Pro-Democracy Centrist Voters and Moderate Party File Brief Challenging New Jersey’s Unconstitutional Ban on Fusion Voting

TRENTON, December 2, 2022 – Today, the Moderate Party, a new party committed to protecting democratic institutions, and three centrist voters filed a brief in the N.J. Appellate Division explaining why state laws prohibiting fusion voting violate the New Jersey Constitution. Under laws passed in the 1920s to stifle political competition, candidates in New Jersey can only appear on the ballot as the nominee of a single party. Fusion voting allows candidates to appear as the nominee of more than one party.

New Jersey’s anti-fusion laws prevent the Moderate Party from nominating its preferred candidates on the ballot and force Moderate Party voters to support either the Democratic or Republican Party in order to vote for their own nominee. Despite public opinion survey data that reveals widespread desire in the electorate for more electoral choices, anti-fusion laws have entrenched all political power in the two major parties and made it impossible for new minor parties to constructively participate in New Jersey politics. Each of these problems violates fundamental political rights enshrined in the State Constitution. 

Re-legalizing fusion would allow the Moderate Party to put its nominations on the ballot, without any of today’s risk that a minor-party nominee will be a spoiler. Centrist voters would have an opportunity to clearly express their views at the ballot, and experts predict that giving a minor party like the Moderate Party a fair chance to compete on the ballot would reduce the extreme partisan polarization produced by today’s rigid two-party system. 

This case initially arose from the Moderate Party’s attempt to cross-nominate Rep. Tom Malinowski in the 7th Congressional District race this fall, but at stake is whether the Moderate Party will be prohibited from cross-nominating competitive center-right and center-left candidates in federal, state, and local elections in 2023 and beyond. 

“Fusion voting is essential to protecting the right to vote, the free speech and the equal protection rights of both candidates and voters,” said Michelle Garay, the chair of the Moderate Party. “We hope that restoring this practice will serve as a jumping off point for deeper, more meaningful structural reforms to the electoral process.”

“This is about more than one candidate. It’s about facing the reality of the political climate we live in, in which members of both parties increasingly find their party has adopted unsustainably extreme positions,” said Richard A. Wolfe, one of the Moderate Party’s founders and a local official in East Amwell Township. “The truth is, a majority of voters in this country are neither far right nor far left, but reside at or close to the center.”

“The initial decision by the state of New Jersey to block the Moderate Party’s cross-nomination was not unexpected, but the law is on our side,” said Steve Weissman, partner at Weissman and Mintz. “Blocking fusion voting violates our State Constitution.”

According to Beau Tremitiere, Counsel for Protect Democracy: “A healthy democracy requires free, open, and fair political competition. Anti-fusion laws that relegate minor parties to an electoral under-class not only violate the New Jersey Constitution, but make it harder for voters across the political spectrum to work together to defend the rule of law and democratic freedoms.”

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Protect Democracy is a nonpartisan, nonprofit with an urgent mission: to prevent our democracy from declining into a more authoritarian form of government. Protect Democracy’s attorneys Farbod Faraji and Beau Tremitiere represent two unaffiliated voters in this lawsuit, William Kibler and Michael Tomasco.

The N.J. Moderate Party provides a political home for pragmatic, principled voters from the left, right, and center committed to protecting democratic institutions. The Moderate Party and Richard Wolfe are represented by Steve Weissman, Brett Pugach, and Flavio Komuves of Weissman and Mintz; Yael Bromberg of Bromberg Law LLC; and law professors Joel Rogers of the University of Wisconsin and Nate Ela of the University of Cincinnati.

About the Author

Beau Tremitiere


Beau Tremitiere develops and leads advocacy projects targeting political extremism and authoritarianism, including litigation challenging the constitutionality of state laws prohibiting fusion voting.

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