A lawsuit challenging NJ’s uniquely abysmal, toady-rewarding ballot system moves forward

On primary day in New Jersey, we look at why the state's primary ballot system rewards candidates willing to fall in line with the establishment—and, why that system's days may be numbered.

Late last month, a federal judge ruled a lawsuit—asserting that the primary system in New Jersey was unconstitutional—could continue. The lawsuit, filed in 2020 by NJ Working Families and a group of unsuccessful progressive candidates, contends the current system rewards candidates who fall in line with party chairs in each county (19 of 21 counties run ballots this way in the state), while those who do not are sent to “ballot Siberia”—that is, candidates aligned with the establishment are grouped in a neat block (known as the Party or County Line) on the left side of the ballot, and all others are arbitrarily pushed, boxes away to spaces where smart voters can’t be sure what office they’re running for. It’s messed up, and we’re the only state in the country that runs primaries this way.

“The Court recognizes the gravitas of its decision to allow this case to move forward,” wrote U.S. District Court Judge Zahid Quraishi in squashing a motion to dismiss the case. “The undersigned does not take it lightly. However, it is the Court’s duty and imperative to protect the democratic process.” 

We took a look at the system last year, and here’s what we found.

The machine knows what it’s doing.

Critics say the state Democratic Party and its county arms (the machine) keep a convoluted primary ballot design in place in NJ to ward off challenges from progressives and, generally, control election outcomes. If a candidate does not garner the favor of powerful, appointed Democratic county chairs, they’re denied access to the “county line”—a bracketed group of candidates that get preferential placement on ballots—and relegated to places on the ballot so far removed and nonsensical, the average person might not know what office they’re running for.

No other state runs its primaries like this, because it defies common sense. Common sense, as it turns out, would have primary candidates grouped by the office they’re seeking, and not grouped by the preferences of the establishment party. 

But the ballot design is pernicious and circuital, benefiting those that obey its rules and grovel to the party. Because the party line is so beneficial—in fact, being off the line almost guarantees failure—primary candidates seek it out. In fact, research indicates a 35-percentage-point advantage for candidates on the line. 35 points! 

Camden County 2018 Democratic Party. County line is Column 2. Courtesy NJPP.

Different county committees have different rules for who gets on the line; some call for a convention to vet candidates, others allow the county chair to make decisions, but as election lawyer Brett Pugach wrote in the Rutgers University Law Review last year

“The practical reality is that county chairs exert pressure to ensure their handpicked candidates receive the endorsement of the county committee. These realities ensure that political candidates in New Jersey have all of the incentive in the world to provide unwavering support to their county chairs.

“Anything short of unwavering support could amount to political suicide.”

That’s not so democratic, is it?

Furthermore, when offices open up, loyalty to the party is rewarded—lower-level office holders who have pledged allegiance to the party may get plucked to fill higher offices by county chairs. Those who benefit from this system, in turn support the continued service of the county chair, ensuring the circle stays closed. 

Now, the elected county committee could oust county chairs who involved themselves in this self-fulfilling cycle. But why would they? Many county chairs choose who makes the line for committees, and if those candidates don’t pledge support to the chair, they risk being pushed off the line.

The county clerk, who is charged with running fair elections, could also step in—but why would they? They, too, are affiliated with parties and must be elected, and thus must make the county line. 

“Clerks are elected positions ,which is outrageous in itself … This should be a non-partisan position,” says Yael Niv, president of Good Government Coalition New Jersey.  “If they go against the party, they will be replaced with someone else. It’s a salaried position—they don’t want to lose their job. There is a huge conflict of interest here, so the county clerk is not thinking of the best interest of voters, [they are] thinking of the best interest of their jobs and who controls that. They’re in a delicate position.”

So, if you’ve looked around at Jamaal Bowman and Ilhan Omar and Alexandria Ocasio-Cortez and asked yourself, “Where are the progressive legislators in New Jersey?” Look to the machine.

How we got to such a bogus system is convoluted: New Jersey had enacted a Primary Endorsement Ban decades ago, but subsequent legislative delays and court rulings have essentially invalidated that ban and led to the conclusion that parties can be allowed to utilize the county line. Though all candidates on a Democratic primary are, indeed, running as Democrats, and the same for Republicans, those on the county line run under a shared slogan, that ensures their placement in the preferential ballot spot. 

Candidates can request to run under the county line slogan, but it creates an issue of free association that’s both burdensome and anti-democratic. For instance, Pugach writes, if a person runs for a municipal council seat, they’d have to find candidates with whom to bracket themselves—President, Senate, County Freeholder, etc.—even if the people running for those offices have vastly different politics.

“This leaves you with a Hobson’s choice: align with candidates you do not wish to associate with or forfeit your place in the preferential ballot draw and be placed on the ballot according to the county clerk’s discretion,” Pugach writes.

County chairs defend the line by saying it bodes better for success in the general election. Hunterdon County Democratic Committee Chair Arlene Q. Perez, for instance, told a panel at the Eagleton Institute last week that that organization takes a wide look at who might make a good candidate in the general election and who has a realistic shot of winning. In Hunterdon County, where local politics lean toward the right, greater vetting of candidates by the committee can mean the difference between winning and losing, even if the details sound a little icky.

“We hold an open convention where everyone can come,” Perez said. “We invite the public to come and to participate, of course the voters are only those that are elected to county committee because that’s the way the process works. We do screenings and they’re actually legitimate screenings, they’re not fake in any way. And some of the questions that we ask during that process is, ‘OK, well, how are you going to raise the money? What is your volunteer base to win? Because that’s the objective. 

“And so, again, we may not like the money in politics but that’s not the reality I face every day. And until it changes, I’m dealing with the reality I have, and that’s to get candidates that can raise the amount of money necessary to actually when these types of races.”

While the use of the line is framed as a necessity in Hunterdon County—and most counties in NJ do not hold open conventions for primary endorsements—those in other counties lament how far it can go the other way. As Arati Kreibich, a progressive candidate who lost her U.S. House race in District 5 last year, points out.

Brandon McKoy, president of the New Jersey Policy Perspective, says it’s hard to square the rhetoric that party chairs use to justify the line.

“They have these arbitrary excuses,” McKoy says. “They’ll say, ‘This is us preventing more radical elements from running for us.’ I think the way you operate is radical and this is absurd.”

And the line has real consequences for governance. McCoy points out that much of—though not all—party leadership is white men, and that reality trickles down to what policies are pursued by those elected. 

“There’s lots of ways to talk about what [the line] means for elections, or to the downstream effects for governance, a lot of ways that show up in an ugly fashion, what lawmakers prioritize or not when they’re in office,” McKoy says.

There is a will to establish a common sense ballot that’s equitable for all candidates and understandable for voters, McKoy says. NJPP polled residents, asking them if they were aware of the line and if they would support from to replace it.

“To some people’s surprise, the answer was yes and yes,” McKoy says. “You have a lot of political insiders who think voters don’t know anything, but I think voters know something and they’re starting to learn more, and I think maybe the way forward is this very radical idea called democracy.”

And, there are a couple ways to fix this. One would be for state legislators to enact statewide ballot reform that would simplify the ballot and remove power from county chairs. But as explained above, change is unlikely to come from within, from those that benefit from the system.

(Plus, if maintaining the system weren’t bad enough, New Jersey Rep. Josh Gottheimer, who was challenged by Kreibich in 2020, is one of three legislators establishing a PAC to support Democratic incumbents running against progressive primary challengers.)

There is a federal lawsuit filed by Pugach and a group of former candidates and advocacy groups that challenge the primary ballot system as unconstitutional, which received a de-facto vote of confidence from a federal judge on May 31, when the court ruled a motion to dismiss the case was denied.

“Realistically the lawsuit is probably … the quickest way that this is likely to change, even though that’s probably going to take years, but just because it is decisive,” Julia Sass Rubin, associate professor at Rutgers’ Bloustein School of Planning and Public Policy, told the Eagleton panel. 

This is a better ballot. 2018 Elko County, Nevada. Courtesy GGCNJ.

And then there’s also a grassroots campaign: GGCNJ started the Better Ballots campaign, which has a growing number of supporters—from sitting legislators to state voters and concerned organizations.

“That is an effort to work from the inside to educate people and to try to get parties to actually change in terms of the county committee members that make up the county organizations,” Sass Rubin explained. 

Adds Niv, of GGCNJ, of the people building and growing Better Ballots: 

“This is not just the kind of embittered people who were thrown off the line but also people who really believe that voters deserve more, and voters deserve a real democracy,” Niv says. “Because [the line] gives such an advantage; anyone who doesn’t get the line drops out. We really have no choice, it’s really like voting in Russia. I think we have a few brave representatives who have stood up and said, ‘This is not reasonable, this is not a democracy, voters deserve better ballots.’”

The Better Ballot suggested ballot looks a lot like, well, how everyone else does it: Primary election ballots in all counties would be displaced in an “office bloc” format where each office is listed and immediately followed by the candidates running for that office. And, county clerks would be adopt a system that ensures candidates running for the same office will receive the first and subsequent ballot positions in an equal number of elections.

You know: common sense. Fair. Democratic.