In re Tom Malinowski Petition for Nomination for General Election, November 8, 2022, for United States House of Representatives New Jersey Congressional District 7, ___ N.J. Super. ___ (App. Div. 2025). This case was an “Appellate Division Oral Argument of the Week,” as discussed here. Today, in an opinion by Judge Gilson, the Appellate Division held that New Jersey’s “anti-fusion” statute, N.J.S.A. 19:13-8, which prohibits a candidate for public office from appearing on a ballot on more than one party line, does not violate the New Jersey Constitution. This ruling affirms a decision by the Secretary of State that rejected, based on that same statute, a request by the Moderate Party to list Tom Malinowski as its nominee on the November 2022 general election ballot for the United States House of Representatives, 7th Congressional District because Malinowski was already on the ballot as the nominee of the Democratic Party.
The case was based on the New Jersey Constitution only because, as Judge Gilson noted early in his opinion, “[o]ver twenty-five years ago, the United States Supreme Court held that state anti-fusion laws do not violate the United States Constitution (the Federal Constitution). Timmons v. Twin Cities Area New Party, 520 U.S. 351, 353-54 (1997).” The Moderate Party and three individual voters attacked N.J.S.A. 19:13-8 and other New Jersey anti-fusion statutes as violating four constitutional rights: “(1) the right to vote; (2) the right to free speech and political association; (3) the right to assemble and make opinions known to representatives; and (4) the right to equal protection under the law.”
Judge Gilson limited the panel’s opinion to N.J.S.A. 19:13-8. That was the only statute on which the Secretary of State relied in denying the Moderate Party’s attempt to list Malinowski on its ballot line. “[T]o address statutes not directly at issue would be inconsistent with the well-established principle of judicial restraint. That principle directs that [c]ourts should not reach a constitutional question unless its resolution is imperative to the disposition of litigation.” Therefore, although the Appellate Division’s opinion discussed the history of anti-fusion statutes in some detail, going back to law enacted in 1921, it declined to address the constitutionality of statutes other than N.J.S.A. 19:13-8.
Judge Gilson began by noting that while “[t]he New Jersey Supreme Court has not addressed whether the State Constitution prohibits anti-fusion statutes[, m]ost other states that have considered this issue have held that their constitutions allow anti-fusion laws.” The panel did not say, however, that it was following those decisions. Instead, Judge Gilson turned to “the plain language of the State Constitution and the proceedings of the 1947 Convention that adopted our current State Constitution.”
The Constitution, Judge Gilson observed, “does not directly address fusion ballots. In other words, there is no provision expressly allowing or prohibiting fusion ballots. The absence of an express authorization of fusion ballots, however, is telling. New Jersey's anti-fusion statutes were in existence when the 1947 Convention took place. The delegates to the 1947 Convention were clearly aware of those statutes because they considered but rejected three proposals that would have allowed fusion ballots,” as the panel went on to discuss. Thus, “both the language of the State Constitution and the proceedings of the 1947 Convention support the interpretation that N.J.S.A. 19:13-8 does not violate the State Constitution.”
However, because “[w]ith good reason, some argue that a constitution is not a static document and, given compelling reasons, the interpretation of constitutional provisions can and should change with the passage of time,” the Appellate Division did not end its inquiry there. Instead, the panel “consider[ed] two additional questions. First, whether New Jersey should depart from federal law in this matter when interpreting its own Constitution. Second, whether any provisions of the State Constitution clearly prohibit N.J.S.A. 19:13-8.”
As to the first issue, Judge Gilson analyzed the criteria of State v. Hunt, 91 N.J. 338, 363-67 (Handler, J., concurring), for guidance as to whether our Supreme Court would deviate from he views of the Supreme Court of the United States in Timmons. “Those criteria include: (1) textual language; (2) legislative history; (3) preexisting state law; (4) structural differences; (5) matters of particular state interest or local concern; (6) state traditions; and (7) public attitudes.” Those factors did not lead to the conclusion that New Jersey would part ways with the Supreme Court of the United States, Judge Gilson explained.
Nor did individual evaluation of plaintiffs’ four claims of constitutional violation carry the day. Appellants had a heavy burden in that regard. “It is well-settled that a legislative enactment will not be declared void unless its repugnancy to the Constitution is so manifest as to leave no room for reasonable doubt.”
The parties disputed the proper standard of review. Appellants argued that a standard of strict scrutiny should govern. The Secretary of State contended that the proper standard was “Anderson-Burdick interest-balancing” test, which was based on Anderson v. Celebrezze, 460 U.S. 780, 789 (1983), and Burdick v. Takushi, 504 U.S. 428, 434 (1992). Citing prior cases in which the Appellate Division had “applied the Anderson-Burdick test in evaluating First and Fourteenth Amendment challenges to other election laws,” the panel adopted that test and distinguished Worden v. Mercer County Board of Elections, 61 N.J. 325 (1972), on which appellants had based their argument for strict scrutiny.
Under the interest-balancing test, appellants’ claims of constitutional violations all failed. “Regarding the right to vote, N.J.S.A. 19:13-8 does not directly interfere with voters’ ability to vote for their preferred candidate. A candidate's name, like Malinowski’s, will still appear on the official ballot next to one political party. All voters remain free to vote for that candidate.” As to the rights to free speech, free assembly, and political association, Judge Gilson said that “although N.J.S.A. 19:13-8 may prevent a political party from officially nominating a candidate who has already been nominated by another party, it does not restrict a party from publicly endorsing or supporting that candidate,” citing Timmons. Finally, there was no equal protection violation. “N.J.S.A. 19:13-8 applies to all candidates nominated for office, from major and minor[ity] parties alike.”
As a coda, Judge Gilson addressed appellants’ argument that “there are strong public policy interests supporting fusion voting.” While “[m]any people considering those arguments may find them compelling,” courts do not weigh policy considerations. Appellants’ recourse was with the Legislature.
