Appeals court denies bid by N.J., GOP to toss fusion voting lawsuit

A lawsuit challenging a state prohibition that bars candidates from simultaneously running under the banners of multiple political parties can proceed, an appellate panel ruled Tuesday.

The three-judge panel denied requests made by the state Attorney General’s Office and the Republican State Committee to dismiss the suit, toss it back to a lower court, and strike a series of documents that plaintiff the Moderate Party attached to its legal briefs.

The push to force New Jersey to allow candidates to appear multiple times on one election ballot — called fusion voting — began last year as a bid to allow then-Rep. Tom Malinowski to appear on the 2022 general election ballot as the Democratic Party nominee and the Moderate Party nominee.

Secretary of State Tahesha Way’s rejection of Malinowski’s Moderate Party nominating petitions drew a legal challenge, but the case was delayed after the parties acknowledged the suit would not be settled in time for that election.

Rep. Tom Kean (R-07) unseated Malinowski later that year.

Fusion voting supporters argue the practice would allow for less partisan politics by introducing a meaningful third-party option and say the state’s ban violates numerous provisions of New Jersey’s constitution, including rights to free speech, assembly, and equal protection.

Attorneys for the state and the GOP state committee were due to file answers to the Moderate Party’s briefs last month but submitted the motions to dismiss instead.

The judges chided the state and the Republican State Committee for the “lateness” of their requests and said the court did not need to conduct additional factfinding to answer the “purely legal” questions surrounding the Moderate Party’s constitutional challenge.

The panel set a June 9 deadline, which they said would not be extended, for New Jersey and the Republican State Committee to respond to the Moderate Party’s brief, and the party has until June 23 to answer their responses. It’s unclear whether the suit will be resolved in time for November’s elections.

New Jersey ballot design is under the gun in a separate federal suit that targets the practice of organizational lines.

Candidates in New Jersey are grouped on the ballot by slogan instead of by office sought. Opponents of the party line argue the practice lends a primary advantage to party-backed candidates, who are often the only ones running with a full slate.