Both sides ask judge to take fusion voting case off the fast track

A push to legalize fusion voting in New Jersey is expected to be taken off an accelerated court track after attorneys for both sides acknowledged in court filings that the case is unlikely to be resolved in time for November’s midterm elections.

This development means Rep. Tom Malinowski (D-07) will likely not be able to use fusion voting to boost his reelection chances against Republican former state Sen. Tom Kean Jr. in November. Fusion voting, a practice that allows a single candidate to appear on a ballot multiple times under separate party banners, is currently banned in New Jersey.

The fledgling Moderate Party, a group of Republican and unaffiliated voters that has endorsed Malinowski, took the New Jersey Secretary of State to court as a way to reinstate the practice, but lawyers for the state and the Moderate Party say in new court filings that judges should not consider the case on an expedited basis.

“Acceleration is not only unwarranted, it is futile,” state attorneys wrote in their filing. “Even on the accelerated track, it is impossible for the court to resolve this matter in appellant’s favor in time to implement any change for the November 8, 2022, General Election.”

The Attorney General’s Office, representing the Secretary of State in this matter, added in its filing that a rush to implement fusion voting under an exceedingly tight timeline — 84 days at the time of the state’s filing — would do little for the public interest if Malinowski is the only candidate given the ability to appear twice on the ballot.

Election officials must begin sending mail-in ballots to voters starting Sept. 24, and the case is unlikely to have a decision by then, Moderate Party attorneys said in a response to the state’s motion. Previously, they had argued the courts should decide whether to reinstate fusion voting in time to affect November races.

The party’s attorneys added that a slew of outside groups expected to join the suit might be deprived of an opportunity to weigh in if the Appellate Division hurried the case. The Republican State Committee has already filed a motion to intervene.

The court placed the case on the accelerated track by its own order, and the Moderate Party never requested the case be expedited.

The party initiated the court fight at the end of July, after Secretary of State Tahesha Way twice denied its request to include Malinowski on November’s ballots twice — once as the Democratic Party nominee and another as the Moderate Party nominee.

The party had previously faced questions over timelines in its push to enact fusion voting.

The group waited a month to ask Way to reconsider her June 8 decision barring Malinowski from appearing twice on the ballot. It did not appeal to the courts until July 20, and the courts did not grant that appeal until Aug. 2, nearly two weeks after Way denied its request for reconsideration.

That left less than two months for a case attempting to overturn state law enacted a century ago.

Kean has called Malinowski’s push for fusion voting “a dishonest attempt to fool voters.” Malinowski has said it would “restore the influence that our gerrymandered, polarized system has denied” some voters.

Malinowski, seeking his third term in Congress, faces a tough environment for Democrats and a much more Republican 7th District, which had its boundaries redrawn during redistricting last year.

Kean also challenged Malinowski in November 2020 and nearly defeated him.