The Moderate Party argued it is unconstitutional to bar candidates from appearing on the ballot multiple times for each party that has endorsed them. (Stock photo by Greenleaf123/Getty Images)
A state appeals court rejected a bid to declare a state law barring candidates from running under the banner of more than one party as unconstitutional Wednesday, keeping in place a ban enacted more than a century ago.
The Moderate Party, which lodged the suit to allow fusion voting in New Jersey, had argued the prohibition runs afoul of rights to free speech, political association, assembly, and equal protection provided by the state constitution. But the judges said the ban “does not directly interfere with voters’ ability to vote for their preferred candidate.”
The party’s founder said it will appeal the decision to the state’s Supreme Court.
“We need to identify, nominate, support and help elect viable moderate candidates who will strive to protect the basic foundations of our democracy … Current New Jersey law bars us from exercising our constitutional rights to do that. We are confident the State Supreme Court will right that wrong,” said Richard Wolfe.
The party sued after Secretary of State Tahesha Way rejected its request to list then-Rep. Tom Malinowski as its nominee for the 2022 general election. Way noted that state law bars listing candidates under more than one party’s banner, and Malinowski had already won Democrats’ nomination in the 7th Congressional District.
The U.S. Supreme Court has ruled fusion voting bans are not unconstitutional. Plaintiffs argued it still violates protections in the New Jersey Constitution, while Way said those protections are no greater than the ones present in the federal document.
The three-judge panel found that, while the two constitutions’ language were not identical, they were not so different as to justify a departure from the U.S. Supreme Court’s findings.
The judges ruled that while New Jersey’s constitution does not explicitly authorize or prohibit fusion voting, the lack of an express authorization is “telling.”
Using a test that balanced the plaintiffs’ constitutional claims against the state’s interest in regulating election procedures, the panel found the state’s interest won out.
The fusion voting ban does not bar the Moderate Party from endorsing or otherwise supporting its chosen candidates, the court found, nor does it stop their members from backing the party’s preferred candidates at the ballot box.
“A candidate’s name, like Malinowski’s, will still appear on the official ballot next to one political party. All voters remain free to vote for that candidate,” they ruled.
They added the ban does not violate the state constitution’s equal protections clause, noting minor parties, like major ones, can nominate their preferred candidate so long as no other party has already done so
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