Late last year here at ELB, I highlighted the Third Circuit’s decision in Mazo v. New Jersey Secretary of State. (Disclosure: I filed an amicus brief in that case.) Check out that post for more on the background.
Paul Clement is leading the legal team that has just filed a petition for writ of certiorari to the United States Supreme Court. The docket for the case is here. Here’s how the question presented is framed:
The decision below allows New Jersey to regulate core political speech at the election’s critical moment, and to do so on the basis of content and viewpoint while insulating entrenched political machines from serious primary challenges. New Jersey allows candidates in primary elections to engage in political speech on the ballot via six-word slogans next to their names. New Jersey was not obligated to allow candidates to communicate directly with voters at the very moment they cast their ballots. But having done so for the express purpose of allowing candidates to distinguish themselves from their primary opponents, the state could not dictate content or skew the debate. Undeterred, the state prohibits candidates from referencing the name of any individual anywhere in the world (e.g., “Never Trump” or “Evict Putin From Ukraine”) or any New Jersey corporation (e.g., “Higher Taxes for Merck & JnJ”) absent written consent. Entrenched political machines have long exploited this law by using political associations incorporated in New Jersey to signal which candidates enjoy machine support in the primary. Tellingly, New Jersey drops the consent requirement altogether on the general election ballot. The Third Circuit upheld this glaring free-speech violation only by bypassing traditional First Amendment scrutiny in favor of the amorphous Anderson-Burdick balancing test.
The question presented is:
Whether a state that permits political candidates to engage in core political speech on the ballot may restrict that speech on the basis of content and viewpoint without satisfying strict scrutiny.