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The National Republican Senatorial Committee filed suit Friday in U.S. District Court in Trenton, N.J., raising a federal challenge to Wednesday’s New Jersey Supreme Court ruling that allowed substitution of the Democrats’ U.S. Senate candidate. The complaint, lodged on behalf of two overseas New Jersey residents — one in Hawaii and one in Paris — charges that the late switch in candidates violates the Uniformed and Overseas Absentee Voting Act, 42 U.S.C. 1973 et seq., which requires that absentee ballots be mailed out no later than 35 days before an election. That deadline has passed, and the complaint contends that newly printed ballots may not reach overseas voters in time for them to be returned before the end of the Election Day, thus disenfranchising them. “It is our contention that New Jersey currently is in violation of federal law,” says Alexander Vogel, the general counsel to the senatorial committee, adding that at least one of the named plaintiffs has already returned his original ballot. Under 18 U.S.C. 608, a federal court may impose fines and up to five years’ imprisonment on anyone who “knowingly deprives or attempts to deprive any person of a right under the Uniformed and Overseas Citizens Absentee Voting Act.” The suit was filed even as U.S. Supreme Court Justice David Souter was considering the Republicans’ request for a stay pending the full court’s review of the state court ruling. Souter invited the Democratic Party to respond, and as of late Friday afternoon he had not ruled on the stay request. The assent of four justices is required for the Court to hear the case on the merits. At the same time, New Jersey’s six Republican congressmen have asked U.S. Attorney General John Ashcroft to intervene on behalf of state residents and military personnel overseas who may already have voted by absentee ballot. The congressmen asked Ashcroft to go to federal court to overturn an injunction, issued last Wednesday by Middlesex, N.J., County Superior Court Judge Yolanda Ciccone, barring county clerks from mailing absentee ballots. “Both the current injunction against the mailing of ballots, as well as any change that may be approved by the state courts, violates the rights guaranteed to U.S. citizens” under the act, the letter said. The letter cites two cases — United States v. Florida, TCA-80-1055 (N.D. Fla. 1982), and United States v. Wisconsin, 771 F.2d 244 (W.D. Wis. 1985) — in which federal courts upheld a Justice Department request to force those states to mail absentee ballots at least 35 days before an election. There was no immediate reply from the Justice Department. Ruling that it is in the public interest to preserve the two-party system, the New Jersey Supreme Court on Wednesday allowed the Democratic Party to substitute former Sen. Frank Lautenberg for Sen. Robert Torricelli on the Nov. 5 ballot. In its unanimous order Wednesday, the New Jersey Supreme Court held that that a state statute that seemed to forbid ballot switches less than 51 days before an election was not an airtight prohibition. The justices’ ruling in The New Jersey Democratic Party v. Samson, A-24-02, came hours after they heard arguments in the matter, spurred by Torricelli’s withdrawal Monday in the face of persistent criticism of his ethics. The court said the central issue was “whether the dual interests of full voter choice and the orderly administration of an election can be effectuated if the relief requested by the plaintiffs were to be granted . “ In finding for the plaintiffs, the court also relied on two of its previous cases. The first, Kilmurray v. Gilbert, 10 N.J. 435 (1952), found that it “is in the public interest and the general intent of the election laws to preserve the two-party system and to submit to the electorate a ballot bearing the names of candidates of both major political parties as well as all other qualifying parties and groups.” In the second case, Catania v. Haberle, 123 N.J. 438, the court said the election statutes should be liberally construed “to allow the greatest scope for public participation in the electoral process, to allow candidates to get on the ballot, to allow parties to put their candidates on the ballot, and most importantly, to allow the voters a choice on Election Day.”

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