New Jersey Attorney General Will Not Contest Challenge to State’s Primary Ballot System

A poll worker sits outside of the polling station in Saint Aloysius in Jersey City, N.J., on July 7, 2020. David Dee Delgado/Getty Images

New Jersey Attorney General Matthew Platkin has signaled that he will not defend the state’s primary ballot system against a legal challenge claiming the ballots are unconstitutional.

In a March 17 letter to U.S. District Judge Zahid N. Quraishi, Mr. Platkin said that “the challenged statutes” regarding the state’s primary ballot design “are unconstitutional” and therefore his office “will not be defending them.”

U.S. Rep. Andy Kim (D-N.J.), who is running for Senate, filed the lawsuit against the state with Carolyn Rush and Sarah Schoengood, who are running for the U.S. House of Representatives.

In the letter, Mr. Platkin explained his reasoning.

“New Jersey’s system of ballot design for primary elections is unique across the Nation. The system, referred to as the ‘county line,’ is the result of intersecting statutes, judicial decisions, and discretionary practices that have developed over time,” he wrote.

“First, N.J. Stat. Ann. § 19:49-2 provides both for the use of a grid ballot for primary election ballots voted via voting machine and establishes that candidates may bracket together on a single line,” he wrote. “Second, N.J. Stat. Ann. § 19:23-26.1 provides special rules for primary ballot positions of United States Senate and Governor candidates. Finally, N.J. Stat. Ann. § 19:23-24 sets the general rules for random ballot draws to determine the ballot positions of primary candidates.

“Conditions have subsequently altered the real-world impact of those statutes,” he said, noting that the bracketing law prohibited New Jersey’s political parties from endorsing primary candidates until the Supreme Court found the prohibition unconstitutional in 1989.

He went on to say that the record in the case shows an “electoral advantage” for candidates who bracket together and a “corresponding disadvantage” for those who do not.

In contrast, he said the use of the office-block ballot designs “avoids these concerns for candidates and voters alike, while still communicating candidates’ legitimate associational interests. Office-block ballots permit candidates and factions to associate and to communicate those associations to voters via shared slogans, which may be printed on the ballot alongside candidate names.”

Arguing Against ‘County Line’ Bracket System

The lawsuit, filed in February, claims the state “has an obligation to serve as a neutral referee in administering elections” and that “the integrity of self-government depends on it.”

The American Civil Liberties Union (ACLU) of New Jersey filed an amicus brief in support of the lawsuit, arguing that the state’s unique primary “county line” ballot design “upsets the competitive mechanisms of the electoral process.”

The ACLU further argued that it is through this New Jersey-specific ballot design that “the government manipulates election outcomes by providing preferential treatment to candidates who have won the endorsement of county committees of state-recognized political parties.”

In doing this, the ACLU contends that the New Jersey government “engages in viewpoint discrimination and undermines every primary voter’s right to cast a free and effective ballot.”

Therefore, the ACLU insists that the “county line” ballot design is “unconstitutional.”

“Every voter has a constitutional right to participate in elections free from the government’s ideological coercion,” ACLU New Jersey’s legal director Jeanne LoCicero said in a statement about the amicus brief. “When the government organizes primary ballots around the county line and gives advantageous ballot positions to certain candidates, it engages in viewpoint discrimination and erodes the power that voters wield at the polls.”

The lawsuit names 19 county clerks out of New Jersey’s 21 counties that use the “county line” ballot design in the state’s primaries.

The 10th Amendment to the U.S. Constitution grants states the power to administer nonfederal elections, such as primaries.

New Jersey’s current ballot layout segregates candidates who have been endorsed by party leaders in the most prominent position at the beginning of the ballot. The remainder of the candidates are placed in a different column, separated from the preferred candidates by either a blank column or mixed in a column among candidates with whom they share nothing in common.

Rep. Andy Kim (D-N.J.) speaks during a rally and news conference ahead of a House vote on health care and prescription drug legislation in the Rayburn Room at the U.S. Capitol in Washington on May 15, 2019. Chip Somodevilla/Getty Images

Mr. Kim and the other plaintiffs argue that the design gives the endorsed candidates an unfair advantage by placing their names on the ballot in a way that “encourages voters to select them, even when they otherwise might not.”

According to the Election Data + Science Lab at the Massachusetts Institute of Technology, the design of a ballot plays a crucial role in the voting process, and however good the intentions behind the ballot design are, the potential adverse consequences are often “not taken into account” when considering alternative layouts.

“While the everyday voter may not give it much thought beyond looking at their own ballot, the way ballots are designed can dramatically affect voting behavior, and in the most extreme cases, even influence election results.”

Mr. Kim and the other plaintiffs also claim that New Jersey’s “county line” ballot design violates the U.S. Constitution by favoring candidates “who happen to be endorsed by a faction of a party’s leadership.”

Such ballot designs, the lawsuit alleges, “cynically” manipulate voters into making preferred choices and are “anathema to fair elections.”

‘An Exceptional Case’

In his letter to Judge Quraishi, Mr. Platkin described the lawsuit as “an exceptional case,” justifying his decision not to defend the challenged statutes.

“First, a central reason for the Attorney General’s defense of state statutes is to implement the will of the democratic process that enacted them, but as explained above, subsequent court decisions and practices on the ground have overtaken the Legislature’s original intent in enacting the challenged state statutes,” he wrote.

“Second, the traditional need for the Attorney General to defend the results of the democratic process does not apply neatly to a case where the plaintiffs produced substantial record evidence to challenge the statutes as undermining the democratic process,” he said.

He further noted that New Jersey is the only state that uses the bracket system for primaries, which he said undermines the claim that the laws are necessary.

“This Court has made clear in its prior decisions that the constitutional question at issue turns on the evidence,” he wrote, adding that his office had “concluded that the evidence presented does not support a defense of the constitutionality of these statutes.”

Mr. Kim is vying for the seat currently held by Sen. Robert Menendez )D-N.J.), who has been indicted by the Justice Department for allegedly engaging in a bribery and corruption scheme associated with his position in the Senate.

According to the indictment, filed in September 2023, Mr. Menendez is accused of accepting “hundreds of thousands of dollars in bribes” between 2018 and 2022 in the form of “cash, gold, payments toward a home mortgage, compensation for a low-or-no-show-job, a luxury vehicle, and other things of value” through his wife, Nadine Arslanian Menendez. In exchange, Mr. Menendez allegedly “promised to and did use his influence and power and breach his official duty in ways that benefited the Government of Egypt.”

Mr. Menendez has refused to resign and maintains that he is not guilty of the charges.