Appeals panel denies NJ clerks’ request to block new ballot design, another win for Andy Kim

The U.S. Third Circuit Court of Appeals on Wednesday denied a request from county clerks in New Jersey to block a lower court’s decision that would eliminate the state's unique ballot design for the June Democratic primary.

The ruling means that U.S. District Judge Zahid Quraishi’s preliminary injunction to eliminate the so-called county line for that primary stays in place for now. The legal fight will apparently continue — the Third Circuit also ordered an expedited briefing schedule to rule on the appeal of the preliminary injunction with oral arguments scheduled for April 12 in Philadelphia — but several county clerks who initially fought the preliminary injunction said after Wednesday’s ruling that they were stopping their efforts to appeal it.

The county line is New Jersey's unique primary ballot design where party-backed candidates are placed in a single column or row from the highest office to the lowest. Candidates not endorsed by county parties are often placed less prominently on primary ballots. Candidates who are on the county line have been shown to have a significant electoral advantage.

The expedited briefing schedule gives county clerks another shot to overturn Quraishi’s preliminary injunction. However, election officials in the state are stuck for now with designing office block ballots for the Democratic primary, which groups candidates together by the office they are seeking.

The denial also comes as key statutory election deadlines are approaching. By April 5, for example, election officials must prepare ballot designs for printing for the June primary. And while it is unclear when the court will rule on the appeal, state law requires that mail ballots get sent out by April 20.

The court’s order is a victory for Rep. Andy Kim, who is running to replace indicted Sen. Bob Menendez. Kim is spearheading the legal effort along with two other Democratic House candidates, Sarah Schoengood and Carolyn Rush, by suing 19 county clerks in the state where the county line is used. Two small counties in the state use office block ballots, like all other states in the country do.

After the court’s decision, county clerks from Bergen, Essex, Mercer, Monmouth, Morris, Somerset and Warren counties said they would not continue an appeal. They joined county clerks from Burlington and Hudson Counties, who said prior to Wednesday that they would not appeal the decision.

Quraishi upended New Jersey politics last Friday when he ordered a preliminary injunction eliminating the county line from this June’s primary. He later clarified that his order applied only to the Democratic primary and not the Republican election (none of the plaintiffs requesting a preliminary injunction were Republicans).

Kim filed the lawsuit in late February, when New Jersey first lady Tammy Murphy was still in the Democratic primary for Senate. At the time, Murphy had the county line in a majority of the state since she had the support of Democratic Party leaders. Every county party has a different process for awarding the line, with some allowing hundreds of low-level party officials to vote by secret ballot in conventions while in other counties, a single party boss decides the favorable ballot placement.

However, Murphy abruptly dropped out of the Senate race in late March, making Kim the clear favorite in the Democratic primary. Party leaders offered Kim the county line across the state — nearly all of which he accepted — but he still pressed forward with his lawsuit.

“This is not a system I want to participate in,” he told reporters at the time. “I think it’s unfair. That’s why I’m trying to change it.”

While Kim remains the strong favorite in the Democratic Senate primary, his request to uphold the preliminary injunction ironically helps his competitors in the primary — namely labor activist Patricia Campos-Medina and community organizer Larry Hamm, although they both remain longshot candidates.

If the preliminary injunction holds, it would have a much larger impact on other down-ballot races. Incumbent Democratic Rep. Rob Menendez, the son of Sen. Menendez, is facing a competitive primary challenge from Hoboken Mayor Ravi Bhalla. Menendez initially had the favorable ballot placement across the district while Bhalla did not.

And in the House race to succeed Kim, Assemblymember Herb Conaway had the county line in the entire district over his top Democratic competitor, Assemblymember Carol Murphy. The preliminary injunction erases that advantage for Conaway.

On Tuesday, Campos-Medina, Bhalla and Democratic Passaic County Sheriff candidate Jerry Speziale submitted amicus briefs to the third circuit, asking the court to allow the preliminary injunction to stay in place pending the appeal.

"Denying a stay in this case means that New Jersey, for the first time in more than half a century, finally has the same opportunity that every other state in our nation enjoys in every election: a free and fair election decided by voters casting ballots, not one pre-determined by party bosses,” their attorney, Scott Salmon, wrote in legal filings. “At long last, the people of New Jersey deserve that opportunity."

Attorneys for Kim and the other plaintiffs said the appeals court's denial "brings us one step closer to ensuring constitutional, fair primaries without the county line."

Camden County Democrats — who have become the poster child in the state for putting candidates in so-called ballot Siberia — have intervened in the lawsuit to defend the line and are looking to preserve it in the June primary. And while the preliminary injunction does not apply to Republicans, the New Jersey County Republican Chairs Association has submitted legal filings defending the constitutionality of the county line.