The N.Y. Times reports on efforts by centrists to overturn New Jersey’s ban against fusion voting. Explaining that the U.S. Supreme Court rejected a similar challenge to a Minnesota anti-fusion law in 1997, the article discussions how the current NJ effort is attempt to make the same kind of challenge based on state rather than federal constitutional law. The goal is to enable voters who believe that Republican candidates have strayed too far right, but who can’t bring themselves to cast a “Democratic” ballot, to vote for the same person on a “Moderate Party” ticket:

‘“There’s a gut-wrenching aversion among many Republicans that says, ‘I could never vote for a Democrat,’” said Lee Drutman, an analyst at the New America Foundation who wrote an expert brief in favor of the Moderate Party’s petitions. “Fusion voting allows people to express their true preferences in a way the two-party system does not.”‘ [Drutman’s expert report, not technically a “brief” in lawyer terminology, is available here.]

Even if eliminating bans on fusion voting makes sense as a policy matter, there are at least two obstacles to securing state-court invalidation of these bans. One is convincing the judiciary of each state that legislation of this nature violates the state’s constitution. As one New Jersey lawyer quoted in the article put it, “It’s an uphill battle, certainly.”

There’s also another issue not mentioned in the piece–at least with respect to congressional elections, which the piece focuses on by discussing Rep. Tom Malinowski’s reelection race as the “first test case” of this state-based litigation strategy. This other issue involves the so-called “independent state legislature” doctrine, which is pending before the U.S. Supreme Court in a North Carolina redistricting case. If it’s potentially problematic for the North Carolina judiciary to interpret that state’s constitution to interfere with that state’s legislature on how to draw congressional districts, it’s also potentially problematic for the New Jersey judiciary to interpret the NJ constitution to negate the NJ legislature’s decision to ban fusion voting for congressional elections. Obviously, the independent state legislature doctrine is extremely controversial, and the U.S. Supreme Court may refuse to accept an extreme (or perhaps even any?) version of it. Still, until the status of the independent state legislature doctrine is clarified, one must at least note that pursuit of this state-based litigation strategy is contingent upon that clarification.