Primary ballot in N.J. is ‘unconstitutional,’ state attorney general says

New Jersey Attorney General Matthew Platkin’s office said Sunday the state’s unique way of displaying county-backed candidates for Senate and governor on primary ballots is “unconstitutional” and will not defend it in court, following a lawsuit filed in February by Rep. Andy Kim, one of the candidates in a closely watched Senate primary.

The move is the latest twist in an already tumultuous Democratic nominating contest for a Senate seat in the reliably blue state.

Kim and the state’s first lady, Tammy Murphy, are running in the June 4 primary for the seat held by embattled Democratic Sen. Bob Menendez. He has been accused by federal prosecutors of extortion, obstruction of justice and receiving bribes in exchange for helping the governments of Egypt and Qatar. Menendez pleaded not guilty and has not publicly announced whether he will seek reelection.

The decision by Platkin, who was appointed attorney general by Gov. Phil Murphy (D) in February 2022, could help level the playing field for people running against candidates favored by party leaders. The loss of the county line would be “an earthquake” and create “a fundamental shift in how New Jersey politics operates,” according to Julia Sass Rubin, a professor at Rutgers University who filed an expert brief to the court on the impact of the ballot design in question. “We are the last of the [political] machine states, and the machine relies on the county line to stay in control,” Rubin told The Washington Post on Monday. “If you displease the people who decide who gets the line,” you could lose your office, she said.

New Jersey’s ballot design process is unlike any other in the nation — it allows parties to place their endorsed candidates in a specific portion of the ballot known as “the line,” while candidates running without their party’s endorsement appear in a different section of the ballot, farther down from where voters can see their names.

In his lawsuit, Kim claims that New Jersey’s unique ballot-design process violates the U.S. Constitution by favoring candidates “who happen to be endorsed by a faction of a party’s leadership.” Such design choices, the lawsuit claims, “cynically” manipulate voters and are “anathema to fair elections.”

The attorney general called that feature “unconstitutional” in a letter Sunday to U.S. District Judge Zahid N. Quraishi. “This is an exceptional case, justifying the Attorney General’s exceptionally rare decision not to defend the constitutionality of the challenged statutes,” the letter states. The result of the ballot design is that “it is often impossible for unbracketed, non-pivot office candidates to secure an earlier position on the ballot compared to their bracketed competitors,” Platkin’s letter says. “These features of grid balloting and bracketing also have allowed unbracketed candidates to be placed at the end of a ballot with multiple blank spaces separating them from their competitors, which creates the phenomenon known as ‘ballot Siberia.’”

There is thus “an electoral advantage for candidates who bracket and a corresponding disadvantage for candidates who do not,” according to the letter.

Representatives of Tammy Murphy and Kim did not immediately respond Monday to a request for comment.

Tammy Murphy has been endorsed by several prominent New Jersey Democrats, including Reps. Frank Pallone Jr., Donald Norcross, Bill Pascrell Jr. and Donald M. Payne Jr., as well as the mayor of Atlantic City, Marty Small Sr. Kim also has picked up endorsements by some Democratic officials in the state, though largely on the county level.

In a state where Republicans have not won election to the Senate since the 1970s, the fight for the Democratic nomination has been fierce. On Saturday, another Senate candidate, Patricia Campos Medina, said she was denied entrance to the Camden County Democratic Convention and posted a video of several men blocking her from entering.

“Time to abolish the county line for equal ballot access. Proud to stand for real representation,” she wrote on X.

The Camden County Democratic Committee did not immediately respond Monday to a request for comment.

Jersey City Mayor Steven Fulop, who had endorsed Murphy for Senate, criticized her Sunday on X for not having “commented publicly/taking any action distancing herself from this — there is no rational way to defend it nor benefit from it.” On Monday Fulop announced he has withdrawn his endorsement of Murphy and is now supporting Kim.

“I told @AndyKimNJ it’s not always comfortable to admit a mistake but clearly I made one here and this convention season has demonstrated he is the better candidate to represent NJ,” Fulop wrote on X. “The backbone of our party volunteers and activists have spoken loudly and we should listen to them.”

Fulop is one of the candidates running to succeed Phil Murphy as governor next year.

Mariana Alfaro contributed to this report.