Nine months later, fusion voting case trudges on

Opponents want the case dismissed or moved to a lower court

By: - April 20, 2023 7:16 am

The state and New Jersey Republicans have asked for the case to be thrown out. Supporters say delays risk limiting voter choice for another year. (Daniella Heminghaus for New Jersey Monitor)

A lawsuit aiming to rewrite state law that bars candidates from appearing under the banners of more than one political party has languished for nearly nine months after hitting the docket last July, and opponents have asked judges overseeing the case to throw the matter out altogether or move it to a lower court.

Supporters of the change, called fusion voting, have argued their critics’ moves are a bid to further delay a case that has barely moved since first hitting the docket in July, raising fears that this year’s elections will be run under rules the plaintiffs claim run afoul of the state constitution.

Supporters of fusion voting argue the practice would provide a path to less partisan politics.

“Right now, we’re in a paradox in which a plurality of the electorate doesn’t want to affiliate with one of the two major parties, but come Election Day, almost all of them will cast a vote for one or the other because there is no meaningful way to connect with minor parties while fusion remains prohibited,” said Beau Tremitiere, counsel for Protect Democracy, which is representing two voter plaintiffs.

Attorneys for New Jersey and the New Jersey Republican State Committee last month filed motions to dismiss the case, each alleging the case should be thrown out or moved to a lower court and requesting a bevy of documents submitted by the plaintiffs — including voter statements, scholarly articles, and century-old media reports — be stricken from the record because they had not been scrutinized by them or the court.

“Appellants seek to have a major constitutional case decided using a record that they themselves created without any other party or the court having a say as to what the contents of the record is,” attorneys for the Republican State Committee said in their brief.

The push for fusion voting in New Jersey began last year when a group of supporters of then-Rep. Tom Malinowski formed the Moderate Party and petitioned New Jersey Secretary of State Tahesa Way to allow Malinowski to appear on the November 2022 ballot twice, as the Democratic Party nominee and as the Moderate Party’s choice. Malinowski was struggling in his reelection bid against Tom Kean, a former state senator.

Way rejected the Moderate Party’s request to run Malinowski on their organizational line. The party sued, claiming that state statute barring candidates from appearing more than once on a single election ballot trods on protections enumerated in the state constitution.

The initial court push slowed after the Moderate Party, the voters who sued alongside them, and the state asked the court to delay the proceedings in an acknowledgment that the case would not be resolved in time for 2022’s elections. Malinowski lost to Kean, a Republican who now represents New Jersey’s Seventh Congressional District.

Republicans who opposed the plan in 2022 viewed it as little more than a partisan plan to buoy Malinowski, who then faced questions over stock trades he failed to properly disclose.

Rutgers Law professor Robert Williams, an expert in state constitutional law, has been closely tracking the case. In a statement, Williams said he hopes the issue will land before the New Jersey Supreme Court, saying it has “been a source of democratic legitimacy by using a measured and thoughtful approach to recognize the strong rights and protections enshrined in the state constitution.”

“This appeal will be a prominent opportunity for the court to do so once more. Undue delay in resolving the constitutionality of the anti-fusion laws is certainly not in the public interest,” he said.

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Nikita Biryukov
Nikita Biryukov

Nikita Biryukov most recently covered state government and politics for the New Jersey Globe. His tenure there included revelatory stories on marijuana legalization, voting reform and Rep. Jeff Van Drew's decamp to the Republican Party. Earlier, he worked as a freelancer for The Home News Tribune and The Press of Atlantic City.