Amicus Curiae Brief — Eugene Mazo, et al., Petitioners v. Tahesha Way, New Jersey Secretary of State, et al.

Supreme Court briefMay 23, 2023

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No. 22-1033

In the

Supreme Court of the United States

──────────────────────────

EUGENE MAZO, et al.,

Petitioners,

TAHESHA WAY, NEW JERSEY SECRETARY OF

STATE, et al.,

Respondents.

──────────────────────────

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

─────────────────────────

BRIEF AMICUS CURIAE OF

PROFESSOR MICHAEL R. DIMINO, SR.,

IN SUPPORT OF PETITIONERS

─────────────────────────

Riddhi Dasgupta

Counsel of Record

Taft, Stettinius & Hollister LLP

200 Massachusetts Ave NW, Suite 500

Washington, DC 20001

(202) 664-1564

sdasgupta@taftlaw.com

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether a state that permits a political candidate to

engage in core political speech on the ballot by printing

his campaign slogan there may restrict that speech on

the basis of content and viewpoint without facing strict

scrutiny under the First Amendment?

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iv

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ................................................................ 5

I. By Allowing a Political Candidate to Print His

Campaign Slogan on the Ballot, New Jersey Has

Created a Designated Public Forum for Core

Political Speech ...................................................... 5

1. Content-Based Restrictions in a Designated

Public Forum Must Satisfy Strict Scrutiny. .... 7

2. New Jersey’s Ban on Certain Candidate Ballot

Slogans Is Content-Based and Cannot Survive

Strict Scrutiny................................................. 10

II. This Case Clearly Highlights the Problems with

the Anderson-Burdick Balancing Test, Which This

Court Should Either Clarify or Overrule ............ 13

1. It Is Unclear Why Anderson-Burdick Should

Be Applied in Election Law Cases ................. 16

2. It Is Unclear When Anderson-Burdick Should

Be Applied in Election Law Cases ................. 19

3. This Case Provides an Excellent Vehicle to

Consider the Future of Anderson-Burdick .... 23

CONCLUSION .......................................................... 24

iii

TABLE OF AUTHORITIES

Cases

Anderson v. Celebrezze,

460 U.S. 780 (1983) ................................... 2, 4, 21

Bates v. Jones,

131 F.3d 843 (9th Cir. 1997) ............................. 20

Brown v. Entertainment Merchants Ass’n,

564 U.S. 786 (2011) ........................................... 14

Brown v. Hartlage,

456 U.S. 45 (1982) ............................................... 6

Buckley v. American Constitutional Law

Foundation, Inc.,

525 U.S. 182 (1999) ............................................. 7

Buckley v. Valeo,

424 U.S. 1 (1976) (per curiam) ............................ 6

Burdick v. Takushi,

504 U.S. 428 (1992)2, 14, 15, 16, 17, 18, 19, 20, 21

City of Ladue v. Gilleo,

512 U.S. 43 (1994) ......................................... 7, 21

Cornelius v. NAACP Legal Defense & Educ.

Fund, Inc.,

473 U.S. 788 (1985) ............................................. 7

Daunt v. Benson,

956 F.3d 396 (6th Cir. 2020) ................. 15, 20, 22

International Society for Krishna

Consciousness v. Lee,

505 U.S. 672 (1992) ..................................... 10, 12

Kramer v. Union Free School Dist. No. 15,

395 U.S. 621 (1969) ........................................... 22

Mays v. LaRose,

951 F.3d 775 (6th Cir. 2020) ............................. 22

Mazo v. New Jersey Secretary of State,

54 F.4th 124 (3d Cir. 2022) ....... 2, 7, 9, 19, 20, 21

McIntyre v. Ohio Elections Commission,

514 U.S. 334 .................................................. 7, 21

Meyer v. Grant,

486 U.S. 414 (1988) ............................................. 7

Mills v. Alabama,

384 U.S. 214 (1966) ......................................... 3, 7

Minnesota Voters Alliance v. Mansky,

138 S. Ct. 1876 (2018) ......................................... 3

Monitor Patriot Co. v. Roy,

401 U.S. 265 (1971) ............................................. 7

Obama for America v. Husted,

697 F.3d 423 (6th Cir. 2012) ....................... 17, 22

Perry Education Ass’n v. Perry Local

Educators’ Ass’n,

460 U.S. 37 (1983) ....................................... 10, 12

Purcell v. Gonzalez,

549 U.S. 1 (2006) (per curiam) .......................... 23

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ..................................... 11, 12

Republican Party of Minn. v. White,

536 U.S. 765 (2002) ............................................. 6

Rosenberger v. Rector and Visitors of the

University of Virginia,

515 U.S. 819 (1995) ........................................... 10

Shurtleff v. Boston,

142 S. Ct. 1583 (2022) ............................... 8, 9, 10

Tashjian v. Republican Party of Conn.,

479 U.S. 208 (1986) ............................................. 3

Troxel v. Granville,

530 U.S. 57 (2000) ............................................. 20

United States v. Stevens,

559 U.S. 460 (2010) ........................................... 14

Walker v. Texas Division, Sons of

Confederate Veterans, Inc.,

576 U.S. 200 (2015) ......................................... 8, 9

Wood v. Georgia,

370 U.S. 375 (1962) ............................................. 6

Zablocki v. Redhail,

434 U.S. 374 (1978) ............................... 16, 18, 19

Constitutional Provisions

First Amendment ................................. 3, 4, 6, 19, 23

Fourteenth Amendments ......................................... 4

State Statutes

New Jersey Stat. § 19:23-17 ................... 1, 6, 7, 8, 10

New Jersey Stat. § 19:23-25.1 .............................. 1, 6

Scholarly Authorities

Michael R. Dimino, Sr., Bradley A. Smith, and

Michael E. Solimine, Understanding Election Law

and Voting Rights (2017) ............................................ 1

Michael R. Dimino, Sr., Bradley A. Smith, and

Michael E. Solimine, Voting Rights and Election

Law: Cases, Explanatory Notes, and Problems (3d ed.

2021) ............................................................................. 1

Edward B. Foley, Voting Rules and Constitutional

Law, 81 Geo. Wash. L. Rev. 1836 (2013) .................. 15

vii

Joshua A. Douglas, A Vote for Clarity: Updating the

Supreme Court’s Severe Burden Test for State

Election Regulations that Adversely Impact an

Individual’s Right to Vote, 75 Geo. Wash. L. Rev.. 372

(2007) ......................................................................... 15

INTEREST OF AMICUS CURIAE1

Amicus curiae Michael R. Dimino, Sr., is Professor

of Law at the Widener University Commonwealth Law

School. He teaches and writes about Election Law,

Constitutional Law, First Amendment Law, and

Federal Courts, among other subjects. He is the coauthor (with Bradley A. Smith and Michael E.

Solimine) of Voting Rights and Election Law: Cases,

Explanatory Notes, and Problems (3d ed. 2021), and

Understanding Election Law and Voting Rights

(2017). He has an interest in the creation and

application of a consistent, principled legal framework

for evaluating election-related free speech claims.

SUMMARY OF ARGUMENT

New Jersey permits primary candidates to include

on the ballot a “designation or slogan” of not more than

six words. N.J. Stat. § 19:23-17. The choice of words

is left to each candidate, except that no slogan may

include “the name of any person or incorporated

association of this State,” without the “written

consent” of the named person or corporation. Id.; see

also N.J. Stat. § 19:23-25.1. A candidate may not

identify himself as a “Never Trumper,” for example,

without obtaining the permission of the former

President (or perhaps someone else whose name is

“Trump”). The statute’s prohibition extends to “any

person,” so even a slogan that urged voters to “Oppose

1 Pursuant to Supreme Court Rule 37.6, no counsel for any party

authored this brief in whole or in part and no entity or person,

aside from amicus curiae, their members, and their counsel, made

any monetary contribution toward the preparation or submission

of this brief. Counsel provided the notice required by Rule 37.2

Vladimir’s Putin’s Invasion of Ukraine” could not

appear on the ballot without Putin’s consent.

By designating a space on the primary ballot for a

candidate’s speech, New Jersey has created a limited

public forum. Under well-established public-forum

precedent, content-based limitations on speech in a

limited public forum must satisfy strict scrutiny. New

Jersey’s laws are content-based because the decision

of whether to print a particular candidate’s slogan

depends on the content of that slogan—and whether it

includes the name of a person or a New Jersey

corporation or not. Because New Jersey’s laws are

wildly overinclusive and underinclusive of the state’s

purported interests in “protecting election integrity

and preventing voter deception and confusion,” Mazo

v. New Jersey Secretary of State, 54 F.4th 124, 144

n.37 (3d Cir. 2022), they are unconstitutional.

Yet the Third Circuit did not apply strict scrutiny

to evaluate New Jersey’s content-based restriction on

a political candidate’s speech. Rather, because the

state’s restrictions concerned speech appearing on the

ballot, the Third Circuit concluded that AndersonBurdick’s flexible balancing test applied. Mazo, 54

F.4th at 143-45. See Anderson v. Celebrezze, 460 U.S.

780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992).

In extending Anderson-Burdick to all contexts

involving an “electoral mechanic,” Mazo, 54 F.4th at

145, the Third Circuit permitted a content-based

limitation on core political speech to be evaluated

under a standard far less speech-protective than strict

scrutiny. Contrary to the Third Circuit’s holding, the

term “election mechanic” is not a talismanic phrase

justifying content-based restrictions on political

speech. Strict scrutiny should have applied, just as it

would apply if New Jersey permitted a candidate with

a certain message to campaign in a polling place while

denying that right to a candidate with a different

message. Cf. Minnesota Voters Alliance v. Mansky,

138 S. Ct. 1876 (2018) (striking down a ban on

“political” apparel in polling places because it was

vague

and

therefore

could

applied

discriminatorily).

Here, by focusing on the fact that New Jersey’s

speech restriction applied to ballot speech, the Third

Circuit gave the state more deference than if the state

had attempted to limit that candidate’s speech

elsewhere during his campaign. While a state has

wide authority to choose the messages that it wishes

to express on the ballot, permitting content-based

restrictions on the candidate’s message imposes an

especially severe burden on core First Amendment

rights. It interposes the state between the candidate

and voters “at the crucial juncture at which the appeal

to common principles may be translated into concerted

action, and hence to political power in the

community.” Tashjian v. Republican Party of Conn.,

479 U.S. 208, 216 (1986). Cf. Mills v. Alabama, 384

U.S. 214, 219 (1966) (holding that a ban on electionday editorials was an “obvious and flagrant

abridgment” of the First Amendment because it

“silences the press at a time when it can be most

effective”). Even worse, by placing content-based

restrictions on a candidate’s ballot slogan, New Jersey

limits the candidate’s ability to express the “common

principles” he shares with voters by imposing its

limitation at the exact moment his slogan is likely to

be most effective. Id. Content-based restrictions on

candidate speech are most problematic, not least,

when that speech appears on the ballot.

The Third Circuit’s opinion reflects widespread

confusion over this Court’s holdings relating to the

First and Fourteenth Amendments and the power of

states over election administration. Specifically, there

is great uncertainty about which election laws should

be reviewed under Anderson-Burdick, and which laws

should be evaluated under the traditional strictscrutiny and rational-basis tests used for laws alleged

to abridge fundamental rights. The Third Circuit’s

decision threatens to countenance censorship of

speech that lies at the very heart of the First

Amendment.

The essential problem is Anderson-Burdick itself.

This Court has never explained either when

Anderson-Burdick should apply or why its more

“flexible”

test

should

replace

the

strict

scrutiny/rational basis test that usually applies to

fundamental-rights challenges. To make matters

worse, Anderson-Burdick is a “test” that places no

limit on the discretion of the judges who apply it. It

instructs courts to balance the government’s interest

in having a certain law against the “character and

magnitude” of the injury to the challenger’s

constitutional rights. Anderson, 460 U.S. at 789. In

other words, a court is invited—indeed, required—to

engage in an untrammeled weighing of whether the

benefits of an election law are worth the burdens it

places on constitutional rights.

Unsurprisingly,

Anderson-Burdick has caused widespread confusion

and arbitrary results. This Court should clarify that

test, or else overrule it and replace it with strict

scrutiny and rational basis—the same tests that apply

to other fundamental-rights challenges.

Aside from the future of Anderson-Burdick, the

Third Circuit’s decision raises important questions—

and demonstrates the need for this Court’s guidance—

concerning the meaning of content-neutrality and

“core political speech.” The New Jersey laws at issue

here facially discriminate against speech on the basis

of content in order to discourage candidates from

using the ballot to communicate certain messages to

their voters. Nonetheless, the Third Circuit concluded

that the laws were content-neutral, demonstrating a

misunderstanding of this Court’s precedents in a way

that will result in the significant suppression of free

speech unless the Third Circuit’s decision is corrected.

The Third Circuit concluded that speech by a

candidate to his voters explaining the candidate’s

philosophy and advocating for citizens to vote for him

was not “core political speech.” The Third Circuit

reached this Orwellian conclusion only by confining

“core political speech” to “interactive, one-on-one”

communication—a definition that would exclude most

political advertisements today. This Court should

grant certiorari and reverse the Third Circuit.

ARGUMENT

I. By Allowing a Political Candidate to Print His

Campaign Slogan on the Ballot, New Jersey

Has Created a Designated Public Forum for

Core Political Speech

New Jersey allows a candidate in a primary

election “for any office” to print a six-word campaign

slogan next to his name on the ballot, for the “purpose”

of allowing the candidate to indicate “any official act

or policy to which he is pledged or committed, or to

distinguish him as belonging to a particular faction or

wing of his political party.” N.J. Stat. Ann. § 19:23-17.

New Jersey, however, also places significant

restrictions on a candidate’s speech by regulating the

content of his ballot slogan. If a candidate’s slogan

refers to the “name of any person” or to “any

incorporated association of this State,” it will not be

approved by state officials unless the “written

consent” of the person or incorporated association

referenced is filed with the candidate’s nominating

petition. Id.; see also N.J. Stat. Ann. § 19:23-25.1.

The candidate slogans appearing on the ballot are

core political speech. They are statements made by

candidates for public office; they are made to voters;

they concern “official act[s] or polic[ies]” or political

associations; and their purpose is to obtain votes.

Moreover, the speech occurs on the ballot itself,

making the political nature of it indisputable. A

candidate’s slogan creates a direct connection between

a candidate’s own speech to a voter and how that voter

casts his vote. This Court has time and again

reaffirmed that speech by candidates concerning

political issues occupies the very core of “the freedom

of speech.” See, e.g., Republican Party of Minn. v.

White, 536 U.S. 765, 781-82 (2002); Brown v.

Hartlage, 456 U.S. 45, 52-54 (1982); Buckley v. Valeo,

424 U.S. 1, 52-53 (1976) (per curiam); Wood v. Georgia,

370 U.S. 375, 395 (1962). Indeed, the First

Amendment “has its fullest and most urgent

application precisely to the conduct of campaigns for

political office.” Monitor Patriot Co. v. Roy, 401 U.S.

265, 272 (1971).

The Third Circuit claimed that “core political

speech”

only

“interactive,

one-on-one

communication,” Mazo, 54 F.4th at 143, but such a

restrictive interpretation is directly contrary to nearly

every political speech case that this Court has decided.

Although this Court has, of course, protected one-onone communications, see, e.g., Buckley v. American

Constitutional Law Foundation, Inc., 525 U.S. 182

(1999) (petition circulation); Meyer v. Grant, 486 U.S.

414 (1988) (same), it has always—and correctly—

treated mass communications as core political speech.

See, e.g., McIntyre v. Ohio Elections Commission,

514 U.S. 334 (flyers); Gilleo, supra (lawn signs); Mills

v. Alabama, 384 U.S. 214 (1966) (newspaper

editorials). The fact that this case involves speech (1)

by candidates themselves (2) to voters (3) concerning

the reasons to vote for the candidate only makes it

even more obvious that this speech lies at the very

center of the First Amendment’s “core.”

1. Any

Content-Based

Restrictions

Designated Public Forum Must Satisfy Strict

Scrutiny

Although candidates’ slogans are core political

speech, no candidate would have a right to have a

slogan printed on the ballot if the state reserved the

ballot for the government’s own speech. Cf. Cornelius

v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S.

788 (1985) (holding that a charitable campaign

soliciting funds from federal employees was a

nonpublic forum because it was not intentionally

opened for speech). States need not allow any private

individual to use the ballot to convey a message. But,

by enacting Section 19:23-17, New Jersey has chosen

to open its ballot for speech. By statute, New Jersey

allows candidates to choose six-word messages that

serve as their final pitches to voters just seconds

before those same voters decide to whom they will give

their votes. The space for such messages is a

designated limited-purpose public forum.

Only last Term, this Court held unanimously that

the City of Boston had designated the flagpole outside

of its City Hall as a public forum because Boston

permitted private organizations to use that flagpole to

fly their own flags. Shurtleff v. Boston, 142 S. Ct. 1583

(2022). The flags promoted the messages of the private

organizations and were created by the organizations

themselves. Likewise, New Jersey does not require a

candidate’s ballot slogan to promote the government’s

views; these slogans are not the government’s speech.

Rather, as in Shurtleff, the government has

designated government property to be used for a

candidate to advance his own message—specifically,

to “indicat[e] either any official act or policy to which

he is pledged or committed, or to distinguish him as

belonging to a particular faction or wing of his political

party.” N.J. Stat. § 19:23-17. The candidate, not the

government, decides what the content of his message

should be. The candidate, not the government, decides

which acts or policies to highlight to voters. The

candidate, not the government, decides how to signal

his sympathies with various party constituencies.

This case is thus fundamentally different from

Walker v. Texas Division, Sons of Confederate

Veterans, Inc., 576 U.S. 200 (2015), in which this

Court held that specialty license plate designs were

government speech because of the review process that

the state employed before permitting any design to be

displayed on license plates. As Shurtleff explained: “In

Walker, a state board ‘maintained direct control’ over

license plate designs by ‘actively’ reviewing every

proposal and rejecting at least a dozen. Boston has no

comparable record.” 142 S. Ct. at 1592. Neither, in this

case, does New Jersey. While New Jersey certainly

has “control” over its ballot in a manner comparable to

the control that Boston had over its flagpoles, neither

Boston nor New Jersey sought to exercise that control

by approving only those messages that comported

with the government’s own views. New Jersey

candidates’ ballot slogans, then, like the private

organizations’ flags in Shurtleff, are private speech.

The Third Circuit argued that for ballots to serve

as a tool for allowing voters to select candidates

efficiently, there must be a limit on the extent to which

“the ballot may—or should—be used as a means of

political communication.” Mazo, 54 F.4th at 144

(citing, inter alia, Timmons v. Twin Cities Area New

Party, 520 U.S. 351, 365 (1997)). True. States need not

allow their ballots to be used for candidates’ speech at

all, or they may impose content-neutral restrictions on

that speech, such as the requirement that all ballot

slogans be no greater than six words in length. But if

a state chooses to permit its primary ballots to contain

short narrative statements by candidates, it cannot be

said, as the Third Circuit said here, that “ballots . . .

are . . . not suitable ‘for narrative statements by

candidates.’” Mazo, 54 F.4th at 144 (cleaned up).

Indeed, the defining features of a designated

limited public forum are that the state (1) opens a

government-controlled resource (here, the ballot) for

private expression, and (2) places limits on that

expression “in light of the purpose served by the

forum.” Rosenberger v. Rector and Visitors of the

University of Virginia, 515 U.S. 819, 829 (1995)

(quoting Cornelius v. NAACP Legal Defense and

Educ. Fund, Inc., 473 U.S. 788, 804-06 (1985)). New

Jersey’s six-word limit advances the purpose of the

forum by ensuring that the slogan be reasonable in

length and not unwieldy, and its requirement that the

six words relate to a candidate’s policy commitments

or “to a particular faction or wing of his political party”

serves to limit that speech in the public forum to

certain topics. N.J. Stat. § 19:23-17. Allowing the

government to impose content-based restrictions

beyond those relating to the purpose of the forum,

however, would essentially eliminate the category of

the limited forum. See Rosenberger, 515 U.S. at 830

(“content discrimination . . . may be permissible if it

preserves the purposes of the forum”); Shurtleff, 142

S. Ct. at 1595-96 (Alito, J., concurring in judgment).

Accordingly, the space for candidates’ slogans on

New Jersey’s primary election ballots is a “designated

public forum . . . property that the State has opened

for expressive activity by part or all of the public.”

International Society for Krishna Consciousness v.

Lee, 505 U.S. 672, 678 (1992) (“ISKCON”). Content-

based restrictions on speech within that designated

public forum, therefore, must satisfy strict scrutiny.

See id.; Perry Education Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 45 (1983).

2. New Jersey's Ban on Certain Candidate

Slogans Is Content-Based and Cannot Survive

Strict Scrutiny

Under New Jersey’s law, a candidate’s ability to

have his or her preferred slogan appear on the primary

ballot depends on its content. Slogans that do not

contain the name of a person or name of a New Jersey

corporation appear on the ballot without triggering

the requirement of written consent. Slogans that do

contain the name of a person or the name of a New

Jersey corporation, however, do not appear on the

ballot unless the candidate obtains written consent

from the person or entity named. The law thus

distinguishes on its face between slogans based on

their content, making the law content-based. See

Reed v. Town of Gilbert, 576 U.S. 155, 163-64 (2015).

The Third Circuit concluded that, despite the

distinction that New Jersey draws between slogans

containing different words, the state’s law was not

content-based. The Third Circuit reached this

erroneous conclusion because of its misinterpretation

of City of Austin v. Reagan National Advertising, Inc.,

142 S. Ct. 1464 (2022). City of Austin held that a ban

on “off-premises” advertising was content-neutral

because Austin’s laws “d[id] not single out any topic or

subject matter for differential treatment. A sign’s

substantive message itself [wa]s irrelevant to the

application of the provisions . . .” In other words, the

laws in Austin regulated where advertisements could

be displayed, but all advertising was subject to the

same rule—it had to be displayed at the location of the

advertised business and not elsewhere—regardless of

its content. Austin had no problem with signs saying

“Joe’s Diner” or “Sally’s Insurance Agency”; Austin

simply wanted Joe and Sally to post their signs where

their respective businesses were located.

This case is dispositively different. New Jersey

believes that slogans with certain content—in other

words, that use certain words—create problems that

are not created by slogans with different content.

Whether or not New Jersey is correct in its belief, the

content of the slogan is more than “relevant to the

application of the” speech restriction; content is the

whole point. Thus, New Jersey’s laws are contentbased. See Reed, 576 U.S. at 163 (“Government

regulation of speech is content based if a law applies

to particular speech because of the topic discussed or

the idea or message expressed.”).

As noted above, states may not impose contentbased restrictions in a public forum—whether it is a

public forum by tradition or designation—without

satisfying strict scrutiny. See, e.g., ISKCON, 505 U.S.

at 678 (“Regulation of [a designated public forum] is

subject to the same limitations as that governing a

traditional public forum.”); Perry Ed. Assn., 460 U.S.

at 45-46 (1983).

New Jersey’s laws clearly fail to satisfy strict

scrutiny, and the Third Circuit upheld them only by

refusing to apply strict scrutiny. Even if the laws

served a compelling interest in preventing voter

confusion, they are not narrowly tailored. They are

under-inclusive in that they apply only to New Jersey

corporations. And they are over-inclusive in that they

prevent candidates from using certain names (such as

in the slogan “Never Trumper”) where there is no

reasonable possibility of confusion. It would be

narrowly tailored to impose a ban on candidate

slogans that make false statements of fact (such as the

slogan “Endorsed by Donald Trump”), but a state may

not assume that any use of a person’s (or New Jersey

corporation’s) name is inherently confusing to voters,

as such an assumption would ban far too much

otherwise legitimate core political speech.

Therefore, strict scrutiny should apply.

II.

This Case Clearly Highlights the Problems

with the Anderson-Burdick Balancing Test,

Which This Court Should Either Clarify or

Overrule

The Third Circuit declined to apply strict scrutiny

and instead applied the Anderson-Burdick balancing

test. That test, however, neither adequately protects

individual rights nor provides clear guidance to states

concerning the limits of their authority. The Court

should take this opportunity to jettison that

standardless test and replace it with the strictscrutiny and rational-basis tests that the Court

regularly employs whenever laws are challenged as

violating fundamental rights. Whereas the Court’s

usual standards constrain judicial discretion and lead

to consistency because of the demanding nature of

strict scrutiny and the deference of rational basis,

Anderson-Burdick

invites

arbitrariness

and

unpredictability. The Third Circuit’s decision is the

perfect illustration: A content-based restriction on core

political speech was held constitutional based on a

mere balancing of interests. Such “balancing” fails to

provide adequate protection to fundamental rights.

In the area of free speech, especially, this Court has

been insistent on the need for clear rules and bright

lines, and it has disavowed the power to distinguish

between protected and unprotected speech based on “a

free-floating . . . ad hoc balancing of relative social

costs and benefits.” United States v. Stevens, 559 U.S.

460, 470 (2010). Such a power would be utterly

inconsistent with the Constitution’s determination to

protect even unpopular speech—and, for that reason,

“startling and dangerous.” Id.; see also Brown v.

Entertainment Merchants Ass’n, 564 U.S. 786, 792

(2011) (characterizing Stevens as “emphatically

reject[ing]” the idea that a “simple balancing test”

could determine if a category of speech was entitled to

constitutional protection).

Yet “ad hoc balancing of relative social costs and

benefits,” Stevens, 559 U.S. at 470, is exactly what

Anderson-Burdick requires. Under that mis-guided

precedent:

[a] court considering a challenge to a

state election law must weigh “the

character and magnitude of the asserted

injury to the rights protected by the First

and Fourteenth Amendments that the

plaintiff seeks to vindicate” against “the

precise interests put forward by the State

as justifications for the burden imposed

by its rule,” taking into consideration

“the extent to which those interests make

it necessary to burden the plaintiff ’s

rights.”

Burdick, 504 U.S. at 434 (1992) (quoting Anderson,

460 U.S. at 789; Tashjian v. Republican Party of Conn.,

479 U.S. 208, 213-14 (1986)). That kind of balancing

test is full of imponderable and immeasurable parts

virtually inviting courts to be results-oriented. As a

result of the “flexible” nature of Anderson-Burdick,

504 U.S. at 434, judges have “far too much discretion,”

which leads to anomalous, inconsistent results. Daunt

v. Benson, 956 F.3d 396, 424 (6th Cir. 2020) (Readler,

J., concurring in the judgment) (explaining that

“Anderson-Burdick is a dangerous tool. In sensitive

policy-orientated cases, it affords far too much

discretion to judges in resolving the dispute before

them.”); see also Edward B. Foley, Voting Rules and

Constitutional Law, 81 Geo. Wash. L. Rev. 1836, 1859

(2013) (noting that Anderson-Burdick is “imprecise”

and subject to differing application in the hands of

different judges); Joshua A. Douglas, A Vote for

Clarity: Updating the Supreme Court’s Severe Burden

Test for State Election Regulations that Adversely

Impact an Individual’s Right to Vote, 75 Geo. Wash. L.

Rev.. 372, 373 (2007) (noting that Anderson-Burdick

“is nebulous and unclear, resulting in vague decisions

that fail to distinguish between constitutional and

unconstitutional state election regulations.”).

The Burdick Court asserted that its test would

apply in challenges to “state election law[s],” 504 U.S.

at 434, but it did not explain what sorts of laws fit that

category and provided no rationale that could allow

lower courts to fashion a test of their own. The result

is the Third Circuit’s opinion here, which extended

Anderson-Burdick to uphold a content-based

limitation on a political candidate’s message to his

voters—without even applying strict scrutiny.

The Burdick Court explained its decision to apply

its “more flexible standard” by pointing out that:

[e]lection laws will invariably impose

some burden upon individual voters.

Each provision of a code, “whether it

governs

the

registration

and

qualifications of voters, the selection and

eligibility of candidates, or the voting

process itself, inevitably affects—at least

to some degree—the individual’s right to

vote and his right to associate with

others for political ends.” Consequently,

to subject every voting regulation to

strict scrutiny and to require that the

regulation be narrowly tailored to

advance a compelling state interest, as

petitioner suggests, would tie the hands

of States seeking to assure that elections

are operated equitably and efficiently.

504 U.S. at 433 (internal citations omitted). Burdick

was undoubtedly correct that courts should not apply

strict scrutiny to “every voting regulation.” Id. It does

not follow, however, that there is anything about

election laws that should cause this Court to abandon

its usual two-track approach to fundamental-rights

cases, applying strict scrutiny or rational basis,

depending on the “directness and substantiality of the

interference with” a fundamental right. Zablocki v.

Redhail, 434 U.S. 374, 387 n.12 (1978).

1. It Is Unclear Why Anderson-Burdick Should Be

Applied in Election Law Cases

The key error in Burdick was in acting as if every

law that “affects . . . an individual’s right to vote,” id.

(quoting Anderson, 460 U.S. at 788), interferes with

the right to vote. In no other fundamental-rightsbased constitutional challenge does this Court indulge

such an assumption, even though virtually every law

“affects” a fundamental right. That is why AndersonBurdick’s policy-based balancing test is so anomalous.

In other fundamental-rights challenges, rational basis

applies if a law does not “direct[ly] and substantial[ly]

. . . interfere with” a fundamental right, and strict

scrutiny applies if there is such a direct and

substantial interference. Id.

Thus, rational basis applies to an infinite number

of potential challenges to state laws that “affect”

fundamental rights. To note only a few obvious

examples, the state regulation of employment

relationships, the practice of law and medicine,

commercial transactions, land use, and education

“inevitably affects—at least to some degree,” Burdick,

504 U.S. at 433, fundamental rights to individual

autonomy and familial privacy that this Court has

found in the Due Process Clauses. Yet those

regulations are non-controversially evaluated under

the rational-basis test unless they directly and

substantially interfere with a fundamental right. If

there is such a direct and substantial interference

with a fundamental right, then strict scrutiny applies.

But judges do not get to determine whether the

government’s “precise interests” outweigh the

“magnitude” of an impingement on a fundamental

right. Id. at 434.

If Burdick’s analysis were applied outside the

election law context, this Court’s standard two-tiered

analysis of fundamental-rights claims would be

replaced by an unadministrable sliding scale. And

there is no principled reason to confine AndersonBurdick to the realm of election law.

Burdick’s stated reason for applying its “flexible

standard” rather than strict scrutiny was that the

Court did not want to “tie the hands of States seeking

to assure that elections are operated equitably and

efficiently.” Burdick, 504 U.S. at 433. Strict scrutiny

would indeed have tied the hands of states, and

therefore the Court was correct not to apply strict

scrutiny to every law that “affects—at least to some

degree—the individual’s right to vote.” Id. But what

Burdick failed to recognize was that its choice was not

between its “flexible standard” and a requirement that

strict scrutiny be applied to all laws that “affect”

voting rights. Rather, the choice was the identical one

that this Court has faced when dealing with laws that

affect other fundamental rights: between strict

scrutiny for laws that directly and substantially.

interfere with a fundamental right and rational basis

for laws that do not. Redhail, 434 U.S. at 387 n.12.

While it is certainly true that states must construct

and enforce election laws that achieve their

“‘important regulatory interests,’” Burdick, 504 U.S.

at 434 (quoting Anderson, 460 U.S. at 788), the

standard rational-basis/strict-scrutiny framework

permits state interests to be taken into account. Even

if a challenged law “direct[ly] and substantial[ly]”

interferes with a fundamental right, Redhail, 434 U.S.

at 387 n.12, the state can still enforce its law under

traditional strict scrutiny so long as the government’s

interest is compelling and the law is narrowly tailored.

And if there is no direct and substantial interference

with a fundamental right, then the rational-basis test

should apply and states should encounter little

difficulty in enforcing election laws that are rationally

related to a legitimate governmental interest. Id.

Thus, the Third Circuit was incorrect in asserting

that “a traditional First Amendment test fails to

account for the fact that, for elections to run smoothly,

some restrictions on expression and association are

necessary.” Mazo, 54 F.4th at 137. On the contrary, the

traditional strict scrutiny test is focused on assessing

whether a restriction on a fundamental right is

“necessary.” Id. That is the entire point of narrow

tailoring: it requires the law to be the least restrictive

means of achieving a compelling interest.

Furthermore, states always—not just when

administering elections—have “important regulatory

interests,” Burdick, 504 U.S. at 434, that they must

achieve while being mindful of individuals’

fundamental rights. There is nothing special about the

regulatory interests in election law cases that requires

a different standard of constitutional review than the

one applicable to regulations of health, business,

education, or law enforcement. If states must comply

with strict scrutiny when, for example, their attempts

to achieve the best interest of children compromise

fundamental rights, see Troxel v. Granville, 530 U.S.

57 (2000), they should have to comply with strict

scrutiny when their election regulations “direct[ly]

and substantial[ly] . . . interfere[],” Redhail, 434 U.S.

at 387 n.12, with a fundamental right, too.

2. It Is Unclear When Anderson-Burdick Should

Be Applied in Election Law Cases

To make matters worse, the Burdick Court’s

decision to apply its “flexible standard” to “state

election law[s],” 504 U.S. at 434, begs the question

about what exactly an “election law” even is. (On that

topic, the Third Circuit itself confessed the absence of

“a clear rule or set of criteria to distinguish between”

election-related cases in which Anderson-Burdick

applies and those in which it does not. Mazo, 54 F.4th

at 137.) Does the category of election laws include, for

example, laws governing the structure of government,

which may not be part of the electoral “mechanics” but

nevertheless “affect” the right to vote? If so, the

category is so broad as to require a dangerous amount

of judicial policymaking in the electoral arena; if not,

the limitation of “election laws” only to those laws

governing electoral mechanics would appear arbitrary.

Compare Daunt v. Benson, 956 F.3d 396, 406-07 (6th

Cir. 2020) (applying Anderson-Burdick to a law

requiring five members of an independent

redistricting commission to be unaffiliated with a

political party, after concluding that the requirement

“could conceivably be classified as an ‘election law’”);

Bates v. Jones, 131 F.3d 843, 846-47 (9th Cir. 1997)

(applying Burdick to evaluate a term limit), with

Daunt v. Benson 956 F.3d at 423-424 (Readler, J.,

dissenting) (disagreeing with the majority that

Anderson-Burdick applies); Bates v. Jones, 131 F.3d at

859 (Rymer, J., concurring in result) (same). Does the

“election law” category include bans on anonymous

political speech or restrictions on lawn signs like the

ones struck down in McIntyre, supra, and City of

Ladue v. Gilleo, 512 U.S. 43 (1994)? McIntyre

attempted to distinguish Anderson by characterizing

the anonymous-speech ban as a regulation of “pure

speech” rather than “the mechanics of the electoral

process.” McIntyre, 514 U.S. at 345. But candidates’

ballot slogans are also “pure speech” and yet the Third

Circuit applied Anderson-Burdick to them. Id. at 347.

The Third Circuit decided that the question of

whether to apply Anderson-Burdick amounted to

whether the challenged law “primarily regulate[d] a

mechanic of the electoral process, rather than core

political speech.” Mazo, 54 F.4th at 144. Obviously,

the challenged New Jersey laws regulating the

content of candidates’ ballot slogans both “regulate[d]

a mechanic of the electoral process” and “regulate[d] .

. . core political speech”; they did so because they

incorporated a candidate’s “core political speech” into

“a mechanic of the electoral process.” Accordingly, the

Third Circuit’s interpretation of Burdick rests on a

false dichotomy between speech and electoral

mechanics, and this very case demonstrates why that

supposed distinction is unworkable.

The Sixth Circuit has pointed out yet another

problem with Anderson-Burdick: No one knows

whether it applies to alleged violations of equal

protection, or whether it is only limited to alleged

abridgments of the right to vote and the freedom of

speech. See Daunt v. Benson, 956 F.3d 396 (6th Cir.

2020); Mays v. LaRose, 951 F.3d 775, 783 n.4 (6th Cir.

2020); Obama for America v. Husted, 697 F.3d 423 (6th

Cir. 2012). The Sixth Circuit extended AndersonBurdick to equal-protection challenges, reasoning that

Burdick’s rationale of permitting states some freedom

to structure their electoral laws was equally

applicable regardless of the source of the

constitutional challenge, but that court’s holdings are

difficult to square with this Court’s application of the

traditional two-tiered standard of review to equalprotection challenges of election laws. Compare, e.g.,

Mays, supra (applying Anderson-Burdick to evaluate

the constitutionality of a “moderate” restriction on the

right to vote imposed by a law that made it impossible

for a jailed person to vote), with, e.g., Kramer v. Union

Free School Dist. No. 15, 395 U.S. 621 (1969) (applying

strict scrutiny to a law that restricted the right to vote

in school board elections to property owners and

parents with children enrolled in the public schools).

In short, Anderson-Burdick was poorly reasoned, is

inconsistent with scores of fundamental-rights

decisions, establishes a non-administrable standard

that requires judicial policymaking in the political

area (where judicial policymaking is most harmful to

the legitimacy of the courts), and has led to chaos that

extends beyond the Third Circuit’s baffling ruling

here. Anderson-Burdick should be overruled.

In its place, this Court should reinstitute the

approach

that

governs

innumerable

other

constitutional challenges: substantive-due-process

challenges (including those based on the right to vote)

are evaluated under strict scrutiny or rational basis

depending on whether there is a direct and substantial

interference with a fundamental right; free-speech

challenges are evaluated under strict scrutiny or

intermediate scrutiny depending on whether the

speech restriction is content-based or content-neutral;

and equal-protection challenges are evaluated under

strict scrutiny or rational basis depending on whether

there is discrimination against a suspect class. At the

very least, this Court should grant certiorari to clarify

the scope of Anderson-Burdick and to ensure that its

balancing test never be used to validate content-based

restrictions on candidates’ core political speech.

3. This Case Provides an Excellent Vehicle to

Consider the Future of Anderson-Burdick

This case is a particularly good vehicle for

considering the future of Anderson-Burdick. Unlike

many election law cases, this case would not require

expedited consideration, and so the Court would be

able to consider the important questions fully before

issuing a decision. See, e.g., Purcell v. Gonzalez, 549

U.S. 1, 5-6 (2006) (per curiam) (eschewing judicial

intervention in elections “[g]iven the imminence of the

election and the inadequate time to resolve the factual

disputes”). Furthermore, this case presents an

important election law issue without any partisan

overtones. It would be beneficial for the Court to

consider this issue now, rather than to have to

consider Anderson-Burdick in a context where time is

short and a contested election is on the horizon.

Finally, the issues in this case are particularly

starkly presented. It is difficult to imagine speech that

is more at the heart of the First Amendment than a

political candidate’s ballot slogan. Yet, because of the

uncertainty surrounding when and why AndersonBurdick applies, a content-based restriction on core

political speech was upheld by the Third Circuit under

a balancing test that did not provide the protection for

free speech as strict scrutiny would. This case provides

an opportunity for this Court to make clear that

Anderson-Burdick may not be used in way that dilutes

the Constitution’s protection of political speech.

CONCLUSION

Anderson-Burdick is an outlier. It requires the

Court to undertake standardless balancing in some of

the country’s most contentious political disputes,

virtually guaranteeing arbitrary results. This Court

does not apply Anderson-Burdick-style balancing

outside of election law, and the Court has never

explained why it has made an exception for election

law cases in the first place. The Court should clarify

Anderson-Burdick, or else overrule it entirely and

apply the same standards it applies in other

fundamental rights challenges: strict scrutiny and

rational basis, depending on whether there is a direct

and substantial interference with a fundamental

right, and depending on whether the challenged law is

a content-based restriction on protected expression.

To resolve these issues, certiorari is warranted.

Respectfully submitted,