New Jersey Ag Weighs In On Controversial Ballot Design In Senate Race To Replace Menendez

New Jersey Attorney General Matt Platkin’s office said in legal filings Sunday that state laws that create the so-called party line are unconstitutional and that his office will not defend them in Rep. Andy Kim’s lawsuit seeking to eliminate the controversial ballot design.

The bombshell legal filing comes the day before a federal judge is scheduled to have a hearing in Kim’s lawsuit against the line — the short-hand in New Jersey for preferential ballot positioning for candidates. Kim is running for U.S. Senate against first lady Tammy Murphy, who has amassed county party support that gives her favorable primary ballot positioning in a majority of the state. They both seek to replace indicted Sen. Bob Menendez, a fellow Democrat who is charged with corruption.

Kim is seeking a preliminary injunction from federal judge Zahid Quraishi to eliminate the party line from ballots ahead of the June primary.

“In light of the evidentiary record, the Attorney General has concluded that the challenged statutes are unconstitutional and therefore will not be defending them,” the legal filing said.

The decision to not defend the state laws that enable the party line puts Platkin at odds with the first lady's husband, Gov. Phil Murphy. Platkin has long been in Murphy’s inner orbit, serving on his 2017 gubernatorial campaign and as his chief counsel throughout Murphy’s first term in office.

A spokesperson for Murphy said Sunday that the Attorney General should have defended the law.

"Outside the context of any campaign, Governor Murphy has consistently and accurately noted that the bracketing of candidates is permitted by duly enacted laws that have been on the books for decades,” Murphy’s communications director, Mahen Gunaratna, said in a statement. “It is well-established that Attorneys General have a general obligation to defend the constitutionality of statutes, regardless of their own personal views. The Governor believes that a legal defense of the statute permitting bracketing would have been appropriate and consistent with the actions of prior Attorneys General."

The New Jersey Globe first reported the incoming legal filing.

The decision is highly unusual, although Platkin’s office said it was warranted given the unique nature of New Jersey’s primary ballot design. The party line allows for candidates endorsed by county political parties to appear in a single column or row on primary ballots, making them appear more prominently to voters. New Jersey is the only state in the nation to use the “line” structure in its ballot design; 19 of 21 counties in the state use the party line.

Sunday’s legal filing from the Attorney General’s office said that the line provides for an “electoral advantage for candidates who bracket and a corresponding disadvantage for candidates who do not.” Platkin’s office also said that the party line ballot structure creates confusion for voters compared to an office-block ballot.

“First, a central reason for the Attorney General’s defense of state statutes is to implement the will of the democratic process that enacted them, but as explained above, subsequent court decisions and practices on the ground have overtaken the Legislature’s original intent in enacting the challenged state statutes,” the filing said. “Second, the traditional need for the Attorney General to defend the results of the democratic process does not apply neatly to a case where the plaintiffs produced substantial record evidence to challenge the statutes as undermining the democratic process.”

The existence of the line has dominated the conversation around New Jersey’s Senate race and eliminating it would be a watershed moment in state politics. Each county party differs in how it is awarded. In some counties, hundreds low-level party officials vote on who they want to award the line to. In others, a single party boss can award the preferred ballot positioning.

Murphy has the endorsement of Democratic counties that are top-down in their endorsement process, giving her the preferred ballot positioning in a majority of the state. Kim has won the line in more counties where it is democratically awarded.

Kim supported ending the party line before he entered the Senate race. In a statement Sunday, Murphy said she will follow whatever the courts say.

“I am running for the U.S. Senate, and as I’ve stated repeatedly in this race, will comply with whatever the courts decide the process of the race to be,” she said in a statement. “If it remains up to the county parties to determine the process, I will complete those conventions and screenings. Should the courts determine a different path, I will follow those rules as well.”