Fusion voting allows for more than one political party to nominate the same candidate in a general election. As a result, candidates may appear on multiple ballot lines, and the candidate who receives the most votes across all ballot lines wins the election. This process allows voters who support the policies of a third party to express their preference for that party and the candidate who best shares their values without having to support a major party, even if that candidate is nominated by the major party as well. Although fusion voting was widely used in the century after the nation’s founding, many states — including New Jersey — banned the practice in the early 20th century as part of an effort to solidify major party control over state governments.
In re Tom 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 fusion voting ban because Malinowski had also sought the Democratic Party’s nomination. Following the Secretary’s decision, Appellants — the Moderate Party and several New Jersey voters — filed an appeal with the Appellate Division of the New Jersey Superior Court to challenge the legality of the state’s fusion ban under the New Jersey Constitution’s right to vote, right to free speech and political association, right to equal protection, and right to assemble.
On July 5, 2023, the Brennan Center and co-counsel from Morrison & Foerster filed an amicus brief in support of the Appellants, focusing on their New Jersey assembly clause claim. The brief explains that while courts have historically had few opportunities to address the meaning of state assembly clauses, a closer look into the New Jersey assembly clause’s origin, meaning, structure, and purpose supports a robust interpretation of the right to assemble. That interpretation operates independently from free speech rights and reflects a specific interest in protecting those who gather together for reasons of political participation and representative government, including those who wish to convey their voting preferences by supporting third parties.
The case will be fully briefed as of July 10, 2023 and the Appellate Division will hear oral argument later this year.
