Arguments over fusion voting lawsuit to be heard next week

As legislators in Trenton figure out what’s next after the demise of the county line, an appellate court will hear arguments next week in a yearslong lawsuit challenging New Jersey’s ban on fusion voting.

Fusion voting — the practice of one candidate appearing on the ballot for more than one political party — has been banned in the state for longer than a century. The issue spurred up in 2022, when then-Rep. Tom Malinowski (D-Ringoes) tried to accept the nominations of both the Democratic Party and a newly formed Moderate Party comprised of Central Jersey Republicans.

When Secretary of State Tahesha Way cited the 1921 ban to reject Malinowski’s requests (he was allowed to run only as a Democrat), the Moderate Party sued, arguing the ban violates the state constitution. Malinowski lost re-election to Rep. Tom Kean Jr. (R-Westfield), but the lawsuit has trudged on.

The Superior Court’s Appellate Division will hear arguments in Morristown next Tuesday. The New Jersey Supreme Court has so far declined to hear the case.

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.

Attorneys for the Moderate Party have argued the bans on fusion voting burden the rights of New Jerseyans to nominate and vote for their preferred candidates.

Proponents of fusion voting gave a preview of the hearing in a press briefing Wednesday.

Ronald Chen, a former dean of Rutgers Law School, said the U.S. Supreme Court has ruled the federal constitution doesn’t guarantee a right to fusion voting, but hopes New Jersey’s Constitution can be interpreted to guarantee the right.

“The state Supreme Court is free to interpret our state constitution more broadly than the federal one,” Chen said. “And that’s clearly what the Moderate Party is seeking in this case.”

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 last April in support.

Lauren Miller Karalunas, counsel in the Brennan Center’s Democracy Program, said strong political parties pushed to ban fusion voting in the early 20th century to curb third parties and solidify control. She said more than 40 states, including New Jersey, banned fusion in the early 1900s.

“When influential third parties such as the Populists or the Prohibitionists began organizing coalitions and threatening major party control, the solution was obvious for the parties in control of state governments,” Miller Karalunas said. “They could solidify their power by banning fusion voting.”

The push for fusion voting has occurred concurrently with but independently of the push to end the county line.

The Assembly’s Select Committee on Ballot Design, which will recommend election reforms to the Assembly soon, has held several public hearings on potential reforms to voting in the Garden State. Still, fusion voting has rarely come up, if at all.

Udi Ofer, a lecturer of public and international affairs at Princeton University, the litigation that unraveled the county line is different and separate from fusion voting efforts, but both efforts help to hinder the two-party “monopoly” on elections in New Jersey.

“This is all about whether people in power should be able to put their thumb on the scale of who New Jerseyans get to vote for,” Ofer said.

Attorneys representing Way and the Division of Elections said a ruling in favor of fusion voting would “overturn century-old laws, rewrite constitutional history, and discard federal constitutional precedent.” Their filing argues that because the creators of New Jersey’s 1947 Constitution “affirmatively” opted not to include fusion voting, the Constitution should not be interpreted to include it.

“Because New Jersey’s Fusion Statutes apply equally to all parties and nominees, do not limit any voter’s ability to vote for the candidate of their choice, and allow candidates who have secured the nominations of multiple parties to communicate those endorsements on the ballot, any intrusion on constitutional rights is nonexistent to minimal,” the filing says.

Tuesday’s hearing will be held at 9:30 a.m. at the Morris County Courthouse.

This article was updated to correct Miller Karalunas’ name.