The Third Circuit issued a decision today in Mazo v. New Jersey Secretary of State. (Disclosure: I filed an amicus brief in this case, joined by Professor Michael Dimino, in support of appellants.) Eugene Mazo (an election law professor at Seton Hall) and Lisa McCormick challenged New Jersey ballot rules that restricted what designations could appear on the ballot beside their names. New Jersey permits slogans up to six words to appear on the ballot beside candidates, expressly to allow candidates to “distinguish” themselves from one another, but it requires consent from individuals, or from New Jersey corporations, before those words may appear on the ballot. Plaintiffs sued to challenge this condition. The district court upheld the restriction, and the Third Circuit, in an opinion by Judge Krause, joined by Judges Shwartz and Roth, agreed.
The opinion is 52 pages long and includes a long walk through what, exactly, Anderson-Burdick claims do and don’t do. While Anderson-Burdick claims are subject to a more flexible judicial inquiry, burdens on “core” political speech must survive more exacting scrutiny. The standard is important: the rules would likely fail more stringent review but survive a more generous standard. The line between the two has not always been clear.
The court’s survey of the case law explains that there are “two principal characteristics” as to when Anderson-Burdick applies to election law claims: “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.” The court concludes, after its survey, that the New Jersey ballot designation falls on the Anderson-Burdick side of judicial scrutiny, rather than core political speech under the First Amendment. The court rejects the argument that cases like McIntyre, Mansky, and Burson apply. For the reasons I set out in my article Ballot Speech several years ago (and in my amicus brief in this case), I don’t think this is correct. And the court doesn’t really engage with the argument except to appeal to other authority:
The other requirement—that the law primarily regulate a mechanic of the electoral process, rather than core political speech—is also satisfied. The consent requirement regulates the words that may appear on the ballot, which is the archetypical mechanic of the electoral process for which the Anderson-Burdick test is designed. For ballots to be effective tools for selecting candidates and conveying the will of voters, they must be short, clear, and free from confusing or fraudulent content. This necessarily limits the degree to which the ballot may—or should—be used as a means of political communication. . . .
Appellants and Amicus protest that, even if the ballot is usually an electoral mechanic, it ceases to be one once a State opens the ballot up for candidates to communicate to voters. As the Government points out, however, courts regularly apply the Anderson-Burdick test to laws that regulate the content of ballots, including the information placed beside a candidate’s name. See Chamness v. Bowen, 722 F.3d 1110, 1116-17 (9th Cir. 2013) (challenge to restrictions on “party preference” ballot designations); Rubin v. City of Santa Monica, 308 F.3d 1008, 1013-14 (9th Cir. 2002) (challenge to “ballot designation” law that allowed candidates to list their occupations beside their names but which prevented the plaintiff from designating himself a “peace activist”); Caruso, 422 F.3d at 851, 855-57 (challenge to requirement that ballot initiatives “proposing local option taxes include a statement” that the “measure may cause property taxes to increase”).
But, say Appellants, the slogan statutes explicitly provide that ballot slogans exist “for the purpose of indicating either any official act or policy to which [a candidate] is pledged or committed, or to distinguish him as belonging to a particular faction or wing of his political party.” N.J.S.A. § 19:23-17. That may be so, but it does not alter our analysis. Whether a State chooses to allow communication via the ballot for a specific purpose changes neither the fact that the State nonetheless has a duty to regulate the content of ballots, nor the fact that the State’s policy choices in this area are due deference under the Anderson-Burdick framework.
The fact that other courts got it wrong isn’t, in my judgment, a reasoned basis, and the logic of this part is mostly self-referential. (To say that the ballot must be orderly says little about what kinds of speech the state may prohibit once it opens the forum.)
But, despite my obvious disagreement, the court’s opinion is an important survey of the bounds of Anderson-Burdick, including just how broadly it’s been applied in election law cases over the years.