Joined by former Gov. Christine Todd Whitman and the Cato Institute, the Rainey Center has filed an amicus brief in the New Jersey Superior Court, Appellate Division, in the case In re Tom Malinowski.
This important case involves a challenge to New Jersey’s anti-fusion laws under the state constitution. Under these laws, political parties are forbidden from nominating the same candidate as another party, even if both parties wish to do so and the candidate wants to accept. This is an unjustified infringement of the rights of voters, candidates, and political parties to freely express themselves in the electoral marketplace of ideas.
The practice of fusion was once common in American politics, leading to a vibrant proliferation of third parties. Through selectively cross-nominating major party candidates, voters dissatisfied with the dominant parties could organize and be heard, without the marginalization of only being able to run spoiler candidates. But in reaction to this competition, most states eventually prohibited or heavily restricted fusion.
This infringement on the autonomy of political parties as private organizations and vehicles for political association would have been unthinkable to the authors of the First Amendment and its state-level equivalents. Both the Supreme Court and, even more aggressively, state courts have long protected these core fundamental rights. State courts can play a particularly crucial role in protecting these rights above and beyond the bare minimum set by federal courts under the federal Constitution.
As explained in our brief, New Jersey’s anti-fusion laws can not withstand constitutional scrutiny. Political parties should be free to nominate the eligible candidate of their choice, and voters should be free to associate with the party that best reflects their views.
For more on this case, see this bipartisan op-ed by Gov. Whitman and former Sen. Robert Torricelli, and this post at the Cato Institute blog outlining the constitutional argument against laws banning fusion nominations.