Ned already provided some commentary about yesterday’s Third Circuit decision affirming the district court’s preliminary injunction against New Jersey’s distortive county line system for primary election ballots. I want to add a few more points. (Full disclosure: Harvard Law School’s Election Law Clinic filed an amicus brief in the Third Circuit supporting the invalidation of the county line.)
First, with respect to parties’ associational rights, Ned is right that the logic of cases like Tashjian and Jones, if taken to its endpoint, would seem to support parties’ ability to demand a county line system for their primary election ballots. If the Connecticut Republican Party can compel the state to include independent voters in its primary (Tashjian), and if the California Democratic Party can force the state to exclude all non-Democrats from its primary (Jones), why shouldn’t New Jersey’s parties be able to insist on the county line for their primaries? A potential answer, hinted at by the Third Circuit’s ruling, is that there’s a difference between deciding whom to include in a primary and rigging a primary ballot so that a party’s favored candidates almost always win. The issue of who participates in a primary is genuinely associational. In contrast, a manipulative ballot design doesn’t implicate party members’ speech or association with one another to the same extent. It’s an attempt to distort party members’ choices—not to enable those choices to be freely made. In any event, even in the context of whom to include in a primary, the Supreme Court has backed away from Tashjian and Jones in recent years. So I’m reasonably confident the Court wouldn’t extend those cases to the quite separate context of primary ballot design.
Second, with respect to the Anderson-Burdick framework, the Third Circuit made clear that a policy’s disparate electoral effects can amount to a severe burden necessitating heightened scrutiny. “[R]ecord evidence that bracketing and primacy significantly impact election results[] makes the burden on plaintiffs’ rights severe.” “[T]he county-line system is discriminatory—it picks winners and punishes those who are not endorsed,” and “[t]hose outcomes amount to a severe burden on the Plaintiffs’ rights.” The defendants had argued that a severe burden can arise under Anderson-Burdick only when voters are disenfranchised or candidates are denied ballot access altogether. As the Clinic urged in its amicus brief, the court rejected this position. The court’s ruling now stands as the most emphatic judicial recognition to date that distortive electoral practices can trigger heightened scrutiny under Anderson-Burdick.
Third, the Third Circuit held that the county line is likely unconstitutional under not only Anderson-Burdick but also the Elections Clause. This is because the county line aims to influence electoral outcomes—not to regulate the time, places, and manner of federal elections, which is all the Elections Clause empowers states to do. Even though the Supreme Court has repeatedly relied on the Elections Clause to strike down state electoral policies, analogous lower court rulings are few and far between. The Third Circuit’s willingness to invoke the Elections Clause—and even to extend it to the primary election context—is thus potentially significant. It could arm plaintiffs with a potent new weapon with which to challenge distortive electoral practices.
Finally, with respect to the Purcell principle, the Third Circuit held that voter confusion can cut either way, against or for late judicial intervention. In the typical Purcell scenario, it might be confusing to voters to eliminate or amend an electoral policy close to an election. But if a policy is itself confusing, and its replacement would be less perplexing, then late judicial involvement would lessen, not heighten, voter confusion. These are exactly the facts the Third Circuit found to be present here. The replacement of the county line with conventional office block ballots “would reduce, if not eliminate voter confusion.” “Implementing office-block style ballots . . . would actually alleviate some ballot confusion.” The Clinic’s amicus brief made this point about voter confusion not necessarily favoring defendants under Purcell, and it was gratifying to see the Third Circuit agree.
