Third Circuit Decision in Mazo v. New Jersey Secretary of State Confirms Terms of Ballot Designation

The Third Circuit issued a decision today in Mazo vs Secretary of State for New Jersey. (Disclosure: I filed an amicus brief in this case, which Professor Michael Dimino joined in support of the complainants.) Eugene Mazo (a Seton Hall electoral law professor) and Lisa McCormick challenged New Jersey’s electoral rules, who restricted the choice of designations on the ballot next to their names. New Jersey allows slogans of up to six words to appear on the ballot next to candidates to specifically allow candidates to “distinguish” one another, but requires the consent of New Jersey individuals or corporations before those words appear on the ballot allowed to . The plaintiffs contested this condition. The district court upheld the restriction, and the Third Circuit agreed in an opinion by Judge Krause, joined by Judges Shwartz and Roth.

The report is 52 pages long and contains a detailed tour of what exactly Anderson-Burdick Claims do and don’t. While Anderson-Burdick Claims are subject to a more flexible judicial investigation, charges of political speech at the “core” must stand up to closer scrutiny. The standard matters: The rules would likely fail a more rigorous scrutiny, but would survive a more lenient standard. The line between the two wasn’t always clear.

Examination of the Court’s jurisprudence states that there are “two main features” as to timing Anderson-Burdick applies to electoral claims: “First, the law must encumber a relevant fundamental right such as the right to vote or the First Amendment right to freedom of expression and association. Second, the law must primarily regulate the mechanics of the electoral process and not the core political language.” The court concludes after its survey that the electoral designation of New Jersey falls on the Anderson-Burdick side of judicial control and not as a central political speech under the First Amendment. The court rejects the argument that cases like McIntyre, Mansky, and Burson use. For the reasons I set out in my article election speech A few years ago (and in this case in my amicus brief) I didn’t think that was right. And the court doesn’t really deal with the argument, except to go to another authority:

The other requirement – that the law regulates primarily a mechanism of the electoral process and not the core of political speech – is also met. The consent requirement governs the words that are allowed to appear on the ballot, which is the archetypal mechanics of the voting process for which the Anderson-Burdick test was designed. For ballots to be effective tools for selecting candidates and conveying the will of the electorate, they must be short, clear and free from confusing or fraudulent content. This inevitably limits the extent to which the ballot can – or should – be used as a means of political communication. . . .

The Complainants and Amicus object that even if the ballot is normally an electoral mechanism, it ceases to be one once a state opens the ballot for candidates to communicate with voters. However, as the government points out, courts regularly apply the Anderson-Burdick test to laws governing the content of ballots, including the information that appears next to a candidate’s name. See Chamness v. Bowen, 722 F.3d 1110, 1116-17 (Cir. 9, 2013) (challenging restrictions on “party preference” electoral designations); Rubin v. City of Santa Monica, 308 F.3d 1008, 1013-14 (9th Cir. 2002) (Challenging the Ballot Designation Act, which allowed candidates to list their occupations alongside their names but prevented the plaintiff from naming calling himself a “peace activist”); Caruso, 422 F.3d at 851, 855-57 (challenging the requirement that ballot initiatives proposing “local option taxes include a statement” that the “measure may result in an increase in property taxes”).

But, the complainants say, the slogan statutes specifically provide that election slogans exist “to indicate either official action or policy [a candidate] pledged or obligated, or to identify him as a member of a particular faction or wing of his political party.” NJSA § 19:23-17. That may be so, but it does not change our analysis. Whether or not a state permits communication about the ballot for a particular purpose does not change the fact that the state nevertheless has an obligation to regulate the content of ballots, nor the fact that the state’s policy decisions in this area are governed by the Anderson Burdick frame.

The fact that other courts were wrong I don’t think is a sound basis and the logic of this part is mostly self-referential. (To say that voting must be orderly says little about what types of speech the state can ban once it opens the forum.)

But despite my apparent disagreement, the Court’s opinion is an important overview of the limitations of Anderson-Burdickincluding how widely it has been applied in suffrage cases over the years.