Attorney Scott Salmon argues New Jersey’s Sore Loser Law bars presidential hopeful Robert F. Kennedy Jr. from appearing on the ballot as a third-party candidate. (Photo by Rebecca Noble/Getty Images)

A judge is expected to decide Monday whether independent presidential candidate Robert F. Kennedy Jr. can be on the November ballot in New Jersey.

Kennedy’s push to get on the ballot has been challenged by attorney Scott Salmon, who said New Jersey’s Sore Loser Law bars candidates like Kennedy from running as an independent in November after trying and failing to secure a major party’s nomination. Kennedy had initially said he would challenge President Joe Biden for the Democratic nomination for president before launching his indepedent bid.

Under questioning by Mercer County Judge Robert Lougy, Salmon conceded that Kennedy didn’t submit paperwork to seek the Democratic Party nomination in New Jersey, but he still took “concrete steps” to win the party’s nod, raising money and holding events to get support from Democrats before launching his third-party bid for the White House. 

“There’s a difference between words and deeds,” Salmon told the judge. “And if someone is just saying, ‘I’m going to run for president,’ and then they don’t do anything about it, that there’s a distinct difference between that and someone who is actively raising money and spending money.” 

Donald F. Burke, attorney for Kennedy, argued that Salmon’s case should not have been filed in state Superior Court, saying that venue is reserved for Kennedy’s presidential rivals. Voters like Salmon are supposed to take their complaints to the New Jersey secretary of state, he said. 

Burke has argued that if Kennedy is dropped from the ballot, the winners would be the Democratic and Republican parties, not voters.

“Major political parties would love Salmon to win because what that would do is make a choice of their candidates and no one else,” he said.

New Jersey Secretary of State Tahesha Way is a defendant in the case. Adam Marshall, attorney for the state, said Friday that if Salmon had filed an objection to Kennedy’s candidacy with the secretary of state instead of with the courts, there likely would already have been a hearing at the Office of Administrative Law and a decision by a judge, and the secretary of state could have responded to those findings, Marshall said. 

Salmon maintained he filed in the correct venue because he isn’t challenging Kennedy’s petitions to get on the ballot. He added that taking this matter to the Office of Administrative Law now could delay it further and “limit the rights of myself as well as Mr. Kennedy.”

Way, who is also lieutenant governor, has until Aug. 9 to formally certify which presidential candidates will be on New Jersey’s ballot. Lougy said he understands the urgency of ruling on election matters quickly.

Petitions of electors for president and vice president are due to Way’s office on the 99th day before the general election — that would be Monday, July 29 — and filing objections are due four days after that, on August 2, Marshall noted.

Salmon filed his lawsuit in June. He helped get rapper Ye booted from New Jersey’s ballot in 2020.

While Kennedy’s attorneys fight this case in New Jersey and other states, they scored a win in Nebraska. Kennedy secured enough signatures to appear as a nonpartisan candidate on the ballot in that state despite an objection from its Democratic Party, the state’s secretary of state announced Friday.

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