551 F.Supp.3d 478
D.N.J.2021Background:
- Plaintiffs Eugene Mazo and Lisa McCormick ran in the 2020 New Jersey congressional primaries and were refused permission to print certain six-word “slogans” on the primary ballot that included names of persons or New Jersey-incorporated associations without written consent required by statute.
- New Jersey law (the “Slogan Statutes”) permits six-word primary slogans but prohibits printing any slogan that includes the name of a person or incorporated association in New Jersey unless written consent is filed; failure to obtain consent means the slogan is not printed.
- Plaintiffs filed suit five days before the 2020 primary, asserting a facial First Amendment challenge to N.J.S.A. §§ 19:23-17 and 25.1, and sought declaratory and injunctive relief; they alleged they intend to use the same slogans if they run in 2022.
- Defendants were Secretary of State Tahesha Way (who enforces slogan approvals) and several County Clerks (who print ballots); Clerks argued they lacked discretion to print disapproved slogans and merely follow State determinations.
- The Court held the claims were neither moot nor unripe under the capable-of-repetition-yet-evading-review exception, applied the Anderson–Burdick framework to election-related speech restrictions, and concluded the consent requirement survived constitutional scrutiny.
- The Court dismissed the complaint against Secretary Way (statutes constitutional) and dismissed claims against the Clerks (they acted under statutory constraints and had no independent unconstitutional conduct).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness / Ripeness: whether the 2020 challenge is justiciable now and ripe for relief for future elections | 2020 denial evaded review; injury is capable of repetition and will recur in 2022 | 2020 primary is over (moot); 2022 is speculative (unripe) | Not moot or unripe: capable-of-repetition-yet-evading-review applies; claims are ripe for review |
| Applicable constitutional test: Anderson–Burdick sliding scale v. strict scrutiny for content-based restriction | Statutes are content-based speech restrictions requiring strict scrutiny | Anderson–Burdick applies to ballot regulation; strict scrutiny not warranted | Anderson–Burdick governs; ballot speech regulation assessed under balancing test |
| Magnitude of burden and level of scrutiny: whether the consent requirement imposes a severe burden requiring strict scrutiny | Consent requirement imposes severe burden and chills core political speech; not narrowly tailored | Burden is limited (six words on ballot), not severe; other campaign avenues remain; State has weighty interests | Burden is more than slight but not severe; intermediate/sliding scrutiny applies (no strict scrutiny) |
| Liability of County Clerks: whether clerks violated Plaintiffs’ First Amendment rights by not printing slogans | Clerks refused to print slogans and are independently liable | Clerks had no discretion—statute and State approvals control what may be printed | Claims against Clerks dismissed: clerks followed statutory/state approvals and lacked authority to print disallowed slogans |
Key Cases Cited
- Anderson v. Celebrezze, 460 U.S. 780 (balancing test for election regulations affecting speech)
- Burdick v. Takushi, 504 U.S. 428 (refinement of Anderson balancing; severe burdens trigger strict scrutiny)
- Timmons v. Twin Cities Area New Party, 520 U.S. 351 (states may limit ballot as forum; Anderson–Burdick applied to ballot regulation)
- Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (ballot-access facial-challenge principles and limits)
- McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (distinguishing pure speech from election mechanics; different scrutiny contexts)
- United States v. Salerno, 481 U.S. 739 (facial-challenge standard explained)
- Citizens United v. FEC, 558 U.S. 310 (political speech central to First Amendment)
- Rosen v. Brown, 970 F.2d 169 (ballot space and State discretion over ballot content)