After a two-hour appellate hearing today on whether or not a lower court ruling striking down the New Jersey county line should be overturned, a panel of Third Circuit Court of Appeals judges has promised a swift response in the time-sensitive case.
“We’ve got the matter under advisement, and we recognize the importance of timing,” Circuit Judge Kent Jordan said at the conclusion of the hearing. “We will get back to you promptly.”
The arguments today focused on whether U.S. District Judge Zahid Quraishi erred when he issued a preliminary injunction last month barring the use of the county line – the primary ballot design system that groups party-endorsed candidates together – in this year’s Democratic primary (but not in the Republican primary). Quraishi said that he believed the arguments brought by Rep. Andy Kim (D-Moorestown) and several Democratic congressional candidates on the line’s supposed unconstitutionality were compelling enough to warrant the injunction.
Quraishi’s opinion was quickly appealed by most of the state’s county clerks, who had been defendants in the original lawsuit, but they dropped out of the appeal after the Third Circuit declined to halt Quraishi’s order. That left just the Camden County Democratic Committee as an appellant in the case, with several other county party organizations joining as amici curiae.
Bill Tambussi, representing the Camden Democrats, was the leading voice in favor of overturning Quraishi’s decision at today’s hearing – and he faced some stiff questioning from Jordan and fellow Circuit Judges Cheryl Ann Krause and Arianna Freeman. (None of the judges, importantly, are from New Jersey; Jordan is from Delaware, while Krause and Freeman are from Pennsylvania.)
Tambussi focused on a few key arguments: that Quraishi did not grant the defendants enough time to make their case during the District Court proceedings; that the county line is an expression of county parties’ constitutionally protected associational rights; and that nothing about the county line system violates any candidate’s or voter’s rights. On each argument, the panel of judges sounded skeptical.
“Under the law of New Jersey, as it applies to political parties, political parties have the right … to associate with, and not associate with, endorsed and non-endorsed candidates,” Tambussi said at one point in the hearing.
“Right, nobody’s questioning that!” Jordan responded. “Nobody is arguing that you can’t endorse, nobody is arguing that you can’t sloganeer, nobody is arguing that you can’t come out hard for somebody that you like and talk down somebody you don’t. The only question is, are you allowed to do that on a ballot?”
In one particularly notable instance, Tambussi seemed to argue that office-block ballots themselves – which are used in every other state’s primary elections, as well as in two New Jersey counties – are unconstitutional.
“In the end, your argument is more than that our system is constitutional, your argument is that the office-block design is unconstitutional, because it doesn’t allow you to group,” Jordan said. “Am I understanding you right?”
“It doesn’t allow us to associate on the ballot,” Tambussi responded.
“The issue that I have with that is, by extension, wouldn’t you be arguing that the elections that are taking place in 49 of the 50 states around the country are unconstitutional?” Freeman asked.
“Judge, I’m not going to offer an opinion on the ballots in other states,” Tambussi said.
Also at issue was the timing of the original lawsuit. When Kim filed his lawsuit, the county clerks responded that it was too late in the cycle to change primary ballots; Quraishi ultimately disagreed with them, saying that any harms they may incur due to the changes in ballot design were far outweighed by the harms that would occur if the line system remained in place.
Now, county clerks around the state are already in the process of laying out office-block Democratic ballots, which means that the timing argument may cut the other way: the more disruptive ruling would be to overturn Quraishi’s decision rather than letting it stand.
“The county clerks who were in the case, they’ve all dropped out of this appeal,” Jordan said. “Evidently, they’re all moving forward on the basis of the injunction, and that’s been going on. And your argument to us now is, we would make it better by telling them to stop and go back? That would cure, and not compound, the Purcell problem you’re suggesting exists?” (The Purcell Principle is a legal standard for making last-minute changes to election laws.)
“Correct, judge,” said Matt Moench, representing the Republican Chairs Association. “Right now, the process isn’t moving forward… It’s impacting the election.”
In addition to Tambussi and Moench, also speaking on behalf of the pro-line side was Sean Marotta, representing the Middlesex County Democratic Organization. Marotta espoused many of the same arguments as Tambussi, but made an important distinction: he said he has no intention of making the argument that party-line ballots are the only constitutional ballot design.
“We are not arguing that office-block format is unconstitutional,” Marotta said. “Rather, from my position, what we’re saying is we have an interest in the column and row, which is hurt by the creation of the injunction, because, as the District Court found, bracketing does benefit political organizations by allowing people to easily vote down-the-line for the candidates that are endorsed by organizations.”
The hearing then shifted to Brett Pugach, a member of the three-attorney team representing Kim and his fellow plaintiffs, and to Ryan Haygood, who attended on behalf of the League of Women Voters. Pugach put forward much of the same anti-line argument that previously convinced Quraishi: that the county line confers an unconstitutional benefit to certain candidates, harming both non-endorsed candidates and voters themselves in the process.
The judges prodded Pugach on whether the line did in fact confer the unfair advantage he claims, noting that courts have held in the past that candidates have no inherent right to “windfall” votes from uninformed voters voting for the first candidate listed, and that general election ballots in many states are designed to favor the two major parties over minor parties.
“Why wouldn’t that apply just as well to a general election ballot, where there are minor parties – they may not have candidates for every [office]?” Krause asked.
“It may apply,” Pugach replied. “As far as the weight of the line is concerned, there are specific factual findings that the District Court made in this case. We don’t know what the evidence is as to a general election ballot, what the impact is.”
The Third Circuit appeal isn’t the only litigation currently ongoing regarding the county line. Since Quraishi’s decision only applied to the Democratic primary because all of the plaintiffs were Democrats, a group of off-the-line Republican candidates are suing in state court to overturn the GOP line as well; that case is also being heard today.
The multiple overlapping cases have, naturally, led to quite a bit of uncertainty about what this year’s primary will eventually look like. Regardless, though, the state’s county clerks conducted drawings for ballot positions last week and are currently in the process of designing ballots for the June 4 primary – a primary for which ballots will have to be completed and mailed beginning in just a few weeks.