The Moderate Party says the state’s fusion voting ban violates constitutional protections, but the state says it prevents ballot manipulation. (Photo by Jennifer Peacock | Assembly Republican Office)
A three-judge panel on Monday heard arguments over whether a more than a century-old prohibition on candidates appearing more than once on ballots passes constitutional muster.
Attorneys for the Moderate Party are seeking to do away with the ban, arguing that preventing candidates from running under the auspices of two separate political parties infringes on the rights to free expression and association enshrined in the state’s constitution.
“This case is about whether the state can deliberately exclude new ideas and new parties from the political marketplace. When the political branches use the law to shut the window of political opportunity for those who do not already have power, it’s the constitutional obligation of the court to call foul,” said Beau Tremitiere, who is counsel for Project Democracy and represented the Moderate Party.
New Jersey has barred candidates from appearing on the ballot more than once for a single office since 1921, though the Moderate Party sought to revive the practice, called fusion voting, in 2022.
That year, the party attempted to nominate then-Rep. Tom Malinowski — a Democrat who represented the 7th Congressional District — but Secretary of State Tahesha Way blocked the move, citing a statute that bars candidates from accepting more than one nomination. The party appealed her decision to the judiciary.
An attorney for the state said Monday that New Jersey has legitimate reasons to bar cross-party candidate nominations.
“If you have the Democrat candidate that says, ‘I really want the voters to know I’m the best candidate on property taxes,’ and so this candidate forms the No New Taxes Party, and he has them endorse him as their candidate, the ballot now signals this is not just the Democratic candidate, it’s the candidate who’s doing the lower taxes,” said Tim Sheehan, special assistant to the New Jersey solicitor general.
Sheehan noted that nothing would stop a candidate from creating multiple political parties with the purpose of gaming ballot design.
He said a separate statute already allows candidates to list all the party endorsements they receive on the ballot.
Malinowski, who lost reelection to Rep. Tom Kean in 2022, did not receive such designations in any of the district’s counties that year.
Attorneys arguing for the return of fusion voting said that solution would still violate constitutional protections because, in Malinowski’s case, it would give the Democratic Party greater stature and deprive the Moderate Party of the opportunity to secure votes for itself.
New Jersey statute affords parties whose primary turnout is at least 10% of the turnout in the most recent Assembly election a dedicated column or row on the ballot.
In New Jersey, voters must be registered with the party whose primary they vote in, and only the Republican and Democratic parties meet the turnout bar for dedicated ballot slots.
“How could a minor party achieve recognized status if its voters are not counted by the state?” said Jeanne LoCicero, legal director at the American Civil Liberties Union of New Jersey, which joined the case as a friend of the court.
Attorneys for the state and the Republican State Committee, which intervened in the suit to oppose fusion voting, said the ban’s longstanding nature and the absence of direct legal challenges in the 101 years between its enactment and the Moderate Party suit underscore its constitutionality.
The drafters of New Jersey’s 1947 constitution, they added, rejected proposals that would have forbid the Legislature from making laws like the fusion voting ban.
“When you have that unbroken history and the delegates’ refusal to amend the constitution to find this right, I think that’s powerful evidence. If not decisive, it’s at least a heavy thumb on the scale,” Sheehan said.
The Republican State Committee also questioned the motives behind the Moderate Party’s suit, noting the group formed as Malinowski faced a competitive election in what was broadly viewed as the state’s lone competitive congressional district.
“I would suggest to the court that we view the factual circumstances that led to the filing of this case with a heightened level of suspicion as being illustrative of the type of evil that the state could justifiably want to prohibit,” said Jason Sena, the attorney representing the state Republican Party.
Judge Robert Gilson said the court would issue a written opinion but did not provide a timeline for its ruling.