TRENTON – Lawyers for the fledgling Moderate Party are appealing to the courts to override state officials’ denial of their request to list Democratic U.S. Rep. Tom Malinowski as their candidate on the November ballot.

The group is trying to bring back fusion voting to New Jersey for the first time in a century. That’s a system in which a candidate can appear on a ballot multiple times as the designee of more than one party, enabling minor parties to support the major candidate closest to them ideologically.

Eight states have fusion voting, including New York, Delaware and Connecticut.

'We have to win'

East Amwell Committeeman Rick Wolfe, a Republican who now supports Malinowski, said the establishment of the Moderate Party is a way to save his party from extremism.

Given the election timetable, it’s not clear if there’s a chance the case would be decided in time to influence the 2022 election ballot, but Wolfe says it would be foolish to sacrifice quality for speed.

“We have one bite at this apple,” Wolfe said. “We have to win this lawsuit. It is critical to our mission here.”

Rick Wolfe of the Moderate Party (Townsquare Media NJ)
Rick Wolfe of the Moderate Party (Townsquare Media NJ)
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Secretary of State Tahesha Way rejected the Moderate Party ballot petition because fusion voting is prohibited. She reaffirmed that decision this week. The party is asking an appeals court to consider the matter and will be asking the state Supreme Court to take the case directly.

The Supreme Court isn’t due to hear cases until Sept. 12, only about two weeks before the first 2022 general election ballots are due to mailed out to overseas voters.

Back to the future

New Jersey used to have fusion voting and specifically allowed for it under a 1911 law. But it soon reversed course, passing laws in 1921 and 1922 that prevent candidates from receiving more than one nomination in an election.

Election lawyer Brett Pugach said fusion voting is much more likely to come to New Jersey through a lawsuit, not a new law.

“A solution coming from the Legislature is probably not something that’s on the table,” Pugach said. “I don’t know that we can expect something like that to come from kind of the very same forces that banned fusion in the first place.”

Attorney Flavio Komuves said fusion voting should be protected by the state constitution and is a necessary change now to combat the rise in extremism, division and tribalism in politics.

'Much-needed political middle'

“There is so much very strong dislike for the dominant parties and dislike for the party system as a whole,” Komuves said. “An electoral system that as a whole is stacked against voter rights cannot stand.”

Political scientist Lee Drutman of the New America Foundation said fusion voting would be a way for frustrated voters to signal that they want moderate candidates who are willing to compromise.

“This is an incredibly powerful first step to really opening up the political space and creating a new and much-needed political middle,” Drutman said.

Republicans say Malinowski’s support for and from the Moderate Party is a charade and point to his voting record in claiming he’s actually liberal.

“Perhaps Tom Malinowski simply thinks nobody would notice, or perhaps this is a more brazen attempt to subvert democracy and benefit his own political stock,” said Tom Kean Jr., his Republican challenger in the 7th District, a rematch of a 1-point race in 2020. “However you cut it, this is a dishonest attempt to fool voters in an astoundingly tough election year for Washington Democrats.”

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“Malinowski preaches all day long about the sanctity of democracy, and yet now that his own job and taxpayer-funded paycheck is on the line, he tried to do an end-run around the New Jersey Constitution and break the law by having his name appear on the ballot twice,” said Tom Szymanski, executive director of the New Jersey Republican State Committee. “It reeks of desperation and Malinowski knows he is going to lose to Tom Kean in November.”

Michael Symons is the Statehouse bureau chief for New Jersey 101.5. You can reach him at michael.symons@townsquaremedia.com

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