Mazo: New Jersey Has a New Ballot Problem. Here’s How to Fix It

OPINION

When Mikie Sherrill becomes governor on January 20, the first item on her agenda should be to work with the legislature to fix how New Jersey runs its primary elections.

Since last year’s demise of county line, which allowed New Jersey’s parties to choose where their endorsed candidates appeared on the ballot, dozens of newcomers have decided to run for public office. And that’s a good thing. But as New Jersey’s primary ballots become more crowded, some of the state’s primary winners will encounter a new problem.

To understand it, take Sherrill’s own experience. In June, the state’s gubernatorial primary featured five Republican and six Democratic candidates. Jack Ciattarelli won the Republican primary with almost 68% of the vote, while Sherrill won the Democratic primary with only 34%. To be sure, Sherrill received more votes than any other candidate. At the same time, 66% of Democratic primary voters, a clear majority, preferred someone else.

Plurality elections, which allow candidates to be declared winners even when they receive less than 50% of vote, are common throughout the United States. But such elections often lead to situations where a small fraction of voters effectively have the ability to make decisions for the majority, creating a democratic legitimacy problem. To illustrate the point, imagine a situation where thirteen candidates appear on the primary ballot. One of them may be able to win with only 15% of the vote, even though 85% of voters oppose that candidate.

To avoid electing weak plurality winners, seven U.S. states explicitly require their political candidates to win a primary election with a majority of the vote. If no candidate receives a majority in Georgia, for example, the state requires a second-round runoff to be held between the top two candidates. Mississippi imposes the same requirement for its statewide races. South Dakota recognizes strong plurality winners but not weak ones, requiring a runoff when no candidate in a federal or gubernatorial election wins at least 35% of the vote. North Carolina allows its second-place candidates to request that an official runoff be conducted when the first-place candidate receives less than 30% of the vote. Alaska and Maine, meanwhile, both employ ranked-choice systems that require voters to rank their primary candidates on the ballot. If no one receives a majority of the vote, weaker candidates are eliminated and second-place votes are retabulated automatically, without voters having to return to the polls.

After a federal judge enjoined the county line last year, New Jersey’s lawmakers realized they could no longer continue winning elections using rigged ballots. At that point the legislature amended the law to require that office-block ballots be used for primaries instead. An office-block ballot lists all candidates running for the same office in a way that provides each candidate with a much more level playing field. While mandating the use of office block ballots, the legislature also raised the signature threshold needed to qualify for the ballot by 150 percent for most offices. If a candidate earlier needed 200 signatures to run for Congress, now he or she needs 500. At the time, the legislature claimed it was trying to prevent ballot crowding.

Ballot crowding had never previously been a problem in New Jersey. In fact, for decades, the county line ballot system caused the state’s primary ballots to remain empty. By precluding serious challengers who did not have party support from running, the county line turned the state’s primaries into sleepy affairs. Because the system afforded a party’s endorsed candidate preferential ballot position, primary challengers, who were often relegated to “Ballot Siberia,” always lost. Knowing this, serious candidates who failed to receive their party’s endorsement would drop out of New Jersey’s primary contests long before Election Day, leading the state to have the highest candidate dropout rates in the nation. As a result, voters were often presented with ballots that listed the name of only a single primary candidate for each office.

New Jersey, where there are 40 members of the State Senate and 80 members of the General Assembly, has to hold 240 primary contests—120 on the Democratic side, and 120 on the Republican side—to fill its 120 state legislative seats. In 2023, only 27 of these 240 primaries, or 11.3%, listed more than one candidate on the ballot. In 2021, that number was even lower. Only 24 of these 240 legislative primaries, or 10%, were contested.  Meanwhile, not a single congressional incumbent has been defeated by a non-incumbent challenger in a New Jersey primary election since Cornelius Gallagher beat Alfred Sieminski in 1958.

After Mikie Sherrill resigned from Congress on November 20 to focus on her transition, Governor Phil Murphy scheduled an election for NJ-11 in which voters will be asked to choose her successor. On December 1, thirteen Democratic candidates filed paperwork to compete for Sherrill’s vacated seat, with a special primary set to take place on February 5 and a special general election on April 16. The fact that voters in NJ-11 will have that many choices should be celebrated, but the primary ballot will be crowded.

The only way to remedy this problem is for the new governor to work with the legislature to reconfigure the state’s primary system, changing it to ensure that candidates with weak pluralities do not wind up winning New Jersey’s increasingly competitive primary elections. Several options are readily available. Implementing a ranked-choice voting system is one. Requiring a run-off between the top two candidates, so that a majority winner emerges, is another. Allowing a candidate to win without a runoff if he or she secures a strong plurality, such as at least 45% of the vote, is a third. But during a period in the state’s history when more candidates than ever are running for public office, it is irresponsible to leave the current system in place.

Eugene D. Mazo is a law professor at Duquesne University, a Public Voices Fellow with The Op-Ed Project, and the editor of “The Oxford Handbook of American Election Law.” A New Jersey resident, Professor Mazo has twice been a congressional candidate in NJ-10.