Welcome to New Jersey, the sunshine state?

Republicans raise the specter of Florida and its notorious military ballots to keep Democrat Frank Lautenberg out of the U.S. Senate race. But this time the law is not on their side.

By Eric Boehlert

Published October 4, 2002 8:28PM (EDT)

New Jersey Republicans are stepping up their legal efforts to keep former U.S. Sen. Frank Lautenberg off the statewide ballot for the Senate this November, but some fine print in the Garden State's election laws regarding faxes may sideline their argument.

Following Wednesday's unanimous ruling by the New Jersey Supreme Court that Democrat Lautenberg could appear on the ballot in place of Sen. Robert Torricelli, who abruptly dropped out of the race this week, Republicans are taking their case to three different forums: the U.S. Supreme Court, in hopes of overturning the New Jersey court's ruling; the U.S. attorney general's office to enforce the Voting Rights Act; and a U.S. District Court to demand that New Jersey counties start mailing out ballots with Torricelli's name on them.

A centerpiece argument made on behalf of Republican candidate Douglas Forrester will be that by changing candidates so late in the election cycle, Democrats would violate the rights of New Jersey's overseas military voters by not giving them enough time to receive updated ballots and cast them by Election Day.

"We're talking about the [voting rights of] men and women who are doing more than anybody to defend the right of free elections," said Forrester, on the steps of the courthouse moments after the New Jersey Supreme Court decision was returned.

Republican strategies seem be relying on the Supreme Court ruling that decided the 2000 presidential election in favor of now-President George W. Bush over Democratic candidate Al Gore. The high court ruled then that the recount ordered by the Florida Supreme Court violated the Equal Protection clause of the U.S. Constitution because "specific standards" were not applied to all the ballots cast. Therefore, not all the votes were counted the same. The issue of overseas military votes also became politically charged in Florida when Republicans accused Gore of trying to invalidate ballots not properly stamped or dated.

Unlike the Florida recount, though, New Jersey's general election has not yet taken place, so Forrester's attorneys are focusing on the military ballots, a small number of which have already been sent out. According to county clerks statewide, 616 overseas military ballots have been requested and 106 have been sent out, but none have been filled out and returned.

Stateside absentee ballots are also an issue, but if new ballots with Lautenberg's name included are quickly printed up and mailed out, most voters would receive them in time to vote. For now the focus remains on military ballots.

"This is a right-to-vote issue," Forrester's attorney, Bill Baroni, told the court on Wednesday. "We would be creating two classes of voters: voters whose votes are counted and voters whose votes are not counted, like our military servicemen and women overseas."

Overlooked until now, though, is the fact that New Jersey, unlike many states, allows overseas military ballots to be sent out by fax. State law also allows military voters overseas to return their ballots by fax. And while not every single overseas voter would have access to a fax machine on a military base, that sort of instantaneous communication would seem to address Republican concerns that men and women overseas would not receive updated New Jersey ballots in time. In fact, under state law, requests for overseas military ballots can be faxed to election offices just four days before the election.

Baroni could not be reached for comment about faxing military ballots.

According to Fran Stuhl, special deputy clerk for Middlesex County in New Jersey, overseas military ballots, or the Federal Post Card Applications used to request them, can be obtained three different ways: A family member can visit a local county clerk's office and obtain one, a request can be mailed in, or it can be faxed in. Ballots can then be mailed back or faxed back.

Not all states are so lenient about overseas military ballots. New York, for instance, "does not allow electronic transmission of the FPCA, the blank absentee ballot, or the voted absentee ballot," according to its ballot application. In Missouri, some counties allow overseas military ballots to be sent out by fax, but none allow them to be returned by fax.

Democrats control the U.S. Senate by just one vote, yet neither party had seen the New Jersey race as critical in this fall's campaign since Torricelli was so heavily favored. But then, dogged by accusations about improper campaign contributions and slipping badly in polls -- one statewide survey last week showed him trailing the relatively unknown Forrester by 13 points-- Torricelli this week dropped out of the race in an effort to save his Senate seat for Democrats.

State Democrats moved to replace Torricelli with Lautenberg, a former senator who served for 18 years.

New Jersey law states candidates must be on the ballot 51 days before the election date -- this year, by Sept. 16. Republicans argued that meant no changes -- such as replacing Lautenberg for Torricelli -- could be made after that date. Democrats argued the date merely serves as an administrative goal post to ensure smooth elections. The seven New Jersey Supreme Court justices agreed with the Democrats, arguing the overriding interest was providing voters with a clear choice of candidates, as long as it could be done in a timely manner.

The court ordered the state's 21 counties to begin printing new ballots, with costs to be covered by Democrats. It may be days before Republicans find out whether their legal challenge to block the ballots will pay off.

Eric Boehlert

Eric Boehlert, a former senior writer for Salon, is the author of "Lapdogs: How the Press Rolled Over for Bush."

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