More tentative thoughts on the NJ case

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Nick, following up on my initial post on this important new case, adds his own helpful analysis. My views continue to be very preliminary and tentative (unlike Nick, I had no prior involvement in this case until reading the opinion yesterday). But I’m not (yet?) convinced about the potential distinction that Nick offers between when the party should win concerning a fight with the government over the rules for a partisan primary election and when, instead, the government should prevail. Nick says “who participates in a primary is genuinely associational” but “a manipulative ballot design” is not.

What makes a ballot design “manipulative”? Nick says it’s when it’s “an attempt to distort party members’ choices—not to enable those choices to be freely made.” But what’s the difference between party elites “distorting” the choices of the party’s members versus party elites just “influencing” or even trying very hard to persuade the choices of party members? Are there any circumstances in which the party elites making a choice about which candidates get a more advantageous position on the party’s primary ballot would be a matter for internal party governance, just like the decision of party elites over which candidate to endorse and whether or not to include the information of that endorsement on the primary ballot? A better spot on the ballot might “affect” or “influence” the vote of party members, but it doesn’t negate the freedom to exercise that vote completely. And what if the party would prefer to nominate its candidates by means of a party caucus or convention rather than a primary?

Suppose the very same ballot design were used, not in a party primary funded by the government and operated by government officials, but instead a purely internal party caucus or other electoral procedure used to choose the party’s nominees for the November general election. Would the party have a First Amendment right to use the NJ ballot design in this context, or would it’s doing so violate some constitutional rights of the candidates running in the party’s caucus disfavored by the party’s elite? I assume not. Nor could the state force the party to choose a different ballot design for its own internal party caucus. (Note in this actual case, the party elites and the government were aligned in wishing to permit the challenged ballot design; it was the disfavored candidates who challenged both the party elites and the state. This posture, it seems to me, implicates the Supreme Court’s Lopez Torres decision, but frankly I haven’t had a chance yet to think through the implications of Lopez Torres for this case; I don’t recall seeing Lopez Torres cited in the Third Circuit’s opinion, but I might have missed it.) But if these assumptions are correct, we are back with the condrundum–as Nick also notes–of trying to figure when, in the context of a government-run partisan primary, the government gets to control the rules instead of the party, and vice versa.

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“Partisan election officials don’t advantage their own party”

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John Sides in Good Authority discusses a new paper that uses statistical analysis to show that “nonpartisan election administration may be the norm.” John add his own note of caution to the paper’s disclaimer against over-reading the implications of their statistical analysis: “The authors are appropriately careful about what their results can and cannot show. Although there is no average effect of partisan election administration on election outcomes, they write that ‘we cannot rule out small differences between Democratic and Republican officials that could determine very close elections. We also cannot rule out rare but very large effects.’”

I look forward to reading the paper. In the meantime, I’ll add my own cautionary note: the reason why I chose the historical methodology I used for the Ballot Battles book on disputed elections in the U.S. is that, after considerable preliminary research, I conclude that focusing on those specific episodes where official decisions over election administration could determine the outcome in a major race was necessary in order to understand how the system worked in the context when every vote truly mattered. The performance of election administration in run-of-the-mill cases, where the margin of victory is so great that the role of official decisions doesn’t make a difference, can’t tell us very much (if anything) about what happens when the system is put to a stress test. Moreover, even when the system is stressed for down-ballot races, where the stakes are not so high, how the system responds in those situations is not a reliable indicator for how it will respond when similarly stressed in the context of a statewide or other major election.

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FCC, in divided vote, permits GOP to spend legal funds on ads

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In this proceeding (MUR #8071), the Commissioners have released statements explaining their reasons for their votes:

04/11/2024 Chairman Sean J. Cooksey
04/11/2024 Vice Chair Ellen L. Weintraub and Commissioner Shana M. Broussard
04/10/2024 Commissioners Allen J. Dickerson and James E. “Trey” Trainor, III
04/09/2024 Commissioners Allen J. Dickerson, Dara Lindenbaum and James E. “Trey” Trainor, III

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The End of New Jersey’s County Line

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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.

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