Appeals judges to decide quickly if 'ballot Siberia' unfairly biases NJ primary races

Across the street from the Liberty Bell in Philadelphia on Friday, lawyers took their fight over the constitutionality of New Jersey ballots that use the “county line” design to the U.S. Third Circuit Court of Appeals — where a three-judge panel promised a speedy ruling as early as next week.

The case brought by New Jersey Rep. Andy Kim to stop the controversial ballot design for the June primary has won a preliminary injunction from a lower federal court. First lady Tammy Murphy, who was Kim's chief competitor for the U.S. Senate seat held by Bob Menendez, had dropped out of the race just days earlier.

The Murphy-Kim race became a proxy for the battle over the county line system, which gives preferential primary ballot placement to candidates endorsed by county political party organizations. Kim's attorneys argued before the lower court that Murphy had an unfair advantage because political bosses in many of the state's largest counties planned to award her the line.

The lower court judge ultimately ruled the design unconstitutionally tips the scales in elections, even with Murphy out of the race and Kim no longer at that disadvantage personally. Two South Jersey congressional candidates are also plaintiffs in the case and argue that the system unfairly harms their chances of winning primaries.

The lower court’s ruling was limited to the 2024 Democratic primary, and Republicans will still use the county line system this year. But the appellate court decision is expected to have a powerful influence on a related case that aims to end the county line practice in all New Jersey primary elections going forward.

While the 19 county clerks Kim sued have dropped out of the appeal, the court still heard arguments against changing the ballot design for the June primary from the Democratic Party organizations in Camden and Middlesex counties, two of the state's most powerful political machines.

New Jersey is the only state that uses a county line in primary elections. The system groups candidates endorsed by the county political party organizations together on one slate. Rutgers researchers say the design makes endorsed candidates seem more legitimate and gives them a huge advantage that unendorsed candidates rarely overcome.

“The parties exert control," Judge Kent Jordan, an appointee of former President George W. Bush, said on Friday. "That’s why they like this system. It gives them the power to put their thumb on the scale."

But William Tambussi, the attorney for the Camden County Democratic Committee, told the panel that political parties have a right to give that advantage to their chosen candidates. He argued that it’s an element of the parties’ right to free association.

“The Camden County Democratic Committee has the right, the constitutional right, and the statutory right, to affiliate and endorse those candidates that they believe, the committee believes, will best serve the people that it represents,” Tambussi said after the hearing.

A letter written by New Jersey State Attorney General Matthew Platkin on the eve of the lower court hearing seemed to weigh heavily on the appellate court. Platkin said the state statute that allows the county line was both indefensible and unconstitutional. His stance represented a sharp break from Gov. Phil Murphy, who has repeatedly defended the county line as a way to help less-informed voters benefit from the insight of savvy political leaders.

The parties exert control. That’s why they like this system.

Federal appellate Judge Kent Jordan

“Shouldn’t we be paying attention to the one person who actually represents the state’s interests?” Jordan asked Tambussi, referring to the attorney general.

The Camden Democrats' attorney replied that the lower court judge had not given any weight to Platkin’s letter in his decision, so the appellate court should not either.

Attorney Brett Pugach argued the case for Kim’s team, fielding questions from the judges about whether political parties have the right to clearly identify their preferred candidates on the ballot. He said the legal challenge to the county line does not preclude the parties from endorsing candidates or even placing a slogan above their names on a ballot with a different design. The case only takes issue with the way candidates for different positions are grouped together, Pugach added.

The judicial panel showed detailed knowledge of New Jersey ballot design during their questioning and pushed back when Tambussi argued that the county line made it easier for voters to find the candidates whom party organizations support.

“I don’t know who coined the term ‘ballot Siberia,’ but it shows how it’s not so easy,” said Judge Arianna Freeman, an appointee of President Joe Biden.

“Ballot Siberia” refers to the far right side of the ballot, where candidates who lack party endorsements are sometimes placed to reduce their chances of victory. Candidates with the party endorsements appear stacked together in a column or row, which this year would be headed by President Joe Biden on Democratic ballots. Other candidates appear in lines on their own, or in smaller slates they’ve cobbled together.

Freeman's reference drew a laugh from the small handful of activists in the courtroom.

“It was incredibly vindicating to hear, from the bench, them mention ballot Siberia,” Antoinette Miles of the New Jersey Working Families Alliance said after the proceeding. “It’s a term that we have used in New Jersey just to demonstrate the depravity that happens when you have county political parties that are able to induce government actors, via our clerks, to design an unfair ballot.”

The organization is a plaintiff in a separate lawsuit against the county line. “The hearing today really laid bare what advocates and grassroots and many of us in New Jersey have known for years about the county line system and the political parties that are continuing to defend this to their dying breath,” Miles said.