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If the polls are to be believed, a big if, the presidential election of 2024 is going to be a re-run of 2020: Former President Trump is towering over the rest of the Republican field, and President Biden has no meaningful opposition among Democrats. That means in most of America, lifelong Republican voters who believe in smaller government and lower taxes but also cherish democracy and civility are going to be faced with a difficult choice: stick with the GOP despite their likely candidate, or shift to his opponent despite their not really identifying as a Democrat.
This unappetizing, even unfair situation is the reality for many voters. Hopefully, though, this particular problem may soon no longer obtain in the Garden State due to a lawsuit making its way to the NJ Supreme Court. The litigation is called In Re Tom Malinowski, and I believe it is a monumentally important case.
Let me explain.
The NJ Moderate Party is not the typical minor party. Led by former East Amwell Mayor Rick Wolfe, it is aimed at dynamic centrist-minded voters, mostly Republicans but also Democrats and unaffiliated voters who do not feel at home in either of the two major parties.
More than a year ago, they decided that they wanted to play a role in a race for Congress in Central Jersey. They knew that a traditional third-party candidacy was a fool’s errand.
So rather than back a well-meaning but irrelevant candidate, they chose to support Cong. Tom Malinowski, the incumbent Democrat, in his re-election bid. In public statements, they argued that Malinowski was closer to their views on the importance of democracy and the rule of law.
Importantly, they did not merely want to endorse him, but also nominate him under their own political banner. They were confident that there were other citizens in the district who would want to cast their vote under this new party label. This is called fusion voting, as two or more parties “fuse” their efforts behind the same candidate. In a fusion system, the votes are tallied separately by party and then added together to produce the final outcome.
Fusion was once legal and common in New Jersey, and we had a vibrant multi-party democracy (as did the entire country) throughout the 19th century. Eventually, however, the two dominant parties started to weaken the minor parties in one state after another, and in New Jersey, fusion was outlawed in 1921. New Jersey being New Jersey, we did not just weaken the minor parties, we whacked them: no other state has laws as hostile to new voices and new parties as the Garden State, where no minor party has been recognized as a ballot-status party in 102 years. Across the river in New York, fusion was banned about the same time, but someone sued and their top court ruled that banning fusion was indeed unconstitutional. For reasons lost to history, no one challenged the final 1921 ban in our courts. That is, until now.
The argument the plaintiffs make in their legal papers for the re-legalization of fusion is interesting. Readers might usefully look at the legal pleadings. Michael Tomasco, a Republican turned independent and one of the plaintiffs, said this in an opinion piece about his participation in the suit:
I’m a lifelong New Jerseyan. I’m a voter. I’m deeply worried about the state of our politics. I was appalled by the violence we witnessed in the Jan. 6 attacks. I want nothing more than for my kids to grow old in a free, open, democratic country, but I’m worried that this future is slipping away. That’s why I’m suing the state to strike down the election laws that silence moderate voters like me who believe that preserving our democracy is the top priority.
Like Tomasco, I consider myself a principled centrist, and I know that we are not alone. The destructive hyper-partisan nonsense that dominates American politics today shows no signs of abating, and that is why this lawsuit to constructively open state politics to more voices is so important. No spoilers, no wasted votes – the usual problems of third parties – but rather a new system that will encourage coalition and compromise as minor parties form constructive alliances with major parties.
The case has gotten an unusual amount of attention, with columns and news stories in the Star-Ledger, Bergen Record, Washington Post, New York Times, even the Silicon Valley magazine Fast Company. The Stanford Center for Democracy, Development and the Rule of Law held a conference in April that featured the case, with some of the most respected election scholars and lawyers in America participating. Among the participants was the redoubtable Robert Williams, Distinguished Professor Emeritus from Rutgers Law, who commented on the case in the NJ Monitor at that time.
Long story short, this is an important case. The plaintiffs have asked that, given the urgency of the coming election year, the suit be allowed to skip the Appellate Court level where it now sits so it can be heard and ruled upon in time for 2024.
If that happens, the Supreme Court may rule that New Jersey’s ban on fusion violates the constitutional rights of free speech and free association enjoyed by all citizens, including those who do not identify with the two major parties. In which case, we will all have a more representative and compromise-oriented party system, and for people like me, we will also get a new centrist party that will slowly but surely test its ideas in the political marketplace. I believe many citizens will seize the chance to vote for the candidates they prefer under a party banner that is closer to their values, and fusion allows that to happen. If the Court rules in favor of this new party of the center, it will be a message to the whole country that there is a way out of the hyper-polarized two-party mess: Relegalize fusion.
Alan J. Steinberg of Highland Park served as regional administrator of Region 2 EPA during the administration of former President George W. Bush and as executive director of the New Jersey Meadowlands Commission.
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