A federal appeals panel on Wednesday refused to halt a judge’s order to block New Jersey’s controversial “county line” ballot design in this year’s Democratic primary pending an appeal of that decision, amid a rapidly approaching deadline for ballots to begin printing.
The three-judge panel offered no explanation for the decision but set a fast-track schedule for filing briefs in the contested case, with oral arguments scheduled for April 12 at the federal courthouse in Philadelphia.
The decision marked the latest development in a lawsuit U.S. Rep. Andy Kim filed to abolish the ballot design — the only of its kind in the nation and a cornerstone of Garden State politics — as he runs for the Democratic nomination for U.S. Senate, saying the system is unconstitutional and unfair.
U.S. District Court Judge Zahid Quraishi last week granted Kim’s request for an emergency injunction preventing the design in the June 4 Democratic primary and requiring county clerks to instead to group candidates together by office, as other states do.
A majority of the state’s 21 county clerks challenged the injunction before the U.S. 3rd Circuit Court of Appeals, asking the judge to stay, or halt, his ruling during the appeals process because, they argue, redesigning the ballot so quickly is unfeasible.
Quraishi declined, and the clerks then asked the 3rd Circuit to step in.
Lawyers for Kim urged the appellate court to deny the stay, as well. In their filing, they said if the judges ruled in favor of the clerks, “New Jersey voters will be forced to vote yet again using a ballot that violates multiple provisions of the U.S. Constitution, including the right to vote, equal protection, freedom of association, and the Elections Clause. They will be forced to vote on a primary ballot that a federal court has deemed to be unconstitutional, and which the New Jersey Attorney General has separately found to be unconstitutional and advancing no state interest.”
But attorneys for the Essex County clerk and other counties who joined in the litigation argued the ballot process had already begun.
“New Jersey’s election law requires the appellant county clerks to send completed ballots to the printer this Friday, April 5, and voters will begin submitting mail-in ballots on April 20,” they wrote. “That timing now requires the clerks to design and print separate ballots for the Republican and Democratic primary elections, which was not even a consideration until the district court’s subsequent clarification of its own Order, and to coordinate that ballot design and printing with complex election technology that is not in the clerks’ custody or control.”
They said the court “must stay the district court’s imposition of its eleventh-hour ‘mandatory’ injunction that abruptly altered the seventy-year status quo.”
Wednesday’s decision and the court’s timeline means it appears the injunction will remain in place as the deadline for ballots to go to the printer arrives Friday.
In the wake of Wednesday’s decision, several county clerks of the original 17 who were defendants in the case dropped out of the appeal in quick succession.
Monmouth County Clerk Christine Hanlon, in a statement Wednesday afternoon, said her office will “continue working as fast as possible to come up with the best solution.”
Morris and Warren counties soon followed. Essex County Clerk Christopher Durkin said he is opting out, as well.
”The county clerks were disputing the timing of filing of the case being during the election process,” Durkin said. “The 3rd Circuit Court of Appeals did not grant the stay, so the election goes on as prescribed by federal Judge Quraishi’s order.”
But Durkin said the appeal will go on, with at least Camden County pursuing.
Kim celebrated on social media after the appeals court declined the stay.
“Good news! Our effort to bring fair ballots to NJ continues!” the congressman wrote.
Yael Bromberg, an attorney for the plaintiffs, said ”we are another step closer to ensuring constitutional, fair primaries without the county line.”
The case has been the center of New Jersey’s political universe the last two weeks.
The judge’s injunction is seen as a sign he might ultimately side with Kim and rule the design is unconstitutional in his final decision. The disappearance of the line would create a massive shift in how the state’s often-machine-driven politics are conducted.
Under the design, Democratic and Republican parties endorse candidates in all races and then bracket them together in a line on primary ballots, with opponents listed to the side. Critics say the arrangement — used in 19 of New Jersey’s 21 counties — allows the endorsed candidates to appear more prominent on ballots and makes it easier for voters simply to vote down the line.
Research shows candidates that receive the line are greatly favored to win their party’s nomination in the primary. In other states, primary candidates are grouped together simply by the offices they are seeking, known as “office block” ballots.
Opponents say the line imbues party bosses with immense leverage, helping them control the outcome of elections and demand fealty from candidates. Supporters of the system say it helps voters better see the candidates that party leaders prefer and create stronger nominees for general elections.
County clerks and others argued that upheaving the setup so close to the primary could force errors and confuse voters.
Quraishi this past weekend clarified the ruling applies only to this year’s Democratic primary, saying the arguments Kim and his fellow Democratic plaintiffs made were limited to that race because Republicans weren’t involved in the change.
That means while Democrats will have to use a new design, Republicans will still be allowed to use the line on their ballots this year — though the judge noted nothing prevents Republicans from dropping the system, as well.
At least one Republican group, America First Republicans of New Jersey, said it will join Kim’s suit. The goal, the pro-Donald Trump organization said, is to ensure the county-line system is “not unjustly imposed on Republican voters” this primary.
”The basis of our Republic is equality under the law,” Mike Crispi, a podcast host and the group’s co-chair, said in a statement. “If a federal court can protect the rights of Democrat voters, it must protect our rights, too.”
Read the appellate order on the stay:
NJ Advance Media staff writer Susan K. Livio contributed to this report.
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Ted Sherman may be reached at tsherman@njadvancemedia.com. Follow him on X @TedShermanSL.
Brent Johnson may be reached at bjohnson@njadvancemedia.com. Follow him on X at @johnsb01.
