Tag Archives: state constitutions

Prominent NJ Academics Urge High Court to take Fusion Challenge

political parties, third parties,

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.

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As redistricting eyes turn again to California

election law and constitutional law, redistricting,

Justin here. I find much of the work of the UCLA Voting Rights Project to be really valuable — but I have to say, I agree with Rick’s take on their read of the California Constitution‘s provisions on redistricting. The California Constitution can be amended (as Rick says, it takes approval by the voters), but I don’t think current law permits the legislature to just draw maps on their own. And I think following the Project’s memo would end up putting the legislature in a worst-case bind.

Rick says that the memo uses a sort of “wooden textualism” — the same sort of methodology, giving overly short shrift to what drafters clearly intended, that has produced the 8th Circuit’s dead-wrong decisions on private rights to enforce the VRA. But I think it’s even less persuasive than that. The memo describes portions of the California Constitution that “retain for [the] Legislature the power to adopt ‘a statute establishing or changing boundaries of any legislative, congressional, or other election district.’” That’s not what I read those sections to be doing.

The memo cites two sections of Article IV of the California Constitution – section 8(c) and section 10(b) – as giving the legislature power to draw redistricting statutes (and override the state’s independent commission) whenever it wants. Article IV, section 8, subsection (c) is about effective dates for legislation. It has a default, a special exception (I think) for bills passed at the end of the first year of a two-year session, and an exception to the exception for redistricting statutes. Article IV, section 10, subsection (b) is about bills becoming laws without the governor’s signature if he sits on them long enough. It too has a default, and an exception for redistricting statutes.

Neither of those sections purports to assign the legislature a role in drafting redistricting statutes. It just says what the effective dates and law-without-signature timing might be for legislative redistricting statutes … if such statutes existed. And the best read of the constitution, I think, is that Article XXI just means there are none of those legislative redistricting statutes now (because the redistricting commission has the power to do that work instead). That doesn’t make these procedural bits superfluous: if the commission provisions are withdrawn or modified, they kick back in.

It’s very hard to read those small procedural exceptions in 8(c) and 10(b) to imply a giant substantive power when the much much much clearer provision on substantive power gives that power instead to the independent commission. Also, it sure seems weird for Article XXI of the California Constitution to go to all the trouble to specifically take the pen away from the legislature and prescribe a bunch of criteria for the commission to use, if a different part of the constitution just lets the legislature undo that work however they want whenever they want.

I am, of course, not a court. And maybe a court would disagree with me. But I think it’s far more likely that a court would read these provisions of Article IV as vestigial procedural caveats rather than affirmative authorization. And if that’s true, then a legislature acting on this theory (and not, say, putting a measure before the public if they really want to effectuate a retaliatory gerrymander) is putting itself in a worst-case scenario.

If the legislature draws a radically gerrymandered map on this theory, it ticks off all of the reform voters who put the commission in place in the first instance, and anyone who doesn’t love the idea of a Democratic gerrymander. And if a court (as I think most likely) then strikes the map down for lack of legislative authority, it ticks off all of the Democrats gunning for pure partisanship – because now the legislature has accomplished nothing, and it’s too late for a special election that would actually change the rules before 2026. I think this is a recipe to claiming action while actually affecting nothing, and ticking _everyone_ off in the process.

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Former NJ Governors, Whitman and Corzine, Urge New Jersey Supreme Court to Lead the Way

political parties, political polarization, third parties,

Christine Whitman (R) and Jon Corzine (D) urge the New Jersey Supreme Court to lead the way in reducing the cycle of polarization. In an opinion piece, the two former Governors of New Jersey explain how recognizing the constitutional burdens anti-fusion laws place on minor parties is a meaningful path to undoing the pathologies of hyperpolarization and undercutting the appeal of authoritarianism. They write:

“Governance is failing because politics is failing, and politics is failing because our two major parties are no longer the ‘big tents’ they once were. There used to be liberal, moderate and conservative factions in both the Democratic and Republican parties, but now those are long gone. We have sorted ourselves into two distinct tribes, and, for too many Americans, the rival camp is seen as an existential threat that must be degraded and destroyed. Negotiation is for weaklings; compromise is surrender. Nothing but domination is acceptable, and that cuts at the very heart of this wondrous but fragile system known as democracy.

Litigation in New Jersey challenging the state’s anti-fusion laws could–if the Court accepts the case–help break the cycle.

By definition, fusion encourages inter-party coalitions to form, which adds stability and legitimacy to governance. It also punishes extremism, because it allows major party voters who are dismayed by the direction of their traditional party — and may currently feel they have nowhere to go — to build a new one. 

. . . .

It gives us pride to imagine that the Garden State might lead the way to a better political party system and a more representative and effective government. 

Theoretically, the New Jersey state legislature could solve the problem by simply repealing the ban. Still, as these two savvy politicians understand, self-interest makes “[d]ominant parties… generally unwilling to change the rules in order to allow new centers of power to breathe.”

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Two members of ABA Task Force highlight fusion’s potential to break political polarization and empower the center, as New Jersey Supreme Court considers the state’s ban on fusion

political parties, political polarization, third parties,

In an exceptionally clear piece in Newsweek, William Kristol and Tom Rogers, members of the ABA cross-partisan Task Force for American democracy, explain fusion voting and how relegalizing it could “break political polarization and empower the center.” The authors illustrate their argument by “imagin[ing] a new political party of ‘politically homeless’ centrists. Call it the Common Sense Party”–explaining how fusion could empower its voters and elevate their concerns (hypothetically, “the rule of law, principled bargaining and compromise, and civility in public life”).

This is an important opinion piece as the NJ Supreme Court considers whether to take up the legality of fusion under its state constitution.

“We are heartened that the ABA Task Force’s final report may encourage the states to reconsider the bans on fusion voting passed by the major parties a century ago. As we write, there is litigation underway in New Jersey, Kansas, and Wisconsin to have these bans declared unconstitutional under their respective state constitutions.”

The ABA Task Force for American Democracy assessed the most practical reforms for bolstering voter confidence in the integrity of our elections and reinforcing the importance of the rule of law.

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“Wisconsin Supreme Court rejects bid to reconsider congressional maps before the 2026 midterms”

redistricting

The Milwaukee Journal-Sentinel reports on two cases that the state Supreme Court declined to hear. 

I’m sure Justice Bradley, who angrily pre-castigated her colleagues (in a dissent from the order simply directing a response to the initial petitions) for their presumed future decision, will be moderating her remonstrances going forward.

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“NJ Moderate Party and Voters Ask State Supreme Court to Take Fusion Voting Case”

ballot access, political parties,

Insider NJ reports that the New Jersey Moderate Party and voters today filed briefs with the NJ Supreme Court asking it to review the constitutionality of New Jersey’s anti-fusion laws. The party argues that the fusion ban violates its right as a political party to associate with the candidate of its choice simply because that candidate has the nomination of another party.

The Moderate Party 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 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.”

Richard Wolfe, a founder of the NJ Moderate Party.

 The NJ Supreme Court will likely decide in the next month whether to take up the case.

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Montana Plan is not Without Its Skeptics

campaign finance, direct democracy,

Earlier this week, I blogged about a new initiative in Montana that seeks to rein in corporate political spending by amending the state’s constitution to limit the powers conferred on corporations. In a new article for the local Independent Record, Brad Smith, chairman of the Institute for Free Speech and a former commissioner for the Federal Election Commission, dismissed the plan as unserious: “the state cannot condition a benefit (in this case, the right to incorporate) on citizens giving up their constitutional rights.”

Meanwhile, our very own, Rick Hasen, despite his general sympathy for regulating money in politics, told reporters he was “skeptical of the legal strategy behind this maneuver, given the incredible skepticism of the Supreme Court about the constitutionality of regulating corporate political spending.” I agree.

Still, he emphasized:

“There is a political benefit in pushing such a measure and in galvanizing public support against the Supreme Court’s damaging approach to issues of money in politics. . . .

Passing such a measure and having the Court strike it down is a way of reminding the public that the Supreme Court is the entity standing in the way of achieving a fair balance between robust political competition and not allowing the ultra-wealthy to have disproportionate political power in society.”

Jeff Clements, a major advocate of both overturning Citizens United and this new plan, also sought to rein in the idea that the Montana Plan would solve all our money in politics problems (for those who agree they exist).

“While the Montana Plan would help, he said, he also pointed out that billionaires would still be able to spend huge sums of money, another feature of the Citizens United decision.”

This is a point that Rick and I have both made before.

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New Montana Initiative Seeks to Use Corporate Law to Restrain Corporate Political Spending

campaign finance, direct democracy

Veteran election leaders today unveiled “The Montana Plan,” a ballot initiative that seeks to eliminate corporate and dark money from Montana politics without running afoul of Citizens United. The initiative would amend Montana’s constitution to prohibit the state from granting corporations it creates the power to spend in politics. Today, Montana, like most states, grants its corporations every power held by an individual to do all things necessary or convenient to carry out its business and affairs. The initiative if passed would change that to eliminate the power to spend in politics.

Proponents argue, “This is authority every state possesses but no state has used in more than a century.”

But what about out-of-state corporations? Well, Montana law already limits corporations chartered in other states to the same set of powers that Montana-chartered corporations hold. Thus, were Montana to limit its own corporations’ political spending, the restriction would automatically apply to out-of-state corporations.

Intriguing. The Montana Plan is being sponsored by the Transparent Election Initiative, a Montana-based nonprofit organization.

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“Maryland’s primary elections are unconstitutional, lawsuit alleges”

election law and constitutional law, legislation and legislatures, political parties, primaries

The WaPo has a story on independent voters claiming a right to participate in primary elections under the state constitution.  The complaint is here.

Existing Supreme Court precedent on the primary process and the First Amendment mostly gives the keys to parties to choose their electorates by opening or closing primaries as they wish.  But nothing in federal law requires the state to hold a partisan primary at all.  (States with “top X” primaries generally indicate candidates’ partisan preference without purporting to choose a frontrunner on the party’s behalf.)

Meanwhile, Nevada’s Assembly speaker introduced a last-minute bill (the session ends next week) to open up primaries to independent voters, over the apparent objections of state Republicans.  (See the opening sentence of the last paragraph.)

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Challenge to Minnesota’s Procedures for Restoring Voting Rights to Felons Heard in State Supreme Court

felon voting, Uncategorized

Minnesota Public Radio

Minnesota’s Supreme Court heard arguments this week in a case that may determine whether continuing to disenfranchise voters on parole or on probation violates the state’s constitution. The case turns on the fact that, under the Minnesota precedent, statutes and policies that have a racial disparate impact must meet heightened scrutiny to survive a constitutional challenge.

“It seems to me when you were disenfranchising just huge swaths of the population, particularly when that population are primarily people of color, who the Equal Protection Clause was a design to the very people it was designed to protect,” Hudson said. “How is that the tight fit that Russell [the Minnesota precendent] requires?”

50,000 Minnesotans with active felony records will be affected by the Minnesota Supreme Court’s decision.

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