N.J. Senate Case Tests Reach of 'Bush v. Gore'

[Editor's note: The U.S. Supreme Court today declined to intervene in the election dispute.]

Nearly from the beginning of last week’s fast-moving electoral train wreck in the New Jersey Senate race, the Republicans put their hopes in a Bush v. Gore II.

On Thursday they formally asked the U.S. Supreme Court to forbid Democrats from dropping Sen. Robert Torricelli as their New Jersey senatorial candidate and replacing him with former Sen. Frank Lautenberg. The also said they would file cases in federal court in New Jersey on behalf of military voters who were claiming disenfranchisement because of the Democrats’ intended substitution.

Once again, the U.S. Supreme Court was dragged into the political fray and essentially asked to meddle in an election for federal office. While the Court had not announced by press time Friday whether it would hear the New Jersey dispute, one thing seemed clear: The New Jersey case played out in a way that was only possible in a post-Bush v. Gore world.

“I really think that Bush v. Gore has sent ripples through the court system, not only encouraging a move to the federal court if the parties don’t like the state court decisions, but also in just the whole idea of judicial intervention in election matters,” says Kenneth Gross, an election law partner in the D.C. office of Skadden, Arps, Slate, Meagher & Flom. Gross says that since the Supreme Court’s December 2000 ruling, more state election law cases are being taken to the federal courts.

The Supreme Court grudgingly involved itself in the dispute over the Florida votes during the presidential election. And ever since, the legality of the Court’s decision and even its very involvement in the case have been endlessly debated. But the effect has been to make the Court a potential player in highly partisan election disputes.

“I think the Court wants to convey the message that it doesn’t want that role,” says Douglas Kmiec, dean of Catholic University’s Columbus School of Law, who served in the administrations of Presidents Ronald Reagan and George Bush. “It can’t do it arbitrarily. If it just shuts the door in the Jersey case without explaining itself, it reopens the questions about the legitimacy of the Bush v. Gore decision and the Court itself.”

UNSOUGHT RESPONSIBILITY

When the Supreme Court halted the ballot recounting in Florida in December 2000, the decision was momentous even by the Court’s standards. The justices made clear how unhappy they were to be wading into this area of law.

“When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront,” the Court wrote.

At the time, a repeat of the circumstances to trigger Supreme Court involvement in a state’s election laws seemed almost unimaginable. And then Torricelli dropped out of the New Jersey Senate race.

Torricelli’s announcement came well past a 51-day limit that the New Jersey legislature had designated for finding a replacement candidate. But the Democrats announced they wanted to replace Torricelli with former Sen. Lautenberg. The state courts were asked to resolve the issue. The New Jersey Supreme Court took the unusual step of deciding to pick up the case immediately, eliminating the trial portion of the case entirely. The two sides argued over whether the court could and should allow the replacement after the deadline.

The New Jersey Supreme Court on Wednesday ruled for the Democrats, saying it was using its “equitable powers” to order the substitution.

The next stop was the U.S. Supreme Court, where Republicans filed their petition less than 24 hours after the New Jersey court decision.

“I don’t think the courts ought to be involved in elections,” says David Norcross, a partner at Blank Rome Comisky & McCauley who was part of a team of lawyers working for the Republicans on the case last week. “Now, the New Jersey Supreme Court has become an election monitor.”

The Republicans laid out three main arguments to the U.S. Supreme Court: The New Jersey court violated the constitution by interfering with the legislature’s power to oversee Senate elections; the Uniformed and Overseas Citizens Absentee Voting Act requires states to mail ballots at least 35 days before an election, a deadline already passed; and voiding ballots that have gone out to military personnel is a due process violation.

The Democrats replied by arguing against a stay and saying Republicans weren’t harmed by the substitution, but that Lautenberg and the voters would be if the Court prohibited the change.

The Democrats also attacked the rest of the Republican petition, saying the New Jersey court ruling was a reasonable interpretation of state law, that the case raises no federal questions, that there is no requirement in the language of the absentee voting act mandating 35 days, and that there is no due process violation.

The Republicans relied on Bush v. Gore and associated cases in their petition.

“In this case, a lot of people are saying there is no precedent, and we say there is — Bush v. Gore,” says Alex Vogel, general counsel of the National Republican Senatorial Committee. “This is not an identical suit, but many of the issues here arose in that context.”

UNCLEAR LEGAL LEGACY

But Democrats argue there is no fair comparison between the New Jersey case and the one that settled the presidential election.

“The Supreme Court was very explicit in Bush v. Gore that it was confining its analysis to the unique set of circumstances involved in the presidential election,” says Robert Bauer, a D.C. partner at Perkins Coie who is part of the Democrats’ legal team. “The Republicans point to Bush as if it were some sort of freshly minted currency they could use to buy their way into federal court.”

By the end of the week, the Supreme Court was facing the prospect of issuing a decision that could have wider ramifications: Take up the case and rule for the Republicans, and potentially provoke an ever-deepening involvement for the Court in these questions.

But if the New Jersey decision is left to stand, some other state may face a similar dilemma down the road. That may ultimately bring the Court back to some of the issues raised in Bush once again.

Either way, the Supreme Court may have a hard time escaping such disputes in the future.

“I think in the short term Bush v. Gore has obvious historic impact — it determined who was the president of the United States,” says Kendall Coffey, a partner at Coffey & Wright in Miami who was part of candidate Al Gore’s team. “Its legal impact is yet to be seen.”