Fusion voting effort shot down by appellate court

An effort to legalize fusion voting in New Jersey, in which candidates would be able to appear on general election ballots under multiple different party affiliations, was shot down today by a panel of state appellate judges, who found that the state’s century-old fusion voting ban does not violate the state constitution.

The appellant in the case, a minor political party called the New Jersey Moderate Party, pledged to appeal the decision to the state Supreme Court.

Back in 2022, then-Rep. Tom Malinowski (D-Ringoes) attempted to claim the nomination of the newly formed Moderate Party, despite having already won a Democratic primary for the same office. His effort to appear on the ballot under both party designations was turned down, twice, by Secretary of State Tahesha Way, who cited the state’s 1922 ban on candidates appearing on ballots multiple times for the same office; the Moderate Party then filed an appeal of Way’s decision.

The case proceeded slowly in the two-and-a-half years that followed, and attracted a wide variety of interested parties beyond the initial scope of the dispute: the New Jersey Republican Party intervened on behalf of the Secretary of State, while groups like the ACLU of New Jersey, the New Jersey Libertarian Party, and five former members of Congress filed amicus briefs in support of allowing fusion voting.

In December of last year, the judges heard arguments in the case. The pro-fusion voting side argued that the state’s fusion voting ban contravened the state constitution’s enshrined protections of the vote, free speech and assembly, and equal protection, and that New Jersey would be well-served by empowering political parties beyond just Democrats and Republicans; Deputy Attorney General Tim Sheehan argued on Way’s behalf that there was little reason to believe that any fundamental rights were at risk due to the ban. The appellate court found the latter argument more persuasive.

“Appellants and amici argue that there are strong public policy interests supporting fusion voting,” Judges Robert Gilson, Lisa Firko, and Lorraine Augostini wrote. “They contend that anti-fusion statutes help to perpetuate the two-party system. They also argue that minority parties can help to balance political divisiveness and reduce threats to our democratic system of government. Many people considering those arguments may find them compelling.”

“Those arguments, however, do not support declaring [the state’s anti-fusion statutes] unconstitutional under the State Constitution,” they continued. “Instead, appellants and amici are free under the State Constitution to advocate for and support legislative changes to address the issues that they have identified.”

The judges also noted that there is already federal precedent for a fusion voting case: the 1997 case Timmons v. Twin Cities Area New Party, in which the U.S. Supreme Court found that a Minnesota ban on fusion voting did not violate the U.S. Constitution. The Moderate Party argued that New Jersey’s constitution should be interpreted as protecting fusion voting in ways that the U.S. Constitution does not, but the appellate panel disagreed.

“New Jersey’s anti-fusion statutes were in existence when the 1947 Convention took place,” the judges wrote. “The delegates to the 1947 Convention were clearly aware of those statutes because they considered but rejected three proposals that would have allowed fusion ballots.”

The original impetus for the case, of course, has long been a moot point. Malinowski, denied the ability to run under multiple party designations, stuck with only the Democratic label and ended up losing to now-Rep. Tom Kean Jr. (R-Westfield) by three percentage points in November 2022; during the campaign, an expenditure group affiliated with the Moderate Party was revealed to have gotten all of its funding from the House Majority PAC, a Democratic super PAC.

But if fusion voting were ever to be legalized in the future (or if the appellate court’s decision is overturned by the state Supreme Court on appeal), it could substantially change the political landscape in New Jersey. Neighboring New York is one of the few states to allow candidates to bracket with multiple political parties, and as a consequence several small parties like the Working Families Party and the Conservative Party have outsized influence in state affairs.

Richard Wolfe, the founder of the Moderate Party (and a former Republican elected official who crossed party lines to support Malinowski), said in a statement that he hoped the state Supreme Court would see the value of fusion voting even if the appellate panel did not.

“The New Jersey Moderate Party wants to reverse the trend of hyper-polarization and the danger it poses to our state and our country,” Wolfe said. “To achieve this objective, we need to identify, nominate, support and help elect viable moderate candidates who will strive to protect the basic foundations of our democracy and are willing to work collegially and respectfully with people of different viewpoints, to achieve sensible solutions to the major issues facing our country. Current New Jersey law bars us from exercising our constitutional rights to do that. We are confident the State Supreme Court will right that wrong.”