Home>Campaigns>Top court say no to hearing fusion voting law challenge

Rep. Tom Malinowski at the groundbreaking for the Portal North Bridge on August 1, 2022. (Photo: Kevin Sanders for the New Jersey Globe).

Top court say no to hearing fusion voting law challenge

By David Wildstein, September 12 2023 6:48 pm

The New Jersey Supreme Court has rejected a bid by the Moderate Party to hear its challenge to the state’s fusion voting laws, instead leaving the issue in the hands of the appellate division.

The Moderate Party was founded in 2022 by a group of former Central Jersey Republicans seeking to allow Rep. Tom Malinowski (D-Ringoes) to run as both the Democratic and Moderate candidate in New Jersey’s 7th district.

Citing the state’s 1921 ban on fusion voting — the practice of one candidate appearing on the ballot under more than one political party — Secretary of State Tahesha Way, a Democrat, twice rejected petitions filed by Malinowski.  She said Malinowski had already won the Democratic primary and that state law prohibited a candidate from appearing on the ballot more than once for the same office.

The fledgling party appealed Way’s decision, putting the Murphy administration and Republicans, who were backing Tom Kean, Jr. (R-Westfield), on the same side.

Carmen Messano, the chief appellate judge at the time, rejected a move by the administration and the GOP to dismiss the case entirely.

Kean ousted Malinowski in the general election, but the lawsuit continues; if the law is overturned, the political landscape for minor parties in New Jersey could be dramatically altered.

The top court’s decision puts the matter back in the hands of the appellate court, who may or may not decide the matter before the 2024 election.    The Moderate Party or other groups did not mount similar challenges to fusion voting in legislative, county, or municipal races this year.

The lawsuit received additional support in July when 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, including former House Minority Leader Dick Gephardt, signed on.

Former Republican Gov. Christine Todd Whitman and former Democratic U.S. Senator Robert Torricelli penned an op-ed in April in support of the lawsuit challenging Way’s decision, and the new list of supporters released today further bolsters the case.

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