Appellate court hears arguments over fusion voting ban

A panel of three appellate judges heard arguments Tuesday in a lawsuit challenging the legality of New Jersey’s longtime ban on fusion voting. 

A decision in favor of fusion voting would mean candidates could accept the nomination of more than one party. The case stems from a 2022 lawsuit when then-Rep. Tom Malinowski (D-Ringoes) tried to accept the nominations of the Democratic Party and a newly formed Moderate Party composed of Central Jersey Republicans.

Secretary of State Tahesha Way rejected his request, citing a 1921 ban on the practice. Malinowski would go on to lose re-election to Rep. Tom Kean Jr., but the lawsuit lives on today.

Attorneys representing the Moderate Party and other supporters of fusion voting (like the ACLU of New Jersey) said the state constitution protects the rights of candidates who wish to accept the nomination of more than one party. The attorney representing Way said restrictions on fusion voting prevent ballots from becoming an unruly “menu of candidates” and argued the framers of the state’s 1947 Constitution purposely left fusion voting out.

If the court rules in favor of the Moderate Party, the Garden State could join New York and Connecticut as the only states with full fusion voting. ​​Supporters argue such a ruling would help reduce partisanship and limit the power of the state Democratic and Republican party organizations, but others have countered that it might be confusing for voters or create ballot chaos.

The three-judge panel from the Superior Court’s Appellate Division gave little indication of how it might rule in the case.

The New Jersey Republican State Committee joined the case on behalf of Way, arguing the Moderate Party has ties to Democrats, and fusion voting would be exploitable — a rare case of top Republicans intervening in support of the Murphy administration.

The Supreme Court of the United States ruled in 1997 that the federal Constitution does not protect the right to fusion voting, but the Moderate Party argues the state Constitution goes further in its protection of rights. Proponents argued in briefs that New Jersey’s Constitution is more “sweeping” in its free-speech protections than most other states.

“We also have … unique and specific constitutional text suggesting the New Jersey Constitution provides rights far above and beyond those recognized under federal law and recognized under many other states’,” attorney Beau Tremitiere said Tuesday.

Proponents of fusion voting believe the bans force voters to affiliate with parties don’t prefer and the restrictions needlessly prevent parties from supporting their preferred candidates.

“Here we have the complete exclusion of a new party’s nomination from the general election,” Tremitiere said. “This forces the party’s voters to instead associate with and support a rival party. That is the price of admission for voting for their own party’s preferred nominee.”

The Moderate Party’s lawsuit has gained some high-level backers. The ACLU of New Jersey, the left-leaning Brennan Center for Justice, the libertarian-minded Cato Institute, the New Jersey Libertarian Party, and a bipartisan group of five former members of Congress filed briefs supporting the concept. Former Republican Gov. Christine Todd Whitman and former Democratic U.S. Senator Robert Torricelli penned an op-ed in support last April.

Tim Sheehan, an attorney representing Way, said the state Constitution can and should go further than the federal Constitution when needed, but said the issue has rarely come up in the century since the ban and there is minimal harm in banning fusion voting.

“When you have that unbroken history and the delegates’ conscious refusal to amend the Constitution to find this right, I think that is powerful evidence,” Sheehan said Tuesday.

In their filing, Way’s attorneys said a ruling in favor of fusion voting would “overturn century-old laws, rewrite constitutional history, and discard federal constitutional precedent.”

“New Jersey’s statutes simply do not implicate—and at most, minimally burden—the right to vote, freedoms of speech, association, and assembly, and the right to equal protection,” the filing reads.

On Tuesday’s panel were Judges Robert Gilson, Lisa Firko, and Lorraine Augostini.

Gilson asked why, if fusion voting were indeed an essential right, the ban had rarely been challenged over the past century.

“All we know is this sort of conduct is essential to the Moderate Party and their desire to participate in the local process,” Tremitiere said.

The New Jersey Supreme Court has so far declined to hear the case, instead bumping it to the Superior Court’s Appellate Division.