Moderate Party will ask N.J. Supreme Court to lift ban on fusion voting

The fledgling Moderate Party wants a state appellate court to allow a Democratic congressman to appear on the ballot as their candidate in the fall election.

The group filed a notice of appeal today and plans to ask the New Jersey Supreme Court for a direct certification to determine whether a state law that bans fusion voting – the practice of one candidate appearing on the ballot under more than one political party – is constitutional.

The short-term goal is to allow the Democratic nominee in New Jersey’s 7th district, Rep.  Tom Malinowski (D-Ringoes) to run as the Moderate Party candidate on the ballot.  New Jersey Secretary of State Tahesha Way, a Democrat, has rejected petitions filed by Malinowski twice.

The attorney representing the Moderate Party, Flavio Komuves, declined to predict whether the court battle could be decided by September 24, when federal law requires the mailing of military ballots to commence.

“The simple reality is in most litigation the control over the timing of the disposition of the case is largely in the hands of the court,” Komuves said.  “We’re not the ones wearing the black robes.”

Komuves said that the New Jersey Supreme Court “has historically not hesitated to read our State Constitution in a more expansive way” than the U.S. Supreme Court.  He noted that fusion voting was permitted in New Jersey until about 100 years ago.

He defended the seven-week delay from the June 7 filing deadline to today’s court filing, saying his team needed time to develop their arguments.

“The paramount goal in our case has been to get the record and the legal arguments right,” said Komuves.  “We have briefs submitted the that will ultimately go before the state Supreme Court.”

While the state Supreme Court can opt to take the case on their own, the Moderate Party can’t seek certification until the briefing schedule for the appellate division is completed.

Republican Richard Wolfe, an East Amwell township committeeman and former mayor, said he backed Rep. Leonard Lance (R-Clinton Township) in 2018 and Tom Kean, Jr. in 2020, but now backs Malinowski after determining that they agree on most issues.

“I still view the Republican Party as my family,” Wolfe stated.  “I’m just trying to bring my family back closer towards the center so again.”

Wolfe said the idea to create a new political party was his and that he brought the idea to Malinowski.

“I was pleasantly surprised, although I probably shouldn’t have been, how warmly he embraced the idea, not just because we wanted to support his campaign but because he believes in this cause he believes in giving voters this additional choice,” Wolfe said.

It’s not clear whether the bid to form a new political party is an earnest effort by some centrist Republicans – the type that felt comfortable with former Governors Thomas Kean, Sr. and Christine Todd Whitman — to walk away from a party that has shifted to the right under Donald Trump and some national GOP leaders, or a bid by Malinowski to generate news stories that repeatedly suggest that he is a moderate.”

It’s also uncertain whether the Moderate Party is a political party or just a club.

Wolfe, the founder of the party, said he couldn’t answer questions about the number of members of the Moderate Party.

“I don’t know what the membership numbers are right now,” he said.  “I’m not overseeing that.”

And Wolfe declined to say who was funding the Moderate Party and how much they’ve raised.

“We will satisfy our obligations under ELEC and all that will be publicly available,” he said.

New Jersey currently recognizes seven minor political parties for the purpose of voter registration, although that has no bearing on candidate selection or ballot position.  The New Jersey Conservative Party has 15,602 votes affiliated with it, while the Socialist Party has 7,780, according to records from the Division of Elections.

The team that is working to get Malinowski on the ballot as the Moderate Party candidate has close ties to the Democratic Party’s liberal wing.

Komuves has represented progressive candidates in election law cases, and Wolfe’ attorney, Yael Bromberg, a progressive leader, is also affiliated with Komuves’ firm, Weissman & Mintz.

Kean dismissed the Moderate Party as a stunt.

“Perhaps Tom Malinowski simply thinks nobody would notice, or perhaps this is a more brazen attempt to subvert democracy and benefit his own political stock,” said Kean.  “However you cut it – this is a dishonest attempt to fool voters in an astoundingly tough election year for Washington Democrats.”

The Moderate Party has registered with the New Jersey Election Law Enforcement Commission and has designated a prominent Democratic strategist, Jennifer Holdsworth, as having direct or indirect control over expenditures.  Holdsworth has worked for U.S. Senator Cory Booker, the New Jersey Democratic State Committee, served as Hillary Clinton’s 2016 New Jersey state campaign director, and managed Pete Buttigieg’s bid for Democratic National Chairman in 2017.

Wolfe said he plans to continue to build a new party in the future, even if he’s unsuccessful on the Malinowski front in 2022, saying there are some Republicans he might want to support as Moderate Party candidates in next year’s legislative election.