Genova Burns’ 30th Anniversary Countdown of the Most Influential Cases, Events and Laws
#14 – 2002 NJ Senate Election Candidate Swap
November 11, 2019
The 2002 United States Senate race in New Jersey was to have pitted incumbent Democrat Robert Torricelli, then running for a second term, against former West Windsor Township Mayor Douglas Forrester, who had secured the Republican nomination. But, Torricelli had been the focus of an ethics probe and withdrew from the late September. Commentators attributed Torricelli’s exit to poor poll numbers against Forrester, a relatively unknown opponent, resulting from bad press and reaction to the probe. Torricelli’s withdrawal, however, came after the statutory deadline for replacing candidates on the ballot. Due to the balance of Democrats and Republican’s in the Senate, the race was one of national importance for both major political parties.
Democrats nonetheless named former Senator Frank Lautenberg to replace Torricelli on the ballot, spurring a legal challenge from the Republican Party to force Torricelli’s name to remain on the ballot. In relative short order, with Genova Burns leading the legal effort on behalf of the Democratic Party, the New Jersey Supreme Court ruled in the case of The New Jersey Democratic Party v. Samson, fundamentally altering state election law and allowing Lautenberg to be the replacement on the ballot.
“The 2002 United States Senate race in New Jersey represented a quick, but decisive decision by the state’s highest court to establish real and lasting legal precedent in these unique circumstances that continue to be relied upon almost twenty years later,” said Rajiv D. Parikh, Esq., Partner at Genova Burns. “In fact, this impactful decision has had far-reaching implications not just in the Garden State, but across the country.”
Douglas Forrester, a prominent New Jersey businessman, ran for the United States Senate in 2002 with the endorsement of then President George W. Bush. Forrester's original opponent, Robert Torricelli, dropped his re-election bid following allegations of taking improper gifts while in office. Torricelli, who was never prosecuted, made his withdrawal from the campaign after the allegations, and subsequent admonishment by the United States Senate, caused his poll numbers to plummet.
In The New Jersey Democratic Party v. Samson (175 N.J. 178 (2002)), Forrester sued to stop the New Jersey Democratic Party’s efforts to replace Torricelli on the ballot with former Senator Frank Lautenberg, who had recently retired from office. Forrester’s team argued that state statute prevented the Party from replacing a candidate within 51 days of an election (N.J.S.A 19:13-20). They asserted that the statute should be followed as “there are really no extraordinary facts” such as “death and incapacitation” of the candidate being removed, and that Torricelli was only dropping from the race and not leaving his then Senate seat. The Democratic Party countered that there was still ample time to notify all voters of the change in candidates and that Torricelli was within his rights to withdraw. County Clerks across the state agreed that the substitution, with a new candidate, was feasible if it occurred immediately, and estimated it could cost taxpayers up to $800,000.
During arguments before the New Jersey Supreme Court, the justices questioned whether the legal precedent of the case could be abused in the future. Justice James R. Zazzali notably inquired as to whether “there be a parade of candidates removed at the whim of party leaders because the candidate is collapsing?” Further, the justices were also concerned about the impact on absentee voters and the public interest on whether they would have an optimal choice of candidates.
The justices ruled unanimously to allow the ballot replacement. Justice Peter Verniero, a Republican appointed by former Governor Christine Todd Whitman, wrote in the court’s opinion that the statute in question did not “preclude the possibility of a vacancy occurring within 51 days of the election.” Further, he commented that while “we see what advantage this has for Mr. Forrester; we fail to see what advantage this has for the people of New Jersey.” In their decision, the Supreme Court also ordered that the New Jersey Democratic Party was to cover the extra costs incurred to the state.
The dispute drew national attention because the New Jersey race was one of a handful of close political races that had the potential to determine the majority in the Senate. In fact, then Tennessee Republican Bill Frist, who delivered the challenger to the New Jersey Supreme Court on behalf of the New Jersey Republican Party and Forrester, claimed that replacing Torricelli so close to the election was illegal and that they were, in effect, stealing the election away from Forrester which they could have won with Torricelli as the party’s candidate.
Mere weeks following the final judgment in the case, Forrester was defeated by Lautenberg 54-44 percent.