Brett Pugach has posted this draft on SSRN (Rutgers L. Rev.). Here is the abstract:
In New Jersey, unelected and unaccountable party bosses and political machines have for years relied on arcane state laws related to the design of primary election ballots to maintain complete control over the state’s politics. They are able to wield unprecedented power in large part because New Jersey is the only state in the nation that does not organize its primary election ballots by listing the office sought, followed immediately by the names of all candidates running for that office. Instead, New Jersey’s primary election ballots are organized by convoluted columns or rows of groupings of candidates running for different offices. The political machines have learned how to use this unique ballot structure to manipulate the ballot to ensure favorable ballot position for party-endorsed candidates, and to punish everyone else.
Here is how it works. The county party organizations endorse candidates for every office, who are then all featured together on the same column or row of the ballot, with the same slogan. This grouping of party-endorsed candidates is known as the “County Line” and it provides a significant advantage to these candidates through favorable ballot position (often the highly-coveted first row or left-most column) and the visual effects of grouping all of the candidates together on the same line with the same slogan (referred to as “bracketing”). By contrast, candidates who are not endorsed by the party and who are not bracketed with other candidates are precluded from receiving the first ballot position, and may not even be placed in the next available column or row. Instead, many unbracketed candidates in the past have found themselves being relegated to “Ballot Siberia,” with their names listed multiple columns or rows away from all other candidates running for the same office.
Over the years, this system has afforded a virtually unbeatable advantage to candidates endorsed by the county party organizations. These county party organizations are controlled by unelected county chairs who remain unaccountable to voters and party members directly. Because being offered a spot on the County Line almost always guarantees a victory in the primary election, what matters most to political candidates, at least as far as primary elections go, is that they have the support of their party’s county chair, rather than earning the support of voters. It is a system that is antithetical to democracy and the ability of citizens to control their government. Moreover, the county chairs maintain the ability to severely punish any candidates who do not provide their unwavering support, by withholding the county party endorsement and subsequent placement on the County Line. These legal and political realities pose an enormous threat to democracy, as they remove voters and party members from meaningful participation in deciding who their party’s nominees for elected office will be.
Despite the ubiquitous nature of the County Line in New Jersey politics, scholars have not carefully explored the justifications behind this system or chronicled the effects that it has had on the state’s politics. This Article seeks to explore the history of the County Line system of ballot positioning in New Jersey and to explain how and why it poses a threat to the rights of voters and candidates throughout the state. It also sets forth a blueprint for how a constitutional challenge can be brought to New Jersey’s ballot order and ballot bracketing system. Part I provides a history of how New Jersey’s election laws have regulated political parties throughout the state. Part II discusses the implications of the County Line system on primary elections in New Jersey, using various examples to demonstrate the effect of the County Line on democratic practice. Part III turns to examining the associational freedoms at issue in perpetuating the County Line and weighs them against other important rights that are at stake in guaranteeing free and fair elections. Part IV proposes various ways that New Jersey’s primary election ballots can be changed so that party-endorsed candidates are not granted state-conferred advantages over other candidates. Finally, Part V concludes by explaining why New Jersey’s current system of bracketing primary election candidates together and affording them preferential ballot position over all others running for the same offices places an unconstitutional burden on the right to vote.