Primary ballot in N.J. is ‘unconstitutional,’ state attorney general says

March 18, 2024

New Jersey Attorney General Matthew Platkin’s office said it will not defend the way primary ballots are designed in the state following a lawsuit from Rep. Andy Kim, who says the ballots give preferential treatment to county-backed candidates.

The move is the latest twist in an already tumultuous Democratic nominating contest for a Senate seat in the reliably blue state.

Kim and the state’s first lady, Tammy Murphy, are running in the June 4 primary for the seat held by embattled Democratic Sen. Bob Menendez. He has been accused by federal prosecutors of extortion, obstruction of justice and receiving bribes in exchange for helping the governments of Egypt and Qatar. Menendez pleaded not guilty and has not publicly announced whether he will seek reelection.

The decision by Platkin, who was appointed attorney general by Gov. Phil Murphy (D) in February 2022, could help level the playing field for people running against candidates favored by party leaders. The loss of the county line would be “an earthquake” and create “a fundamental shift in how New Jersey politics operates,” according to Julia Sass Rubin, a professor at Rutgers University who filed an expert brief to the court on the impact of the ballot design in question. “We are the last of the [political] machine states, and the machine relies on the county line to stay in control,” Rubin told The Washington Post on Monday. “If you displease the people who decide who gets the line,” you could lose your office, she said.

New Jersey’s ballot design process is unlike any other in the nation — it allows parties to place their endorsed candidates in a specific portion of the ballot known as “the line,” while candidates running without their party’s endorsement appear in a different section of the ballot, farther down from where voters can see their names.

In his lawsuit, Kim claims that New Jersey’s unique ballot-design process violates the U.S. Constitution by favoring candidates “who happen to be endorsed by a faction of a party’s leadership.” Such design choices, the lawsuit claims, “cynically” manipulate voters and are “anathema to fair elections.”

The attorney general called that feature “unconstitutional” in a letter Sunday to U.S. District Judge Zahid N. Quraishi. “This is an exceptional case, justifying the Attorney General’s exceptionally rare decision not to defend the constitutionality of the challenged statutes,” the letter states. The result of the ballot design is that “it is often impossible for unbracketed, non-pivot office candidates to secure an earlier position on the ballot compared to their bracketed competitors,” Platkin’s letter says. “These features of grid balloting and bracketing also have allowed unbracketed candidates to be placed at the end of a ballot with multiple blank spaces separating them from their competitors, which creates the phenomenon known as ‘ballot Siberia.’”

There is thus “an electoral advantage for candidates who bracket and a corresponding disadvantage for candidates who do not,” according to the letter.

The Washington Post, March 18, 2024

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