Arsenault v. Way
| Decision Date | 17 May 2021 |
| Docket Number | Civil Action No. 3:16-cv-01854 |
| Citation | 539 F.Supp.3d 335 |
| Parties | Alexander ARSENAULT, Trenton Pool, and Roque De La Fuente, Plaintiffs, v. Tahesha WAY, in her official capacity as the Secretary of State for the State of New Jersey, Defendant. |
| Court | U.S. District Court — District of New Jersey |
Lawrence M. Otter, Doylestown, PA, for Plaintiffs.
Alan C. Stephens, State of New Jersey Office of the Attorney General, Trenton, NJ, Rachel Simone Frey, Littler Mendelson, P.C., Newark, NJ, for Defendant Kim Guadagno.
Nicole Elizabeth Adams, Stuart Mark Feinblatt, State of New Jersey Office of the Attorney General, Trenton, NJ, for Defendants.
SUPERSEDING MEMORANDUM AND ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT (ECF NO. 56); AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 55)
This Memorandum and Order supersedes the prior Memorandum and Order entered on April 20, 2021 (ECF No. 84). The purpose is to clarify a statement made by an employee of the Division of Elections; but otherwise the substance remains the same.
Plaintiffs bring this action under 42 U.S.C. § 1983 to challenge the validity of a New Jersey law ( N.J. Stat. Ann. § 19:23-11 ) that requires persons circulating nominating petitions on behalf of presidential candidates in primary elections to be residents of New Jersey. Presently before the Court are the parties’ renewed cross-motions for summary judgment. For the reasons that follow, Plaintiffs’ motion (ECF No. 56) is granted, and Defendant's motion (ECF No. 55) is denied.
This case concerns a New Jersey law that allows only residents of New Jersey, who are of the same political party as a presidential candidate, to circulate a nominating petition to place the candidate's name on the ballot in a closed primary election. See N.J. Stat. Ann. § 19:23-11. Plaintiffs are two circulators from Massachusetts and Texas, and one announced candidate for President of the United States, who allege that the residency requirement for nomination petition circulators violates their constitutional right to engage in core political speech, associate with voters, secure ballot access for their candidates, enact political change, and choose the most effective manner to communicate their political views. (Compl. ¶ 32). Specifically, they allege that presidential candidates who do not reside in or have an association with New Jersey encounter difficulty finding New Jersey residents to serve as witnesses to circulate and complete a nominating petition in a primary election.
Plaintiffs filed their complaint in April 2016, seeking "declaratory and injunctive relief to prevent Defendant's continued enforcement" of N.J. Stat. Ann. § 19:23-11. (Compl. 1, ECF No. 1). Plaintiffs later clarified at oral argument that their claim is an as-applied, not facial, challenge to the state law. Wilmoth v. Sec'y of New Jersey , 731 F. App'x 97, 101 n.5 (3d Cir. 2018).
In July 2016, then-Defendant Kim Guadagno1 moved to dismiss the case under Fed. R. Civ. P. 12(b)(6). (Def.’s Mot. Dismiss, ECF No. 10). In defense of the state law, she argued that it passes strict scrutiny because (1) the registration requirement protects the constitutional right of political parties to associate with like-minded candidates, (id. at 6-9); and (2) the residency requirement allows the state to verify the political party of signature circulators, thereby protecting its strong interest in regulating the integrity of the party petition process and ballot access, (id. at 19). She noted that there is no known method by which the State can confirm the party affiliation of out-of-state residents like Plaintiffs within the statutory timeframe. (Id. at 18).
Following oral argument, the Court dismissed the case with prejudice. (ECF No. 24). Looking at case law from the circuit courts, it concluded that the requirement to collect 1,000 signatures from registered voters of the same party as the presidential candidate, witnessed by a registered state resident, was not a severe burden to appear on the primary ballot, and that "the State's interest in protecting the associational rights of party members and the integrity of primary elections are significant goals." (Tr. of Court's Opinion 21-22, 26, ECF No. 30). It determined that the State's interest in preventing party raiding and fraudulent ballot manipulation "outweighs the adverse effect on Wilmoth and Pool," and that those plaintiffs "may still employ reasonable alternative means to assist in acquiring the appropriate number of signatures." (Id. at 24, 26).
The Third Circuit disagreed and vacated and remanded, finding that Plaintiffs’ complaint "presents a plausible claim that the New Jersey law infringes out-of-state circulators’ First Amendment rights." (Opinion 14, ECF No. 35); Wilmoth , 731 F. App'x at 105. After determining that strict scrutiny governed its analysis, it considered whether New Jersey's stated interests in favor of upholding the contested statute were compelling. Wilmoth , 731 F. App'x at 103-04. However, it was unable to reach a conclusion because the evidentiary record was insufficient to "demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Id. at 104 (citing Turner Broad. Sys., Inc. v. FCC , 512 U.S. 622, 646, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ). Specifically, because the motion to dismiss was granted, the State did not have an opportunity to present evidence supporting its compelling interest, such as incidences of fraud or other conduct that the law was intended to prevent. Id.
Further, there was "no basis upon which to determine whether the New Jersey law prohibiting registered, out-of-state voters from circulating nomination petitions is narrowly tailored to protect the State's interests." Id. The Third Circuit noted that submitting to a state's jurisdiction is an alternative method to achieve the government's objectives; and since Wilmoth and Pool both agreed to submit to New Jersey's jurisdiction for the purpose of investigating or prosecuting petition fraud, this may be sufficient to meet the State's goals. Id. It emphasized that the State must show that the proposed less restrictive alternatives are less effective than its chosen means in order to survive strict scrutiny. Id. Because the factual record was inadequate to support such a showing, dismissal was inappropriate. Id. at 105.
The case proceeded to discovery before the Hon. Douglas E. Arpert, U.S.M.J. In October 2019, the parties cross-moved for summary judgment (ECF Nos. 55, 56) and, after briefing and oral argument, this Court denied both motions on May 22, 2020 (ECF No. 64). In its written order, it pointed to a lack of undisputed facts and requested that the parties further explain and develop the evidentiary record. (Id. ) As one example, the Court noted that there was no clear definition of the term "professional circulator." (Id. )
Several months later, after a series of telephone conferences, the parties submitted a Supplemental Joint Stipulation of Undisputed Facts ("Joint Stipulation"), which focused primarily on the role of professional circulators and Arsenault's personal experience and knowledge as a circulator. (ECF No. 75; see also ECF Nos. 71, 76). Indeed, that Joint Stipulation incorporated much of what Arsenault stated in his July 2020 declaration. (See ECF No. 72). The parties requested that the Court consider their cross-motions for summary judgment a second time based upon the supplemented factual record.
The factual record is comprised of (1) the Statements Of Undisputed Facts from the initial cross-motions for summary judgment (ECF Nos. 55-2, 57, 59-1); (2) a Supplemental Joint Statement Of Undisputed Facts dated June 29, 2020 (ECF No. 68); (3) the Declarations of Alexander Arsenault (ECF No. 72) and Lawrence Otter (ECF No. 73) dated July 23, 2020; (4) Defendant's response to the July 23, 2020 declarations dated August 3, 2020 (ECF No. 74); (5) a Supplemental Joint Stipulation Of Undisputed Facts filed on August 25, 2020 (ECF No. 75); and supplemental letters, affidavits, and exhibits submitted by the parties in response to the Court's questions from the February 17, 2021 hearing and its February 24, 2021 Judicial Notice (ECF Nos. 78, 80). For a large part, the Court incorporates the following facts from those documents.
By way of background, New Jersey recognizes only two political parties – the Republicans and Democrats – which hold primary elections to nominate candidates for the general election. (See Donna Barber Dep. Tr. ("Barber Dep.") 12:10-19, ECF No. 55-6).2 Third parties, such as entities known as the Independent and Libertarian Parties, are not recognized as political parties in New Jersey, and have a separate process to place independent candidates on the ballot for a general election. 3
(Barber Dep. 12:10-24). To achieve "political party" status, a party must receive ten percent of the total votes cast in an election held for all members of the General Assembly. (Barber Dep. 13:9-13); N.J. Stat. Ann. § 19:1-1.
A candidate who wishes to appear on the ballot in a primary election must be nominated by members of his or her political party through a petition. N.J. Stat. Ann. § 19:23-5 ; see also § 19:5-1. The petition must state that the signers thereof (1) reside in and are qualified voters of New Jersey; (2) are members of the candidate's political party and intend to affiliate with that party at the ensuing election; (3) indorse the person named in the petition for nomination as a presidential candidate; and (4) request that the name of the candidate be printed on the official primary ballots of their political party. N.J. Stat. Ann. § 19:23-7 (see also Div. of Elections Nomination Petition, Supp. Stip. of Facts Ex. B ("Nomination Petition"), ECF No. 68-2). In a statewide election, the petition must be...
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...does not make nominating petitions available until December or January before spring primary season. Arsenault v. Way , No. 16-01854, 539 F.Supp.3d 335, 340–41 (D.N.J. May 17, 2021) (describing short timeline). Plaintiffs also satisfy the second prong because, quite simply, "it is reasonabl......
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...meaning Appellants would otherwise be left with uncertainty as they plan their future campaigns. See, e.g., Arsenault v. Way , 539 F. Supp. 3d 335, 340-41 (D.N.J. 2021) (describing abbreviated timeline). In short, Appellants' claim is ripe for decision. Appellants' claim is also not moot. A......
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Mazo v. N.J. Sec'y of State
... ... Jersey typically does not provide nominating petitions until ... the December or January before the spring primary campaign, ... meaning Appellants would ... otherwise be left with uncertainty as they plan their future ... campaigns. See, e.g. , Arsenault v. Way , 539 ... F.Supp.3d 335, 340-41 (D.N.J. 2021) (describing abbreviated ... timeline). In short, Appellants' claim is ripe for ... decision ... Appellants' ... claim is also not moot. A claim is moot "when the issues ... presented are no ... ...