NJ Primary Elections 2020: Report Claims Ballot Design Hurts Candidates Who Aren’t Party Favorites

The best positions on the ballot can be the hot ticket for candidates, or they can wind up frozen out in Ballot Siberia
The design of New Jersey’s ballots makes it hard for voters to find all the candidates and gives a decided advantage to candidates who are endorsed by their party.

New Jersey is the only state in the nation that structures its primary ballots to favor candidates who receive party backing, giving them a large edge, disadvantaging opponents and confusing many voters, a new report contends.

The report, issued by New Jersey Policy Perspective, a progressive think tank, and written by a Rutgers University professor, found that New Jersey is the only state where primary ballot design in almost all counties is organized around the list of candidates endorsed by the Democratic and Republican parties.

“New Jersey primary ballots violate the rules of good ballot design and confuse and mislead voters,” said Julia Sass Rubin, a professor at the Edward J. Bloustein School of Public Policy and author of the report. “Rather than organizing our primary ballots around the office being sought and clearly indicating which candidates are running for each position, most counties organize the primary ballots around a slate of party-endorsed candidates. As a result, New Jersey’s primary ballots give the party-endorsed candidates an almost insurmountable advantage and enable party insiders rather than the voters to pick the winners in primary contests.”

Jesse Burns, executive director of the League of Women Voters of New Jersey, called it “gerrymandering of the ballot, a manipulative tactic used to predetermine election outcomes and diminish the voice and will of voters.”

Location, location, location

The power of the party line has long been noted in New Jersey, but pundits have talked about it as being a way of suggesting to the party faithful who they should vote for. Rubin’s report indicates ballot design is at least part of the reason, as well. It cites a 2019 analysis by the Communications Workers of America that found no New Jersey legislative incumbent had lost a primary election when on the line between 2009 and 2018. In New York, on the other hand, 22 legislative incumbents had lost during the same time.

“It’s basically become getting the county line has become synonymous with winning the election,” said Brett Pugach, an election law attorney with Bromberg Law LLC and author of a Rutgers Law Review article on the state’s ballot design. “What that leads to is a situation where candidates have become beholden to unelected party chairs, rather than being accountable to voters.”

As additional proof, Rubin pointed to results from the 2017 Democratic gubernatorial primary. Then-candidate Phil Murphy won the party endorsement in every county and he won every county except Salem County. Salem is one of two counties that do not arrange their ballots by line, and in Salem, former Assemblyman John Wisniewski was the first candidate listed and he won the vote there.

“I think you could probably assume that Salem ballot had some impact on Wisniewski being able to win the primary there,” she said.

In Salem and Sussex counties, the ballot for each race reads down, so in this primary election it would say U.S. Senate and the underneath list each candidate on one line.

Ballot Siberia

In other counties, each race reads across the ballot. So for U.S. Senate, there may be candidates in every column or only in some columns with empty spaces in between. At times, two candidates for the same seat are listed one above the other — the second position is known as Ballot Siberia. All the county-endorsed candidates are in the same column reading down, whether it’s the first, last or a middle column, depending on the ballot-position draw.

Rubin said the county line is usually in one of the first two columns. And it is usually led by the best-known candidates — this year, the presidential candidates — so it also draws voters’ attention to those candidates below.

“In New Jersey, primary election ballots have been a source of confusion and have been transformed into a political weapon through the ability to manipulate the ballot position of candidates and the use of visual cues which can influence voter behavior,” Pugach said. “This unique ballot structure is so convoluted that it comes with its own set of vocabulary, with words like ‘bracketing,’ ‘preferential ballot draw,’ ‘Ballot Siberia’ and ‘phantom candidates.’ None of New Jersey’s unique ballot design features are necessary, and ballot reform is needed to restore faith in our democracy.”

He said it is time New Jersey change its ballots to mirror those of other states and arrange candidates under each seat in one of two ways: Either randomly draw names with the first chosen getting the top spot and the second underneath, and so forth, or rotating the names so that each person gets top spot or second or third in a different district or ward.

Provisional ballots for Democratic Party primaries in Passaic County (left) and Hunterdon County (right) are well-designed and make it easier for voters to see all the candidates.

Making that change is going to be difficult in a state where party leaders want to keep their power. Pugach suggested more candidates run for county committee seats so they have a greater say in what happens. He also said people committed to making ballots fairer should run for county clerk, as the clerk designs the ballot and performs the draw for ballot position,  and voters should elect candidates who support ballot fairness.

He recognized getting a bill to get rid of the county line through the Legislature will be difficult because “the people who are benefitting the most are most likely people who are sitting in the Legislature right now.”

Senate President Steve Sweeney (D-Gloucester) said he does not see his House considering any such change any time soon.

“You know, challengers beat incumbents all the time,” Sweeney said. “How does that happen if it’s the ballot? So, again, I don’t see a problem with the ballot.”

This election will give Rubin and others a chance to do further research to help them make their case for change in future elections. She said she will be looking in particular at the 2nd District Democratic race, where there are eight counties — some that have  endorsed one candidate, one that has endorsed another, some that have endorsed no one and Salem, which she considers a fairer ballot design.

In addition, several other counties — Hunterdon, Passaic, Warren and the Republican ballot in Morris — are structuring their ballots this year like Salem and Sussex and other states. With virtually every voter using a paper ballot  — whether mail-in or provisional — researchers will be able to see if there is a difference in how candidates fare.

Rubin said at least two other states — Rhode Island and Connecticut — have party endorsement processes similar to New Jersey’s, but simple ballot designs. What these do is designate the endorsed candidate by adding an asterisk to his name, while still placing all the candidates in the same column so it easy to see them all.

Accounting for endorsements is something any ballot will have to do. Pugach said that in 1930, legislation banned the parties from endorsing candidates in primary elections and other laws sought to rein in party influence. But a 1989 U.S. Supreme Court ruling “basically rendered New Jersey’s primary-endorsement ban unconstitutional and since then … it’s kind of been a big power grab for some of the parties and a big concentration of power to the parties.”

Another way to try to change the ballot would be to challenge the constitutionality of the current system. Pugach said some groups have discussed such a suit but none is currently in the works.

“I haven’t considered whether or not we participate in this kind of litigation,” Burns said. “I haven’t ruled it out.”

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