Fusion voting lawsuit continues nine months later 2023

After being filed last July, a lawsuit to rewrite state law banning candidates from running under multiple party banners has languished for nearly nine months. Opponents have asked judges to dismiss the case or move it to a lower court.

Fusion voting supporters say their detractors are trying to postpone a case that has barely advanced since July, increasing concerns that this year’s elections would be performed under regulations the plaintiffs say violate the state constitution.

Fusion voting advocates say it would reduce partisanship.

“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 represents two voter plaintiffs.

Last month, attorneys for New Jersey and the New Jersey Republican State Committee filed motions to dismiss the case, arguing that it should be thrown out or moved to a lower court and requesting that the plaintiffs’ voter statements, scholarly articles, and century-old media reports be stricken from the record because they had not been reviewed.

“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 record is,” Republican State Committee attorneys wrote in their brief.

Last year, 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 as both the Democratic Party nominee and the Moderate Party’s candidate. Malinowski struggled to reelect against former state senator Tom Kean.

Opponents want it dismissed or sent to a lesser court.

Way rejected Malinowski’s Moderate Party organizational line suggestion. The party sued, arguing that state law prohibiting candidates from appearing on the same election ballot violates state constitution safeguards.

After the Moderate Party, the voters who sued with them, and the state requested a delay, the initial judicial drive stalled. Kean, a Republican, defeated Malinowski in the Seventh Congressional District.

In 2022, Republicans attacked the plan as a partisan way to boost Malinowski, who was under investigation for stock trades he failed to report.

State constitutional law specialist Robert Williams of Rutgers Law is following the case. Williams said he expects the case will reach the New Jersey Supreme Court, which 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 give the court another chance. “Delaying the constitutionality of the anti-fusion laws is not in the public interest,” he stated.

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