Rep. Andy Kim’s push to overhaul New Jersey primary ballots lands in court

Rep. Andy Kim’s lawsuit seeking to bar county lines in this year’s primaries will come before a federal judge Monday for an evidentiary hearing that could determine whether June ballots feature a party line.

Kim, a Democrat seeking the seat held by Sen. Bob Menendez, alleges New Jersey’s unique balloting system tramples on protections granted by the First and Fourteenth amendments and the U.S. Constitution’s elections clause.

Kim argues the county-line system — wherein party-endorsed candidates appear on a single row or column, instead of being grouped by office sought — violates candidates’ constitutional rights because office seekers who choose not to be grouped with others face an automatic disadvantage on ballot placement and, therefore, in the election.

“It is hard to imagine how ballots can ‘dictate electoral outcomes’ in a greater way than rewarding an opponent with an ‘enormous handicap,'” Kim’s attorneys wrote.

The hearing has the potential to upend a system that progressive activists have long decried as unfair, one that allows party leaders to give their preferred candidates advantageous ballot placement while relegating any challengers to “ballot Siberia.”

Kim’s arguments are bolstered by a letter state Attorney General Matt Platkin’s office sent Sunday to the judge overseeing the case, a letter that says his office will not defend the county line in court because it finds it to be unconstitutional.

That New Jersey is the only state in the nation to use this type of ballot “undermines the view that such a system ‘is necessary’ to advance government interests,” the letter reads.

Kim is in a four-person race for the Democratic nomination for U.S. Senate, and first lady Tammy Murphy is his chief rival. The fight over the fairness of the county line has dominated the campaign, with Murphy arguing that the campaign should “move forward with the ground rules as we have them.”

A bevy of county clerks named in Kim’s lawsuit has urged the court to keep the current system in place, arguing Kim has failed to show his challenge is likely to succeed and arguing the challenge to ballot design is untimely and likely to confuse voters, coming just a month before the candidate filing deadline.

Various clerks have claimed Kim’s suit, filed on Feb. 26, came too late in the process to be practical.

Attorneys for Monmouth County Clerk Christine Hanlon said an injunction would require “extensive delays,” citing an affidavit from voting machine manufacturer Elections Systems and Software that says ballot design changes that require development, testing, and certification of new software could not be completed in time for the June 4 primary.

“Nowhere do Plaintiffs or their experts address what is required from voting machine vendors to accommodate an office block format on New Jersey’s current machines, whether that could be accomplished in time for the 2024 primary elections, or the resources or costs required for such a transition,” Hanlon’s attorneys wrote.

The congressman questioned the candor of ES&S and other voting machine manufacturers who claimed they could not move to office-block ballots by primary day. New Jersey already uses office-block layouts for nonpartisan municipal and school races, Kim’s team noted.

“They are doing this today, with the voting systems they already use, with the software they already license, and with the vendors they already contract with,” Kim’s attorneys said.

Kim added he had asked clerks to voluntarily give up the line in a Feb. 10 letter they did not respond to, adding some clerks had made an about-face on timeliness from prior cases against the line.

In Conforti v. Hanlon, another challenge to the county lines that has proceeded languorously since being filed in July 2020, Hanlon and other clerks said that challenge to the county line could have been submitted in early April.

“Put another way, multiple election officials took the position that similar challenges were too early, too late, or both, effectively taking the view that the calendar had no viable dates for such a suit to be filed or adjudicated,” Kim’s attorneys wrote.

Clerks also argue that the case should not proceed because Kim failed to name other parties — such as elections boards and superintendents, county parties, other candidates, and the secretary of state — as defendants.

“This failure on Plaintiffs’ part creates hurdles and stifles potential opposition to their claims,” attorneys for Mercer County Clerk Paula Sollami Covello wrote.

Numerous groups — including the American Civil Liberties of New Jersey, Harvard Law School’s Election Law Clinic, the League of Women Voters, a group of New Jersey law professors, and current or former candidates who say they were impacted by the line — have asked to join the case as amici.

Kim argues elections boards and superintendents need not be included because “it is the clerks, and only the clerks, who are charged by law with ballot design and layout.”