Litigation Challenging Unconstitutional Bar on Political Participation Advances

Advocates Say: New Parties Would Counter Threat of Authoritarianism

MORRISTOWN, NJ – The New Jersey Moderate Party and voters today filed briefs with the State Supreme Court asking it to review New Jersey’s anti-fusion laws imposing strict limits on nominations and voting. 

Fusion voting allows a candidate for public office to be nominated by more than one party in a given race – with two or more parties “fusing” on a single candidate – and in doing so allow new voices, new ideas, and new parties to emerge. As other courts have recognized, limits on fusion voting suppress political participation for voters unhappy with the two major parties, and therefore burden fundamental constitutional rights. The fusion ban also violates the right of a political party to associate with the candidate of its choice if that candidate has the nomination of another party.

The Moderate Party and the other appealing parties argue that reviving fusion voting would strengthen the center of our democracy and help counter the threat of authoritarianism caused by the increasing extremism of the major parties.

The legal action, captioned In re Malinowski, was brought by the Moderate Party of New Jersey, Richard Wolfe and two other moderate voters – all current or former Republicans. In 2022, the Moderate Party sought to nominate Tom Malinowski as its candidate for Congress. The NJ Secretary of State denied the nominating petitions under the state’s anti-fusion laws because Malinowski was also the nominee of the Democratic Party. In response, the Moderate Party and these voters sued the NJ Secretary of State, asking the court to rule that the Secretary’s decision violates New Jersey’s expansive constitutional protections.

Richard Wolfe, a founder of the NJ Moderate Party, the former Republican mayor of East Amwell Township and also involved in the case, said, “We’re continuing our legal action to ensure the fundamental rights of our party, our candidates and New Jersey voters are respected and our State Constitution is honored.”

Wolfe elaborated on the stakes – and opportunities – presented by the litigation:

“The New Jersey Moderate Party wants to reverse the trend of hyper-polarization and the danger it poses to our state and our country. To achieve this objective, we need to identify, nominate, support and help elect viable moderate candidates who will strive to protect the basic foundations of our democracy and are willing to work collegially and respectfully with people of different viewpoints, to achieve sensible solutions to the major issues facing our country. 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.”

Robert Williams, Distinguished Professor of Law Emeritus at the Rutgers University School of Law and a recognized expert on state constitutional law, said, “The New Jersey Constitution has long been a bulwark against efforts to erode individual rights or limit political participation. Our Supreme Court will have an opportunity to affirm this important principle when it takes up this case.”