PRECEDENTIAL
`
`
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE THIRD CIRCUIT
`
`
`
`_______________________
`
`
`
`No. 21-2630
`
`_______________________
`
`
`
`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
`
`_______________________
`
`
`
`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
`
`__________________________
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE THIRD CIRCUIT
`
`
`
`_______________________
`
`
`
`No. 21-2630
`
`_______________________
`
`
`
`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
`
`_______________________
`
`
`
`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
`
`__________________________
`
`
`
`
`
`
`
`
`
`
`
`Argued July 6, 2022
`
`
`
`Before: SHWARTZ, KRAUSE, and ROTH, Circuit Judges
`
`(Filed: November 23, 2022)
`
`Ryan Morrison [ARGUED]
`Institute for Free Speech
`1150 Connecticut Avenue, N.W.
`Suite 801
`Washington, DC 20036
`
`
`Walter M. Luers
`Cohn Lifland Pearlman Herrmann & Knopf
`Park 80 West - Plaza One
`250 Pehle Avenue, Suite 401
`Saddle Brook, NJ 07663
`Counsel for Appellants
`
`
`
`
`
`Angela Cai [ARGUED]
`Nicole E. Adams
`Dominic L. Giova
`Office of Attorney General of New Jersey
`Division of Law
`25 Market Street
`Richard J. Hughes Justice Complex
`Trenton, NJ 08625
`
`Counsel for Appellee New Jersey Secretary of State
`
`
`
`
`
`2
`
`
`
`
`
`Walter S. Zimolong, III
`Zimolong
`353 West Lancaster Avenue
`Suite 300
`Wayne, PA 19087
`Counsel for Amicus Appellants
`Professor Derek T. Muller and Professor Michael R. Dimino
`
`
`__________________________
`
`OPINION OF THE COURT
`__________________________
`
`
`KRAUSE, Circuit Judge
`
`
`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.
`
`
`
`
`3
`
`
`
`
`
`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
`
`
`
`4
`
`
`
`
`
`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.
`
`I.
`
`Background
`
`A.
`
`New Jersey’s Ballot Slogan Statutes
`
`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
`
`
`1 New Jersey has adopted a similar system for unaffiliated
`candidates seeking to be placed on the general election ballot.
`See N.J. Stat. §§ 19:13-1 to -3.
`
` 2
`
` The Secretary of State is also responsible for petitions for
`statewide offices; candidates seeking county or local office,
`
`
`
`5
`
`
`
`
`
`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
`
`
`however, must direct their petitions to the appropriate county
`or municipal clerks. See N.J. Stat. § 19:23-6.
`
` 3
`
` New Jersey allows for unaffiliated candidates running in a
`general election to include a similar three-word slogan
`conveying “the party or principles” the candidate represents,
`so long as that slogan does not include any part of the name of
`another political party. N.J. Stat. § 19:13-4.
`
`
`
`
`6
`
`
`
`
`
`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:
`
`• In Essex County: “Essex County Democratic
`Committee, Inc.”
`• In Hudson County: “Hudson County Democratic
`Organization.”
`• In Union County: “Regular Democratic
`Organization of Union County.”
`
`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).
`
`
`4 For local primary elections, county and municipal clerks are
`responsible for enforcing the consent requirements. See N.J.
`Stat. §§ 19:23-22; 19:23-22.1.
`
`
`
`
`7
`
`
`
`
`
`
`
`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 NJ 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
`
`5 Appellants initially also sought nominal damages but
`abandoned that claim as against the Secretary of State and no
`longer press the issue on appeal.
`
`
`
`8
`
`
`
`
`
`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) the Clerks did not exercise any discretion with
`respect to enforcing the Slogan Statutes, id. at 509, and (3) the
`consent requirement was constitutional, both facially and as-
`applied, id. at 498-508. The Court thus dismissed the case, and
`Appellants timely appealed.
`
`II.
`
`Standard of Review
`
`We review a district court’s denial of a Rule 12(b)(6)
`motion de novo. Keystone Redev. Partners, LLC v. Decker,
`631 F.3d 89, 95 (3d Cir. 2011). We also accept all of
`Appellants’ well-pleaded factual allegations as true and draw
`“all reasonable inferences” in their favor. Simko v. U.S. Steel
`Corp., 992 F.3d 198, 203-04 (3d Cir. 2021) (citing Connelly v.
`Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016)).
`To prevail on a facial challenge6, a plaintiff must
`“establish that no set of circumstances exists under which the
`
`6 Appellants purport to raise both a facial and an as-applied
`challenge to the Slogan Statutes. But as the District Court
`observed, Appellants have not “plead[ed] any facts showing
`that [the Secretary of State] enforced the [consent requirement]
`against them in an unconstitutional or otherwise irregular
`manner.” Mazo, 551 F. Supp. 3d at 498 n.7 (D.N.J. 2021)
`(citation omitted). Instead, their complaint merely repeats the
`
`
`
`9
`
`
`
`
`
`[law] would be valid,” United States v. Salerno, 481 U.S. 739,
`745 (1987), or, in the First Amendment context, show that the
`law is overbroad because “a substantial number” of its
`applications are unconstitutional, “judged in relation to [its]
`plainly legitimate sweep,” New York v. Ferber, 458 U.S. 747,
`770-71 (1982).7
`
`III.
`
`Jurisdiction and Justiciability
`
`
`
`The District Court had jurisdiction under 28 U.S.C.
`§ 1331, and we have jurisdiction over its final order of
`dismissal under 28 U.S.C. § 1291. As we have an obligation
`to determine whether a controversy is justiciable before
`resolving its merits, we examine whether the challenge is both
`ripe and not moot. See Larsen v. Senate of Pa., 152 F.3d 240,
`246 (3d Cir. 1998).
`
`
`legal conclusion that the consent requirement “restricted
`[Appellants’] freedom of expression,” Am. Compl. ¶ 59 (App.
`51) and does not specify how their freedom of speech or
`association was burdened by enforcement of the consent
`requirement. We therefore construe their Complaint as raising
`only a facial challenge. Cf. United States v. Marcavage, 609
`F.3d 264, 274 (3d Cir. 2010) (construing an unclear complaint
`as bringing an as-applied claim where the plaintiff’s argument
`was “entirely dependent on the facts of th[e] case”).
`
` 7
`
` The standard for bringing an as-applied challenge is less
`demanding; a plaintiff need only show that a law’s “application
`to a particular person under particular circumstances deprived
`that person of a constitutional right.” Marcavage, 609 F.3d at
`273.
`
`
`
`10
`
`
`
`
`
`To determine if a claim is ripe, we consider “whether
`the parties are in a ‘sufficiently adversarial posture,’ whether
`the facts of the case are ‘sufficiently developed,’ and whether
`a party is ‘genuinely aggrieved.’” Plains All Am. Pipeline L.P.
`v. Cook, 866 F.3d 534, 539 (3d Cir. 2017) (quoting Peachlum
`v. City of York, 333 F.3d 429, 433-34 (3d Cir. 2003)). In the
`declaratory judgment context, we apply these principles by
`considering three enumerated factors: “(1) the adversity of the
`parties’ interests, (2) the conclusiveness of the judgment, and
`(3) the utility of the judgment.” Khodara Env’t, Inc. v. Blakey,
`376 F.3d 187, 196 (3d Cir. 2004) (quoting Pic-A-State Pa., Inc.
`v. Reno, 76 F.3d 1294, 1298 (3d Cir. 1996)); see also Step-
`Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d 643, 646-50 (3d
`Cir. 1990).
`
`
`Here, Appellants satisfy all three ripeness factors. First,
`the parties’ interests are sufficiently adverse, as Appellants
`aver that they will suffer a “substantial threat of real harm” in
`the form of a First Amendment injury “if the declaratory
`judgment is not entered.” Plains, 866 F.3d at 541 (quoting
`Presbytery of N.J. of Orthodox Presbyterian Church, 40 F.3d
`1454, 1463 (3d Cir. 1994) and Travelers Ins. Co. v. Obusek, 72
`F.3d 1148, 1154 (3d Cir. 1995)). Second, because the issues
`in this case are purely legal, and because Appellants plan to
`request similar ballot slogans without obtaining consent in the
`future, a declaratory judgment would conclusively resolve
`Appellants’ facial challenge. See Florio, 40 F.3d at 1468
`(“[P]redominantly legal questions are generally amenable to a
`conclusive determination in a preenforcement context.”).
`Third, a declaratory judgment would be particularly useful for
`Appellants here, as New Jersey typically does not provide
`nominating petitions until the December or January before the
`spring primary campaign, meaning Appellants would
`
`
`
`11
`
`
`
`
`
`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 longer ‘live’ or the parties
`lack a legally cognizable interest in the outcome.” Chafin v.
`Chafin, 568 U.S. 165, 172 (2013) (quoting Already, LLC v.
`Nike, Inc., 568 U.S. 85, 91 (2013)). There is an important
`exception, however, for claims that are “capable of repetition,
`yet evading review,” i.e., where “(1) the challenged action is in
`its duration too short to be fully litigated prior to cessation or
`expiration, and (2) there is a reasonable expectation that the
`same complaining party will be subject to the same action
`again.” Kingdomware Techs., Inc. v. United States, 579 U.S.
`162, 170 (2016) (alterations omitted) (quoting Spencer v.
`Kemna, 523 U.S. 1, 17 (1998)). Courts frequently apply this
`exception to election cases given the recurring nature of
`elections and the often strict time frames associated with
`running for office. See, e.g., Norman v. Reed, 502 U.S. 279,
`288 (1992) (“There would be every reason to expect the same
`parties to generate a similar, future controversy subject to
`identical time constraints[.]”).
`
`That exception applies with full force in this case. New
`Jersey need not certify a proposed ballot slogan until fifty-four
`days prior to the primary election, and county clerks may begin
`printing ballots any time after fifty days prior to the election.
`That leaves only a narrow window in which candidates might
`challenge a rejected slogan, N.J. Stat. Ann. §§ 19:23-21;
`19:23-22.4, and Appellants have affirmed their intent to run for
`office again without obtaining
`the necessary consent.
`
`
`
`12
`
`
`
`
`
`Appellants’ challenges to the consent requirement thus present
`a live controversy over which we may exercise jurisdiction.
`
`IV. Discussion
`
`The central issue in this case is the parties’ disagreement
`over which constitutional test applies to New Jersey’s consent
`requirement. The Government maintains that the District
`Court correctly applied the sliding-scale approach for election
`regulations developed in Anderson v. Celebrezze, 460 U.S. 780
`(1983), and Burdick v. Takushi, 504 U.S. 428 (1992).
`Appellants argue that the District Court should have employed
`a traditional First Amendment analysis applying strict scrutiny
`because the consent requirement is a content-based restriction
`of their speech. Thus, to determine the constitutionality of the
`consent requirement, we must first determine which test
`applies.
`
`Below we consider: (a) the need for clarification given
`the case law to date; (b) circumstances in which the Anderson-
`Burdick test applies; (c) the test applicable to New Jersey’s
`consent requirement; and (d) applying this test, whether the
`consent requirement is constitutional.
`
`A.
`
`The Case Law to Date
`
`Elections occupy a special place in our constitutional
`system, as do election laws. The Constitution expressly grants
`States the authority to set rules for the time, place, and manner
`of federal elections. U.S. Const. Art. I, § 4, cl. 1; Art. II, § 1,
`cl. 2. Pursuant to these clauses, States have long maintained
`“comprehensive, and in many respects complex, election codes
`regulating . . . the time, place, and manner of holding primary
`and general elections.” Storer v. Brown, 415 U.S. 724, 730
`
`
`
`13
`
`
`
`
`
`(1974). States’ authority over federal elections is broad,
`encompassing “notices, registration, supervision of voting,
`protection of voters, prevention of fraud and corrupt practices,
`counting of votes, duties of inspectors and canvassers, and
`making and publication of election returns.” Smiley v. Holm,
`285 U.S. 355, 366 (1932). It is even broader with respect to
`state and local elections. See Sugarman v. Dougall, 413 U.S.
`634, 647 (1973). That is because, if elections “are to be fair
`and honest and if some sort of order, rather than chaos, is to
`accompany the democratic process,” Timmons v. Twin Cities
`Area New Party, 520 U.S. 351, 358 (1997) (quoting Burdick,
`504 U.S. at 433), it is “[c]ommon sense” that States must take
`an “active role in structuring elections,” Burdick, 504 U.S. at
`433.
`
`
`Yet because States “comprehensively regulate the
`electoral process,” Council of Alt. Pol. Parties v. Hooks, 179
`F.3d 64, 70 (3d Cir. 1999), their election laws “inevitably
`affect[,] at least to some degree[,]” certain fundamental rights,
`including the right to vote8 and First Amendment rights of free
`expression and association, Anderson, 460 U.S. at 788. So the
`question arises, what test should courts apply to evaluate the
`constitutionality of those laws?
`
`In some cases, a traditional First Amendment test fails
`to account for the fact that, for elections to run smoothly, some
`restrictions on expression and association are necessary.
`Recognizing this, the Supreme Court in Anderson and Burdick
`
`
`8 The right to vote has long been recognized as a fundamental
`political right under the Constitution. See, e.g., Wesberry v.
`Sanders, 376 U.S. 1, 6-7 (1964).
`
`
`
`
`14
`
`
`
`
`
`crafted a unique test for “[c]onstitutional challenges to specific
`provisions of a State’s election laws.” Anderson, 460 U.S. at
`789. This test is “more flexible” than the rigid tiers of scrutiny
`under a traditional First Amendment analysis, Burdick, 504
`U.S. at 434, reflecting the reality that there is no “‘litmus-paper
`test’ that will separate valid from invalid restrictions,”
`Anderson, 460 U.S. at 789 (quoting Storer, 415 U.S. at 730).
`
`The Anderson-Burdick test requires the reviewing court
`to (1) determine the “character and magnitude” of the burden
`that the challenged law imposes on constitutional rights, and
`(2) apply the level of scrutiny corresponding to that burden.
`Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789).
`If the burden is “severe,” the court must apply exacting
`scrutiny and decide if the law is “narrowly tailored and
`advance[s] a compelling state interest.” Timmons, 520 U.S. at
`358.
` But
`if
`the
`law
`imposes only “reasonable,
`nondiscriminatory restrictions,” Anderson, 460 U.S. at 788, the
`court may use Anderson-Burdick’s sliding scale approach
`under which a State need only show that its “legitimate
`interests . . . are sufficient to outweigh the limited burden,”
`Burdick, 504 U.S. at 440.
`
`Courts have applied Anderson-Burdick to a wide range
`of state election laws covering nearly every aspect of the
`electoral process. See, e.g., Belitskus v. Pizzingrilli, 343 F.3d
`632, 643-47 (3d Cir. 2003) (applying Anderson-Burdick in
`challenge
`to Pennsylvania ballot access
`law requiring
`candidates to pay filing fee to have their names placed on the
`general election ballot); Ohio Democratic Party v. Husted, 834
`F.3d 620, 626-36 (6th Cir. 2016) (applying Anderson-Burdick
`to a challenge to Ohio law that changed the first day of early
`
`
`
`15
`
`
`
`
`
`absentee voting from 35 days before election day to the day
`after the close of voter registration).
`
`In other cases, however, the Supreme Court has
`declined to apply Anderson-Burdick’s balancing test and has
`reverted instead to a traditional First Amendment analysis.
`See, e.g., McIntyre v. Ohio Elections Comm’n, 514 U.S. 334,
`345 (1995) (rejecting application of Anderson-Burdick in
`challenge to ban on anonymous leafletting of political
`materials as it constituted the “regulation of pure speech”);
`Meyer v. Grant, 486 U.S. 414, 420 (1988) (declining to apply
`Anderson-Burdick to free expression challenge to ban on
`paying petitioner circulators for ballot initiatives). The
`problem we confront today is that the Supreme Court has never
`laid out a clear rule or set of criteria to distinguish between
`these two categories of election laws, nor has any Court of
`Appeals to our knowledge. So to decide the category in which
`New Jersey’s consent requirement falls, we must first identify
`their defining characteristics.
`
`B. When Does the Anderson-Burdick Test
`Apply?
`
`A survey of the Supreme Court’s case law both before
`and after Anderson and Burdick reveals two principal
`characteristics of the laws to which their test applies. First, the
`law must burden a relevant constitutional right, such as the
`right to vote or the First Amendment rights of free expression
`and association. Second, the law must primarily regulate the
`mechanics of the electoral process, as opposed to core political
`speech. We address each below.
`
`
`
`16
`
`
`
`
`
`1.
`
`Anderson-Burdick Applies Beyond
`Free Association Claims.
`
`Appellants espouse a narrow view of the constitutional
`rights that trigger review under Anderson-Burdick, contending
`that the test is limited to challenges based on First Amendment
`free association claims. But precedent from the Supreme
`Court and our sister circuits defies this cramped view and
`applies Anderson-Burdick
`to vindicate a variety of
`constitutional rights.
`
`True, Anderson itself focused on “voters’ freedom of
`association,” 460 U.S. at 787-88, and associational rights have
`also played a central role in many of the Supreme Court’s other
`cases applying the Anderson-Burdick test. See, e.g., Clingman
`v. Beaver, 544 U.S. 581, 588 (2005) (focusing on the
`associational interests of voters); Norman, 502 U.S. at 288, 290
`(focusing on “the constitutional interest of like-minded voters
`to gather in pursuit of common political ends” under the “First
`Amendment right of political association”); Timmons, 520
`U.S. at 358 (discussing “associational rights”); Wash. State
`Grange v. Wash. State Republican Party, 552 U.S. 442, 444
`(2008) (focusing on “political parties’ associational rights”).
`
`But the Court has also applied Anderson-Burdick to free
`speech claims. Indeed, Burdick itself concerned a claimed
`right to send a message by casting a “protest vote.” 504 U.S.
`at 438. Other examples abound. See Eu v. S.F. Cnty.
`Democratic Cent. Comm., 489 U.S. 214, 222, 224 (1989)
`(applying the Anderson test where the challenged law “directly
`affect[ed] speech” in addition to “infring[ing] upon [voters’]
`freedom of association”); Timmons, 520 U.S. at 357, 363 (tying
`associational rights to “the independent expression of a
`political party’s views” and recognizing that the challenged
`
`
`
`17
`
`
`
`
`
`law, in addition to burdening associational rights, “also
`limit[ed], slightly, the party’s ability to send a message to the
`voters and to its preferred candidates”) (quoting in part Colo.
`Republican Fed. Campaign Comm’n v. Fed. Election Comm.,
`518 U.S. 604, 616 (1996)). As these cases make clear,
`Anderson-Burdick pertains not only to association claims, but
`also to challenges to election laws that “have the effect of
`channeling expressive activity at the polls.” Burdick, 504 U.S.
`at 438.
`
`Nor is Anderson-Burdick limited to First Amendment
`challenges. Certainly, it does not apply where the alleged right
`relates only to a statutory right or there is otherwise no
`cognizable constitutional right at issue9 or where the burden on
`
`
`9 Valenti v. Lawson declined to apply Anderson-Burdick to a
`law that banned a registered sex offender from voting at a
`school because sex offenders were not a suspect class and
`convicted felons had no constitutional right to vote, “only . . .
`a statutory right to vote” to the extent permitted by a State. 889
`F.3d 427, 429-30 (7th Cir. 2018); see also Donatelli v.
`Mitchell, 2 F.3d 508, 514, 515 n.10 (3d Cir. 1993) (no
`constitutional right implicated where state reapportionment
`plan resulted in the temporary reassignment of a state senator
`to a new district for the remainder of his term, statute was not
`targeted at a discrete group of voters, and did not deprive voters
`of equal access to ballot); Biener v. Calio, 361 F.3d 206, 215
`(3d Cir. 2004) (noting that “[t]he right to run for office has not
`been deemed a fundamental right” and “voter’s rights are not
`infringed where a candidate chooses not to run because he is
`unwilling to comply with reasonable state requirements”)
`(quoting in part Adams v. Askew, 511 F.2d 700, 703 (5th Cir.
`1975)); Cecelia Packing Corp. v. U.S. Dept. of Agric./Agric.
`
`
`
`18
`
`
`
`
`
`a constitutional right is no more than de minimis.10 But it has
`
`
`Mktg. Serv., 10 F.3d 616, 624 (9th Cir. 1993) (declining to
`apply Anderson-Burdick to a law regulating voting in
`agricultural marketing order referenda because the right to vote
`did not extend to elections for government officials who “do
`not exercise general governmental powers”); Hayden v.
`Paterson, 594 F.3d 150, 169-70 (2d Cir. 2010) (applying
`rational basis review to a felon disenfranchisement law that
`was otherwise nondiscriminatory); Kessler v. Grand Cent.
`Dist. Mgmt. Ass’n, Inc., 158 F.3d 92, 105, 108 (2d Cir. 1998)
`to apply Anderson-Burdick balancing
`(declining
`to a
`malapportionment challenge because, while the elected body
`performed types of services “often provided by local
`government,” its role was secondary to city and therefore did
`not exercise “responsibilities or general powers typical of a
`governmental entity”).
`
`10 See Molinari v. Bloomberg, 564 F.3d 587, 606 (2d Cir. 2009)
`(declining to apply Anderson-Burdick where the only effect on
`First Amendment rights was “incidental[] and constitutionally
`insignificant”) (alteration in original) (quoting Cohen v.
`Cowles Media Co., 501 U.S. 663, 672 (1991)). In Clingman,
`for example, the Supreme Court considered a semi-closed
`primary law, under which members of a given party and
`Independents could vote in that party’s primary, but not
`members of other parties. 544 U.S. at 584. The law was
`challenged by a group of Democratic and Republican voters
`who wished to vote in the Libertarian Party’s primary without
`changing their party affiliation. See id. at 588. The Court was
`skeptical of the alleged burden on plaintiffs’ association
`claims, however, and, observing they did “not want to
`associate with the [Libertarian Party], at least not in any formal
`
`
`
`19
`
`
`
`
`
`been applied to the right to vote,11 the right to “travel
`throughout the United States,”12 and the right to procedural due
`
`
`sense,” noted that “a voter who is unwilling to disaffiliate from
`another party to vote in [another party’s] primary forms little
`‘association.’” Id. at 588-89; see also Rodriguez v. Popular
`Democratic Party, 457 U.S. 1, 12 (1982) (applying rational
`basis review to a challenge to a State’s choice to fill legislative
`vacancies by appointment because any effect on individual
`rights was “minimal”).
`
`11 In Crawford v. Marion County Election Board, for instance,
`the Supreme Court recognized that “‘evenhanded restrictions
`that protect the integrity and reliability of the electoral process
`itself’ are not invidious,” and proceeded to apply Anderson-
`Burdick’s balancing test to the voter identification law at issue.
`553 U.S. 181, 189-91 (2008) (plurality opinion) (quoting
`Anderson, 460 U.S. at 788 n.9). The plurality opinion from
`which these quotations are taken commanded only the votes of
`three Justices. But while the three concurring Justices
`disagreed on how exactly to apply the Anderson-Burdick test,
`they all agreed that “generally applicable, nondiscriminatory
`voting regulation[s]” are subject to the balancing test. See
`Crawford, 553 U.S. at 205-06 (Scalia, J., concurring).
`
`12 In Dunn v. Blumstein, the Court observed that a State’s
`durational residency requirements burdened not only the right
`to vote, but also the distinct right “to travel throughout the
`United States.” 405 U.S. 330, 338 (1972) (quoting United
`States v. Guest, 383 U.S. 745, 758 (1966)); see also Donatelli
`v. Mitchell, 2 F.3d 508, 515 (3d Cir. 1993) (distinguishing
`State’s reapportionment plan from Dunn on grounds that it did
`not burden right to travel).
`
`
`
`20
`
`
`
`
`
`process,13 among others.
`
`We have no occasion here to exhaust the list
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
