Lawsuit challenges ‘party line’ ballots that ‘stack the deck’ in some NJ counties

Colleen O'Dea, Senior writer | January 27, 2021 | Politics
The suit alleges practice unique to New Jersey gives big advantage to party-endorsed candidates
Credit: (AP Photo/Julio Cortez)
File photo: Studying a sample ballot

Several unsuccessful primary candidates are part of a group suing a half dozen county clerks to end  the preferential “party line” placement they say gives candidates backed by New Jersey’s Democratic and Republican parties an unfair advantage.

The lawsuit, filed in U.S. District Court in New Jersey, is the latest effort by progressives who say this is needed to end advantages that candidates anointed by county party bosses receive in primary elections. A report last June by New Jersey Policy Perspective found that ballots designed around the party line, unique to New Jersey, give party-endorsed candidates a large edge, disadvantage their opponents and confuse voters.

“New Jersey’s use of the line is a voter suppression tactic, used to pre-determine elections outcomes and diminish the voice of voters,” said Jesse Burns, Executive Director of the League of Women Voters of New Jersey. “Our ballots disregard all established and proven best practices for ballot design, causing voter confusion and apathy. We applaud this historic lawsuit for seeking to give voters, not county party chairs, the democratic power to elect candidates of their choosing.”

Six current or former candidates and New Jersey Working Families Alliance, a grassroots nonprofit that endorses candidates, are asking a federal judge to declare unconstitutional the ballot design and the bracketing and positioning of candidates associated with party backing. They contend these practices violate their constitutional right to a fair chance at being elected and violate the rights of voters who support them. The contentious practices include the bracketing by county clerks (who themselves are elected) of party-endorsed candidates who then get first crack at first ballot position — considered the most favorable.

‘Hindering our democracy’

“New Jersey primary election ballots are configured to stack the deck for certain candidates at the expense of others, thereby undermining the integrity of elections and hindering our democracy,” states the complaint filed Monday.

This suit originally was filed last July with only one plaintiff, Christine Conforti, who lost the Democratic primary for the U.S. House of Representatives in the 4th District, a seat long held by Republican Chris Smith who was reelected in November. The complaint filed on Monday was amended and includes additional plaintiffs.

In court papers answering the original complaint and seeking its dismissal, lawyers representing some of the county clerks stated that the practices they follow in choosing candidates’ ballot positions and designing the ballots are established in state law and that to disallow the bracketing of candidates would violate the rights of those who want to run on the same line.

Christopher Khatami wrote on behalf of Ocean County Clerk Scott Colabella that current state law “is the fostering and promotion of constitutionally protected expressive activity and political speech through bracketing and ballot placement. If Plantiff’s challenge prevails in this case, it will impose severe burdens on the associational rights of political parties, small and large, and candidates who share similar views and want to express those views to the voters by grouping together on the ballot.”

In addition to Colabella, the suit names as defendants Monmouth County Clerk Christine Giordano Hanlon, Mercer County Clerk Paula Sollami Covello, Bergen County Clerk John Hogan, Atlantic County Clerk Edward McGettigan and Hudson County Clerk E. Junior Maldonado.

What’s in dispute is the process by which county clerks design the primary ballots used in their counties. In most, but not all, counties, these are drafted with the county line in mind. Candidates who get endorsed by the county party for various offices bracket together, usually with better-known incumbents. Sometimes other candidates are bracketed as well. County clerks hold a draw to determine the position on the ballot each candidate gets, with bracketed candidates usually getting preferential treatment.

Even if the slate of candidates on the county line does not get first position, its candidates have an electoral advantage by being listed as part of a full slate, the complaint contends, because candidates not running on that line “are harder to find on the ballot” by being placed alone in a column or row and thus “otherwise appear less legitimate” than the party-line candidates.

‘Advantage at the polls’

“Ballot position is extremely important in elections,” the suit alleges. “Candidates listed first receive an advantage at the polls … When state law systematically puts its thumb on the scale in favor of certain candidates by extending them preferential ballot treatment, it creates significant barriers to the electoral chances of those candidates who are arbitrarily excluded from inclusion in the ballot draw for first position.”

The New Jersey Policy Perspective report, authored by Rutgers professor Julia Sass Rubin, stated that the line provides a definite advantage to candidates. It cited, for instance, the 2017 Democratic gubernatorial primary results in which then-candidate Phil Murphy won the endorsement of every county party and went on to win every county except Salem, which did not design its ballot using the county line. In Salem County, former Assemblyman John Wisniewski won, and he was the first candidate listed on the ballot.

Murphy said Monday he plans to seek county Democratic Party endorsements this year, although he currently does not have any opponent in the June primary.

The lawsuit is asking Judge Tonianne Bongiovanni to declare the state statutes and practices used to design primary ballots around the party line and bracketed candidates unconstitutional. Instead, they are seeking ballots organized by office, in which all candidates for a given seat are listed together and their names chosen randomly for first ballot position or rotated through that position to make placement more equitable for all candidates — as other states and a few counties in New Jersey design their ballots.

“New Jersey communities ultimately win as a result of this type of ballot design reform,” said Conforti. “Political candidates at all levels of government will finally be incentivized to listen to voters and be accountable to their public promises to people, not to political party insiders who most often serve corporate lobbyists who fund them. Restoring a truly democratic ballot design — one that is easy to understand and give equals visibility to all candidates — is the simplest form of democracy reform.”

Trying to change the state law that governs the ballot design would be difficult, advocates acknowledged last year shortly before filing the lawsuit. They said that political party leaders want to keep their power and that lawmakers who benefit from the current system would have to be the ones to change it. Senate President Steve Sweeney (D-Gloucester) said at the time that he does not see his house considering any such change and said challengers do beat incumbents.