts ''will seldom, if

ever,'' become involved in another U.S. presidential election.

Dissenting Justice Ruth Bader Ginsburg, in a speech, called the

episode a ''December storm'' over the court.

     In addition to the Supreme Court appeal, Republicans are

sending a letter to Attorney General John Ashcroft asking him to

intervene and ensure that remaining absentee military ballots,

containing Torricelli's name, are mailed immediately. Members of

the military also are filing a separate suit backing Forrester in

federal district court in Trenton.

                          'Beat the Odds'

     The U.S. Supreme Court doesn't have to grant a hearing. It

agrees to hear only about 70 or 80 of the 8,000 appeals it

receives every year.

     ''We've learned from Florida that election cases can beat the

odds,'' Baran said. ''The Republicans are going to try to beat the

odds.''

     Republicans in New Jersey may have a harder time than Bush's

campaign in persuading the justices that their appeal presents an

issue of federal law that must be decided, said A.E. Dick Howard,

an expert on the high court who teaches at the University of

Virginia law school.

     ''The argument for a federal interest in Bush v. Gore was

greater because we have one president,'' Howard said. ''You could

argue the whole point of the Senate is to give the states more of

a presence in the federal structure.''

[Greeklawyer]

Is it not one SC justice who hears the original petition. If I am not mistaken it this case it would be Souter.

[BlackRazor]

Well, then the district court can apply the law laid down by the Eleventh Circuit in Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995): changing the rules in mid-election violations constitutional equal protection.

Yep. I had always thought that was the GOP's best legal route in the 2000 election mess.

[BlackRazor]

Correct me if I am wrong, but wasn't the vote 7-2?

There were two different rulings. The 7-2 ruling said that SCOFLA acted unconstitutionally with their remedy. The 5-4 ruling essentially said there was not time to conduct any further recounts.

[FreeTally]

I honestly don't understand the reluctance.

There is no reluctance. The author just made that up. The first sentence says,

The U.S. Supreme Court, still scarred by the fight over the 2000 presidential electionfight, probably will be reluctant to wade into the battle over New Jersey's U.S. Senate race, legal experts said.

"Still scarred"? "Legal experts said"?

In no rational person's mind is the SCOTUS "scarred" over Gore v. Bush.

[randita]

After the SCOTUS laid down the law in Bush v. Gore, the lower federal courts are perfectly capable of applying it to new cases.

But what would the remedy be? If it's proven that voter's rights were violated, then the courts could require a brand new election, couldn't they? Then Democrats could run yet another recycled candidate.

[Physicist]

The Democrats still have the one ace in the hole: Jumpin Jim could switch again, this time to the "darkside" Dems.

That won't help. If the Dems fall one seat short, the best Jeffords can do is make it a 50/50 split. Cheney breaks the tie for the Republicans.

[Eala]

Weeks after the ruling, Chief Justice William H. Rehnquist, who voted in the majority, said he hoped courts ''will seldom, if ever,'' become involved in another U.S. presidential election.

Me too -- except my hope would be that this would happen because the Dems quit trying to win elections by involving the judiciary.

Since they haven't, for the Court to ignore such actions would signal that the Rule of Law is truly and thoroughly dead, that the Great Experiment is over and the results are in (it failed), and that what really only matters anymore is what you can get away with.

But then, it's coming for a long, long time -- we just haven't been paying attention.

[aristeides]

If the decision is made before Election Day, I imagine a possible remedy would be to run the election with Torricelli on the ballot, with suitable precautions taken for counting military ballots.

It would be a lot harder to devise a suitable remedy after the election is held.

[WOSG]

Actually, the FIRST USSC decision was 9 - 0. second one, yes 7-2, the 5-4 was the split on remedy, 2 wafflers wanted to count every Florida ballot if possible (but not really). But only 3 were hard-core defenders of Rule of Law in elections. Still, it should be easy for USSC to remand this case back and MAKE the NJ SC write their opinion in light of maintaining existing electoral scheme. Is there some Federal law that applies to all Federal elections relevent to this???

Anyway ... media bias, dont you just love it?

[ThinkDifferent]

Thanks for the details. I remembered the critical decision was 7-2, but I had completely forgotten about the initial 9-0 decision to initially remand. But yeah, it's just amazing how we only ever hear about the 5-4 remedy vote. No bias to see here, move along...

[AmericanVictory]

This article appears to be an exercise in wishful thinking by your typical Eurosocialist oriented pressie to whom U.S. constitutionalism is utterly foreign.

[AmericanVictory]

Legal expert = Democrat whores for hire a/k/a "progressives."

[goldstategop]

I'm for conservative judicial activism to give the liberal scofflaws at the New Jersey Supreme Court a taste of their own medicine. Nothing would give me more pleasure than to see the SCOTUS kick their pompous asses into the dirt.