The first legal test of Superior Court Judge Benjamin Morgan’s controversial 2023 decision that applied the state’s Sore Loser Law to an independent candidate who hadn’t campaigned in the primary may be coming up in June.
Peter Vallorosi, who left the race for the Republican U.S. Senate nomination on April 2 after it became clear his nominating petitions were on the verge of being invalidated, told the New Jersey Globe that he would run as an independent.
Morgan tossed Penns Grove Mayor LaDaena Thomas from the ballot last year after finding that she had sought write-in votes in the Democratic primary through a Facebook post. Thomas had been elected as an independent in 2019 and was seeking a second term as an independent.
Instead, Thomas wound up winning re-election as a write-in.
In 2022, Superior Court Judge Linda Grasso Jones found that a man who ran an unsuccessful write-in campaign for the Colts Neck Township Committee was ineligible to run as an independent in the same election.
But a unpredictable judiciary went the other way in 2018 when an East Rutherford councilman who lost the GOP primary was offered an open slot on the Democratic ticket. The judge, Estela De La Cruz, found that the Loser Law applied and wouldn’t permit Jeffrey Lahullier to run as a Democrat. (The following year, Lahullier ran for mayor as a Democrat and won.)
Last year, the Sore Loser Law didn’t prevent Craig Stanley from taking a second shot at the Democratic nomination for State Assembly in the 27th district, even though he lost the June primary.
That’s because the 1998 law only applies to direct petitions, not filling vacancies. It was passed to prevent candidates defeated in primaries from becoming general election spoilers by running as independents.
So, while Stanely could not have run as an independent after losing the primary, there was no legal obstacle to again trying for the Democratic nomination.
The circumstances were unusual: he lost the primary to John McKeon and Alixon Collazos-Gill. He ran again after McKeon surrendered his place on the general election ballot to seek a Senate seat after Richard Codey decided not to run for re-election earlier this month.
Still, election laws are frequently fungible in New Jersey, and sometimes, the ruling depends on the judge.
After four-term Assemblywoman Arline Friscia was dropped from the Middlesex Democratic line in 2003, she ran in the primary and came within 735 votes of keeping her seat.
Then, Republicans recruited her to switch parties and seek re-election on their slate.
Democrats went to court, arguing that Friscia was violating the Sore Loser Law. A judge ruled that Friscia was eligible to become a replacement candidate for the winner of the Republican primary; her Hail Mary bid to keep her seat failed in the Democratic-leaning 19th district, and she lost by about 3,200 votes.
It’s unclear how a pending lawsuit to overturn New Jersey’s 102-year-old ban on fusion voting might affect the Sore Loser Law.
Fusion voting was legal in New Jersey until 1921 when leaders from both parties pushed through legislation to limit independent challengers.
Republicans, who controlled the legislature at the time, were still reeling from losses suffered in 1912 when the independent Bull Moose candidacy of Theodore Roosevelt split the Republican vote and led Woodrow Wilson, then the governor of New Jersey, to defeat President William Howard Taft. The Bull Moose party recruited multiple legislative and local candidates that year and cost Republicans congressional and legislative seats.
Over 100 candidates in New Jersey had run with the support of more than one political party before the practice was banned about a century ago. Among them was Republican Mahlon Pitney (R-Morristown), who won re-election to a Morris County-based congressional seat in 1896 by 2,977 votes against Augustus Cutler (D-Morristown), who had been a two-term congressman in the 1870s. Pitney, who later served as an associate justice of the U.S. Supreme Court, was also on the ballot as the candidate of the “Sound Money Democrats.”
In New York, one of three states where fusion voting is legal, the law cost Democrats a U.S. Senate seat for eighteen years.
Four-term U.S. Senator Jacob Javits had lost the 1980 Republican primary to Alphonse D’Amato by eleven percentage points, but Javits remained in the general election as the Liberal Party candidate. He won nearly 665,000 votes (11%), enough to cost Democrat Elizabeth Holtzman the seat; D’Amato beat Holtzman by 1.3%, a margin of about 81,000 votes.
D’Amato held the New York Senate seat until Democrat Chuck Schumer defeated him in 1998.