Wilmoth v. Secretary of State of New Jersey, 041918 FED3, 17-1925

Docket Nº:17-1925
Opinion Judge:VANASKIE, Circuit Judge.
Attorney:Paul A. Rossi, Esq. [Argued] IMPG Advocates Inc., Lawrence M. Otter, Esq. Counsel for Appellants George N. Cohen, Esq. [Argued] Office of Attorney General of New Jersey Division of Law, Counsel for Appellee
Judge Panel:Before: HARDIMAN, VANASKIE, and SHWARTZ, Circuit Judges.
Case Date:April 19, 2018
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit




No. 17-1925

United States Court of Appeals, Third Circuit

April 19, 2018


Argued January 23, 2018

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 3-16-cv-01854) District Judge: Honorable Peter G. Sheridan

Paul A. Rossi, Esq. [Argued] IMPG Advocates Inc., Lawrence M. Otter, Esq. Counsel for Appellants

George N. Cohen, Esq. [Argued] Office of Attorney General of New Jersey Division of Law, Counsel for Appellee

Before: HARDIMAN, VANASKIE, and SHWARTZ, Circuit Judges.


VANASKIE, Circuit Judge.

At issue in this case is a New Jersey law requiring that persons circulating petitions on behalf of candidates for national office be residents of New Jersey. Appellants Shawn Wilmoth and Trenton Pool argue that the law in question, N.J. Stat. Ann. § 19:23-11, imposes an impermissible burden on their First Amendment right to engage in core political speech. The District Court dismissed their complaint for failure to plead a plausible claim for relief. We, however, conclude that Appellants have pleaded facts sufficient to survive dismissal and proceed to discovery. We therefore will vacate the District Court's order and remand for further proceedings consistent with this opinion.


New Jersey holds a closed primary election during each presidential election cycle. To vote in New Jersey's closed primary, an individual must be (1) registered to vote in New Jersey and (2) a registered member of a political party that appears on the primary election ballot. N.J. Stat. Ann. § 19:23-45. Under New Jersey law, a "political party" is defined as any party that garners at least 10 percent of the votes cast in the last primary election for the office of a member of the General Assembly. Id. § 19:5-1. As it stands today, New Jersey recognizes only two political parties: Democratic and Republican.

To be listed on New Jersey's primary election ballot, a prospective presidential candidate must submit a nomination petition to the Secretary of State within sixty-four days of the primary election. Id. § 19:23-14. This mandatory petition must contain, inter alia, 1, 000 signatures of individuals who are both residents of New Jersey and registered members of the same political party as the candidate seeking election.2 Id. § 19:23-8.

A person who obtains signatures on nomination petitions for a prospective candidate is known as a "circulator." New Jersey law requires that a circulator "be a registered voter in this State whose party affiliation is of the same political party named in the petition." Id. § 19:23-11 (emphasis added). Because the statute restricts circulators to "registered voter[s] in [New Jersey], " it follows that out-of-staters--or, by the same token, in-state residents who are not registered to vote--may only gather signatures on behalf of a prospective candidate if they are accompanied at all times by an in-state witness, i.e., a New Jersey resident who is a registered voter of the same political party as the candidate named in the petition. Id. To verify that circulators and/or witnesses are indeed citizens of, and registered to vote in, New Jersey, the Secretary of State retains the right to cross-check nomination petitions with New Jersey's "Statewide voter registration system" ("SVRS"), which serves as the State's official repository for voter registration information. Id. § 19:31-31.

Appellants Wilmoth and Pool are self-described "professional circulators of election petitions." (Appellants' Br. 6.) Wilmoth, a registered Democrat residing in Michigan, currently serves as the chief relations officer of Signature Masters, Inc. ("SMI"), "a Michigan corporation that specializes in petition management solutions on a national level." (App. 161, 165.) Pool, for his part, is a registered Republican residing in Texas. He currently serves as president of Benezet Consulting ("Benezet"), a Texas-based LLC "engaged in the business of circulating nomination petitions for Republican and Democratic candidates, including candidates for President of the United States."3(Id. at 163.)

In the months leading up to the 2016 presidential primaries, Wilmoth and SMI were hired by Democratic Presidential candidate Roque ("Rocky") De La Fuente to conduct "petition drives" in New Jersey. (Id. at 161-62.) As for Pool, Appellants do not describe the extent of his political work; instead, they note only that Pool sought to circulate petitions in New Jersey, but was unable to do so "because he does not know and/or could not locate any in-state registered voter willing to serve as a witness of the nomination petitions that he wanted to circulate in 2016." (Id. at 162.)

On April 4, 2016, Wilmoth and Pool commenced suit under 42 U.S.C. § 1983 in the United States District Court for the District of New Jersey against Appellee New Jersey Lieutenant Governor and Secretary of State Kimberly Guadagno, in her capacity as the State's chief election official.4 Wilmoth and Pool specifically sought a declaration that N.J. Stat. Ann. § 19:23-11 is unconstitutional under the First and Fourteenth Amendments insofar as it prevents out-of-staters like themselves from circulating nomination petitions in New Jersey unless they are accompanied by an in-state, registered voter. Such a requirement, Wilmoth and Pool argued, "place[d] a severe burden" on "core political speech" because it restricted their ability to engage in a number of political activities, including their rights to: (a) disseminate their political views unimpeded; (b) choose the most effective mode of conveying their message; (c) associate with the voters of New Jersey in a meaningful way to elicit political change; and (d) . . . secure ballot access for the candidates of their choice in the most effective, efficient and cost-effective manner possible. . . .

(App. 168.)

On March 24, 2017, the District Court issued an oral opinion from the bench granting New Jersey's Rule 12(b)(6) motion to dismiss. Applying strict scrutiny review, the District Court determined that N.J. Stat. Ann. § 19:23-11 was constitutional because, in its view, New Jersey's "goal [of] ensur[ing] the integrity of [its] election [system] through the use of the SVRS . . . clearly outweigh[ed] the adverse effect[s] on Wilmoth and Pool." (App. 31.) This timely appeal followed.


The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

We exercise plenary review over a decision to grant a motion to dismiss. Delaware Nation v. Pennsylvania, 446 F.3d 410, 415 (3d Cir. 2006) (citation omitted). "[I]n deciding a motion to dismiss, all well-pleaded allegations of the complaint must be taken as true and interpreted in the light most favorable to the plaintiffs, and all inferences must be drawn in favor of them." McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009) (citation omitted). To withstand a Rule 12(b)(6) motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).[5]



It is well established that states have "broad power" to regulate their respective electoral processes. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (citing U.S. Const. art. I, § 4, cl. 1). Indeed, "as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process." Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). The fact that states are afforded broad power to regulate their elections, however, does not mean that their authority to do so is unrestricted. To the contrary, election-related legislation must conform to the limits imposed by the Constitution. Williams v. Rhodes, 393 U.S. 23, 29 (1968).

In reviewing a First Amendment challenge to a state's election law, the Supreme Court has emphasized that "[n]o bright line separates permissible election-related regulation from unconstitutional infringements on First Amendment freedoms." Timmons, 520 U.S. at 359 (citing Storer, 415 U.S. at 730). Instead, under what has come to be known as the Anderson

Burdick balancing test, "the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens" the plaintiff's First Amendment rights. Burdick, 504 U.S. at 434. Evaluating...

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