Tag Archives: state courts

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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NJ Appellate Court Upholds State’s Ban on Fusion Candidacies

third parties,

The New Jersey Appellate Division held that the state’s ban on fusion candidacies does not violate the State Constitution. New Jersey, like other states, prohibits a candidate for public office from appearing on a ballot as the nominee for multiple parties. As elsewhere, New Jersey’s anti-fusion law was passed in the early twentieth century to entrench the major parties’ political power–although the N.J. appellate court appears to have dismissed this history, emphasizing instead its adoption as part of a “broader effort to reform the electoral system” during the Progressive Era. Perhaps unsurprisingly, the court proceeded to uphold the law.

Emphasizing that there was no reason to interpret the N.J. Constitution differently from the U.S. Constitution in this regard, the decision follows the analysis of the widely criticized decision in which the U.S. Supreme Court upheld such laws against a First Amendment challenge, Timmons v. Twin Cities Area New Party, (1997).

The case is part of a larger state court litigation strategy, supported by many scholars, including myself. An appeal is expected.

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“Bucks County board chair says comment about violating election law has been misinterpreted”

absentee ballots, recounts, Uncategorized,

Philadelphia Inquirer reports that Diane Ellis-Marseglia, the Bucks County Commissioner, has apologized for the “upset and confusion” caused by her defiant comments last week in which she said:

“People violate laws any time they want,” she added. “So, for me, if I violate this law it’s because I want a court to pay attention. There’s nothing more important than counting votes.”

It is perhaps worth reminding everyone that the intermediate appellate court in Pennsylvania held that not counting the misdated ballots was a violation of the Pennsylvania Constitution. The Supreme Court has not upheld that decision, but the defiance was to an order directing that the implications of that decision were not to be experimented with during the 2024 Election. No doubt one reason for that order is the overhang of the U.S. Supreme Court’s rather aggressive stance toward state courts under the new independent state legislature doctrine.

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Defamation Suit Against Maxine Waters to Proceed

Uncategorized, ,

A California Court of Appeals has ruled that Joe E. Collin III’s defamation suit against Representative Maxine Waters can proceed. The case arises out of the 2020 election when Collins and Waters competed to represent California’s 43rd congressional district. During the election, Waters asserted Collin’s had been dishonorably discharged. Her allegation was based on an inference from a suit he had filed in federal court. Collins, however, proceeded to show her official evidence that his discharge was not dishonorable. Waters remained skeptical given the initial evidence she found and did not investigate further.

The appellate court accepted that Collins was a public figure, but refused to dismiss the case, arguing it was too early to determine that he had no chance to produce clear and convincing evidence of “actual malice.” The driver of the decision:

“Free speech is vital in America, but truth has a place in the public square as well. Reckless disregard for the truth can create liability for defamation. When you face powerful documentary evidence your accusation is false, when checking is easy, and when you skip the checking but keep accusing, a jury could conclude you have crossed the line. It was error to end this suit at this early stage, for Collins established the minimal case needed to defeat Waters’s special motion to strike.”

The court is operating with the following definition of actual malice: “[P]eople speak with actual malice when they know their statements are false, or they recklessly disregard whether their statements might be false. Reckless disregard, in this sense, requires defendant speakers to have a high degree of awareness of probable falsity.” The case is Collins v. Waters. The opinion appears here.

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Breaking–Florida Supreme Court won’t block DeSantis redistricting map

redistricting, ,

The Florida Supreme Court has declined to block the state’s new congressional map on the ground that it lacks jurisdiction. The congressional map that will go into effect is the one backed by Republican Gov. Ron DeSantis and previously struck down, in part, on the ground that it diminished the voting rights of African Americans. One Justice (LaBarga) wrote a dissent. Axios summarizes the litigation.

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“NC judges won’t block primary election preparation over redistricting cases”

redistricting,

News and Observer

The three-judge panel in North Carolina charged with reviewing the challenge to the state’s new maps refused today to grant a preliminary injunction blocking the congressional and legislative maps approved last month . The decision can and is being appealed. And the case will proceed to the merits. The full article by Brian Murphy is worth the read for a quick take on North Carolina’s precedent on partisan gerrymandering.

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