Mazo v. N.J. Sec'y of State
| Decision Date | 23 November 2022 |
| Docket Number | 21-2630 |
| Parties | EUGENE MAZO; LISA MCCORMICK, Appellants v. NEW JERSEY SECRETARY OF STATE; E. JUNIOR MALDANADO, in his official capacity as Hudson County Clerk; JOANNE RAJOPPI, in her official capacity as Union County Clerk; PAULA SOLLAMI COVELLO, in her official capacity as Mercer County Clerk; ELAINE FLYNN, in her official capacity as Middlesex County Clerk; CHRISTOPHER DURKIN, in his official capacity as Essex County Clerk; STEVE PETER, in his official capacity as Somerset County Clerk |
| Court | U.S. Court of Appeals — Third Circuit |
Argued July 6, 2022
On Appeal from the United States District Court for the District of New Jersey District Court No. 3-20-cv-08174 District Judge: The Honorable Freda L. Wolfson Ryan Morrison [ARGUED]
Institute for Free Speech
Walter M. Luers
Cohn Lifland Pearlman Herrmann & Knopf
Counsel for Appellants
Angela Cai [ARGUED]
Nicole E. Adams
Dominic L. Giova
Office of Attorney General of New Jersey
Counsel for Appellee New Jersey Secretary of State Walter S. Zimolong, III
Counsel for Amicus Appellants
Professor Derek T. Muller and Professor Michael R. Dimino
Before: SHWARTZ, KRAUSE, and ROTH, Circuit Judges
Nowhere are the First Amendment rights of free speech and association more essential, or more fiercely guarded, than in the context of free and open elections. Self-government depends on ensuring that speech intended to support, challenge, criticize, or celebrate political candidates remains unrestricted. But at the end of every hard-fought political campaign lies the ballot box, where our constitutional democracy depends equally on States fulfilling their solemn duty to regulate elections to ensure fairness and honesty, even where doing so may burden some First Amendment rights. For this reason, courts have long applied the more flexible Anderson-Burdick balancing test to evaluate constitutional challenges to state election laws that govern the mechanics of the electoral process. At the same time, however, courts continue to apply a traditional-and often quite stringent- First Amendment analysis to state election laws that implicate core political speech outside of the voting process.
This case asks us to determine where the campaign ends and the electoral process begins. New Jersey permits candidates running in primary elections to include beside their name a slogan of up to six words to help distinguish them from others on the ballot. N.J. Stat. § 19:23-17. But New Jersey also requires that candidates obtain consent from individuals or New Jersey incorporated associations before naming them in their slogans. Appellants Eugene Mazo and Lisa McCormick challenged this requirement after their desired slogans were rejected for failure to obtain consent. They argue that New Jersey's ballot slogans are, in effect, part of the campaign-a final, crucial opportunity for candidates to communicate directly with voters-and that the consent requirement should therefore be subject to traditional First Amendment scrutiny. The District Court disagreed. It held that, though the ballot slogans had an expressive function, the consent requirement regulates the mechanics of the electoral process, and so applied the Anderson-Burdick test, ultimately finding the consent requirement constitutional.
We agree with the District Court. In so doing, we recognize the line separating core political speech from the mechanics of the electoral process has proven difficult to ascertain: "Not only has the Supreme Court itself fractured deeply in the application of this jurisprudence, but so too has the judiciary in general." PRINCIPLES OF THE L. OF ELECTION ADMIN.: NON-PRECINCT VOTING AND RESOL. OF BALLOT COUNTING DISP. § 201 (AM. L. INST., Tentative Draft No. 2, 2017). Thus to "develop[] . . . this constitutional jurisprudence in ways that most promote rule-of-law values and the legitimacy of the electoral process, including the critical value of clarity," we take this opportunity to survey the range of election laws to which the Supreme Court and appellate courts have applied the Anderson-Burdick test, as opposed to a traditional First Amendment analysis. Id. From that review, we derive criteria to help distinguish-along the spectrum of mechanics of the electoral process to pure political speech- which test is applicable. And applying those criteria here, we conclude that New Jersey's consent requirement is subject to Anderson-Burdick's balancing test. We also conclude that because New Jersey's interests in ensuring election integrity and preventing voter confusion outweigh the minimal burden imposed on candidates' speech, the consent requirement passes that test. We will therefore affirm the judgment of the District Court.
In New Jersey, a candidate who wants to have her name placed on the ballot for a primary election must file a petition containing certain information about the candidate and the requisite signatures for the public office sought. See N.J. Stat. Ann. §§ 19:23-5 to -11.[1] For candidates seeking federal office, these petitions must be directed to the Secretary of State, id. § 19:23-6, who is responsible for certifying petitions, id. §§ 19:13-3, 19:23-21, and instructing local election officials about the names and information that are to be placed on the primary ballots, id. §§ 19:23-21 to -22.4.[2] Since 1930, New Jersey law has permitted candidates running in a primary election for "any public office" to "request that there be printed opposite his name on the primary ticket a designation, in not more than six words, . . . for the purpose of indicating either any official act or policy to which he is pledged or committed, or to distinguish him as belonging to a particular faction or wing of his political party." N.J. Stat. § 19:23-17.
In 1944, the New Jersey legislature amended the law to include the proviso that "no such designation or slogan shall include or refer to the name of any person or any incorporated association of this State unless the written consent of such person or incorporated association of this State has been filed with the petition of nomination of such candidate or group of candidates." Id. This consent requirement is reiterated in N.J. Stat. § 19:23-25.1, which states that no ballot slogan "shall be printed" that "refers to the name of any other person unless the written consent of such other person has been filed with the petition of nomination of such candidate or group of candidates."[3] These "Slogan Statutes" and their consent requirement are enforced by the Secretary of State in all federal and state-wide primary races as part of the certification process. See N.J. Stat. § 19:23-21.[4]
B. Appellants' Slogans
Appellants Eugene Mazo and Lisa McCormick were candidates in the July 7, 2020, Democratic Primary for the House of Representatives in New Jersey's Tenth and Twelfth Congressional Districts, respectively. Mazo requested ballot slogans for each of the ballots printed by the three counties that comprise New Jersey's Tenth District:
Am. Compl. ¶ 37 (App. 48). Because each of these slogans "referred to the names of New Jersey incorporated associations," state officials informed Mazo that authorization from the chairperson of the organizations was required and that if he did not obtain authorization, "his nomination petition would be certified as 'NO SLOGAN.'" Am. Compl. ¶ 38 (App. 48-49). Mazo never obtained the required consent, and instead "used three different slogans with the authorization of three other New Jersey incorporated associations that he created." Am. Compl. ¶ 39 (App. 49).
McCormick originally requested the ballot slogan "Not Me. Us.," Am. Compl. ¶ 41 (App. 49), but was told that, because this slogan referred to another New Jersey incorporated association, she also required the organization's authorization. McCormick did not obtain the necessary consent and instead requested, as an alternative slogan, "Bernie Sanders Betrayed the N.J. Revolution." Am. Compl. ¶¶ 43-44 (App. 49). But because this new slogan still named an individual, again she was told consent was required. McCormick did not obtain consent and ultimately settled on a different slogan, "Democrats United for Progress," for which she did obtain authorization. Am. Compl. ¶ 45 (App. 49).
C. Procedural Background
On July 2, 2020, five days before the primary election, Mazo and McCormick filed suit in the District of New Jersey, naming the New Jersey Secretary of State and various county clerks as defendants, collectively "the Government." Their complaint sought declaratory and injunctive relief, claiming that the consent requirement was unconstitutional, both facially and as-applied, under the First and Fourteenth Amendments.[5] In response, both the Secretary of State and the Clerks moved to dismiss.
The Secretary of State argued that Appellants' claims were both moot (because the primary election had passed) and unripe (because the next primary was more than a year away), and also that the consent requirement was constitutional. For their part, the Clerks primarily urged that they were improper defendants because, under New Jersey law, they did not enforce the Slogan Statutes for congressional elections and lacked discretion to contradict the Secretary of State's instructions.
The District Court considered each of these arguments and concluded that (1) Appellants' claims were both ripe and not moot, Mazo v. Way, 551 F.Supp.3d 478, 491-98 (D.N.J. 2021), (2)...
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