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From Tallahassee To Trenton

Not a single chad, hanging or otherwise, is involved in the fight over who will be the Democratic candidate for the senate seat held by Bob Torricelli. In his commentary, Legal Consultant Andrew Cohen explains why he's nonetheless reminded of the legal battle in Florida two years ago.

The Republicans want a state supreme court to stick to the narrow letter of the law and enforce a technicality. The Democrats want a State Supreme Court to look at the dispute within the broader context of New Jersey's statutory election scheme and age-old voting rights cases. The dispute could end up at the United States Supreme Court. The political balance in Washington could be at stake. Is there a law somewhere that says that every second autumn the nation has to go through one of these nearly farcical juris-political skirmishes?

The court papers filed Monday and Tuesday by the New Jersey Democratic State Committee and the New Jersey Republican State Committee in the fight over Sen. Robert Torricelli's Senate seat read like they've been sitting in a time capsule since November and December, 2000.

The same general arguments that were made in Tallahassee and Washington during the Bush v. Gore catfight back then are being made now in the Garden State and by the same sides. Sure, there are some material differences. There has not yet been any massive voter fraud or official incompetence, mostly because there hasn't yet been an election. Laurence Tribe, David Boies and Ben Ginsburg haven't yet chimed in. And there is no Kathryn Harris figure, at least not yet, to act as a lightning rod for one side or the other.

But apart from that, the arguments are chillingly the same, at least on a theoretical level. And the stakes - control of the Senate - may be just as high and decided by the very same conservative majority on the Supreme Court that gave us, on the cold evening of December 12, 2000, the incomprehensible ruling that decided the last presidential election.

Wouldn't it be something if the judicial branch were to determine in the span of less than 23 months the balance of power in both the executive and legislative branches? And wouldn't it be something even more if both rulings were in favor of one party?

The Democrats are making the "big picture" argument and hoping that a majority on the New Jersey Supreme Court agrees that there is plenty of time left as a practical matter to substitute another name for Senator Torricelli's on the November 5 ballot.

To accept the Republican argument and preclude a new Democratic candidate from competing, the New Jersey Dems argue, "would deprive the Plaintiff political part of the fundamental right of ballot access as contemplated by our election laws and as envisioned by our two party political system, and would further deprive a political party of fielding a candidate at the general election."

Yes, we missed the 51-day deadline that would have allowed us to substitute candidates, the Dems concede, but the deadline is insignificant since the county clerks "have not in all material respects effected the printing of the official ballot" anyway in advance of the election.

Still hung up by the 51-day limit, judges? Okay, the Democrats argue, there is a 34-day limit imposed by your predecessors in a 1952 case and a 12-day limit for clerks to provide sample ballots to municipal clerks and even an eight-day limit for the provision of sample ballots to counties "not having a superintendent of elections where the county board of elections does not have the equipment or facilities to address and mail sample ballot envelopes."

And then the Democrats trot out what is perhaps their best political argument and perhaps their worst legal one. "Were voters not to have the full benefit of a selection among competing candidates," the submission somberly notes, "they would be deprived of the opportunity to select as between different interests, platforms and philosophies."

The idea behind this point is to convince the State Supreme Court that whatever the law may say about what ought to be printed on what ballot and when the fundamental idea is to ensure that on election day the voters of New Jersey have as many options as possible.

It's a good political argument because it makes the Republican candidate, Douglas Forrester, look fraidy-scared to take on another Democratic contender who would come into a race with only five weeks left and under a cloud.

But it's a bad legal argument for the Democrats because it tries to prove too much. Won't the voters have plenty of other choices even if there is no Democratic choice? Didn't the Democracts themselves vote for Torriocelli in the primary and then turn on him earlier this week? Doesn't the 51-day deadline have to mean something? And if the New Jersey court okays this switcheroo in the name of the voters where would the switching end? That last point is the strongest one offered by Tuesday afternoon's Republican filing.

Using the "parade of horribles" mode of legal argument, the GOP contends that "if a losing candidate can withdraw from an electoral race after the clearly stated statutory deadline, then this can and will be repeated many times in the future. Any party will be able to impose upon their candidate to withdraw and substitute a `better' candidate... What will the deadline be if it is not the statutory deadline? Will it depend on the particular facts of each such case? The courts will be embroiled in similar cases for years to come."

Nothing makes a judge want to rule in favor of a position more than the notion that such a ruling will decrease the amount of work that judge may have to do in the future.

The Republicans also make sure the New Jersey judges are reminded that the mess the Democrats find themselves in is entirely of their own doing. "More than two weeks have passed," the GOP brief intones, "since the deadline for withdrawal occurred, and the process to select a replacement by the Democratic State Committee has not commenced to date. While Democrats sat on their hands, the clerks were busy at moving the election forward."

Then the Republicans go to the heart of the matter as they see it. "Contrary to the plaintiffs' characterization of the 51 day requirement as 'a technical and non-material requirement,' it is the law." That's the GOP argument in Trenton in 2002 and it was the GOP argument in Tallahassee in 2000.

If the Democrats win this round in New Jersey, the Republicans almost certainly will try to get the federal courts involved. Indeed, the GOP already is arguing that federal interests are involved by virtue of the overseas military vote.

If the Republicans win this round, the Democrats almost certainly will push Sen. Torricelli to resign sometime next week, within 30 days of the election, so that the Democratic governor of the state could appoint a (presumably Democratic) successor and perhaps even delay the senatorial contest until next fall.

It took 35 days for the 2000 presidential election days to resolve itself. It may take this like-minded contest that long as well.

By Andrew Cohen

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