Three established Rutgers professors, one of them a former state attorney general, have written a joint op-ed in the New Jersey Monitor urging the state Supreme Court to take up In Re Malinowski and rule in favor of reviving the state’s tradition of fusion voting.
As Rayman Solomon, former dean of the Rutgers Law School-Camden; Robert Williams, state constitutional law expert and distinguished professor of law emeritus at the Rutgers University School of Law; and John Farmer, Jr., who previously served as dean of Rutgers Law School-Newark and attorney general of New Jersey, write, “At a time when democracy is being eroded throughout our country, the court has the opportunity to reaffirm the New Jersey Constitution’s strong commitment to freedom of association and voter choice — both bedrocks of democracy.”
The three scholars take apart the Appellate Division’s ruling, which had rejected Malinowski’s petition, along with the Supreme Court’s Timmons decision in 1998. They write:
“Without any evidence whatsoever from the New Jersey secretary of state, and contrary to the vast evidence from actual experience that the Malinowski plaintiffs supplied in their several-hundred-page record, the appellate court accepted the secretary of state’s claims that adopting ballot-line fusion would generate pervasive voter confusion, inspire fraud, and otherwise undermine ‘public confidence’ in the present system.”
With respect to Timmons, they write:
“What is most striking today, in rereading the Timmons 6-3 decision — authored by then-Chief Justice Rehnquist, with a blistering dissent from Justice Stevens — was the majority’s confidence in how well our two-party system serves the country. Today, 80% of voters say they want more than just two choices, but they must be meaningful choices. The hyper-partisan polarization of the two-party duopoly has led us to the effective collapse of any legislative or judicial check on the threats to democracy brought about by an unprecedented and seemingly limitless expansion of executive power.”
“Throughout our history, ballot-line fusion has been a modest but potent tool for injecting new ideas and new leaders into our politics. It pushes back against the hyperpartisan politics that define our era as it incentivizes major parties to form coalitions with minor ones. We can’t know if the New Jersey Moderate Party will end up building a voting base big enough to force the major parties to bargain, but they should surely have the right to try.”
New Jersey’s Constitution places strong emphasis on the importance of freedom of association and free expression by voters, parties, and candidates. So there’s ample grounds for the state Supreme Court to take up the case. Stay tuned.