Gene Mazo has posted this draft at SSRN (Seton Hall Law Review). Here is the abstract:

A scholarly literature has recently emerged to study, document, and measure the effects of New Jersey’s unique ballot bracketing system, colloquially known as the “county line,” which New Jersey’s party insiders and political machines have long used to determine the outcomes of the state’s primary elections. To date, this literature has examined how the “county line” works and what its empirical effects are, but it has thus far not adequately explained exactly why the “county line” system violates the U.S. Constitution. This Article fills this gap. Part I explores how New Jersey election law works to create the “county line” before surveying the different ways in which scholars have recently attempted to measure the “county line’s” empirical effects. Part II then proceeds to examine why the “county line” turns out to be so radically and vehemently repugnant to the Constitution. The Article looks at the recent litigation brought to challenge the “county line”—in the three cases of Conforti v. Hanlon, Mazo v. Durkin, and Kim v. Hanlon—and uses it to explore the rights-based balancing theories under which New Jersey’s “county line” ballot bracketing system violates the First and Fourteenth Amendments of the Constitution, as well as the structural non-balancing theories under which the “county line” violates the “by the People” provisions (found in Article I, Section 2 and the Seventeenth Amendment), the Qualifications Clauses, and the Elections Clause of the Constitution.

A look at fusion reform efforts in Kansas from the Kansas Reflector.

Nate Ela (Temple Beasley School of Law) has posted a new article in relation to the state constitutional challenges to anti-fusion laws that are currently underway. Building on the work of Jessica Bulman-Pozen and Miriam Seifter, Ela argues that many state constitutions distinctly favor popular sovereignty and small-d democracy in ways that counsel for applying strict scrutiny, rather than the interest-balancing approach used in the federal courts when assessing the constitutionality of bans on fusion candidacies. Ela also seeks to remind state courts that they are not constrained by the federalism concerns that drive the U.S. Supreme Court’s reluctance to strike down state election laws.

Ela’s is a very timely intervention not only because the Appellate Division of the Superior Court of NJ will hear oral arguments in the first of these challenges on December 10, but also because, as our two-party system has become polarized and vulnerable to authoritarianism, it is critical to consider structural reforms with the capacity to address the dissatisfaction that drives many voters, including those that reject both parties. Arizona and Nevada, for example, have roughly as many independents as registered Democrats and Republicans. Fusion offers an eminently feasible reform for bringing such voters into the democratic fold in a productive way. Let’s hope that state court judges recognize that they do not need to follow Timmons v. Twin Cities Area New Party (1997), which has been almost uniformly criticized by legal academics and which completely misunderstood the burdens fusion places on parties as organizations and associations.

From the abstract:

“By barring candidates from accepting the nomination of more than one party, anti-fusion laws violate a range of state constitutional provisions: the grounding of government in popular sovereignty; the right to vote; the right to free, equal, and open elections; the right to assemble, consult for the common good, and instruct elected representatives; and the freedom of political association. Rather than adopting the deferential approach of Timmons, state courts should rigorously and realistically review the true burdens of anti-fusion laws, and the actual, partisan interests they serve.”

Part II of the Article is particularly interesting. Among other things, Ela argues that the correct baseline for assessing the burdens of anti-fusion laws is the system that existed before fusion was banned–a system in which minor parties could name their standard bearers, present themselves to voters on that basis, and use their vote share to demonstrate support and exert influence over policymaking. The question, he argues, should be: How have anti-fusion laws undermined third parties in such efforts?

Third Circuit motion for injunction pending appeal.

Order.

You can read a set of opinions here. From Judge Clay’s concurrence:

Plaintiff’s complaint also suffers from flaws on the merits. Plaintiff’s theory of injury, for example, argues that that “once the ballots are printed” with his name on them, he will inevitably suffer an “injury to reputation,” and his supporters will “be left confused and angry for casting an invalid vote” for him. Appellant’s Br., ECF No. 6, 34. But Plaintiff has not shown that removing his name would prevent a loss of face; in fact, Plaintiff requested in another case that New York courts keep him on the ballot. See Team Kennedy v. Berger, No. 24A285, 2024 WL 4312515 (U.S. Sept. 27, 2024). Plaintiff has never explained or reconciled these conflicting and contradictory positions. Additionally, removing Plaintiff from the ballot at this late stage would have important consequences for the Natural Law Party. The Chair of the Natural Law Party has explained that removing Plaintiff from the ballot would leave the party in a “bad position,” as it could impact the party’s ability to put candidates forward in the future. See R. 8- 5, Page ID #13. Plaintiff seems completely oblivious to the fact, and selfishly unconcerned, that his actions in seeking to remove his name from the ballot at this late stage is likely to injure the fortunes of the Natural Law Party—which made him its presidential nominee and devoted the party’s political capital and resources to promoting Plaintiff’s political ambitions.