Moderate Party’s push for fusion voting finally hits courts

A nascent political party backing Rep. Tom Malinowski has asked a state appellate court to allow his name to appear on the ballot twice this November, a move the Democratic congressman’s critics say is a transparent bid to help him win reelection during a challenging year for his party.

The ballot practice, called fusion voting, has been banned in New Jersey since 1922. Moderate Party legal filings allege the state’s prohibition on a candidate appearing on a ballot as more than one party’s nominee violates numerous provisions of the state’s constitution, including those guaranteeing rights to free speech, assembly, and equal protection.

“We have a rise in extremism, in division, in tribalism that we have not seen in recent history,” Flavio Komuves, an attorney for the Moderate Party, said Wednesday. “And these things come together to demand that the right of fusion for New Jersey voters is protected by our state constitution.”

If judges approve the party’s bid, Malinowski could appear on November’s ballot as a candidate for the Democratic and Moderate parties. Eight states, including neighboring New York, allow fusion voting. Like New Jersey, most other states outlawed the practice in the late 19th or early 20th centuries.

Republicans have met the fusion voting push with derision, charging it’s a nakedly political maneuver meant only to help an imperiled Democrat who finds himself in a more conservative district after its boundaries were redrawn last year.

“Perhaps Tom Malinowski simply thinks nobody would notice, or perhaps this is a more brazen attempt to subvert democracy and benefit his own political stock,” former state Sen. Tom Kean, Malinowski’s Republican opponent, said in a statement. “However you cut it, this is a dishonest attempt to fool voters in an astoundingly tough election year for Washington Democrats.”

Malinowski penned a pro-fusion voting column for The New York Times earlier this month, saying the current system “rewards and encourages divisiveness.”

Malinowski-Kean rematch

Malinowski, first elected in 2018 with a wave of anti-Trump Democrats, represents the 7th Congressional District, an area of New Jersey that for most of the 20th Century was represented by Republicans. It stretches mostly across the northwestern part of the state, including all of Hunterdon and Warren counties and towns in Morris, Somerset, Sussex, and Union.

As the Republican Party’s nominee in 2020, Kean came a single point from ousting Malinowski, and the district is a focus for national Republicans as they look to retake a House majority they lost in 2018.

Secretary of State Tahesha Way on Tuesday again refused the Moderate Party’s request to let Malinowski appear twice on the ballot, ruling as she did in early June that state law allows the congressman to run under only one party’s banner.

Richard Wolfe, a Republican East Amwell township committeeman backing Malinowski’s reelection, and the party’s attorneys said they plan to petition the matter directly to the New Jersey Supreme Court, though they had not filed the necessary legal paperwork for that as of Wednesday afternoon.

If the Moderate Party files for and is granted certification from the Supreme Court, the case would move to the high court without being heard by the Appellate Division.

Questions remain about the Moderate Party’s timing. Though New Jersey courts often move quickly in election law cases, that pace is frequently fueled by outside pressures that don’t appear to exist around fusion voting.

Election officials are due to begin sending out mail-in ballots on Sept. 24 (some election deadlines are fungible). New Jersey judges typically have broad latitude over election law cases, but they have less leeway here because of a federal law requiring ballots to be mailed to military service members on that date.

Attorneys for the Moderate Party could not say whether their case would be decided before that deadline, saying much of the timeline depends on the courts.

“Our focus is on presenting the best legal arguments, but we recognize that we’re lawyers. We’re not the ones wearing the black robes,” Komuves said.

Further complicating matters is the Supreme Court’s schedule. The high court’s term has ended, and justices are not due to resume oral arguments until the fall. Their first hearing dates, Sept. 12 and 13, are less than two weeks before the ballot mailing deadline.

That appeared not to worry the party’s legal team, which suggested the high court could depart from its schedule to hear a matter in the summer.

“There’s an expression in our court rules that says, ‘The courts are always open,'” Komuves said.

The Moderate Party’s strength

Democratic and Republican Party organizations have spent years and more building out their fundraising and get-out-the-vote operations, and it’s not clear whether the Moderate Party will have the resources or capacity to draw voters to Malinowski, something Wolfe said the party intends to do even if the fusion voting bid is unsuccessful.

Wolfe on Wednesday declined to say how many voters had aligned themselves with the party and could not give an estimate of the organization’s fundraising. In both cases, he said he was not in charge of those operations.

Komuves declined to say what the Moderate Party would do if the New Jersey Supreme Court does not agree to hear the case, citing worries about revealing strategic legal plans to fusion voting opponents.

Kean and other Republicans have scoffed at efforts to portray Malinowski as a moderate, citing Malinowski’s refusal to back Rep. Josh Gottheimer (D-05) during an intra-party spat over Democratic priorities in 2021, donations to and from progressive groups, and Malinowski’s voting record.

“These are just a few examples of Tom Malinowski’s unabashed service to the far-left wing of the Democratic Party in his short time in Congress,” Kean said. “At a time when the issues we face as a country are so great, and differences between the paths forward are so stark, make no mistake: Tom Malinowski is no moderate.”

Wolfe, a self-described moderate Republican who backed Republican Leonard Lance and Kean against Malinowski in 2018 and 2020, said he came to support the incumbent after reaching out to the congressman for assistance with a local issue in East Amwell.

“I assumed I’d be wasting my time discussing this with Tom Malinowski. He’s a Democrat. I’m a Republican. He had every incentive to see me fall flat on my face,” Wolfe said. “Not only did he not behave that way, but he bent over backwards — and his staff — to help me with my problem.”