NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-3542-21 A-3543-21
IN RE TOM MALINOWSKI, APPROVED FOR PUBLICATION PETITION FOR NOMINATION February 26, 2025 FOR GENERAL ELECTION, APPELLATE DIVISION NOVEMBER 8, 2022, FOR UNITED STATES HOUSE OF REPRESENTATIVES NEW JERSEY CONGRESSIONAL DISTRICT 7. _____________________________
Argued December 10, 2024 – Decided February 26, 2025
Before Judges Gilson, Firko, and Augostini.
On appeal from the Department of State, New Jersey Division of Elections.1
Beau C. Tremitiere (United to Protect Democracy) of the California and Colorado bars, admitted pro hac vice, argued the cause for appellants (Weissman & Mintz, LLC, Yael Bromberg (Bromberg Law LLC), Professor Joel Rogers (University of Wisconsin Law School) of the New York bar, admitted pro hac vice, and Professor Nate Ela (University of Cincinnati College of Law) of the Massachusetts bar, admitted pro hac vice, attorneys for appellants Moderate Party and Richard A. Wolfe; Beau C. Tremitiere and Farbod K. Faraji (United to Protect Democracy), attorneys for appellants Michael Tomasco and William Kibler;
1 The initial and amended notices of appeal misidentified the Division of Elections as the Department of Elections. Flavio L. Komuves, Brett M. Pugach, Steven P. Weissman, Yael Bromberg, Professor Joel Rogers, Professor Nate Ela, Beau C. Tremitiere, and Farbod K. Faraji, of counsel and on the joint briefs).
Tim Sheehan, Deputy Attorney General, argued the cause for respondents New Jersey Secretary of State Tahesha Way and New Jersey Division of Elections (Matthew J. Platkin, Attorney General, attorney; Angela Cai and Sookie Bae-Park, Assistant Attorneys General, of counsel; Tim Sheehan and Steven M. Gleeson, Deputy Attorneys General, on the briefs).
Jason N. Sena argued the cause for intervenor New Jersey Republican State Committee, Inc. (Archer & Greiner, PC, attorneys; Jason N. Sena, on the brief).
Jeanne LoCicero argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, Rutgers Law School, and Rutgers Constitutional Rights Clinic, attorneys; Liza Weisberg, Jeanne LoCicero, Robert F. Williams, and Ronald K. Chen, of counsel and on the brief).
Ryan Chabot (Wilmer Cutler Pickering Hale and Dorr LLP), Matthew Wollin (Wilmer Cutler Pickering Hale and Dorr LLP) of the New York bar, admitted pro hac vice, and Brittany Blueitt Amadi (Wilmer Cutler Pickering Hale and Dorr LLP) of the District of Columbia bar, admitted pro hac vice, attorneys for amici curiae bipartisan former members of Congress Bruce Braley, Richard A. Gephardt, Patrick J. Murphy, John J. Schwarz, and David A. Trott (Ryan Chabot, Matthew Wollin, and Brittany Blueitt Amadi, of counsel and on the brief).
A-3542-21 2 Anselmi & Carvelli, LLP, attorneys for amici curiae Professors Seth Masket, Nolan McCarty, and Hans Noel (Zachary D. Wellbrock, on the brief).
Pashman Stein Walder Hayden, PC, attorneys for amicus curiae New Jersey Libertarian Party (CJ Griffin and Joshua P. Law, on the brief).
Saiber LLC, Jonathan M. Moses (Wachtell, Lipton, Rosen & Katz), and Michael L. Thomas, Jr. (Wachtell, Lipton, Rosen & Katz) of the New York bar, admitted pro hac vice, attorneys for amicus curiae Tabatha Abu El-Haj (Vincent C. Cirilli, of counsel and on the brief; Jonathan M. Moses and Michael L. Thomas, Jr., on the brief).
David J. Fioccola (Morrison & Foerster LLP), and Joel F. Wacks (Morrison & Foerster LLP) of the California bar, admitted pro hac vice, Joseph R. Palmore (Morrison & Foerster LLP) of the New York and District of Columbia bars, admitted pro hac vice, Alicia Bannon (The Brennan Center), Douglas Keith (The Brennan Center) of the New York bar, admitted pro hac vice, and Lauren Miller (The Brennan Center) of the Illinois bar, admitted pro hac vice, attorneys for amicus curiae The Brennan Center (David J. Fioccola, Joel F. Wacks, Joseph R. Palmore, Alicia Bannon, Douglas Keith, and Lauren Miller, of counsel and on the brief).
Gibbons PC, Victoria J. Ryan (Kirkland & Ellis LLP), and Jay P. Lefkowitz (Kirkland & Ellis LLP) of the New York and District of Columbia bars, admitted pro hac vice, attorneys for amici curiae Rainey Center, Cato Institute, and former Governor Christine Todd Whitman (Anne M. Collart, Victoria J. Ryan, and Jay P. Lefkowitz, of counsel and on the brief).
A-3542-21 3 Eric S. Aronson (Stroock & Stroock & Lavan LLP), and Jerry H. Goldfeder (Stroock & Stroock & Lavan LLP) of the New York bar, admitted pro hac vice, attorneys for amici curiae Professors Peter Argersinger, Dale Baum, Corey Brooks, Lisa Disch, Colin Gordon, Ira Katznelson, Michael Kazin, and J. Morgan Kousser (Eric S. Aronson, of counsel and on the brief; Jerry H. Goldfeder, on the brief).
The opinion of the court was delivered by
GILSON, P.J.A.D.
New Jersey, like most states, has statutes that prohibit a candidate for
public office from appearing on a ballot more than once. These statutes, which
have existed for more than a century, are referred to as anti-fusion laws because
they prevent one candidate from being listed as the nominee for multiple parties.
Over twenty-five years ago, the United States Supreme Court held that
state anti-fusion laws do not violate the United States Constitution (the Federal
Constitution). Timmons v. Twin Cities Area New Party, 520 U.S. 351, 353-54
(1997). Appellants, the Moderate Party and three individual voters, now
challenge New Jersey's anti-fusion statutes, arguing that they violate the New
Jersey Constitution (the State Constitution).
We hold that the statute at issue—N.J.S.A. 19:13-8—does not violate the
State Constitution. We, therefore, affirm the decisions by the New Jersey
Secretary of State (the Secretary) to reject the Moderate Party's request to list
A-3542-21 4 Tom Malinowski as its nominee on the November 2022 general election ballot
for the United States House of Representatives, 7th Congressional District (the
U.S. Representative for the 7th District) because Malinowski had already sought
and accepted the Democratic Party's primary nomination for that office.
I.
We summarize the relevant facts from the limited administrative record
giving rise to these two consolidated appeals. In doing so, we note that the
material facts are not in dispute and the issues presented involve questions of
constitutional law.
Prior to June 2022, Tom Malinowski submitted a petition to the Secretary
declaring that he would be a candidate in the June 2022 Democratic Party
primary for the U.S. Representative for the 7th District. Malinowski won the
Democratic Party primary on June 7, 2022.
That same day, the Moderate Party petitioned the Secretary to list
Malinowski as its nominee for the U.S. Representative for the 7th District on
the November 2022 general election ballot. The Moderate Party's submission
included a certification, signed by Malinowski, where he acknowledged that he
had previously petitioned to be the Democratic Party's primary nominee and
stated that if the Secretary decided he could only accept one nomination, then
A-3542-21 5 he wanted to be listed as the nominee of the Democratic Party. The petition also
stated that the Moderate Party "reserve[d] the right to challenge any such
rejection of [the] petition."
The next day, on June 8, 2022, the Secretary sent Malinowski a letter
stating that the law prohibited him from accepting the Moderate Party's direct
nomination petition because he had already submitted a petition to be the
primary nominee of the Democratic Party for the same office. The Secretary
based her denial on N.J.S.A. 19:13-8, which prohibits a candidate from
accepting more than one nomination for the same public office. Specifically,
that statute states, in relevant part:
A candidate nominated for an office in a petition shall manifest his [or her] acceptance of such nomination by a written acceptance thereof, signed by his [or her] hand, upon or annexed to such petition, to which shall be annexed the oath of allegiance prescribed in section 41:1-1 of the Revised Statutes duly taken and subscribed by him [or her] before an officer authorized to take oaths in this State, or if the same person be named for the same office in more than one petition, annexed to one of such petitions. Such acceptance shall certify that the candidate is a resident of and a legal voter in the jurisdiction of the office for which the nomination is made. No candidate so named shall sign such acceptance if he [or she] has signed an acceptance for the primary nomination or any other petition of nomination under this chapter for such office.
[N.J.S.A. 19:13-8.]
A-3542-21 6 On July 8, 2022, the Moderate Party requested that the Secretary
reconsider her decision to not list Malinowski on the ballot as its nominee. In
connection with its request, the Moderate Party submitted a brief arguing that
New Jersey's anti-fusion statutes were unconstitutional under the State
Constitution.
On July 19, 2022, the Secretary sent a letter to the Moderate Party denying
reconsideration. Again, the Secretary cited to and relied on N.J.S.A. 19:13-8 as
the statute requiring the rejection of the Moderate Party's petition to list Tom
Malinowski on the ballot as its candidate.
The Moderate Party and three individual voters filed two appeals
challenging the Secretary's decisions. We accelerated both appeals. Thereafter,
the parties filed a series of procedural motions. The Secretary moved to take
the appeals off the accelerated track, and we granted that unopposed request.
We also granted the Republican State Committee's motion to intervene and
participate in these appeals. Additionally, we granted appellants' request to
consolidate the appeals. Finally, we denied the Secretary's motion to dismiss,
transfer, or remand this matter. In making that motion, the Secretary had argued
that the record needed to be developed. We rejected that position, noting that
the issues presented were purely legal.
A-3542-21 7 The parties sought and we granted several extensions in time and the right
to file overlength briefs. In addition, multiple organizations and individuals
sought and were granted the right to file briefs as amici curae. This court heard
oral argument on these consolidated appeals on December 10, 2024.
II.
On appeal, appellants argue that New Jersey's anti-fusion statutes violate
four rights guaranteed by the State Constitution: (1) the right to vote; (2) the
right to free speech and political association; (3) the right to assemble and make
opinions known to representatives; and (4) the right to equal protection under
the law. Appellants also contend that if the anti-fusion statutes are found to be
unconstitutional, we should declare that the Legislature cannot require the
aggregation of cross-nominations. In other words, appellants ask us to declare
that the Legislature cannot enact a statute requiring that a candidate, who is
nominated by multiple parties, be listed once with all nominating parties written
next to the candidate's name.
In response, the Secretary contends that appellants' arguments fail because
the Federal Constitution does not prohibit anti-fusion laws, and the protections
provided by the State Constitution are equivalent in scope. Alternatively, the
Secretary argues that even if the State Constitution affords broader protections
A-3542-21 8 for the rights asserted by appellants, the relevant anti-fusion laws are still valid
under the Anderson-Burdick interest-balancing test. See Timmons, 520 U.S. at
358 (first citing Burdick v. Takushi, 504 U.S. 428, 434 (1992); and then citing
Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)).
The New Jersey Republican State Committee, Inc. (the Committee)
supports the Secretary's position that the anti-fusion statutes are valid and do not
violate the State Constitution. It argues that the ban on fusion voting is an
appropriate exercise of the Legislature's right to regulate elections. The
Committee also contends that appellants' request for a declaratory ban on
aggregation is an improper request for an advisory opinion.
Twenty-three amici have filed briefs in support of appellants' positions.
Those amici include five organizations and eighteen individuals, including
former elected officials and professors. The amici are the Brennan Center; the
Rainey Center; the Cato Institute; the American Civil Liberties Union of New
Jersey; the New Jersey Libertarian Party; former Governor Christine Todd
Whitman; former members of the House of Representatives: Bruce Braley,
Richard Gephardt, Patrick Murphy, John Schwarz, and David Trott; and
Professors Tabatha Abu El-Haj, Peter Argersinger, Dale Baum, Corey Brooks,
Lisa Disch, Colin Gordon, Ira Katznelson, Michael Kazin, J. Morgan Kousser,
A-3542-21 9 Seth Masket, Nolan McCarty, and Hans Noel. Collectively, those amici filed
eight briefs.
In their briefs, the amici echo many of the arguments made by appellants.
Several amici also advance arguments concerning how anti-fusion statutes
perpetuate the dominance of the Democratic and Republican parties. Some
amici also contend that anti-fusion laws contribute to the polarization of
American politics and threaten American democracy.
III.
To place the issues in context, we briefly summarize the history of anti-
fusions laws. New Jersey's laws prohibiting fusion ballots have been in place
for over a century. Commentators point out that New Jersey's anti-fusion
statutes arose out of a broader effort to reform the electoral system. See Adam
Winkler, Voters' Rights and Parties' Wrongs: Early Political Party Regulation
in the State Courts, 1886-1915, 100 Colum. L. Rev. 873, 876 (2000); James Gray
Pope, Fusion, Timmons v. Twin Cities Area New Party, and the Future of Third
Parties in the United States, 50 Rutgers L. Rev. 473, 484 (1998); Celia Curtis,
Comment, Cross-Endorsement by Political Parties: A "Very Pretty Jungle"?, 29
Pace L. Rev. 765, 770-71 (2009). With that aim in mind, by 1911, New Jersey
enacted a series of reforms that included the use of a single, official ballot to list
A-3542-21 10 the names of all candidates for office, confidential ballots, and voting booths.
See L. 1911, c. 183, §§ 53, 61.
For a brief time in the early twentieth century, New Jersey allowed certain
fusion ballots. See L. 1911, c. 183, § 54. In that regard, the Legislature directed
a "candidate receiving the nomination of more than one political party . . . [to]
file with the public official charged with the duty of printing the ballots a notice
directing . . . in what order the several nominations shall be added to his name
upon the official ballot." Ibid. In 1921, however, the Legislature passed two
laws barring candidates for public office from being nominated by a political
party, by way of direct petition, when they had already accepted the primary or
general election nomination of another political party for the same office. L.
1921, c. 196, §§ 59-60. Those laws are currently codified in N.J.S.A. 19:13-4
and N.J.S.A. 19:13-8.
In 1922, New Jersey enacted a statute which further prohibited fusion
voting by allowing a candidate's name to appear only once on a ballot for the
same office. L. 1922, c. 242, § 32. That law is currently codified in N.J.S.A.
19:14-2. There is a similar prohibition codified in N.J.S.A. 19:14-9. New Jersey
also prohibits a candidate from proceeding by direct nomination petition as an
A-3542-21 11 independent in a general election if the candidate has already sought a
nomination in a party's primary. N.J.S.A. 19:23-15.
Most states have similar statutes that directly or indirectly restrict or
prohibit fusion tickets. See Timmons, 520 U.S. at 357 (recognizing that "in [the
twentieth] century, fusion has become the exception, not the rule"). As a result,
"multiple party nomination is prohibited today . . . in about forty states and the
District of Columbia." Twin Cities Area New Party v. McKenna, 73 F.3d 196,
198 (8th Cir. 1996).
IV.
Appellants seek to invalidate five statutes, which they describe as anti-
fusion laws: N.J.S.A. 19:13-4; N.J.S.A. 19:13-8; N.J.S.A. 19:14-2; N.J.S.A.
19:14-9; and N.J.S.A. 19:23-15. As we have already briefly summarized,
N.J.S.A. 19:14-2 and N.J.S.A. 19:14-9 prohibit a candidate from appearing more
than once on a ballot. N.J.S.A. 19:13-8 and N.J.S.A. 19:23-15 prohibit
candidates from accepting more than one nomination petition. Finally, N.J.S.A.
19:13-4 prohibits more than one party or group of petitioners from nominating
the same candidate.
In this opinion, we address only N.J.S.A. 19:13-8 because that is the only
statute that the Secretary identified in her administrative decisions. It is well -
A-3542-21 12 settled that appeals are taken from final administrative decisions. See R. 2:4-
1(b); In re CAFRA Permit No. 87-0959-5 Issued to Gateway Assocs., 152 N.J.
287, 299 (1997). Accord Nw. Covenant Med. Ctr. v. Fishman, 167 N.J. 123,
139-40 (2001).
Moreover, to address statutes not directly at issue would be inconsistent
with the well-established principle of judicial restraint. That principle directs
that "[c]ourts should not reach a constitutional question unless its resolution is
imperative to the disposition of litigation." Comm. to Recall Robert Menedez
from the Off. of U.S. Senator v. Wells, 204 N.J. 79, 96 (2010) (quoting Randolph
Town Ctr., L.P. v. Cnty. of Morris, 186 N.J. 78, 80 (2006)). Accord Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 450-51 (2008)
(recognizing "the fundamental principle of judicial restraint that courts should
neither 'anticipate a question of constitutional law in advance of the necessity of
deciding it' nor 'formulate a rule of constitutional law broader than is required
by the precise facts to which it is to be applied'" (quoting Ashwander v. Tenn.
Valley Auth., 297 U.S. 288, 346-47 (1936) (Brandeis, J., concurring) (internal
quotations marks omitted))).
Accordingly, we will not address the constitutionality of all anti-fusion
statutes. Instead, we will limit our analysis to N.J.S.A. 19:13-8.
A-3542-21 13 V.
Appellants contend that N.J.S.A. 19:13-8 violates the State Constitution.
They concede, as they must, that the United States Supreme Court has already
held that state anti-fusion statutes do not violate the Federal Constitution. See
Timmons, 520 U.S. at 353-54.
In Timmons, the New Party sought to nominate a candidate for the
upcoming general election who had already declared his candidacy in the
Minnesota Democratic–Farmer–Labor Party's primary. Id. at 354. Local
election officials refused to accept the New Party's nomination petition due to a
state law "prohibit[ing] a candidate from appearing on the ballot as the candidate
of more than one party." Ibid. The New Party challenged the Minnesota law in
federal court, contending that the law violated its freedom of association under
the First and Fourteenth Amendments to the Federal Constitution. Id. at 355.
The United States Supreme Court rejected that challenge. Id. at 356. In
evaluating the constitutionality of the statute, the Court applied th e Anderson-
Burdick interest-balancing test. Id. at 358-59 (first citing Burdick, 504 U.S. at
434; and then citing Anderson, 460 U.S. at 789). The Timmons court recognized
that states would have to apply "reasonable regulations of parties, elections, and
ballots to reduce election- and campaign-related disorder," and that those
A-3542-21 14 regulations would, to some extent, encroach on a party's right of association and
expression. Id. at 358.
The Timmons Court then concluded that "the burdens [the Minnesota
statute] impose[d] on the party's First and Fourteenth Amendment associational
rights—though not trivial—[were] not severe." Id. at 363. In that regard, the
Court pointed out that the New Party was "free to try to convince" its preferred
candidate to relinquish the Democratic–Farmer–Labor Party's nomination and
accept its nomination. Id. at 360. The Court also pointed out that the statute did
not "restrict the ability of the New Party and its members to endorse, support, or
vote for anyone they like" or "directly limit the party's access to the ballot." Id.
at 363.
The Timmons Court also reasoned that the anti-fusion statute applied to
all parties and did not regulate a party's "internal affairs and core associational
activities." Id. at 360. The Court pointed out that the Minnesota statute did not
preclude a minority party from endorsing or aligning itself with another party's
candidate. Id. at 361.
In contrast, the Timmons Court reasoned that the anti-fusion statute served
Minnesota's legitimate regulatory interests in "avoiding voter confusion and
overcrowded ballots, preventing party splintering and disruptions of the two -
A-3542-21 15 party system, and being able to clearly identify the election winner." Id. at 364.
So, the Timmons Court held that the Minnesota law survived the less stringent
Anderson-Burdick interest-balancing test. Id. at 369-70.
The New Jersey Supreme Court has not addressed whether the State
Constitution prohibits anti-fusion statutes. Most other states that have
considered this issue have held that their constitutions allow anti-fusion laws.
See, e.g., Working Fams. Party v. Commonwealth, 209 A.3d 270, 286 (Pa. 2019)
(upholding Pennsylvania anti-fusion statute against state constitutional
challenge); Swamp v. Kennedy, 950 F.2d 383, 386 (7th Cir. 1991) (rejecting a
constitutional challenge to Wisconsin's prohibition on multi-party nominations);
Ray v. State Election Bd., 422 N.E.2d 714, 722 (Ind. Ct. App. 1981) (holding
that while the election statute at issue was unconstitutionally vague and
overbroad, "[Indiana] may constitutionally prevent candidates from cross-filing
petitions for candidacy"); State v. Wileman, 143 P. 565, 566-67 (Mont. 1914)
(holding that a state anti-fusion statute did not interfere with the right to vote or
"the right of naming candidates for public office"); State v. Super. Ct. of King
Cnty., 111 P. 233, 237 (Wash. 1910) (finding "no reason or authority for saying
that any candidate possesses the constitutional . . . right to have his name appear
more than once upon the official ballot"); State ex rel. Fisk v. Porter, 100 N.W.
A-3542-21 16 1080, 1081 (N.D. 1904) (similar); State ex rel. Bateman v. Bode, 45 N.E. 195,
196-97 (Ohio 1896) (similar).
VI.
Perhaps the clearest and simplest way to analyze the constitutional issue
presented is to consider the plain language of the State Constitution and the
proceedings of the 1947 Convention that adopted our current State Constitution.
The State Constitution does not directly address fusion ballots. In other
words, there is no provision expressly allowing or prohibiting fusion ballots.
The absence of an express authorization of fusion ballots, however, is telling.
New Jersey's anti-fusion statutes were in existence when the 1947 Convention
took place. The delegates to the 1947 Convention were clearly aware of those
statutes because they considered but rejected three proposals that would have
allowed fusion ballots. See 2 Proceedings of the New Jersey Constitutional
Convention of 1947, 1010; 3 Proceedings of the New Jersey Constitutional
Convention of 1947, 614-16, 872, 888.
Proposal No. 25 sought to add a constitutional provision stating:
The right of any legally qualified group of petitioners or of the voting members of any legally recognized political party to nominate any qualified person for an elective public office shall not be denied or abridged because he is not a member of the party or on account of his nomination by some other party or group.
A-3542-21 17 [2 Proceedings of the New Jersey Constitutional Convention of 1947, 1010.]
The New Jersey Committee for Constitutional Review and the New Jersey
State Industrial Council, CIO also submitted two identical proposals to "[f]orbid
legislation prohibiting a candidate running on more than one party ticket." 3
Proceedings of the New Jersey Constitutional Convention of 1947, 872, 888.
All three of those proposals "received careful consideration," but were
ultimately not adopted. 2 Proceedings of the New Jersey Constitutional
Convention of 1947, 1078; 3 Proceedings of the New Jersey Constitutional
Convention of 1947, 872, 888.
In short, both the language of the State Constitution and the proceedings
of the 1947 Convention support the interpretation that N.J.S.A. 19:13-8 does not
violate the State Constitution.
VII.
With good reason, some argue that a constitution is not a static document
and, given compelling reasons, the interpretation of constitutional provisions
can and should change with the passage of time. Trop v. Dulles, 356 U.S. 86,
103 (1958) ("The provisions of the Constitution are not time-worn adages or
hollow shibboleths. They are vital, living principles that authorize and limit
A-3542-21 18 governmental powers in our Nation."); State v. Comer, 249 N.J. 359, 383 (2022)
("[t]he interpretive process [concerning the Eighth Amendment] 'often requires
refer[ence] to the evolving standards of decency that mark the progress of a
maturing society'" (quoting State v. Zuber, 227 N.J. 422, 438 (2017) (internal
quotation marks omitted))). We, therefore, do not end our analysis with the
1947 Convention, which was conducted almost eighty years ago. Instead, we
consider two additional questions. First, whether New Jersey should depart
from federal law in this matter when interpreting its own Constitution. Second,
whether any provisions of the State Constitution clearly prohibit N.J.S.A. 19:13-
8.
1. Whether New Jersey Should Adopt A Different Interpretation Of Its Constitution Concerning An Anti-Fusion Law.
The New Jersey Supreme Court is the highest court with authority to
interpret the State Constitution. Gallenthin Realty Dev., Inc. v. Borough of
Paulsboro, 191 N.J. 344, 359 (2007) (explaining that "[t]he [State] Constitution
is, above all, an embodiment of the will of the People, and this Court's
responsibility as final expositor is to ascertain and enforce that mandate") .
Consequently, in reviewing rights recognized by the State Constitution, the New
Jersey Supreme Court sometimes adopts a different interpretation than the
United States Supreme Court uses in interpreting similar provisions in the
A-3542-21 19 Federal Constitution. State v. McAllister, 184 N.J. 17, 29 (2005) (pointing out
that "the Federal and [State] Constitutions both protect citizens from
'unreasonable searches and seizures' . . . [but] [d]espite the[ir] similar language,
we have recognized that our Constitution 'affords our citizens greater protection
against unreasonable searches and seizures' than its federal counterpart"
(quoting State v. Novembrino, 105 N.J. 95, 145 (1987))); State v. Hempele, 120
N.J. 182, 196 (1990) ("In interpreting the [State] Constitution, we look for
direction to the United States Supreme Court, . . . [b]ut although that Court may
be a polestar that guides us as we navigate the [State] Constitution, we bear
ultimate responsibility for the safe passage of our ship.").
When the New Jersey Supreme Court does depart from federal
interpretations, however, it does so with good reasons, and it carefully considers
when it will apply a different interpretation. See State v. Hunt, 91 N.J. 338,
363-67 (Handler, J., concurring) (offering criteria for identifying when the State
Constitution should deviate from interpretations of the Federal Constitution in
protecting certain rights). Those criteria include: (1) textual language; (2)
legislative history; (3) preexisting state law; (4) structural differences; (5)
matters of particular state interest or local concern; (6) state traditions; and (7)
public attitudes. Ibid.
A-3542-21 20 An analysis of the seven Hunt criteria does not justify interpreting the
State Constitution differently than the Federal Constitution in this matter. While
the textual language of the State Constitution protecting free speech, freedom of
association, the right to vote, the right to assemble, and equal protection var ies
slightly from the Federal Constitution, those differences do not support an
interpretation that N.J.S.A. 19:13-8 violates the State Constitution. Similarly, a
consideration of New Jersey's legislative history, preexisting state law,
structural differences, matters of local concern, state tradition, and public
attitudes also do not support a departure from the federal interpretation.
Instead, the history surrounding the adoption of our current State
Constitution and the long-standing existence of anti-fusion laws, as previously
discussed, supports the view that prohibiting a candidate from accepting more
than one party's nomination for the same office is not unconstitutional. In that
regard, the New Jersey Supreme Court has recognized that "[w]hen the framers
of the [C]onstitution intended that a subject should be placed beyond legislative
control[,] they said so." State v. Buckner, 223 N.J. 1, 15 (2015) (quoting State
v. De Lorenzo, 81 N.J.L. 613, 621 (E. & A. 1911)) (internal quotation marks
omitted). Furthermore, fusion voting is not a matter of local concern, because
A-3542-21 21 anti-fusion laws impact residents of the roughly forty states that currently have
them in place.
2. The Rights Protected By The State Constitution.
Even if we independently evaluate appellants' challenges to N.J.S.A.
19:13-8 under the State Constitution, we hold the statute is not unconstitutional.
Appellants and amici argue that N.J.S.A. 19:13-8 violates four provisions of the
State Constitution. Specifically, they contend that the statute violates the right s
to (1) vote; (2) free speech and association; (3) assemble; and (4) equal
protection.
The right to vote is set forth in Article II, Section 1, Paragraph 3(a) of the
State Constitution:
Every citizen of the United States, of the age of [eighteen] years, who shall have been a resident of this State and of the county in which he claims his vote [thirty] days, next before the election, shall be entitled to vote for all officers that now are or hereafter may be elective by the people, and upon all questions which may be submitted to a vote of the people . . . .
The right to free speech is protected in Article I, Paragraph 6. That
Paragraph states, in relevant part, "[e]very person may freely speak, write and
publish his sentiments on all subjects, being responsible for the abuse of that
A-3542-21 22 right. No law shall be passed to restrain or abridge the liberty of speech or of
the press." N.J. Const. art. I, ¶ 6.
Regarding political association and the right to assemble, Article I,
Paragraph 18 of the State Constitution declares that "people have the right freely
to assemble together, to consult for the common good, to make known their
opinions to their representatives." N.J. Const. art. I, ¶ 18.
Lastly, the right to equal protection under the law is recognized as being
guaranteed by Article I, Paragraph 1. See Lewis v. Harris, 188 N.J. 415, 442
(2006) ("Although our State Constitution nowhere expressly states that every
person shall be entitled to the equal protection of the law[], we have construed
the expansive language of Article I, Paragraph 1 to embrace that fundamental
guarantee."). That provision states: "All persons are by nature free and
independent, and have certain natural and inalienable rights, among which are
those of enjoying and defending life and liberty . . . ." N.J. Const. art. I, ¶ 1.
It is well-settled "that a legislative enactment will not be declared void
unless its repugnancy to the Constitution is so manifest as to leave no room for
reasonable doubt." State v. Murzda, 116 N.J.L. 219, 223 (E. & A. 1936). See
also Buckner, 223 N.J. at 5 (explaining that "[w]hat the Constitution does not
bar, either expressly or by clear implication, is left to the Legislature to
A-3542-21 23 address"); DePascale v. State, 211 N.J. 40, 68 (2012) (Patterson, J., dissenting)
(declaring that "it is the settled rule of judicial policy in this State that a
legislative act will not be declared void unless its repugnancy to the
[C]onstitution is clear beyond reasonable doubt" (quoting Gangemi v. Berry, 25
N.J. 1, 10 (1957) (internal quotation marks omitted))).
In analyzing whether N.J.S.A. 19:13-8 violates any of the asserted
constitutional rights, we must first determine the appropriate test to be applied.
Appellants rely upon Worden v. Mercer County Board of Elections, 61 N.J. 325
(1972), to support the application of a strict scrutiny test. In contrast, the
Secretary argues that the statute need only pass the interest-balancing test
articulated in Anderson-Burdick.
We hold that the Anderson-Burdick interest-balancing test is the
appropriate test to use when evaluating the application of N.J.S.A. 19:13-8 to
Malinowski and the Moderate Party's petitions. We have previously applied the
Anderson-Burdick test in evaluating First and Fourteenth Amendment
challenges to other election laws. See Rutgers Univ. Student Assembly (RUSA)
v. Middlesex Cnty. Bd. of Elections, 446 N.J. Super. 221, 229-30 (App. Div.
2016); Council of Alt. Pol. Parties ("CAPP") v. N.J. Div. of Elections, 344 N.J.
Super. 225, 236-37 (App. Div. 2001).
A-3542-21 24 In RUSA, we found constitutional a statute that required all eligible voters
to register to vote at least twenty-one days before an election. 446 N.J. Super.
at 224-25. As an initial matter, we declined to apply Worden's strict scrutiny
test because Worden "addressed regulations where similarly situated citizens
were treated differently" rather than "[a] requirement subject[ing] all eligible
persons to the same voter registration standards." Id. at 234. Next, applying the
Anderson-Burdick test, we determined that "the fundamental State interest in
preserving the integrity of New Jersey's electoral process . . . impos[ed] no
unreasonable burden upon plaintiffs' right to vote." Id. at 225. Specifically, we
reasoned the "registration requirement . . . impose[d] no more than a minimal
burden upon plaintiffs' right to vote . . . [because other] statutes ensure[d] that
our citizens [had] ample opportunities to register to vote." Id. at 234-35.
In CAPP, a group of minority political parties challenged, in relevant part,
N.J.S.A. 19:1-1, which defined "political party," and N.J.S.A. 19:23-45, "which
prohibit[ed] a voter from declaring a party affiliation other than Democrat or
Republican." 344 N.J. Super. at 228. Our analysis focused on "whether the
[statutes] . . . infringe[d] [on] [the minority parties'] First Amendment rights of
expression and association and equal protection." Ibid. We first balanced the
nature of the burdens imposed on the minority parties and the State's justification
A-3542-21 25 for those burdens. Id. at 242-44. We then concluded that the Legislature's
failure to afford the same opportunities to minority parties as given to the
Democratic and Republican parties constituted an impermissible burden on the
minority parties' constitutional rights. Id. at 244.
Appellants contend that all claims related to the right to vote under the
State Constitution should be evaluated under the strict scrutiny test. Their
reliance on Worden to support this position, however, is misguided. Worden
reviewed a restriction that prohibited college and graduate students in Mercer
County from registering to vote where they resided in their college or university
communities. 61 N.J. at 327-30. In Worden, the New Jersey Supreme Court
extensively analyzed federal constitutional law and "adopt[ed] the compelling
state interest test . . . for compliance with the Federal Constitution . . . [and] for
purposes of our . . . State Constitution and legislation." Id. at 334-41, 348. The
Court then determined that the restriction against the students must be stricken
because no compelling state interest justified it. Id. at 346-48.
We do not read Worden as requiring the application of the strict scrutiny
or compelling state interest test in this matter. The statute at issue in Worden is
distinguishable for two reasons: (1) it treated a group of voters differently based
on their student status; and (2) it directly interfered with their ability to exercise
A-3542-21 26 their right to vote. In contrast, N.J.S.A. 19:13-8 applies equally to all candidates
nominated for office and does not preclude voters from voting for the candidate
of their choice. Instead, it limits what can be listed on the official ballot by
precluding a candidate from accepting more than one party's nomination.
Applying the Anderson-Burdick interest-balancing test, we find that the
minimal burden N.J.S.A. 19:13-8 imposes on appellants is justified by the State's
compelling regulatory interests. Regarding the right to vote, N.J.S.A. 19:13-8
does not directly interfere with voters' ability to vote for their preferred
candidate. 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. Sadloch v. Allan, 25 N.J. 118, 122 (1957) (finding that the
Legislature may adopt "reasonable regulations" to "control the manner of
preparation of the ballot, so long as they do not prevent a qualified elector from
exercising his constitutional right to vote for any person he chooses ").
Next, concerning the right to free speech, political association, and
assembly, although N.J.S.A. 19:13-8 may prevent a political party from
officially nominating a candidate who has already been nominated by another
party, it does not restrict a party from publicly endorsing or supporting that
candidate. See Timmons, 520 U.S. at 361 (recognizing that, despite anti-fusion
A-3542-21 27 statutes, a party "remains free to endorse whom it likes, to ally itself with others,
to nominate candidates for office, and to spread its message to all who will
listen"). This principle applies with equal force to a candidate's ability to align
himself or herself with the viewpoints of another political party.
Lastly, concerning the right to equal protection under the law, N.J.S.A.
19:13-8 applies to all candidates nominated for office, from "major and
minor[ity] parties alike." Id. at 360. Appellants argue that the statute
disproportionately burdens minority parties. However, minority parties remain
free to nominate their preferred candidate, so long as that candidate has not
already been nominated by another party. Additionally, as the United States
Supreme Court noted in Timmons, anti-fusion statutes do not prohibit minority
parties from attempting to persuade a candidate from relinquishing another
party's nomination in favor of their own. Ibid.
The Secretary contends that N.J.S.A. 19:13-8 serves "the State's important
regulatory interests in preventing ballot manipulation, political gamesmanship,
voter confusion, and decreased voter choice, maintaining voter confidence in
party accountability, and maintaining the stability of the political system. " In
RUSA, we acknowledged that the State has "important [regulatory] interests in
preventing voter fraud, ensuring public confidence in the integrity of the
A-3542-21 28 electoral process, and enabling voters to cast their ballots in an orderly fashion."
446 N.J. Super. at 240. Therefore, we hold that the Secretary has articulated
valid interests in this matter.
This court has afforded the States "broad leeway in regulating elections to
ensure they are carried out in a fair and efficient manner." Id. at 230 (citing
Anderson, 460 U.S. at 788). Further, in Timmons, the United States Supreme
Court found that anti-fusion laws may be used as a tool to advance regulatory
interests in "ballot integrity and political stability," and other similar interests.
520 U.S. at 352. N.J.S.A. 19:13-8 is a permissible means for the State to
advance important election-regulatory interests. We, therefore, hold that
N.J.S.A. 19:13-8 is constitutional under the Anderson-Burdick interest-
balancing test. Given that holding, we decline to reach appellants' arguments
about the aggregation of cross-nominations.
VIII.
Appellants and amici argue that there are strong public policy interests
supporting fusion voting. They contend that anti-fusion statutes help to
perpetuate the two-party system. They also argue that minority parties can help
to balance political divisiveness and reduce threats to our democratic system of
government.
A-3542-21 29 Many people considering those arguments may find them compelling.
Those arguments, however, do not support declaring N.J.S.A. 19:13-8
unconstitutional under the State Constitution. See State Farm Mut. Auto. Ins.
Co. v. State, 124 N.J. 32, 45 (1991) ("In considering the constitutionality of
legislation, courts do not weigh its efficacy or wisdom."). Instead, appellants
and amici are free under the State Constitution to advocate for and support
legislative changes to address the issues that they have identified.
We, therefore, find no grounds for reversing the decisions the Secretary
announced in her June 8, 2022 and July 19, 2022 letters.
Affirmed.
A-3542-21 30