Neal Katyal Was Their Resistance Hero. Until They Found Out About New Jersey.

In 49 of the 50 states, Neal Katyal is known as a stalwart defender of democracy. And then there’s New Jersey.

In the Garden State, Katyal — the Beltway-famous legal combatant against Trump-era assaults on democratic norms — has thrown himself into a very different legal battle: He’s working to restore a voting rule that enables machine-politics bosses to stack the ballot against anyone they don’t favor. A federal judge last month declared the system unconstitutional for the upcoming primary. Now Katyal’s admirers say they’re enraged by their erstwhile ally’s efforts to snatch away their victory.

“We are all amazed and disappointed and all the related words,” said Yael Niv of the Good Government Coalition of New Jersey. “He’s on the wrong side of history.”

Steven Fulop, the mayor of Jersey City and a 2025 Democratic gubernatorial hopeful, told me that “It certainly seems like he’s done a 180 with regard to who he’s fighting for today.”

Staci Berger, a dissident member of the local Democratic organization in Middlesex County, put it this way: “It’s inappropriate for someone who positions themselves as an advocate for democracy to engage in something that’s abetting voter suppression. … It’s a contradiction and it’s hypocritical.”

That’s not the sort of reaction typically engendered by Katyal, an acting solicitor general in the Obama administration. With a popular podcast, an MSNBC gig and an active practice arguing crucial cases before the Supreme Court, he’s one of the capital’s most celebrated lawyers — a brilliant litigator and eloquent media presence whose public brand is built on protecting the guardrails of the republic.

Last year, after Katyal successfully argued against a right-wing effort to gut election oversight, the esteemed judge Michael Luttig said Katyal delivered “the single best oral argument I have ever heard made before the Supreme Court of the United States,” and called it “the single most important constitutional case for American democracy since the nation’s founding.”

No one is likely to ever apply that description to the current litigation over New Jersey’s “county line” ballot system. A one-of-a-kind historic vestige, the system lets local party organizations — the polite term for Democratic or Republican county machines — give their favored candidates top billing on primary-election ballots while consigning everyone else to a kind of ballot-design purgatory. According to a 2020 study, being on the line gives machine-approved pols a jaw-dropping advantage in primaries. It also serves to scare off a lot of candidates who might challenge the insiders.

Democracy advocates have long derided the rule as something out of a banana republic, “an unconstitutional governmental thumb on the scale,” in the words of New Jersey Rep. Andy Kim, the Democratic Senate candidate who filed suit against the “fundamentally unjust and undemocratic” system in February.

When Kim’s lawsuit prevailed on March 29, it represented a political earthquake in the state — and set off impromptu celebrations among activists who’d fought the system for years and couldn’t quite believe they’d won.

But instead of joining the celebrations, Katyal joined the other side, filing an amicus brief last Saturday on behalf of the Middlesex County Democratic Organization, one of the state’s venerable local machines.

Katyal declined comment, saying he was busy preparing for arguments in a gun-control case in San Francisco this week. But his filing does not strike the high notes that might be familiar to those who read his anti-Trump book or watched his successful Supreme Court evisceration of the “independent state legislature” doctrine that could have allowed state legislatures to overturn election results.

Nonetheless, the brief makes a coherent argument for the old status quo: The line system, Katyal writes, “makes voting more efficient by allowing primary voters to easily identify and quickly vote for all candidates belonging to a single political organization or affiliating with a single slogan.” According to the brief, it’s about protecting “low-information” voters: “Only political junkies learn enough about each primary candidate to make an informed choice about who should be their party’s nominee for Surrogate, township council, or County Clerk.”

It’s an argument that draws scoffs from attorneys who fought to kill off the system.

“New Jersey’s primary ballots are a rigged national outlier that offer preferential treatment to certain candidates over others, creating systemic disadvantages that nudge voters, discriminate against candidates and alter electoral outcomes,” said Yael Bromberg, the lawyer representing Kim and a pair of other office-seekers in an effort to forbid the system. “It is one of the last vestiges of machine-style politics in New Jersey, which gives us the unfortunate moniker of the Soprano State.”

As for the idea that it helps those who haven’t had time to vet the field of candidates, she told me: “They essentially claim that they have a constitutional right to gerrymander the ballot.”

A federal appeals court may decide soon enough: Arguments are scheduled for April 12 in the U.S. Court of Appeals for the Third Circuit, located in Philadelphia. With elections looming, there’s a lot of pressure for a quick decision because ballots need to be printed.

Alas, the appeals court won’t weigh in on what might be the most interesting aspect of the case for Washington types: Just why would Katyal sign on to a cause that, whatever its legal merits, looks so tawdry and backward? For someone who is genuinely admired in the capital’s legal and media ecosystem, it’s off-brand, to say the least.

When I reached out, Katyal steered my legal questions to his partner Sean Marotta, who is also working on the case at the Hogan Lovells law firm. Marotta did not respond. Katyal also didn’t respond to a follow-up email about the activists who said they were disappointed to see a pro-democracy ally joining the case on the other side.

In fact, Katyal wouldn’t be the first superstar political attorney to disappoint his non-lawyer fans. There’s a long history of legal powerhouses earning plaudits for taking cases in the public interest while paying the bills by representing less sympathetic clients. David Boies, for instance, won liberal hearts by leading Al Gore’s recount efforts in Florida in 2000 and going to court for same-sex marriage — and then broke them by playing the heavy on behalf of convicted rapist movie mogul Harvey Weinstein and Silicon Valley fraudster Elizabeth Holmes.

Katyal himself has never claimed to be a resistance hero, whatever his admirers may want. On social media, he describes himself as an “extremist centrist.” He testified on behalf of the Supreme Court candidacy of Neil Gorsuch. And his choice of clients has caused backlash before. In 2020, he represented Nestle and Cargill in a case involving allegations of child slavery — and he won, successfully arguing that the firms shouldn’t be sued in the U.S. for alleged atrocities that took place in West Africa.

But what’s different in the county line case is that the subject matter of Katyal’s New Jersey brief is the exact same as the topic of his pro-democracy heroism. Ordinarily, a famous attorney’s public-spirited work (say, getting some poor innocent off death row) concerns a different legal arena than the grubby stuff the same lawyer does to make money (for example, representing an environmental despoiler). With Katyal, his star turn in last year’s independent state legislature showdown and his controversial appearance in the county line litigation both involve the battle to ensure free and fair elections.

Thus Katyal, who literally represented the good-government group Common Cause in last year’s Supreme Court elections case, finds himself supporting something that the very same organization blasted this week. “When party bosses are able to tip the scale to try to favor certain candidates over others, it distorts voters’ perceptions of who’s running for office and can potentially silence their voices,” Aaron Scherb, the group’s legislative director, told me. “We need a level playing field to ensure that voters can choose candidates based on the merits.”

In Washington, the whole spectacle reflects a tension that has played out in the establishment ever since Donald Trump’s defeat: Was pushing back against election subversion just about thwarting Trump? Or is it part of a larger effort to improve American democracy — a cause that might also include killing a bipartisan New Jersey system that long predates the 45th president?

In New Jersey, it raises a less cosmic question: Just how is a measly county party organization paying for his services? Katyal charges a reported $2,465 an hour, making him one of America’s priciest legal talents. Forty hours at full freight would cost nearly $100,000. It wouldn’t take long, in other words, to eat through the entire bank account of the Middlesex County Democratic Organization, which had just under $360,000 in cash on hand at the time of its most recent financial report in January.

The organization declined requests for comment about both its stance on the county line and the financing of its legal team.

“When your entire business model is at stake for the county parties, of course you will hire a high-profile D.C. attorney to fight your battle for you,” said Antoinette Miles, the state director for the Working Families Party, which filed a previous suit against the county line. Her group works to help progressives win Democratic primaries, an outcome that’s much harder under the county line system. But Miles said the real reason the machines were so eager to preserve the system was about money, not ideology. “Party operatives are looking at this and saying, ‘If I don’t have the party line then how will I maintain my municipal contracts?’”

In a weird way, money could also be at risk for Katyal — at least the smaller kind of money that comes from book sales and talking-head deals. Along with her own brief in the county line case, Berger, the dissident Middlesex County committee member, forwarded me something that might be more worrying to Katyal’s media agents: A furious letter her mother had sent to MSNBC. The Massachusetts retiree wrote to complain that her favorite network’s legal analyst was defending a “horrendous” practice.

“Although you have no control over his professional legal career, to me it reduces his credibility,” the letter read. “I am a regular viewer of MSNBC and respected his stance on various legal matters. … His defense of this archaic ballot causes me to reconsider his positions on liberal and/or progressive issues.”