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Laying out in detail the New Jersey Supreme Court’s rationale for allowing an 11th-hour switch in Senate candidates, Chief Justice Deborah Poritz said that if the Legislature is unhappy with the ruling, it could write a law to prevent a recurrence. The Republican challengers “have not presented any evidence indicating that a rush of withdrawals has occurred in states that allow substitutions close to the election,” Poritz wrote in New Jersey State Democratic Party Inc. v. Samson, A-24-02. “Most important, if the Legislature credits defendants’ ‘parade of horribles’ all it need to do … is amend the statute to expressly preclude or otherwise condition ballot substitutions” To that end, state Assemblymen Guy Gregg, R-Sussex, and Richard Merkt, R-Morris, said last week they would introduce bills to impose time restrictions on switching candidates late in the game. On Oct. 10 they introduced bill A2878, which prohibits the filling of a candidate vacancy if the vacancy occurs within 51 days before the general election. The current law, N.J.S.A. 19:13-20, sets a procedure for ballot substitutions “not later than the 51st day before the general election” but does not expressly prohibit substitutions after that date. The court thus followed its tradition of liberally construing election laws to ensure voters’ choice of candidates. “Fifty years ago, Chief Justice [Arthur] Vanderbilt restated the principles that guide our decision in this case,” Poritz wrote, quoting from Kilmurray v. Gilbert, 10 N.J. 435 (1952). “‘Election laws are to be liberally construed so as to effectuate their purpose. They should not be construed so as to deprive voters of their franchise or so as to render an election void for technical reasons.’” Poritz also cited Catania v. Haberle, 123 N.J. 438 (1991), where New Jersey Chief Justice Robert Wilentz wrote: “The Court has never announced that time limitations in election cases should be construed to bar candidates from the ballot when that makes no sense and when it is obviously not the Legislature’s intent. There are states that have such rules, but New Jersey is not one of them.” Republican Senatorial candidate Douglas Forrester’s lawyer, Peter Sheridan, a partner at Trenton, N.J.’s Graham, Curtin & Sheridan, said during oral arguments that a liberal interpretation of the election statute would allow candidates to be replaced for any reason. Poritz disputed that. “We assume that it is difficult for any party, logistically, politically, and financially, to replace a candidate close to an election,” she wrote. In any event, she said, it is the Legislature’s province to fashion a law that does not permit late ballot shuffles. Robert Williams, of Rutgers Law School-Camden, who is an authority on New Jersey constitutional law, notes that the statute was amended several times, most recently in 1988, prior to the Catania ruling. Unless the Legislature amends a statute in response to a court ruling, that signals its approval, he says.

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