MAZO v. WAYMAZO v. WAY
WOLFSON, Chief Judge:
Eugene Mazo and Lisa McCormick (“Plaintiffs“), former candidates for Congressional seats in New Jersey, bring suit against Secretary of State Tahesha Way and County Clerks Christopher Durkin, E. Junior Maldonado, Joanne Rajoppi, Paula Sollami Covello, Elaine Flynn, and Steve Peter (collectively, “the Clerks“), alleging that Way denied their request to use certain political slogans on the primary ballot, which included the names of New Jersey incorporated associations or persons, but lacked written consent from those entities and persons, in violation of the First Amendment, and that the Clerks unconstitutionally declined to print those slogans. Plaintiffs seek to strike down
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Mazo and McCormick ran for Congress in 2020 but lost in the primaries. Am. Compl., ¶¶ 14-15, 23, 25. At issue are New Jersey‘s Slogan Statutes.
Both candidates allege that they could not use their preferred slogans in 2020. Mazo originally asked to use “Essex County Democratic Committee, Inc.,” “Hudson County Democratic Organization,” or “Regular Democratic Organization of Union County.” Am. Compl., ¶ 37. State officials2 rejected them all, informing Mazo that he needed to obtain consent from the named
New Jersey held its primaries on July 7, 2020. Id. ¶ 24. Five days before the election, Plaintiffs filed the instant lawsuit. ECF No. 1. On October 23, 2020, they filed an Amended Complaint, which contains one Count under the First and Fourteenth Amendments. ECF No. 45. Plaintiffs contend that the consent requirements in
Rajoppi moved to dismiss on December 9, 2020, arguing that the Clerks are improperly named as defendants because they lack the authority to enforce the Slogan Statutes or depart from decisions made by State officials. Raj. Br., at 7-9. In short, the Clerks contend, they merely print what the Secretary approves. Way moved to dismiss on December 10, 2020, arguing that Plaintiffs’ claims are moot as they relate to the 2020 primary because it is long over, yet unripe as they relate to the 2022 primary because it is speculative that Plaintiffs will use the same slogans without authorization if they run again. Way Br., at 8-11. Regardless, Way argues, the Slogan Statutes do
Plaintiffs oppose both motions. They contend that the Clerks “refused to print the slogans” despite being independent, elected officials who are “accountable for the content and format of the ballots” and operate beyond “the Secretary‘s control.” Pl. Br. I, at 6-9, 10-13. Next, Plaintiffs contend that their case is both not moot and ripe. They reason that, because the nomination process is compressed to a couple of months and they expect to run again in 2022 with the same slogans, the harm they suffered is “capable of repetition yet evading review.” Pl. Br. II, at 9-10. Finally, according to Plaintiffs, the Slogan Statutes are content based speech restrictions subject to strict scrutiny, which are not narrowly tailored to fit the State‘s asserted interests. Id. at 19-25. Plaintiffs suggest that the State could place a general disclaimer on ballots, alerting voters to the fact that slogans are unverified, as a less restrictive means of achieving the same ends. Id. at 25.
II. LEGAL STANDARD
Under
On a factual attack, courts may “consider evidence outside the pleadings,” such as affidavits, since the motion contests the underlying basis for jurisdiction. Gould Elecs. Inc., 220 F.3d at 176 (citing Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir. 1997)); Mortensen v. First Fed. Sav. & Loan Ass‘n, 549 F.2d 884, 891 (3d Cir. 1977) (“[N[o presumptive truthfulness attaches to plaintiff‘s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.“); CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008) (“[A] factual attack concerns the actual failure of [plaintiff‘s] claims to comport with the jurisdictional prerequisites.“) (quotations and citation omitted). In such circumstances, the court “is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case,” Mortensen, 549 F.2d at 891, but “must be careful [ ] not to allow its consideration of jurisdiction to spill over into a determination of the merits of the case, and thus must tread lightly.” Kestelboym v. Chertoff, 538 F. Supp. 2d 813, 815 (D.N.J. 2008) (quotations and citation omitted). The proponent of jurisdiction bears the burden to prove that it exists throughout the litigation. Mortensen, 549 F.2d at 891.
A court may also dismiss an action under
To determine whether a complaint is plausible, a court conducts a three-part analysis. Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court “takes note of the elements a plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at 675). Second, it identifies allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 131 (quoting Iqbal, 556 U.S. at 679). For example, “[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do,” Iqbal, 556 U.S. at 678, nor am I compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Third, “where there are well-pleaded factual allegations, the court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Santiago, 629 F.3d at 131 (quoting Iqbal, 556 U.S. at 680). This is a “context-specific task that requires [me] to draw on [my] judicial experience and common sense.” Iqbal, 556 U.S. at 679.
III. DISCUSSION
A. Mootness and Ripeness
The Constitution gives federal courts the power to adjudicate only genuine “Cases” and “Controversies.”
i. Mootness
“[I]t is not enough that a dispute [is] very much alive when suit [is] filed.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quotations and citation omitted). Article III‘s case-and-controversy requirement “subsists through all stages of” litigation. Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990); Alvarez v. Smith, 558 U.S. 87, 92 (2009). This means that courts do not have the power to hear disputes if they become moot. Khodara Envtl., Inc. ex rel. Eagle Envtl., L.P. v. Beckman, 237 F.3d 186, 192-93 (3d Cir. 2001). A dispute is moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)). The determinative question is “whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief.” Rendell v. Rumsfeld, 484 F.3d 236, 240 (3d Cir. 2007) (quotations and citation omitted). “[I]f developments occurring during the course of adjudication eliminate [the] plaintiff‘s personal stake in the outcome . . . , then a federal court must dismiss the case.” Gayle v. Warden Monmouth Cty. Corr. Inst., 838 F.3d 297, 303 (3d Cir. 2016) (quotations and citation omitted). But mootness sets a high bar: it must be “impossible for a court to grant any effectual relief whatever.” Knox v. Service Employees, 567 U.S. 298, 307 (2012) (quotations and citation omitted).
Way argues that Plaintiffs’ claims are moot because the 2020 primary is over, the nominees proceeded to the general election, the results of that election are certified, the winners are sworn into office, and Plaintiffs used other slogans without issue, all of which suggests there is no longer
I agree with Plaintiffs that their claims are “capable of repetition, yet evading review.” Plaintiffs meet the first prong because New Jersey‘s primaries are too truncated to permit meaningful, if any, judicial review in normal procedural time before voters choose who to nominate. Candidates must file their slogans no more than 64 days before the election.
Parties often proceed under the “capable of repetition, yet evading review” exception in election cases. See, e.g., Moore v. Ogilvie, 394 U.S. 814, 816 (1969) (holding that election law challenge was not moot “as long as [the state] maintains [its] present [laws]“); Merle, 351 F.3d at 95 (holding that election law challenge was not moot because it was reasonable to assume plaintiff would run for office again, and the same statute that caused plaintiff to sue would again bar candidacy); N.H. Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 18 (1st Cir. 1996) (“[Elections are routinely] too short in duration to be fully litigated, and there [is] a reasonable
Way‘s remaining arguments similarly find no sound footing. She first points to the basic, undisputed proposition that the “capable of repetition, yet evading review” exception is “narrow and available only in exceptional situations.” Way. Rep. Br., at 3 (quoting Brennan v. William Paterson College, 492 Fed. App‘x. 258, 265 (3d Cir. 2012)). Yet, courts have determined that election-related challenges such as the present one rise to that level, and Way recognizes as much elsewhere in her motion. Id. at 9 (“[T]he ‘capable of repetition, yet evading review’ doctrine is appropriate in election matters.“). Way also argues that Plaintiffs have not made a “credible
Way further argues that Plaintiffs’ claims are moot because “[t]he mere act of running for office is not the triggering event for the application of the Slogan Statutes.” Way Br., at 9. Rather, Way says, the triggering event is one step removed: seeking approval for a slogan. I disagree. For one, there is no reason to doubt that Plaintiffs will take advantage of the opportunity afforded by the Slogan Statutes should they decide to run in 2022, since they attempted to do so repeatedly in 2020. That fact is crucial. Moreover, entering the primary reasonably entails invoking the Slogan Statutes to communicate with voters, advocate for a certain brand of political reform, or support particular causes with particular viewpoints. Running for office goes hand in hand with engaging in such speech activity, and the two are highly correlated here as well.5 Cf. Citizens United v. Fed. Election Comm‘n, 558 U.S. 310, 329 (2010) (“[Political expression] is central to the meaning and purpose of the First Amendment.“); Mills v. Alabama, 384 U.S. 214, 218 (1966) (“[T]here is
Stated differently, Way frames the “features of [this] particular series of [events]” as especially “unique” or attenuated when they are not, while overlooking record evidence—Plaintiffs’ candidate history—which “apprises us of the likelihood of a similar chain.” Hamilton v. Bromley, 862 F.3d 329, 336 (3d Cir. 2017) (some alterations in original); New Jersey Tpk. Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 33 (3d Cir. 1985). Viewed through the proper lens, it is plausible, neither too speculative nor tenuous, that each contingency will take place as alleged, and as it did in 2020. Compare Int‘l Organization of Masters, Mates & Pilots v. Brown, 498 U.S. 466, 468-70 (1991) (rejecting mootness because candidate for union office needed to simply (1) run again and (2) face the same rule against preconvention mailing), with Cephas v. Int‘l Longshoremen‘s Ass‘n, 785 Fed. App‘x. 89, 91 (3d Cir. 2019) (finding mootness because candidate would need to (1) run again, (2) win, (3) engage in similar behavior triggering investigation, and (4) not receive notice of discipline). Accordingly, Plaintiffs’ challenge to the Slogan Statutes is not moot.
ii. Ripeness
Way also argues that Plaintiffs’ claims are not ripe because the next primary will not happen for some time. Like mootness, ripeness originates from the case-or-controversy requirement. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 n.5 (2014). Although it is “a matter of degree whose threshold is notoriously hard to pinpoint,” Plains All Am. Pipeline L.P. v. Cook, 866 F.3d 534, 539 (3d Cir. 2017) (quotations and citation omitted), at its core, ripeness determines whether a plaintiff sues at the right time, i.e., whether she has suffered a harm yet, or whether the threat of future harm is sufficiently imminent to constitute a cognizable injury.
The Supreme Court gauges ripeness in two principal ways: (1) “the fitness of the issues for judicial decision” and (2) “the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). The Third Circuit applies a “somewhat refined” test in declaratory judgment cases, where it is particularly “problematic” to define ripeness with precision. Khodara Envtl., Inc. v. Blakey, 376 F.3d 187, 195-96 (3d Cir. 2004). Courts must look to the (1) adversity of the parties’ interests, (2) the conclusiveness of the judgment, and (3) the utility of the judgment. Step-Saver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643, 647 (3d Cir. 1990). Although different in form, this test is not different in substance from Abbott Lab, whose factors “still guide [the] analysis.” Plains, 866 F.3d at 540. Nor are the factors “exhaustive.” Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 412 (3d Cir. 1992). Any ripeness analysis must heed the well-settled rule that courts should avoid deciding “federal constitutional matters in advance of the necessity of deciding them, to postpone judicial review where it would be premature.” Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346-47 (1936) (Brandeis, J., concurring); Artway v. Attorney Gen. of
1. Adversity of Interests
I begin with adversity of interests. “Parties’ interests are adverse where harm will result if the declaratory judgment is not entered.” Travelers Ins. Co. v. Obusek, 72 F.3d 1148, 1154 (3d Cir. 1995). If a “plaintiff‘s action is based on a contingency, it is unlikely that the parties’ interests will be sufficiently adverse.” Armstrong, 961 F.2d at 411-12. This is no less true in the First Amendment context. Salvation Army v. Dep‘t of Cmty. Affairs of N.J., 919 F.2d 183, 192 (3d Cir. 1990). However, “the party seeking review need not have suffered a ‘completed harm’ to establish adversity.” Florio, 40 F.3d at 1463. “It suffices that there is a ‘substantial threat of real harm and that the threat . . . remain real and immediate throughout the course of the litigation.” Plains, 866 F.3d at 541 (quoting id.). The threat simply cannot be “imaginary or speculative,” Steffel v. Thompson, 415 U.S. 452, 459 (1974), as “[a] claim is not ripe for adjudication if it rests upon [ ] future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (quotations and citation omitted).
Plaintiffs argue that they will use—and the State will deny—their same preferred slogans again in 2022, which Way characterizes as “speculative at best.” Way Br., at 12-13. However, the facts in this case support Plaintiffs’ position. The State rejected Plaintiffs’ slogans in 2020, under “binding election law,” and there is no basis on which to conclude that the Slogan Statutes will operate to a different end in 2022. De La Fuente, 261 F. Supp. 3d at 549-50 (concluding that plaintiff “pled sufficient facts to establish Article III standing” when he “intend[ed] to engage in the political process” because it is “beyond question that participation in politics is affected with constitutional interests“) (quoting Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298
Similarly, although Plaintiffs have not yet entered the 2022 primary, or asked the State for permission to use their original slogans in that race specifically, because they cannot do so until the State releases nominating petitions in December 2021 or January 2022, they are not strictly requesting pre-enforcement review, as Way suggests. They are asking the Court to review a statute that the State has invoked against them once before, under circumstances they insist will recur. Indeed, they have represented in their Verified Amended Complaint that they will reuse their preferred, but rejected, slogans verbatim in 2022. Am. Compl., ¶¶ 26, 40, 46. If declaratory judgment were not entered, Plaintiffs would face a dilemma come primary season: comply with the Slogan Statutes by foregoing their preferred speech, or use speech they know the State will reject purely for the purpose of establishing the basis for a challenge identical to this one. There does not appear to be a path for Plaintiffs to follow to comply with the Slogan Statutes without surrendering what they wish to say on the ballot, short of unexpectedly obtaining consent from organizations or persons who to this point have withheld it. The ripeness doctrine does not put Plaintiffs to such a “Hobson‘s choice,” especially not when they seek to engage in protected activity. Babbitt, 442 U.S. at 298 (“When the plaintiff has alleged an intention to engage in a course of conduct, arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of [enforcement] thereunder, he should not be required to await [an adverse
2. Conclusiveness of Judgment
In addition to adverse interests, the parties’ dispute “must be based on a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical set of facts.” Plains, 866 F.3d at 542 (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937)). Two concerns are paramount here: (1) whether the “legal status of the parties would be changed or clarified,” Travelers, 72 F.3d at 1155, and (2) “whether further factual development . . . would facilitate decision, so as to avoid issuing advisory opinions, or the question presented is predominantly legal.” NE Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 344 (3d Cir. 2001).
This prong also favors ripeness. Plaintiffs bring a facial First Amendment challenge to the Slogan Statutes, which presents a predominantly legal question, as with “most First Amendment cases.” Geneva Coll. v. Sebelius, 929 F. Supp. 2d 402, 426 (W.D. Pa. 2013); Florio, 40 F.3d at 1468-69 (“Factual development would not add much to the plaintiffs’ facial challenges to the constitutionality of the statute . . . . [it] is of minimal assistance in facial challenges such as this.“). Further, there is not “substantial ambiguity as to what conduct [the Slogan Statutes] authorize[],” which might render the legal question inappropriate for judicial resolution at this time. City of Los Angeles v. Patel, 576 U.S. 409, 416 (2015). The Statutes plainly (and only) prohibit non-consensual use of any person‘s name or the name of any incorporated association in New Jersey. Under these circumstances, it is not “impossible to tell whether and to what extent [they] deviate from the requirements of the [First Amendment],” id., and “factual development would [not] significantly advance [my] ability to deal with the legal issues presented.” Med. & Dentistry of
Even if this case did not present a predominantly legal question, “it is hard to see how a more concrete factual situation would aid resolution of the plaintiffs’ First Amendment free speech challenge to the statute.” Florio, 40 F.3d at 1469; Armstrong, 961 F.2d at 412Florio, 40 F.3d at 1469. To that extent, whatever judgment I render, it will be conclusive.
3. Practical Utility of Judgment
Finally, I turn to practical utility, which “goes to whether the parties’ plans of actions are likely to be affected by a declaratory judgment.” Plains, 866 F.3d at 543-44; Step-Saver, 912 F.2d at 649 (holding that a useful judgment helps parties “make responsible plans about the future“). A judgment in this case will be useful to Plaintiffs no matter the result. “A declaration of [their] rights and those of all others who would seek to engage in similar activity would permit [them] to speak without fear of governmental sanction or regulation of their activities.” Florio, 40 F.3d at 1470Florio, 40 F.3d at 1470 & n.13 (“Current First Amendment jurisprudence
In sum, Plaintiffs have demonstrated that their claims are both not moot and ripe. The crux of Way‘s opposition is that I cannot hear this case because it is too far removed from 2020, and too far away from 2022. However, my “abiding interest in the constitutionality of the elections process . . . cannot be regulated by adjudging every case unripe before the election or moot after [it].” Benezet Consulting, LLC v. Boockvar, 433 F. Supp. 3d 670, 684 (M.D. Pa. 2020) (quoting Morrill v. Weaver, 224 F. Supp. 2d 882, 891 (E.D. Pa. 2002) (citing Meyer v. Grant, 486 U.S. 414, 425 (1988))). That would place Plaintiffs in a constitutional catch-22 with no clear path to jurisdiction.6 I may therefore review Plaintiffs’ challenge to the Slogan Statutes at this time.
B. The Constitutionality of the Slogan Statutes
i. The Relevant Constitutional Test Is Anderson-Burdick
The parties disagree on what constitutional test applies to the Slogan Statutes. Way initially argues for the sliding scale test set forth in Anderson v. Celebrezze, 460 U.S. 780, 789 (1983), and refined in Burdick v. Takushi, 504 U.S. 428 (1992). Plaintiffs argue for strict scrutiny, construing the Slogan Statutes as content based speech restrictions. Way disputes whether strict scrutiny applies, but nonetheless argues that, assuming Anderson-Burdick does not, intermediate scrutiny is appropriate because the Slogan Statutes are content neutral. I agree with Way that Anderson-Burdick is the correct test.9
States have for a long time enacted “comprehensive, and in many respects complex, election codes regulating in most substantial ways . . . the time, place, and manner of holding primary and general elections.” Storer v. Brown, 415 U.S. 724, 730 (1974). In much the same way, although it is “beyond cavil that ‘voting is of the most fundamental significance,‘” Burdick, 504 U.S. at 433 (quoting Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)),
Under Anderson-Burdick, “the rigorousness of [a court‘s] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens” protected activity under the First Amendment. Burdick, 504 U.S. at 434. Determining the extent of the burden requires “weighing” three factors: (1) the “character and magnitude” of the constitutional injury, (2) “the precise interests put forward by the State as justifications for the burden imposed by its rule,” and (3) “the extent to which those interests make it necessary to burden the plaintiff‘s rights.” Anderson, 460 U.S. at 789-90. If, after reviewing these factors, an election administration regulation imposes “‘severe’ restrictions” on a plaintiff‘s First Amendment rights, then it is constitutional only if “narrowly drawn to advance a state interest of compelling importance.” Burdick, 504 U.S. at 434 (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). “In
Although the Anderson-Burdick test is well-defined, the threshold question—whether it applies—is not. The Supreme Court has never articulated a general rule or set of factors. See, e.g., Buckley v. Am. Const. L. Found., Inc., 525 U.S. 182, 192 (1999) (stating that there is no “litmus-paper test” to separate “valid ballot-access provisions from invalid interactive speech restrictions” and “no substitute for the hard judgments that must be made“). Neither, it appears, has any appellate court done so. See, e.g., Rogers v. Corbett, 468 F.3d 188, 194 (3d Cir. 2006) (“Anderson promulgated a less categorical system of classification . . . . [a court‘s] scrutiny is a weighing process.“); Ariz. Green Party v. Reagan, 838 F.3d 983, 990 (9th Cir. 2016) (“The Supreme Court and our sister circuits have emphasized the need for context-specific analysis.“).
Applying the reasoning in Timmons and Grange to this case,11 it is clear that the speech-related consent provision in the Slogan Statutes, though it may prevent Plaintiffs from referencing associations with a person or entity on the ballot in certain circumstances, warrants the Anderson-Burdick framework. New Jersey‘s primary ballots are not “billboards for political advertising,” Timmons, 520 U.S. at 365, nor are they designed to advance Plaintiffs’ campaign-adjacent speech, regardless of whether there is some “connection” or “relationship” between the slogans and
In sum, the Supreme Court has “repeatedly [considered under Anderson-Burdick] . . . regulations that have the effect of channeling expressive activity at the polls.” Burdick, 504 U.S. at 438; Storer, 415 U.S. at 728. Of course, like all such regulations, the Slogan Statutes “inevitably affect[]—at least to some degree—the individual‘s right” to speak about political issues and “associate with others for political ends.” Anderson, 460 U.S. at 788; John Doe No. 1 v. Reed, 561 U.S. 186, 213 (2010) (Sotomayor, J., concurring). But they do so in the context of inherently
McIntyre v. Ohio Elections Comm‘n, 514 U.S. 334 (1995), does not command a contrary result. In McInytre, the Supreme Court distinguished between laws which regulate “pure speech” on the one hand, and laws which by contrast “control the mechanics of the electoral process.” Id. at 345. The Court then declined to apply Anderson-Burdick to a law prohibiting people from distributing political leaflets without printing the responsible party‘s name and address on them. Id. at 344-47. McIntyre is distinguishable because, unlike the Slogan Statutes, leafletting cannot be construed as an “election code provision[] governing the voting process itself.” Id. at 345. Likewise, contrary to the law struck down in McIntyre, the Slogan Statutes stand “a step removed from the communicative aspect” of the regulated conduct, and fall “within the realm” of Anderson-Burdick in that regard. Doe, 561 U.S. at 213 (Sotomayor, J., concurring); see also Am. Const. L. Found., 525 U.S. at 215 (O‘Connor, J., concurring in part) (suggesting “less exacting” scrutiny for regulations which “indirectly burden speech but are a step removed from [its] communicative aspect . . . and are necessary to maintain an orderly electoral process“). Finally, “[s]ince the turn of the century, ‘a consensus has emerged’ that laws [regarding restrictions on leafletting or petition] circulators ‘are subject to strict scrutiny analysis‘” rather than something akin to the Anderson-Burdick test. Wilmoth, 731 Fed. App‘x. at 102 (quoting Libertarian Party of Virginia v. Judd, 718 F.3d 308, 316-17 (4th Cir. 2013)). This consensus “has its genesis in Meyer [ ], where a unanimous Supreme Court held that Colorado‘s criminalization of paid petition circulators amounted to an unconstitutional restriction on ‘core political speech.‘” Id. (quoting 486 U.S. at 422). Critically, in Meyer, the Court observed that “the circulation of a petition involves the type of interactive communication concerning political change” for which First Amendment protection “is at its zenith.” 486 U.S. at 421-22. McIntyre thus does not change the conclusion that Anderson-Burdick governs my constitutional inquiry into the Slogan Statutes.
ii. Applying Anderson-Burdick to the Slogan Statutes
As discussed supra, under Timmons and Grange, Plaintiffs do not have a right to speak through the ballot. New Jersey could presumably repeal the Slogan Statutes altogether without running afoul of the First Amendment, and did not need to enact them in the first place. See, e.g., Rosen, 970 F.2d at 175 (“With respect to the political designations of the candidates on nomination papers or on the ballot, a State could wash its hands of such business and leave it to the educational efforts of the candidates themselves, or their sponsors, during the campaigns.“); Bachrach v. Sec‘y of Com., 382 Mass. 268, 273 (1981) (“There is certainly much useful information about parties and candidates that a State is free not to mention or elicit on the ballot, even if physical limitations do not prevent [it].“).
But once a State “admits a particular subject to the ballot and commences to manipulate the content or to legislate what shall and shall not appear, it must take into account the provisions of the Federal and State Constitutions regarding freedom of speech and association.” Rosen, 970 F.2d at 175; Riddell v. Nat‘l Democratic Party, 508 F.2d 770, 775-79 (5th Cir. 1975) (“While it is true that the administration of the electoral process is a matter that the Constitution largely entrusts to the states, in exercising their powers of supervision over elections ‘the states may not infring[e] upon basic constitutional protections,’ and ‘unduly restrictive state election laws may so impinge upon freedom of association as to run afoul of the First and Fourteenth Amendments.‘“) (quoting Kusper v. Pontikes, 414 U.S. 51, 57 (1973)). That is, the State must exercise its election-
1. The Magnitude of the Burden
With Anderson-Burdick as the standard, I now address the extent to which the Slogan Statutes burden Plaintiffs’ rights, which determines whether the Statutes must be narrowly tailored to a compelling state interest or must merely “outweigh” a legitimate state concern. Wilmoth, 731 Fed. App‘x. at 102. “Strict scrutiny [ ] is appropriate only if the burden is severe.” Clingman v. Beaver, 544 U.S. 581, 582 (2005). If it is not severe, then lesser scrutiny is appropriate, and the State‘s “important regulatory interests will usually be enough.” Timmons, 520 U.S. at 351.
“Burdens are severe if they go beyond the mere inconvenient.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 205 (2008) (Scalia, J., concurring in the judgment) (quoting Storer, 415 U.S. at 728-29). “The hallmark of a severe burden is exclusion or virtual exclusion from the ballot.” Libertarian Party of Conn. v. Lamont, 977 F.3d 173, 177 (2d Cir. 2020). Burdens generally are not severe if they require “nominal effort” from everyone, Crawford, 553 U.S. at 205 (Scalia, J., concurring in the judgment), or if they are “ordinary” and “widespread.” Clingman, 544 U.S. at 593-97. Beyond these guideposts, I must make “a careful, ground-level appraisal [ ] of [the] burdens” from a “practical” perspective. Crawford, 553 U.S. at 210-11 (Souter, J., dissenting) (citing Burdick, 504 U.S. at 434). To begin, I do not have any information before me suggesting that the act of obtaining consent, or the process of filing it in written form with the Division of Elections, burdened Plaintiffs. They do not allege that seeking approval from various people or
Determining the magnitude of the burden further requires considering its “likely” consequences “ex ante,” “categorically,” and on “[candidates] generally.” Crawford, 553 U.S. at 206 (Scalia, J., concurring in the judgment) (quoting Storer, 415 U.S. at 738). I can perceive three in this case. First, the Slogan Statutes may chill speech if candidates suspect that they will never be able to obtain consent from someone they wish to name. Cf. Lamont v. Postmaster General, 381 U.S. 301, 309 (1965) (Brennan, J., concurring) (writing that the First amendment protects against government “inhibition as well as prohibition“). Second, the Statutes may force Plaintiffs to change what they say altogether if a named entity withholds consent (for whatever reason), or only consents if the message is sufficiently favorable to it. This could channel dissenting, negative, controversial, or unpopular slogans into more tolerable forms or benign/positive tones. Cf. Matal v. Tam, 137 S. Ct. 1744, 1763 (2019) (“Giving offense is a viewpoint.“). As pled, McCormick arguably experienced a similar situation: she could not obtain consent from Bernie Sanders for her slogan stating that he “Betrayed the NJ Revolution.” Am. Compl., ¶¶ 43-44. Third, the Statutes
That said, the Statutes do not impose a severe burden. Plaintiffs, first, do not allege how frequently the Slogan Statutes thwart certain classes of candidates, whether those candidates share any characteristics, or how common it is for individuals or incorporated associations to withhold consent. Based on the Amended Complaint, I can only infer that it happens occasionally, and that consent is not automatic in every case. Cf. Crawford, 553 U.S. at 202 (“The record says virtually nothing about the difficulties faced by either indigent voters or voters with religious objections to being photographed . . . . [a] single affidavit gives no indication of how common the problem is.“). “[N]ailing down precisely how great the cohort of discouraged or totally deterred [candidates] [is] . . . . of course [ ] would greatly aid a plaintiff to establish his claims.” Id. at 222 (Souter, J., dissenting).
What is more, certain aspects of the Slogan Statutes indicate both neutrality and narrowness. By their terms, the Statutes do not draw any classifications or distinctions, but rather impose a single burden uniformly on all candidates for office: obtain consent to name someone or some incorporated association. The Statutes also regulate just six words on the primary ballot, the purpose of which is already limited to conveying alignment within a political party, do not extend
It also matters that the Slogan Statutes regulate just one speech opportunity in the scheme of a primary season with many other—and more substantial—opportunities to speak, and they have no impact on what candidates may say outside the confines of the ballot. See, e.g., Anderson, 460 U.S. at 788 (“[A]n election campaign is an effective platform for the expression of views on the issues of the day.“); Socialist Workers Party, 440 U.S. at 186 (“[A]n election campaign is a means of disseminating ideas.“); Timmons, 520 U.S. at 361 (“The New Party remains free to endorse whom it likes, to ally itself with others, to nominate candidates for office, and to spread its message to all who will listen.“); Marcellus v. Va. St. Bd. of Elections, 849 F.3d 169, 177 (4th Cir. 2017) (“[T]he candidates still have every other avenue by which to inform voters of this information. Political parties and their nominees are entirely free to publicize their association with each other and may even distribute sample ‘party’ tickets on election day.“); Fusaro, 930 F.3d at 260-61 (explaining, while remanding with instructions to apply Anderson-Burdick, that “other means of communication remain open” to plaintiff such as “billboards,” “newsletters,” “the internet,” or “simply [ ] mailing [a] letter to any[one] in the phone book“); Miller v. Brown, 503 F.3d 360, 368 (4th Cir. 2007) (holding that First Amendment associational
2. The State‘s Interests
Having established the magnitude of the burden, I turn next to the State‘s interests, which must be “relevant and legitimate” or “‘sufficiently weighty‘” for the Slogan Statutes to survive. Crawford, 553 U.S. at 191 (quoting Norman, 502 U.S. at 288-89). My review at this stage is “quite deferential,” Price v. N.Y. State Bd. of Elections, 540 F.3d 101, 109 (2d Cir. 2008), so as not to “hamper the ability of States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes.” Clingman, 544 U.S. at 593. Way asserts four interests: preserving the integrity of the nomination process, preventing voter deception, preventing voter confusion, and protecting the associational rights of third parties who might be named in a slogan. I find that Way has raised sufficiently weighty interests in this context.
Preserving the integrity of the nomination process is not just an important interest, but a compelling one. See, e.g., Rosario v. Rockefeller, 410 U.S. 752, 760-62 (1973) (stating, in the
The State also has an important interest in preventing voter deception. See, e.g., Norman, 502 U.S. at 290 (acknowledging an interest in preventing “misrepresentation“); Timmons, 520 U.S. at 365 (same, and noting possibility that “candidates may exploit fusion as a way of associating . . . with popular slogans and catchphrases“); Jenness v. Fortson, 403 U.S. 431, 442 (1971) (“There is surely an important state interest . . . in avoiding . . . deception, and even frustration of the democratic process at the general election.“). Likewise, the State has a substantial interest in
Moreover, while Way‘s asserted State interests must be grounded in some basis, she need not provide “elaborate, empirical verification” for me to credit them. Timmons, 520 U.S. at 352, 364; Munro, 479 U.S. at 194-95 (rejecting “a particularized showing of the existence of voter confusion . . . to the imposition of reasonable restrictions on ballot access“). This is especially so where, as here, “the burden a challenged regulation imposes . . . is [not severe].” Soltysik, 910 F.3d at 448. The Seventh Circuit goes so far as to hold, in the context of Anderson-Burdick, that “[e]ven a speculative concern of voter confusion” suffices as a matter of law to establish a legitimate State interest. Stone v. Bd. of Election Comm‘rs, 750 F.3d 678, 685 (7th Cir. 2014). The Ninth Circuit disagrees, and has held that a State‘s informational interest must be substantiated to some degree or else Anderson-Burdick becomes nothing more than “ordinary rational-basis review.” Soltysik, 910 F.3d at 448. The Third Circuit seems to side with the Ninth Circuit. Patriot Party of Allegheny Cty. v. Allegheny Cty. Dep‘t of Elections, 95 F.3d 253, 266 (3d Cir. 1996) (“As a factual matter, there is no evidence in the record to support the proposition that myriad small parties will ‘clog’ the ballot if cross-nomination is permitted . . . . The Department has presented no evidence to indicate that fusion is likely to produce a crippling proliferation of minor parties.“). Nonetheless,
3. Balancing the Burden Against the Interests
Plaintiffs largely do not challenge the State‘s interests. They instead focus on the means-end fit between the interests and the Slogan Statutes. The gist of their argument is that the State could place a general disclaimer on ballots alerting voters to the fact that slogans are unverified, which would be less speech intrusive. Marcellus, 849 F.3d at 178 (“While the plaintiffs ‘do not dispute the legitimacy’ of those interests, they challenge whether [the statute‘s] restriction serves those interests.“).
The flaw in Plaintiffs’ position is that New Jersey‘s integrity and informational interests need only “outweigh” the Slogan Statute‘s burdens. Burdick, 504 U.S. at 439; Wilmoth, 731 Fed. App‘x. at 102. Anderson-Burdick does not require the State to choose the least restrictive alternative of all feasible alternatives available to it. In fact, “the State need not narrowly tailor the means it chooses to promote ballot integrity” at all. Timmons, 520 U.S. at 365. Hence, while a general disclaimer may better serve Plaintiffs’ political strategies, “[t]he Constitution does not require that [New Jersey] compromise the policy choices embodied in its ballot-access requirements to accommodate [that].” Id. It is not difficult, in any event, to understand how New Jersey could reasonably conclude that the Slogan Statutes serve its ends: they ensure only legitimate associations appear on the ballot, at “the climactic moment of choice” for voters when
In short, here, the State has chosen to minimize certain risks when slogans include names of persons or entities who may be improperly referenced, such as creating misleading or false impressions in voters’ minds, which could sway an election outcome at the last minute or throw a result into doubt with allegations of deception. I cannot find that policy choice to be unreasonable, illegitimate, or otherwise not “sufficiently weighty to justify” the ancillary burdens that flow from it. Crawford, 553 U.S. at 191. “So long as [the State‘s] choice is reasonable and neutral,” as in this case, then “it is free from judicial second-guessing.” Weber v. Shelley, 347 F.3d 1101, 1107 (9th Cir. 2003) (“[I]t is the job of democratically-elected representatives to weigh the pros and cons of various balloting systems.“); Fitzgerald v. Racing Ass‘n of Cent. Iowa, 539 U.S. 103, 108 (2003) (“[That] the line might have been drawn differently . . . is a matter for legislative, rather than judicial, consideration.“); Trinsey v. Com. of Pa., 941 F.2d 224, 235 (3d Cir. 1991) (“We take no position on the balancing of the respective interests in this situation. That is a function for which the legislature is uniquely fitted.“). I therefore hold that Plaintiffs have not plausibly alleged that the consent provisions in the Slogan Statutes are unconstitutional.12
My determination above that the Slogan Statutes are not unconstitutional ends the inquiry as to the claims against the Clerks. But even had I resolved that question in Plaintiffs’ favor, they nonetheless have not sufficiently pled that the Clerks themselves committed a constitutional violation. Plaintiffs assert that the Clerks had discretion to print their preferred slogans, notwithstanding Way‘s determination that the slogans violated the Slogan Statutes and could not appear on the ballot, but did not do so in violation of the First Amendment. But Plaintiffs’ pleadings belie their own position. See, e.g., Pl. Br. I, at 2 (“The Slogan Statutes forbid a New Jersey county clerk from printing any slogan that [does not comply therewith].“). And, indeed, Plaintiffs plead it correctly. Under
IV. CONCLUSION
DATED: July 30, 2021
/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
U.S. Chief District Judge