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The New Jersey Supreme Court on Wednesday appeared poised to allow the Democratic Party to substitute a new candidate on the Nov. 5 ballot for incumbent Sen. Robert Torricelli, who announced his withdrawal Monday in the face of persistent criticism of his ethics. The justices want a guarantee, however, that the state’s 21 county clerks can have new absentee and military ballots printed, mailed out and returned by Election Day. The justices also want to be sure that mailing out ballots this late does not violate the federal Voting Rights Act. The lawyer for the county clerks said they are up to the task if the court rules within the next few days. After nearly three hours of oral argument, the court did not give an indication as to when it may rule. The Democrats’ main contention is that voters are entitled to a choice of candidates and that a practical approach be taken to statutory deadlines. On Tuesday evening, Frank Lautenberg, who served as the state’s junior senator from 1983 to 2000, agreed to run in Torricelli’s place, subject to approval by the state court and possibly the U.S. Supreme Court. The Republicans maintain that the New Jersey Supreme Court should enforce a statute barring substitution of a candidate less than 51 days before an election. For their part, the justices appeared concerned about enforcement of election laws and about future abuse if a last-minute substitution is permitted. The justices heard the case, The New Jersey Democratic Party v. Samson, A-24-02, on direct certification after Torricelli’s abrupt withdrawal Monday from the race. The Democrats are asking permission to substitute another candidate for Torricelli on the ballot, despite a state statute, N.J.S.A. 19:13-20, that generally prohibits such a substitution less than 51 days before an election. In a brief appearance before the court, New Jersey Attorney General David Samson said he would offer no opposition if the clerks could handle a late mailing of absentee and military ballots. The goal is to “present voters with a clear choice on Election Day,” he said. “It’s costly, but it may be feasible and doable. It’s clear that it’s inconvenient.” John Carbone, representing the County Clerks Association, said that if the state high court acted quickly, it would be feasible to substitute Lautenberg for Torricelli. “Time is money,” said Carbone, a partner at Ridgewood, N.J.’s Carbone and Faasse. “As soon as I have some finality, we can proceed. We are within the window of opportunity, if there are sufficient funds.” Carbone estimated that it would cost $729,000 to $800,000 to reprint and send about 18,919 absentee and military ballots. Because the county clerks have not budgeted for this expense, he asked for guarantees from the New Jersey Supreme Court that the clerks not be punished for exceeding their budgets or for possibly violating public contracting laws by not engaging in competitive bidding. “If we go beyond Tuesday or Wednesday, it won’t be feasible,” he said. Angelo Genova, counsel to the New Jersey Democratic Party, told the justices that election laws should be construed liberally to ensure that voters have a choice of candidates. “The question is: How far along are we in the process?” said Genova, a partner at Livingston, N.J.’s Genova, Burns & Vernoia. “We have not progressed so far as to not allow the placement of the Democrats’ new candidate” on the ballot. He noted that some county clerks have not yet sent out their absentee and military ballots. Newly appointed Justice Barry Albin, a Democrat nominated by New Jersey Gov. James McGreevey, asked if election laws are not strictly enforced, “where do we draw the line?” Genova said practical considerations would have to be made on a case-by-case basis. “The purpose is to not eliminate or obfuscate the objection of an election,” he said. “This is not about a candidate. This is about voters and participation in an election.” Asked Justice James Zazzali: “If we do it your way, will there be a parade of candidates removed at the whim of party leaders because the candidate is collapsing?” Genova replied that this was a rare occurrence that could easily be taken care of. “If it can be fixed, fix it,” he said. Justice James Coleman Jr. asked how the court could draft an opinion that would exclude a party from substituting a candidate who sees his poll numbers dropping late in a campaign. Genova said the court should not look at a candidate’s motivations. “A competitive election is paramount,” he said. Justice Jaynee LaVecchia asked how the voting rights of absentee voters who may not know which ballot to send in would be safeguarded. Genova said the new ballots could be color-coded and include an explanatory statement. Genova added that, if ordered, the Democratic Party would cover the costs of redoing the ballots, but suggested public funds should be used. “The costs of democracy are the costs of democracy,” he said. Peter Sheridan, one of two attorneys representing GOP candidate Douglas Forrester, urged the court to adhere to the 51-day statutory deadline. Justice Albin asked Sheridan, a partner at Trenton, N.J.’s Graham, Curtin & Sheridan, to assume that it would be mechanically feasible to replace Torricelli with Lautenberg. Assuming that, he said, what would be wrong with giving the voters a real choice? “I disagree with your assumption,” said Sheridan. “The voters have a choice. Mr. Torricelli is on the ballot.” Justice Peter Verniero interrupted, saying that requiring Torricelli to remain on the ballot could be akin to perpetrating a fraud because Torricelli has announced he no longer is a candidate. Sheridan suggested that the Democrats could begin a write-in campaign on Lautenberg’s behalf if Torricelli does not want to run. “I see a set of very poor choices,” said Verniero. “We’re here to select the most appropriate choice.” Chief Justice Deborah Poritz observed that the 51-day rule for substituting a candidate appeared to be arbitrary. She added that other states had deadlines ranging from 30 days to a handful, noting that New York state’s statute says that failure to meet the deadline is a “fatal defect.” “Our statute says nothing of the kind,” she said. Sheridan said statutes had “all kinds” of statutory deadlines that must be obeyed. “They are relaxed usually in cases of death or incapacitation,” he said. “Here, there really are no extraordinary facts. We believe the statute should be enforced as it reads.” In response to a statement from Zazzali that voters should be given a choice as a matter of public policy, Sheridan said Forrester’s rights would be violated if a substitution were made. Forrester, he said, “developed a strategy and spent money executing that strategy. Mr. Torricelli saw that strategy work and the Democratic Party is trying to rehabilitate itself.” Verniero asked how the court could craft a ruling that would prevent future abuse. “I don’t know how you can fashion that,” Sheridan said. “Someone feels they can’t win so they drop out.” FEDERAL LAW MAY CONTROL William Baroni Jr., also representing Forrester, told the justices that they may run afoul of the federal Voting Rights Act if they rule that absentee and military ballots can be rewritten now. The Justice Department, he said, had enforced a 35-day deadline in previous elections in Florida and Wisconsin. Because of the speed in which briefs had to be written, however, Baroni said he could not provide more details of those cases. “Civilian and military votes in federal elections cannot be trumped by state laws,” said Baroni, a partner at the Princeton office of Philadelphia-based Blank Rome Comisky & McCauley. “The right to vote outweighs the right of a political party to replace a candidate. “Bob Torricelli is still a candidate for the United States Senate.” Torricelli’s campaign had been dogged by criticism and questioning about his relationship with campaign donor David Chang, a wealthy commodities trader. Chang, who was convicted of making illegal campaign contributions and engaging in witness tampering, shaved three months off his prison sentence by cooperating in a federal criminal probe of Torricelli. The Justice Department’s Campaign Financing Task Force found Chang had made more than $53,000 in illegal donations to Torricelli’s 1996 U.S. Senate campaign and had lavished the senator with thousands of dollars in improper gifts. The Senate Ethics Committee admonished Torricelli in July, and the allegations became one of Forrester’s key campaign themes. Torricelli’s re-election hopes were further dimmed on Sept. 26 when U.S. District Judge Alfred Wolin of the District of New Jersey released a memorandum written by James Comey, the acting U.S. Attorney for the Southern District of New York, about his office’s investigation into Torricelli’s dealings with Chang. The memo said prosecutors believed Chang’s assertions about the illegal gifts, but chose to not prosecute Torricelli because a jury might not consider Chang a credible witness in light of a number of inconsistent statements. When polls taken in the past several weeks showed Torricelli trailing Forrester by double digits, Democratic officials at the state and national level urged him to withdraw.

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