WHIPPANY, N.J., Oct. 1 — The legal and political questions roiling around in the wake of Sen. Robert Torricelli’s recent withdrawal from New Jersey’s senatorial race are unprecedented, observed John Weingart, associate director of the Eagleton Institute for Politics at Rutgers University. “The timing is certainly unfortunate for the Democrats,” said Weingart. “Certainly, if he had withdrawn three weeks ago, it would have been clear that the Democratic Party could pick a replacement candidate. Now, it’s very unclear what happens next. It’s very uncharted territory for everyone.” New Jersey was thrown into that uncharted territory late Monday afternoon, Sept. 30, as Torricelli, who has been dogged by ethical questions since the Senate Ethics Committee severely admonished him for taking inappropriate gifts from a political donor, stepped before a bank of microphones outside Gov. James E. McGreevey’s Statehouse office in Trenton. “I pride myself on a strong voice,” Torricelli said. “But it doesn’t matter at all if you can’t be heard in a campaign. This is a political campaign devoid of all issues. I can’t be heard…and if I can’t be heard, then someone else must be heard.” To make that possible, Torricelli announced, he had filed a motion with the NJ Supreme Court to have his name removed from the general election ballot as a candidate for the United States Senate. “I apologize to everyone who fought so hard,” the Democrat said, his voice breaking and his eyes filling with tears. “It’s the most painful thing I’ve ever done in my life.” Just minutes later, a stiff and unsmiling Doug Forrester, Republican challenger for the senatorial seat, was ushered to another bank of microphones just outside the Statehouse, where he read his response and then was quickly ushered away. “Mr. Torricelli has announced that he no longer wishes to be a candidate for the U.S. Senate. I wish him well,” Forrester read. “Now, I understand that some are trying legal maneuvers to disregard the clear letter of the law in a desperate attempt to substitute another candidate on the ballot,” he said, referring to a Democratic petition to the Supreme Court to change the ballot despite a state statute that puts the deadline for ballot changes at 51 days prior to an election. “In 36 days, decency, fairness, and the rule of law will trump this desperate attempt to retain power,” Forrester predicted. “The people of New Jersey have had enough of playing politics with the fundamental tenets of democracy. The laws of the state of New Jersey do not contain a ‘we-think-we’re-going-to-lose-so-we-get-to-pick-someone-new’ clause.” As Forrester disappeared inside the Statehouse, state Sen. Joseph Kyrillos of Middletown (R-Dist. 13), chair of the Republican State Committee, and Bill Baroni, legal counsel to the Forrester campaign, stepped forward to answer questions. “State law is very clear about the limits for a party to nominate a candidate,” said Kyrillos. “State law does not allow a party to change candidates after the ballot has been printed. It is my hope that this sad and embarrassing episode will finally come to an end so we can focus on the issues.” Baroni charged that Torricelli’s withdrawal was an unprecedented attempt to evade the election statute. “It’s two weeks late,” the attorney said. “In every county in New Jersey, ballots have been printed and absentee ballots have been mailed. Now, at the last possible moment, they wish to change the ballot. This is an unheard-of attempt to make a change in election law. This will not stand, and we will fight it.” These questions, which are now before the NJ Supreme Court, are the kinds of questions law students wrestle with all the time, observed Ross Baker. “I think the Republicans have the law on their side. I think the Democrats have public policy on their side,” noted Baker, professor of political science at Rutgers University. “This is what law students do all the time. This is moot court!” But what does he think the real court will do in the matter? “After the 2000 election, the courts don’t want to deny the voters the opportunity to vote,” Baker said, “and I think keeping Torricelli’s name on the ballot would do that.” Angelo Genova, special counsel to the New Jersey Democratic Party, agrees. “To deny the Democratic Party the opportunity to field a candidate in the wake of Sen. Torricelli’s withdrawal would be to compromise fundamental public policies that are part and parcel of our election laws and our democracy,” said Genova, senior partner in the Livingston law firm of Genova, Burns and Vernoia. “This litigation is not about Sen. Torricelli or the reason for his withdrawal,” the attorney said. “This litigation is about ensuring that voters have the opportunity to participate in a competitive election. What the Republicans are trying to suggest is that a time limit in a statute should supercede the public interest and the opportunity to participate in a competitive race. “The statute they cite is designed for administrative convenience. It is not intended to give a candidate the right to run unopposed.” Historically, the courts have broadly construed the election laws to ensure that voters have an opportunity to choose between viable candidates, Genova noted. “The courts have historically said that technical niceties should not be a barrier to that objective,” he said. “But that’s exactly what the Republicans are trying to do here. They’re attempting to assert technical niceties to undermine the rights of the voters.” But political observer Dr. David Rebovich said he thinks the Supreme Court will see the Democratic petition to alter the ballot as having no merit. And even if the court allows the Democrats to name a new candidate, he is wondering whether they will be able to do so. So far, the names being bruited about for that candidacy include U.S. Representatives Robert Menendez (Dist. 13), Frank Pallone Jr. of (Dist. 6), and Robert Andrews (Dist. 1), as well as former U.S. Senators Bill Bradley and Frank Lautenberg. Joe Roberts, Assembly majority leader, is also in the mix but lacks any experience running for either federal or statewide office. “I would be surprised if one of the sitting congressmen would give up his sure seat for what would be maybe a 50-50 chance of winning a U.S. Senate seat,” said Rebovich, associate professor of political science at Rider University and managing director of the Rider Institute for NJ Politics. With his withdrawal, Torricelli has put the Democrats in a double bind, Rebovich observed — a legal one, and one involving the perception that the Democrats are trying to pull a fast one. “This does look like a big attempt at manipulating the rules,” he said. “You can’t blame anyone for trying this, but the Democratic Party has to be concerned.” Despite those concerns, Weingart said, it’s still technically possible to reprint the ballots. “You could argue that even though the law says it’s too late, it’s technically possible, and voters ought to get the benefit of a real choice.” One of the obstacles to making the change is the fact that some people have already voted on absentee or military ballots, Weingart noted. “So, if the Democratic Party changes the candidate, those people are in a way disenfranchised. On the other hand, the Democratic Party will argue, the whole state would be disenfranchised — anyone in the state who wants to consider a candidate other than Doug Forrester or one of the lesser candidates — if the Democratic Party is not allowed to put on the ballot the name of a candidate who is running.” Weingart said he sees several possible outcomes in the matter. In one option, the court sides with the Democrats, who then replace Torricelli’s name on the ballot with that of another candidate. In a more likely option, the court rules that it is too late to change the ballot, and the Democrats mount a write-in campaign. In a third, the Democrats lose in the court, and Torricelli somehow gets back in the race. In another scenario, Weingart said, Torricelli’s name remains on the ballot, but he promises that if elected, he will resign, and McGreevey promises to appoint a specific person to replace him. “The difficulty with that is campaigning,” he said. “It’s a complicated message, and because Torricelli’s problem was around trust and ethics, some voters would be turned off by that and feel it was a manipulation of the system. “I like a scenario that’s completely unlikely,” Weingart added, noting that according to state law, senatorial candidates do not have to be residents of the state until they are actually sworn in. “So, theoretically, the Democrats could pick Bill Clinton. I think something like that would be very exciting,” he said. “But no matter what option one fantasizes about, it’s hard to think of any way Doug Forrester is not the frontrunner and the likely next senator from New Jersey.” Whatever happens, a fascinating series of events is unfolding, said GOP activist David Kotok of Vineland, a close adviser of Forrester’s. “The only thing to watch is how they unfold,” Kotok said, “and how our leaders behave as they unfold, so we can see what kind of people they really are…and how much respect these people have for the citizens and the rules or how much they will be driven by the extremes of partisan politics. We’re going to witness it right here in New Jersey firsthand. How the legal ballot questions work out is going to be a fascinating chapter in New Jersey and perhaps American history.” But the only thing Democratic political consultant Zev Furst can think about right now is the chapter that has just ended. “It’s a tragedy, and it’s a very, very big loss for the NJ public and the NJ Jewish community, and it’s a major loss for Israel,” said Furst, an Orthodox Jew from Englewood. “[Torricelli] has been one of Israel’s strongest and most committed supporters. Given the way politics are conducted today, it’s unfortunate and very regrettable.”Marilyn Silverstein can be reached at msilverstein@njjewishnews.com.
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