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A 2022 sample ballot from New York's Jefferson County, in which Kathy Hochul and Lee Zeldin both received multiple ballot lines via fusion voting. (Photo: Jefferson County Elections).

Fusion voting lawsuit will continue after appellate division denies request for dismissal

Tahesha Way, Republican State Committee both filed motions to dismiss or transfer suit

By Joey Fox, May 02 2023 3:21 pm

A lawsuit over “fusion voting,” in which the same candidate can appear on the ballot under multiple parties, will continue after the New Jersey Superior Court Appellate Division denied efforts today to either dismiss the case or transfer it to the Law Division.

The lawsuit began last summer, after a new political organization called the Moderate Party was formed to aid Rep. Tom Malinowski (D-Ringoes)’s re-election campaign. The party attempted to put Malinowski on the ballot as their own candidate, but was rejectedtwice – by Secretary of State Tahesha Way, who said that Malinowski had already won the Democratic nomination and thus under state law was barred from filing under a different party label as well.

After the double rejections, the party appealed Way’s decision; opposing the party’s legal efforts are Way and the Republican State Committee, who both filed motions seeking to dismiss or transfer the case.

In a brief two-page opinion, Appellate Chief Judge Carmen Messano rejected their motions, writing that the appellate division is the right place to adjudicate such matters.

“Regardless of whether the Secretary could have or should have considered appellants’ constitutional claims in this matter, the law is clear that we may and should consider such constitutional arguments on appeal,” he wrote.

With the 2022 elections long over – and Malinowski now a former congressman after losing to now-Rep. Tom Kean Jr. (R-Westfield) – the actual subject of the lawsuit is a moot point. But if fusion voting were to be legalized in New Jersey, it could substantially change the political landscape for minor political parties in the state.

In neighboring New York, where fusion voting is allowed, third parties – especially the left-wing Working Families Party, the right-wing Conservative Party, and the shadowy centrist Independence Party – have had a substantial impact on races over the years. Fusion voting proponents argue that bringing similar laws to New Jersey, which is in most elections an overwhelmingly two-party state, would help reduce polarization and partisanship.

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