Federal court relies on Cook v. Gralike to find New Jersey ballot design likely violates the Elections Clause

Rick H. links to the story about the New Jersey ballot design case and a federal judge finding that the “party line” was unconstitutional. The first claim, unsurprisingly, is an Anderson-Burdick balancing test. But I wanted to draw attention to the holding for the second claim, under the Elections Clause. The court found a likelihood of success on the claim that the law exceeds the state’s power to direct the time, place, and manner of holding elections:

The Elections Clause of the United States Constitution provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of [choosing] Senators.” U.S. Const. art. I, § 4, cl. 1. When the regulation involves the time, place, and manner of primary elections, the only question is whether the state system is preempted by federal election law on the subject. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832 (1995). However, when the regulation does not regulate the “time, place, or manner,” courts must consider whether the regulation on its face or as applied falls outside that grant of power to the state by, for example, “dictat[ing] electoral outcomes, favor[ing] or disfavor[ing] a class of candidates, or evad[ing] important constitutional restraints. Cook v. Gralike, 531 U.S. 510, 523 (2001). The Supreme Court has struck down such regulations when they “attach[ ] a concrete consequence to noncompliance” rather than informing voters about some topic. Id. at 524. The timing may also add to the gravity of injury, especially when it occurs “at the most crucial stage in the election process – the instant before the vote is cast.” Id. at 525 (quoting Anderson v. Martin, 375 U.S. 399, 402 (1964)).

Here, as set forth above, the State conferred its power to regulate the “manner” of federal elections to the county clerks, including the Defendant County Clerks, by requiring them to design and print ballots. N.J. Stat. Ann. 19:23-26.1, 19:42-2. In Defendants’ view, the Bracketing Structure is a permissible regulation on the “manner” of federal elections. On the record already reviewed, Plaintiffs’ evidence is sufficient to make their showing of a likelihood they will succeed in establishing that the Bracketing Structure and ballot placement is improperly influencing primary election outcomes by virtue of the layout on the primary ballots. This would clearly exceed a State’s right to regulate the “manner” of federal elections. Cook, 531 U.S. at 525 (“the instant before the vote is cast” is the “most crucial stage in the election process”).

Cook v. Gralike involved a state attempting to print on the ballot whether the candidate supported or opposed a term limits pledge. The court here also cites Anderson v. Martin, where a state attempted to list the race of candidates on the ballot. (For a look at a ballot from the era with racial designations, check out my blog post here.) Both cases, in my judgment, are underappreciated in how we think about election administration and ballot design (I write about both in “Ballot Speech“), and it’s interesting to see how they’re used here in the New Jersey ballot design case. (Of course, this only applies to congressional elections, not state elections.)

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