A panel of state appellate judges today rejected a proposal to legalize fusion voting in New Jersey, which would allow candidates to run on ballots for the general election under several different party affiliations. The judges concluded that the state’s century-old ban on fusion voting does not violate the state constitution.
The New Jersey Moderate Party, a small political party that filed the case’s appeal, promised to take the ruling all the way to the state Supreme Court.
Even though he had already won a Democratic primary for the same position, then-Rep. Tom Malinowski (D-Ringoes) made an attempt to win the nomination of the newly established Moderate Party back in 2022. Secretary of State Tahesha Way rejected his attempt to run under both party designations twice, citing the state’s 1922 prohibition on candidates running for the same post more than once. The Moderate Party then appealed Way’s ruling.
A wide range of parties beyond the original scope of the dispute were drawn to the case as it developed slowly over the next two and a half years. The New Jersey Republican Party intervened on behalf of the Secretary of State, while organizations such as the New Jersey Libertarian Party, the ACLU of New Jersey, and five former members of Congress filed amicus briefs supporting the allowance of fusion voting.
The judges heard arguments in the matter last December. However, Deputy Attorney General Tim Sheehan argued on Way’s behalf that there was little reason to believe that any fundamental rights were at risk because of the ban. The pro-fusion voting side claimed that the state’s fusion voting ban violated the state constitution’s enshrined protections of the right to vote, free speech and assembly, and equal protection, and that New Jersey would benefit from empowering political parties other than Democrats and Republicans. The latter argument was deemed more convincing by the appellate court.
Judges Robert Gilson, Lisa Firko, and Lorraine Augostini wrote that the appellants and amici contend that fusion voting is strongly supported by public policy interests. They argue that anti-fusion laws contribute to the two-party system’s continuation. Additionally, they contend that minority parties can lessen challenges to our democratic system of government and serve to balance political polarization. Those arguments might be convincing to many people who are thinking about them.
However, they added, those grounds do not justify deeming [the state’s anti-fusion measures] unlawful under the State Constitution. According to the State Constitution, appellants and amici are instead free to endorse and push for legislative measures that would remedy the problems they have identified.
In the 1997 decision of Timmons v. Twin Cities Area New Party, the U.S. Supreme Court ruled that a Minnesota restriction on fusion voting did not violate the U.S. Constitution. The judges also pointed out that there is already federal precedence for a fusion voting case. The appeal bench rejected the Moderate Party’s argument that the New Jersey Constitution should be read to safeguard fusion voting in ways that the US Constitution does not.
The judges noted that New Jersey’s anti-fusion laws were in force at the time of the 1947 Convention. Given that they examined and rejected three measures that would have permitted fusion ballots, the delegates to the 1947 Convention were obviously aware of those statutes.
Naturally, the case’s initial motivation has long been moot. In November 2022, Malinowski lost by three percentage points to now-Rep. Tom Kean Jr. (R-Westfield) after being denied the opportunity to run under more than one party designation. During the campaign, it was discovered that a moderate party expenditure group received all of its funding from the House Majority PAC, a Democratic super PAC.
However, fusion voting has the potential to significantly alter New Jersey politics if it is ever made legal (or if the state Supreme Court overturns the appellate court’s ruling on appeal). A number of tiny parties, such as the Conservative Party and the Working Families Party, have a significant amount of influence in state politics since neighboring New York is one of the few states that permits people to run with more than one political party.
In a statement, Moderate Party founder Richard Wolfe, a former Republican elected official who sided with Malinowski, expressed his optimism that the state Supreme Court would recognize the benefits of fusion voting, even if the appellate panel did not.
According to Wolfe, the New Jersey Moderate Party seeks to halt the hyperpolarization trend and the threat it poses to our state and nation. In order to accomplish this goal, we must find, nominate, support, and assist in the election of strong moderate candidates who will work to uphold the fundamental tenets of our democracy and who are prepared to cooperate amicably and respectfully with individuals who hold varying opinions in order to find reasonable answers to the main problems confronting our nation. We are unable to exercise our constitutional rights to do so under current New Jersey legislation. We have faith that the State Supreme Court will correct that injustice.
