Council of Alternative Political Parties v. Hooks

SCIRICA, Circuit Judge,

dissenting.

I would affirm the denial of the preliminary injunction, but for reasons different from those set forth by the district court. I do not believe plaintiffs can prove a substantial likelihood of success on the merits.

In Timmons v. Twin Cities Area New Party, — U.S. -, 117 S.Ct. 1364 , 137 L.Ed.2d 589 (1997), the Supreme Court rec-

ognized that states possess a “strong interest in the stability of their political systems” and an “interest in protecting the integrity, fairness, and efficiency of their ballots and election processes.” Id. at -, 117 S.Ct. at 1373-74 . Repeatedly characterizing these interests as “weighty,” id. at-, 117 S.Ct. at 1375 , the Court held that “the States’ interest permits them to enact reasonable election practices that may, in practice, favor the traditional two party system ... and that temper the destabilizing effects of party-splintering and excessive factionalism.” Id. at-, 117 S.Ct. at 1374 . For this reason, “States need not remove all of the many hurdles third parties face in the American political arena today.” Id. The Court found support for this position in a long line of decisions upholding state regulations of elections for state offices that place burdens on third parties and independent candidates. See, e.g., Burdick v. Takushi, 504 U.S. 428 , 112 S.Ct. 2059 , 119 L.Ed.2d 245 (1992) (upholding state’s ban on write-in voting); Storer v. Brown, 415 U.S. 724 , 94 S.Ct. 1274 , 39 L.Ed.2d 714 (1974) (upholding state statute denying ballot positions to independent candidates who had voted in the immediately preceding primary elections or had a registered party affiliation at any time during the year before the same primary elections); Rosario v. Rockefeller, 410 U.S. 752 , 93 S.Ct. 1245 , 36 L.Ed.2d 1 (1973) (upholding state time limit for enrollment in political party; regulation justified by state’s interest in integrity of state’s electoral process).

The New Jersey statute on review here is reasonable, placing only a minimal non-discriminatory burden on independent/third party candidates for state office. The statute requires independent/third party candidates for the state Senate and General Assembly to obtain 100 petition signatures, and candidates for governor 800 signatures, by mid-April of the election year, in order to appear on the general election ballot. 1 The number of signatures is the same or less than required for major party candidates who wish to be on the primary election ballot. The deadline for petition filing is the same for both major party and independent/third party candidates. Moreover, candidates may begin to collect signatures immediately after the prior November general election. Unlike candidates for primary nominations, independent/third party candidates are allowed to collect signatures from voters of any affilia *885 tion, Democratic, Republican, independent, and unaffiliated, a practice prohibited in many states. New Jersey also permits write-in voting, so candidates who fail to meet the minimal filing requirements may still run for office. 2

Because the filing deadlines and signature requirements for independent/third party candidates are the same or less burdensome than those required for major party candidates, I see no unfair or unequal burden. More important, the burden has proved to be slight. Hundreds of independent candidates have surmounted these minimal barriers and appeared on the state’s general election ballots. This year, eight independent or third party candidates for governor, twenty-five independent/third party candidates for the state Senate, and sixty-eight independent/third party candidates for the General Assembly successfully petitioned to be on the ballot in the general election. Similar numbers of independent or third party candidates were on the ballot in recent past elections. In 1993, sixty-six independent/third party candidates appeared on the general election ballot, including seventeen for governor, two for state Senate, and forty-seven for the General Assembly. In 1994, thirty-three independent/third party candidates were on the ballot; in 1995, eighty-two independent/third party candidates appeared on the ballot; in 1996, fifty-eight appeared.

One of the strongest indications that New Jersey’s ballot access laws establish no unreasonable barriers to political participation is that five of the individual plaintiffs here successfully filed petitions this year, and will appear on the general election ballot in November 1997. 3 Moreover, four of the plaintiff political parties — the Green Party, the Libertarian Party, the New Jersey Conservative Party, and the Natural Law Party— successfully placed gubernatorial candidates on the 1997 general election ballot. It seems inconsistent for plaintiffs to argue that New Jersey’s election laws place serious barriers to political participation when they have easily satisfied those requirements.

These extraordinary results demonstrate that New Jersey’s election scheme places no real burden on independent/third party candidates seeking access to the ballot. Though the majority asserts that these facts “in no way detract[ ] from our conclusion that the April filing deadline is burdensome,” the burdens of the filing deadlines are either shared by the major party candidates or are illusory. Indeed, the specific alleged burden on which plaintiffs relied before the district court — the difficulty in obtaining signatures from “disinterested voters” during “cold” winter months — is shown to be no burden at all when the empirical record is examined.

New Jersey’s statute, both in the number of signatures required and the filing date, is justified by the state’s interests in limiting frivolous candidacies and maintaining a stable and efficient election process. Because the deadline for filing for office is the same for all candidates, it serves the state’s interest in a fair process. Though independent candidates must file for election before knowing who the major parties have nominated, this ensures that candidates are not “sore losers” seeking access to the general election ballot as independents in response to a loss in a primary election.

Moreover, the current system insures that primary election voters know the complete field of independent/third party candidates when they cast their votes, adding to the stability of the electoral process and the informed character of the voters’ choices. In short, “weighty” state interests support New Jersey’s statute. See generally Anderson v. *886 Celebrezze, 460 U.S. 780, 788 , 103 S.Ct. 1564, 1569-70 , 75 L.Ed.2d 547 (1983) (“[T]he state’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.”).

Plaintiffs argue, and the majority agrees, that Anderson v. Celebrezze, 460 U.S. 780 , 103 S.Ct. 1564 , 75 L.Ed.2d 547 (1983), striking down Ohio’s March filing deadline for independent Presidential candidates, is dis-positive. But Anderson involved state regulation of the Presidential election, a contest of national interest. Although the majority contends this factor was not “integral” to the Court’s holding, I believe this was a crucial factor. The Anderson Court repeatedly stressed that the state’s interest was not substantial because it sought to regulate a Presidential election of national import. Id. at 790, 794-95, 796, 798, 804 , 103 S.Ct. at 1571, 1573, 1574, 1575, 1578 . The Court expressly noted that the state’s interest is greater in cases where the state seeks solely to regulate elections for state offices. Id. at 804 , 103 S.Ct. at 1578 . Here, the New Jersey statute only regulates elections for state offices; it has no impact on Presidential or Congressional races. Moreover, the filing deadline here is later than that in Anderson , and far fewer signatures are required.

The majority acknowledges that state “sore loser” laws have been upheld by the Supreme Court. The current New Jersey statute prevents major party candidates who lose the primary election from running as independents in the general election. The majority would require New Jersey’s Secretary of State to accept ballot petitions up to July 28, weeks after the state’s primaries are held. In the future, candidates will be able to file and run as independents after losing a major party’s primary election.

New Jersey has placed minimal restrictions on independent and third party candidates. Under its current rules, hundreds of independent candidates have appeared on the ballot in recent years. Timmons and Anderson recognize that states have significant interests, and correspondingly greater latitude, when they regulate election to state office.

Accordingly, I respectfully dissent.

. Because two persons are elected for each new Jersey General Assembly district, and New Jersey allows two candidates for the same district to file a joint petition with 100 Signatures, an independent candidate for the General Assembly can gain access to the general election ballot after collecting only 50 signatures. The joint petition option was used this year by the candidates of the New Jersey Conservative Party in the 1st, 3rd, 4th, 7th, 9th, 10th, 11th, 12th, 13th, 16th, 17th, 21st, 22nd, 24th, 25th, 26th, 28th, 30th, 32nd, 34th, 37th, 39th, and 40th legislative districts.

. By allowing write-in voting, which many states prohibit. New Jersey provides a significant benefit to candidates who fail to file petitions because they decide to run late in the election cycle or who are unable to collect the requisite number of signatures by the filing deadline.

. Plaintiff Madelyn Hoffman will appear on the general election ballot as the gubernatorial candidate for the Green Party. Plaintiff Maty Jo Christiansen is the Natural Law Party candidate for state Senate, 11th legislative district. Plaintiff Sal Duscio is the New Jersey Conservative Party candidate for the General Assembly, 30th legislative district. Plaintiff Jeffrey Levine is the Natural Law Party candidate for state Senate, 27th legislative district. Plaintiff Bernard C. Sokolewski is the New Jersey Conservative Party candidate for state Senate, 38th legislative district.