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RU.S. Rep. Andy Kim is behind the lawsuit that alleges county-line ballots are unconstitutional. (Dana DiFilippo | New Jersey Monitor)

A federal appeals court will swiftly decide whether to allow the use of county-line ballots in June’s Democratic primary after hearing oral arguments Friday in Rep. Andy Kim’s case against the county line, one of the three judges on the panel said.

During the nearly two-hour hearing, an attorney for the Camden County Democratic Committee alleged the county line should be allowed to continue because it furthers the associational rights of political organizations. County-line ballots allow candidates backed by party organizations to be grouped or bracketed together on primary ballots.

“Political parties have the right, whatever the affiliation of the political party, whatever the faction of the political party, have the right to associate with and not associate with endorsed and not-endorsed candidates,” Bill Tambussi, the attorney, told the court.

Tambussi argued that existing state case law had confirmed the line’s legality and said that barring candidates from bracketing is an unconstitutional infringement of counties’ associational rights.

Kim (D-03) and his co-plaintiffs, congressional candidates Sara Schoengood and Carolyn Rush, have argued New Jersey’s county-line ballot design violates constitutional protections on free association and the U.S. Constitution’s elections clause. They argue the county line requires candidates to associate with candidates they may not want to in order to avoid inferior ballot placement and improperly influences election outcomes by giving party-backed candidates better ballot placement.

A lower-court judge sided with Kim two weeks ago and ordered county clerks not to use county-line ballots in June’s Democratic primaries. The judge said clerks must use office-block ballots, which instead group candidates based on the office they’re seeking.

Most of the clerks initially appealed the order but have since dropped out of the appeal and are moving forward with printing office-block ballots for June. The Camden committee is the only organization still challenging the lower-court order.

Judges on Friday appeared skeptical of Camden Democrats’ associational arguments, noting 49 other states and two of New Jersey’s own counties use a ballot design that Tambussi claims is unconstitutional.

“If not having bracketing is unconstitutional, then 49 out of 50 states are doing something severely wrong,” said Judge Arianna Freeman.

Judges also questioned Tambussi’s arguments on associational rights, noting Kim’s suit does not seek to bar the use of slogans that could tie endorsed candidates to a party.

“They’re saying, sloganeer all you want,” said Judge Kent Jordan.

Jordan added that the question here is, “Are you constitutionally entitled to a ballot form that will, according to the facts found by the district court, clearly put a thumb on the scale.”

Sean Marotta, an attorney for the Middlesex County Democratic Organization, which joined the case as a friend of the court, argued that candidates like Rush and Schoengood who do not win the endorsement of local party leaders should be treated like independent candidates in general elections. He cited a state law that bars parties that did not earn 10% of the vote share in the most recent general election with Assembly seats on the ballot from winning top ballot spots (in New Jersey, only Republican and Democratic parties meet that bar).

“It’s random whether it’s Republicans or Democrats who get the first column,” Marotta said. “Then all of the independent petition candidates are put in the third column stacked on top of each other, and this court upheld that.”

Brett Pugach, an attorney for Kim and his co-plaintiffs, argued in response that for general elections, there could be a state interest in maintaining a two-party system. Such an interest does not exist in primaries, when only Republicans and Democrats are on the ballot, he said.

Camden Democrats have argued that the advantage granted by the county line — the lower court’s fact-finding placed it at roughly 11 points — is not a severe enough burden to trigger deep scrutiny of the state’s interest in party lines. Such a finding would trigger a less stringent standard of review.

Pugach argued the contrary, citing the lower court’s findings and adding that the harms posed by county-line ballots still outweigh the state’s interest in maintaining them. He noted that county clerks and Camden Democrats did not offer evidence demonstrating such a state interest.

“In other words, even if the court didn’t apply a severe burden, it’s still a sliding-scale analysis, and as I said before, there’s no evidence in the record as to the state interest,” Pugach said.

Both sides discussed a letter Attorney General Matt Platkin sent the lower-court judge that calls the county-line ballot design unconstitutional and says Platkin would not defend it in court.

Judges asked attorneys Friday whether they should consider the letter. Kim’s lawyers argued in favor, saying the letter is part of the record and Platkin’s refusal to defend the statute is itself notable to the court. Tambussi argued it should be discounted because Platkin did not move to join the case.

“He had the opportunity to step into the case because the secretary of state was a party to the case. He had the opportunity to do that, and he did not,” Tambussi said.

It’s not clear when the appeals panel will issue its ruling, though the promise of promptness and looming election deadlines should ensure a quick resolution.

“Today, we reaffirmed that the evidence presented in this case establishes an unfair burden on voters and candidates that hinders the democratic process. The Court promised a prompt decision, which we look forward to reading,” Pugach said in a statement.

Clerks are due to begin sending out mail-in ballots by April 20, though courts can and have delayed such deadlines in the past. Earlier election deadlines on ballot printing are paused in some counties while state courts hear a separate ballot case over the Republican primary.

Because Kim’s lawsuit was launched only by Democratic candidates, the order barring county-line ballots in June applies only to that party’s primaries.

Republican candidates have sued in state court to force the use of office-block ballots in their primaries, and the Burlington County Republican Committee has sued the county’s clerk, alleging she violated state law when designing an office-block ballot for June GOP races.

Republished courtesy of New Jersey Monitor, which is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. New Jersey Monitor maintains editorial independence. Contact Editor Terrence T. McDonald for questions: [email protected]. Follow New Jersey Monitor on Facebook and Twitter.