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The seven justices said that allowing the party to replace Torricelli was in the public interest and followed the intent of New Jersey election law. But the court said in its ruling that the Democratic Party would have to bear the cost of reprinting ballots and informing voters who receive absentee ballots of the change.
Torricelli dropped out of the race on Monday, saying the continuing focus on an ethics scandal had made it impossible for him to communicate with voters. In July, the U.S. Senate Ethics Committee “severely admonished” the first-term senator for receiving inappropriate gifts from campaign contributors.
Attorneys for the Democratic Party argued before the court Wednesday morning seeking approval to make the change.
Lawyers for Republican candidate Doug Forrester and the state GOP argued that such a change runs against state election law and would be unfair to Forrester. They have said that they would appeal any decision that allowed Torricelli to be replaced to the Supreme Court of the United States.
Forrester had made Torricelli’s alleged misconduct his main campaign issue, often introducing himself to voters as “the guy running against Bob Torricelli.”
The Democratic Party argued Wednesday that if a change to the ballot were not allowed, voters would be denied a choice on Election Day since Torricelli had removed himself from the race.
Republicans countered that state law mandates changes occur more than 51 days from an election and the change would set a precedent that would allow candidates to be removed and added to the ballot based on opinion polls. Torricelli made his announcement on Sept. 30, 35 days before the election.
Attorney Angelo J. Genova, addressing the court on behalf of Democrats, argued that the law was intended to give election officials time to print and distribute new ballots, not to keep new candidates from entering a race. He further argued that sufficient time remained to make necessary changes to the ballot.
State attorney general David Samson also appeared before the justices, telling them the proposed ballot change would be “administratively feasible.”
Justices asked Genova what Democrats proposed the state should do about 1,600 absentee ballots bearing Torricelli’s name that have already been mailed to voters. Registered voters who have to be absent from the state on the day of the election, such as members of the military, often use absentee ballots to cast their votes.
Genova suggested that new ballots could be printed and mailed and that elections officials could contact individual absentee voters in order to explain the changes.
Attorney John Carbone, representing the state’s county clerks, asked the court to ensure that the clerks’ offices would have sufficient funds and the full support of the New Jersey government to carry out any ballot change that the court may order. He also asked that the justices rule quickly to allow enough time for their orders to be carried out.
Peter Sheridan, an attorney representing Forrester, argued that changing the ballot within 51 days of an election is strictly prohibited by legislation and urged the justices to follow the letter of the law.
He also dismissed Democrats’ claims that voters would be left without a true choice without the change to the ballot. Voters could choose Torricelli, Sheridan said, with the understanding that the governor would be able to appoint a new senator — or voters could write in the candidate of their choice.
Sheridan argued that Forrester has worked hard to build support among voters and that it was unfair for the Democratic Party to seek a change to the ballot to avoid an impending loss.
William Baroni, another Forrester attorney, pointed to federal guidelines that say absentee ballots sent to members of the military serving overseas must be sent at least 35 days before a general election and that any change to the ballot would violate the law and risk the disenfranchisement of absentee voters.
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