New Jersey Considers Challenge to its Ban on Fusion Voting

A New Jersey appellate panel will hear oral arguments next week in a case with critical implications for several state constitutional protections, including the right to vote, the right to free speech and political association, and the right to assemble.

The case, In re Tom Malinowski, involves a challenge to New Jersey’s ban on fusion voting — a practice that allows multiple parties to nominate the same candidate for the same office in a general election. The U.S. Supreme Court previously rejected a challenge to a state fusion ban under the U.S. Constitution. But this case asks whether New Jersey’s constitution goes beyond its federal counterpart to provide greater protections to voters. The appellate court’s decision could influence how other state courts decide similar challenges under their state constitutions, including an ongoing challenge to Kansas’s fusion ban.

The impact of fusion voting stems from its ability to allow third party voters to meaningfully participate in the electoral process. In fusion voting systems, the candidate who receives more votes than any other candidate still wins the election, even if those votes appear across multiple party lines. In New York, for example, both candidates in the 2022 gubernatorial election took advantage of the state’s fusion voting system: Gov. Kathy Hochul appeared on the ballot for both the Democratic Party and the Working Families Party lines while her opponent, Lee Zeldin, appeared on both the Republican Party and Conservative Party tickets. With fusion, voters who believe in a third party’s policies can continue to signal support for that party without “throwing away” their votes on a third-party candidate who has no realistic hope of winning — or, in a worst-case scenario, “spoiling” the results by siphoning votes from a major party nominee they would otherwise support as their second-choice candidate.

In the century after the nation’s founding, fusion flourished in New Jersey and many other states across the country. But in the late 19th century, states began changing their voting processes. Prior to the 1890s, citizens voted by dropping a ballot, typically printed by political parties, into a literal ballot box. Beginning in 1888, efforts to fight corruption and voter intimidation led states to switch to the so-called Australian ballot, a government-printed ballot that voters filled out in the secrecy of a voting booth. While the Australian ballot successfully curtailed corruption and intimidation, it also gave state governments — and the parties that controlled them — unprecedented control over who could appear on the ballot.

When influential third parties, such as the Populists and Prohibitionists, began to organize coalitions and threaten major party control, the solution was obvious: ban fusion voting. This strategy proved popular. Ultimately, more than 40 states and the District of Columbia eliminated fusion. New Jersey did so in the early 1920s, when it passed a series of statutory provisions to prevent fusion tickets.

Malinowski arose after New Jersey’s Moderate Party sought to nominate their chosen congressional candidate, Tom Malinowski, in the 2022 midterm elections. The New Jersey secretary of state’s office denied the party’s request under the state’s anti-fusion laws because Malinowski had also sought the Democratic Party’s nomination. The Moderate Party and several New Jersey voters appealed the secretary’s decision, challenging the legality of the state’s fusion ban under the New Jersey Constitution’s right to vote, right to equal protection, right to free speech and political association, and right to assemble.

The respondents — New Jersey’s secretary of state and elections agency — argue that the ban preserves the right to vote because third party voters can still vote for their preferred candidate on the ballot, just under a different party. The petitioners counter that this is not enough; the right to vote requires a meaningful opportunity to express their political preference, including party preference, and to have that preference counted.

The equal protection arguments follow a similar pattern. According to the respondents, the fusion ban does not violate the state’s equal protection guarantee because it prohibits all parties, major and minor, from cross-nominating candidates. The petitioners argue that the ban disproportionately burdens third parties and their voters by forcing them into a “lose-lose” dilemma — nominate or vote for a candidate they favor less or view as less likely to win or sit out the election entirely.

The remaining claims raise the issue of “lockstepping” — whether New Jersey courts should reflexively follow federal constitutional precedent to interpret their own constitution. The respondents argue that the court should interpret state free speech and political association protections to match federal jurisprudence. Specifically, they say the state court is bound by the U.S. Supreme Court, which held in 1997 that a fusion ban did not violate associational rights guaranteed by the First and 14th Amendments in Timmons v. Twin City Area New Party. They maintain that the right to assemble is indistinguishable from the rights to speech or association, and thus the petitioners’ right to assemble claim must fail for the same reason.

But as the Brennan Center wrote in our amicus brief in the case, state constitutions generally protect democratic rights to a far greater extent than their federal counterpart. A closer look into the New Jersey assembly clause’s Revolutionary Era origins, meaning, structure, and purpose supports a robust interpretation of the right to assemble — one that operates independently from speech and reflects a specific state interest in protecting those who gather together for reasons of political participation and representative government, including those who wish to convey their political preferences by supporting third parties.

Malinowski provides the state court an opportunity to take a close look at all the state constitutional rights at issue in the case to consider whether they protect the right to vote on a fusion ticket. One way or another, the court’s evaluation of these issues of first impression will be an important bellwether for the future of fusion voting.

The Brennan Center filed an amicus brief in this case. Oral arguments will be held on December 10, 2024.

Lauren Miller Karalunas is a counsel in the Democracy Program at the Brennan Center for Justice.

Suggested Citation: Lauren Miller Karalunas, New Jersey Considers Challenge to its Ban on Fusion Voting, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Dec. 3, 2024), https://statecourtreport.org/our-work/analysis-opinion/new-jersey-considers-challenge-its-ban-fusion-voting