Federal appeals panel sharply questions defenders of NJ's controversial county line

A federal appeals panel on Friday appeared skeptical of arguments defending New Jersey’s controversial primary ballot design as judges weigh whether it should be used for the June primary.

The U.S. Third Circuit Court of Appeals panel questioned attorneys on both sides during two hours of oral arguments on whether to keep in place a preliminary injunction from a lower court judge. That preliminary injunction eliminates the state’s unique primary ballot design — known as the county line — for only this year's primary election and requires office block ballots be used. Only Democratic primary ballots and not GOP primary ballots are subject to the preliminary injunction.

The county line refers to New Jersey’s ballot design where county party-backed candidates are placed more prominently on primary ballots, appearing in a single column or row. Candidates who receive the favored ballot positioning have been shown to have a nearly insurmountable advantage, according to studies. Office block ballots group candidates together by the office they are seeking.

New Jersey is the only state in the country that uses the county line primary ballot design, a fact mentioned several times by the three-judge panel. Bill Tambussi, an attorney for the Camden County Democrats which is spearheading the current appeal, argued in legal briefs that office-block ballots do “not protect the constitutional rights of political party organizations” — an argument justices appeared skeptical of.

“By extension, wouldn't you be arguing that the elections that are taking place in 49 of the 50 states around the country are unconstitutional?” Judge Arianna Freeman asked Tambussi.

“Judge, I'm not gonna offer an opinion on the ballot in other states,” Tambussi replied.

Judge Cheryl Ann Krause quickly added: “It seems to me that if not allowing bracketing … is unconstitutional, then 49 out of 50 states are doing something severely wrong.”

The legal challenge against the line is brought forth by Democrats Rep. Andy Kim — who is running for Senate this year — and two underdog House candidates, Sarah Schoengood and Carolyn Rush. The federal appeals panel earlier this month declined to pause the preliminary injunction as the fast-tracked appeal is pending.

Kim’s lawsuit named 19 county clerks in the state as defendants. None of them are continuing to appeal the preliminary injunction, leaving the Camden County Democratic Committee — which intervened in the lawsuit — as the only appellant left.

Throughout the lawsuit, county clerks and the Camden Democrats have invoked the Purcell principle, a U.S. Supreme Court precedent that generally advises courts to not change election rules close to an election so as not to cause confusion among voters.

Judge Kent Jordan asked Tambussi whether the Purcell principle now worked against him since county clerks are moving forward with the office-block ballot for the Democratic primary. While many county clerks initially appealed the preliminary injunction, none of them are appealing it anymore.

“Now, you seem to be saying, ‘no, make them go back,’" Jordan said. "Isn't that contrary to Purcell? Aren't you actually asking us to do something which is exactly the opposite of what you asked us to do a week ago?”

Tambussi responded saying that the county line has been in place for decades while the office-block ballot order came in late March.

Another key argument from Tambussi was that political parties have the right to endorse and associate with candidates, which Jordan said was not the issue being debated.

“Nobody is arguing that you can't endorse,” he said. “Nobody's arguing that you can't sloganeer. Nobody's arguing you can't come out hard for somebody that you like and talk down somebody you don't like. The only question is, are you allowed to do that on a ballot? Can you force that kind of advocacy on to the ballot?”

Camden Democrats were not the only political party defending the line during the hearing. Matt Moench, a GOP attorney, defended the line on behalf of the New Jersey Republican Chairs Association and Sean Marotta represented the Middlesex County Democrats, one of the state’s most prominent political machines.

Brett Pugach argued on behalf of Kim. Ryan Haygood, president & CEO of the New Jersey Institute for Social Justice, also spoke before the court while representing other groups against the line, such as the League of Women Voters' New Jersey chapter.

"Something I was encouraged by is that the judges seem to have a good command of the record, and the record is something that's really important in this case," Pugach told reporters after the hearing. "Because the district court found that there were really severe burdens that the county line imposes upon candidates. [It] has implications on voters as well, too. It's really a fundamental democracy issue."

The Third Circuit judges are expected to decide within days whether to keep the preliminary injunction in place, with Jordan concluding the arguments saying a decision would be made “promptly.” The clock is ticking with several election deadlines looming; for example, mail ballots must start to go out by April 20.

And a lawsuit filed in state court seeks an injunction on office-block ballots for the Republican primary. The state judge in that case is expected to decide on that matter Monday afternoon.