Amicus Curiae Brief — Eugene Mazo, et al., Petitioners v. Tahesha Way, New Jersey Secretary of State, et al.
Supreme Court briefMay 25, 2023
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No. 22-1033
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------EUGENE MAZO, et al.,
Petitioners,
v.
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 OF AMICUS CURIAE MICHAEL D. BYRNE
IN SUPPORT OF PETITIONERS
---------------------------------♦--------------------------------STEPHEN R. KLEIN
Counsel of Record
BARR & KLEIN PLLC
1629 K St. NW, Ste. 300
Washington, DC 20006
Telephone: (202) 804-6676
steve@barrklein.com
Counsel for Amicus Curiae
May 25, 2023
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
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 First Amendment strict scrutiny.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED...................................
i
TABLE OF AUTHORITIES .................................
iii
INTEREST OF AMICUS CURIAE ......................
1
SUMMARY OF ARGUMENT ..............................
2
ARGUMENT ........................................................
4
1.
New Jersey’s Slogan Statutes Regulate
Core Political Speech .................................
4
2.
Political Elites In New Jersey Abuse The
Slogan Statutes To Control The Core Political Speech Of Their Political Rivals ..... 10
3.
The Third Circuit’s View That New Jersey’s Ballot Slogans Do Not Comprise
Core Political Speech Was Profoundly
Wrong ........................................................ 14
4.
The Court Should Grant Certiorari To
Clarify What Core Political Speech Entails, For There Is Widespread Confusion
On This Issue ............................................. 18
CONCLUSION..................................................... 23
iii
TABLE OF AUTHORITIES
Page
CASES
Anderson v. Martin,
375 U.S. 399 (1964) ............................................. 2, 14
Angle v. Miller,
673 F.3d 112 (9th Cir. 2012) ....................................20
Brown v. Hartlage,
456 U.S. 45 (1982) ............................................. 16, 21
Buckley v. American Constitutional Law
Foundation, Inc.,
525 U.S. 182 (1999) ........................... 3, 16, 17, 19, 20
Citizens United v. Fed. Election Comm’n,
558 U.S. 310 (2010) ........................................... 18, 20
Cook v. Gralike,
531 U.S. 510 (2001) ...................................................2
Davis v. Fed. Election Comm’n,
554 U.S. 724 (2008) .................................................18
Fed. Election Comm’n v. Cruz,
142 S. Ct. 1638 (2022) .............................................19
Fed. Election Comm’n v. Wis. Right To Life, Inc.,
551 U.S. 449 (2007) .................................................16
Mazo v. New Jersey Secretary of State,
54 F.4th 124 (3d Cir. 2022) .......... 3, 14, 15, 17, 18, 22
McConnell v. Fed. Election Comm’n,
540 U.S. 93 (2003) ............................................. 18, 19
McIntyre v. Ohio Elections Comm’n,
514 U.S. 334 (1995) ..................................... 18, 19, 22
iv
TABLE OF AUTHORITIES—Continued
Page
Meyer v. Grant,
486 U.S. 414 (1988) ........................................3, 16-22
Mills v. Alabama,
384 U.S. 214 (1966) .................................................16
Nixon v. Shrink Missouri Government PAC,
528 U.S. 377 (2000) .................................................19
Pest Committee v. Miller,
626 F.3d 1097 (9th Cir. 2010) ..................................20
Pierce v. Jacobsen,
441 F.4th 853 (9th Cir. 2022) ..................................22
Republican Party of Minn. v. White,
536 U.S. 765 (2002) .................................................21
Voting for America, Inc. v. Steen,
732 F.3d 382 (5th Cir. 2013) ....................................20
CONSTITUTIONAL PROVISION
U.S. CONST. amend. I ...................6, 7, 13, 14, 17, 18, 21
STATE STATUTES
N.J. Stat. Ann. § 14A:2-3 ..............................................6
N.J. Stat. Ann. § 19:5-1 .................................................8
N.J. Stat. Ann. § 19:5-3 ............................................. 1, 8
N.J. Stat. Ann. § 19:23-17 ................................. 2, 4, 5, 7
N.J. Stat. Ann. § 19:23-22 .............................................5
N.J. Stat. Ann. § 19:23-22.1 ..........................................5
v
TABLE OF AUTHORITIES—Continued
Page
N.J. Stat. Ann. § 19:23-24 ...........................................10
N.J. Stat. Ann. § 19:23-25.1 ...................................... 2, 4
N.J. Stat. Ann. § 19:49-2 ...............................................8
NEW JERSEY OFFICIAL GOVERNMENT WEBSITES
Business Registration Certificate, DEP’T TREASURY, NEW JERSEY, https://perma.cc/8H3Y-ZGES .........5
Business Name Search, DEP’T TREASURY, NEW
JERSEY, https://www.njportal.com/DOR/Business
NameSearch/Search/BusinessName ........................6
ARTICLES AND BOOKS
RICHARD J. CODEY, ME, GOVERNOR? MY LIFE IN
THE ROUGH-AND-TUMBLE WORLD OF NEW JERSEY POLITICS (2011)..................................................13
Joey Fox, Off-the-Line Toms River Slates Descend into Legal Battle over Ballot Slogan,
N.J. GLOBE, Apr. 12, 2023, https://perma.cc/
WSP2-YCH5 ............................................................12
John F. X. Graham, DiGaetano v. Barlas: Bergen
and Essex GOP Chairs War Over Party Slogan,
INSIDER NJ, Mar. 21, 2017, https://perma.cc/
Y2EZ-2EQ8 .............................................................12
David M. Halbfinger, State Court Judge Rebuffs
a Ballot Ploy by Florio, N.Y. TIMES, Apr. 19,
2000, https://perma.cc/MS75-X4Q6 ........................12
vi
TABLE OF AUTHORITIES—Continued
Page
Kathleen Hopkins, Gallery of New Jersey’s
Crooked Politicians, ASBURY PARK PRESS, Apr.
1, 2015, https://perma.cc/CK6D-NCEL ..................10
RAYMOND LESNIAK, CULTIVATING JUSTICE IN THE
GARDEN STATE: MY LIFE IN THE COLORFUL
WORLD OF NEW JERSEY POLITICS (2022) ..................13
Max Pizarro, The 25 Most Powerful Municipal
Chairs in the State of New Jersey, INSIDER NJ,
Feb. 20, 2017, https://perma.cc/XZ2R-TPHY ............9
Brett M. Pugach, The County Line: The Law and
Politics of Ballot Positioning in New Jersey, 72
RUTGERS U. L. REV. 629 (2020) ........................... 8-10
WILLIAM E. SCHLUTER, SOFT CORRUPTION: HOW
UNETHICAL CONDUCT UNDERMINES GOOD GOVERNMENT AND WHAT TO DO ABOUT IT (2017) ...........13
Ronald Smothers, Treffinger Pleads Guilty To
Corruption, N.Y. TIMES, May 31, 2003,
https://perma.cc/NST4-TA84 ..................................11
David Wildstein, McCann Wins Fight Over
Lonegan Slogan, N.J. GLOBE, Apr. 5, 2018,
https://perma.cc/H8VE-47DR .................................13
David Wildstein, Progressive Leaders Now Own
Camden Democratic Machine Slogan, N.J.
GLOBE, Mar. 30, 2020, https://perma.cc/JV3BY29L ........................................................................10
David Wildstein, Somerset Democrats Let Slogan Lapse, and GOP Now Owns It, N.J.
GLOBE, Apr. 5, 2021, https://perma.cc/5KUUZAVF ........................................................................11
1
INTEREST OF AMICUS CURIAE1
Michael D. Byrne is the duly elected municipal
chairman of the Republican County Committee in
Montclair, New Jersey. The Montclair Republican
County Committee, Inc., is incorporated as a New Jersey non-profit corporation and exists pursuant to N.J.
Stat. Ann. § 19:5-3. Mr. Byrne has long worked in New
Jersey politics. He has served as a campaign manager
for several New Jersey Republican candidates at the
municipal, state, and federal levels. He has also been a
campaign manager for federal campaigns in other
states and has worked on several Republican U.S. presidential campaigns. Mr. Byrne has owned, used,
awarded, and denied ballot slogans to candidates
throughout New Jersey. He possesses intimate
knowledge about the slogan statutes and how they
function. Mr. Byrne currently owns or controls the slogans “Montclair Republican County Committee, Inc.,”
“Essex Republican Party Organization,” “Make New
Jersey Great Again,” “America First,” “America First
Republicans,” “Toms River First Republicans,” and
“Save Toms River.” He is filing this brief to explain how
the slogan statutes work in practice and how they can
be used to restrict core political speech.
---------------------------------♦---------------------------------
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 and his counsel made any monetary
contribution toward the preparation or submission of this brief.
Counsel provided the notice required by Rule 37.2.
1
2
SUMMARY OF ARGUMENT
New Jersey allows its political candidates to speak
to voters on the ballot. The so-called “slogan statutes,”
see N.J. Stat. Ann. §§ 19:23-17, 19:23-25.1, authorize a
candidate running 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. However, New Jersey
also places a significant handicap on a primary candidate’s speech, by regulating the content of his campaign slogan at “the most crucial stage in the electoral
process—the instant before the vote is cast.” Cook v.
Gralike, 531 U.S. 510, 525 (1995) (quoting Anderson v.
Martin, 375 U.S. 399, 402 (1964)). If a candidate’s slogan refers to the “name of any person” or to “any incorporated association of this State,” his slogan will not
be approved by state officials unless the “written consent” of such person or incorporated association is filed
with the candidate’s nominating petition. N.J. Stat.
Ann. § 19:23-17.
For decades, New Jersey’s political insiders and
party bosses have controlled a variety of slogans and
have used these statutes to weaponize the state’s primary ballots. By creating fake corporations with
names that they lend out for use as ballot slogans to
their own hand-picked candidates, New Jersey’s party
bosses employ the consent requirement of the slogan
statutes to regulate and limit the speech that may
3
appear on the state’s primary ballots. New Jersey’s political insiders also create fake corporations for the
specific purpose of censoring the speech of their political rivals, and thus are able to prevent their primary
opponents from speaking to voters as they wish.
In Mazo v. New Jersey Secretary of State, 54 F.4th
124 (3d Cir. 2022), the Third Circuit concluded that the
slogan statutes do not regulate core political speech in
part because the court had no understanding of how
the slogan statutes work in practice. Further, the Third
Circuit concluded that a candidate’s printed ballot slogan does not constitute core political speech by awkwardly limiting the definition of core political speech
to words that (1) occur “outside of the polling place”
and “over a long period of time [before] Election Day,”
and (2) constitute “interactive, one-on-one communication[s].” Id. at 143, 145. The Third Circuit managed to
define core political speech narrowly in this way because it relied on the views advanced in but two election law cases, Meyer v. Grant, 486 U.S. 414 (1988), and
Buckley v. American Constitutional Law Foundation,
Inc., 525 U.S. 182 (1999). Had the Third Circuit looked
more broadly, however, it would have found that “core
political speech” is a much more expansive concept, one
that encompasses campaign finance, petition circulation, ballot access, and, of course, candidate speech,
among other things.
This case provides an excellent vehicle for this
Court to clarify what qualifies as core political speech
and under what circumstances, if any, core political
speech can be regulated. At the very least, the speech
4
in question in this case is core political speech, and the
decision below should be rectified. The Court should
grant certiorari to address these important issues.
---------------------------------♦---------------------------------
ARGUMENT
1. New Jersey’s Slogan Statutes Regulate Core
Political Speech
Since 1930, New Jersey law has permitted a candidate running in a primary election for “any public office” to “request that there be printed opposite his
name on the primary ticket a designation in not more
than six words”—i.e., a slogan—“for the purpose of indicating 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. Ann. § 19:23-17. Since 1944, however, New
Jersey law has mandated that “no such designation or
slogan shall include or refer to the name of any person
or any incorporated association of this State unless the
written consent of such person or incorporated association of this State has been filed with the petition of
nomination of such candidate or group of candidates.”
Id. If the candidate fails to obtain written consent,
state officials will refuse to print his slogan and often
will print the words “No Slogan” on the ballot next to
his name. See N.J. Stat. Ann. § 19:23-25.1. These socalled slogan statutes are enforced by New Jersey’s
Secretary of State, county clerks, and municipal clerks
when a primary candidate files his nominating petition
5
with these officials. See N.J. Stat. Ann. §§ 19:23-22,
19:23-22.1.
For decades, New Jersey’s political insiders have
created fictitious corporations with the names of popular slogans. They then control whether these “names”
may be used as “slogans.” In this way, New Jersey’s political insiders control how candidates get to speak on
the ballot and also what they can say there to voters.
These slogans are also an intrinsic part of the so-called
“County Line” candidate bracketing process which is
frequently and successfully employed by the state’s
party bosses and political machines to marginalize
challengers in primary elections—which, in much of
the state, are the only elections that matter.
Although technically the slogan statutes say that
no primary candidate’s slogan shall include or refer to
the name of “any incorporated association of this
State” unless the written consent of such “incorporated
association of this State” has been filed with the candidate’s nominating petition, see N.J. Stat. Ann. § 19:2317, in practice one does not have to create a corporate
entity to control the speech that appears on the ballot.
Rather, filing for a “Certificate of Reservation of a Domestic Business Name” with the Division of Revenue
and Enterprise Services at New Jersey’s Department
of the Treasury, and paying a small fee, is enough. That
allows one to “reserve” a corporate name for four
months. See Business Registration Certificate, DEP’T
TREASURY, NEW JERSEY, https://perma.cc/8H3Y-ZGES.
Such a Certificate gives its owner the “exclusive right
to the use of a corporate name” for a period of 120 days.
6
N.J. Stat. Ann. § 14A:2-3(1)-(2). Thereafter, the holder
of a reserved name “may renew the reservation for additional periods of 120 days by filing an application for
renewal within the last 30 days of the current reservation period.” N.J. Stat. Ann. §14A:2-3(4). The law places
no limit on the number of renewals. Id.
Many political operatives in New Jersey do not
bother to create corporations to control the speech that
appears on the ballot. Rather, they simply reserve corporate names using the procedure above and then renew those reservations as needed. Often, a corporate
name is not needed once campaign season ends. Thus,
in petitioner Lisa McCormick’s case, her political rivals
in 2020 obtained a Certificate of Reservation for the
corporate name “Not Me. Us.” so that they could use
that slogan on the ballot and prevent McCormick from
using it. But after the primaries ended, her rivals did
not bother to incorporate an entity with that name
and today there is no corporation in New Jersey
named “Not Me. Us.” See Business Name Search, DEP’T
TREASURY, NEW JERSEY, https://www.njportal.com/DOR/
BusinessNameSearch/Search/BusinessName. Often, a
slogan may be needed again but its owner has neglected to renew his Certificate of Reservation. When
this occurs, the ballot slogan a party boss or political
operative had traditionally controlled may be misappropriated by another political actor in New Jersey—a
not uncommon occurrence.
To candidates and their campaign managers, a
candidate’s ballot slogan is certainly “core political
speech” under the First Amendment. See U.S. CONST.
7
amend. I. Some voters in New Jersey identify with a
particular ballot slogan more than they identify with
the candidate, especially if the candidate is not wellknown to the voter. In other cases, candidates are effectively forced to have another candidate’s slogan
printed alongside their names in order to secure more
advantageous ballot position. This is particularly true
of down-ballot candidates, who rely on the slogans that
they may share with others on the ballot for voters to
identity them and “any official act or policy to which
[they are] pledged or committed.” N.J. Stat. Ann.
§ 19:23-17. Frequently the slogan that appears on the
candidate’s ballot is the same as the campaign slogan
on which the candidate ran during his campaign. In
2016, for instance, after amicus reserved the corporate
name “America First Republicans,” his candidates ran
on that campaign slogan. “America First Republicans”
was used on the ballot in the state’s First Congressional District by U.S. House candidate Bob Patterson.
After Patterson lost his primary, amicus allowed the
slogan to lapse, but reserved it again in 2020 and gave
consent to other candidates and campaigns to use it
throughout the state, including to a U.S. House candidate and a U.S. Senate candidate. Bob Patterson used
this campaign slogan as his ballot slogan when he ran
again, this time in the Second Congressional District,
and U.S. Senate candidate Tricia Flanagan used it
statewide. In 2021, amicus reserved the slogan “Make
New Jersey Great Again” and lent it to a gubernatorial
candidate and to other candidates throughout the
state running in state and local elections.
8
Candidates, campaign managers, and county political committee chairmen (as defined in N.J. Stat.
Ann. §§ 19:5-1, 19:5-3) customarily compete for, jockey
for, negotiate for, purchase, request, and otherwise reserve the corporate names of slogans that they have an
attachment to, deem to be politically beneficial, or regard as a fitting description of or message for their candidacies. Obtaining the exclusive right to use a certain
ballot slogan provides enormous advantages to primary candidates in New Jersey. First, over time, voters
come to identify with certain slogans that repeatedly
appear on the ballot, so owning those “names” provides
a significant electoral advantage in terms of being recognized by voters. Second, one’s ownership of a corporate slogan can be used to prevent one’s political rivals
from being able to say what they want on the ballot, as
petitioner McCormick’s case shows with “Not Me. Us.”
Third, the law in New Jersey allows all candidates who
share a ballot slogan to be drawn for the ballot “as a
unit” and to appear on the “same row” of the ballot. See
N.J. Stat. Ann. § 19:49-2. In New Jersey, this ballot feature is known as “the County Line,” and it provides an
enormous, even insurmountable, electoral advantage
to candidates in primary elections throughout the
state. The slogan is the “glue” that forms the County
Line.
In practice, the most powerful officials in New Jersey politics are the county party chairs of each major
party in New Jersey’s twenty-one counties. Most of
these figures hold no elected position, and they are unaccountable to voters. See Brett M. Pugach, The County
9
Line: The Law and Politics of Ballot Positioning in New
Jersey, 72 RUTGERS U. L. REV. 629, 660 (2020) (noting
how “[d]espite the unprecedented power wielded by
county chairs, the position itself is not elected directly
by the voters.”). Their power often comes from the fact
that they control the corporations whose names over
time have become recognizable ballot slogans to voters,
which the chairs can lend to their endorsed candidates.
See Max Pizarro, The 25 Most Powerful Municipal
Chairs in the State of New Jersey, INSIDER NJ, Feb. 20,
2017, https://perma.cc/XZ2R-TPHY (noting how candidates “in both parties . . . are by and large loyal to a
county chair” who boasts “individual, muscled-up
power” in New Jersey). These county chairs control corporate names like “Regular Organization Republican
of Union County” or “Hudson County Democratic Organization” and, through the consent requirement of
the slogan statutes, are usually the sole individuals
who decide which candidates will have the county
party’s endorsement in the primaries. Effectively, this
decision comes down to which candidates will be allowed to use the corporate slogan that the county chair
controls. Some but not all county committees in New
Jersey also incorporate their official names and use
them as ballot slogans, and a county party chair’s endorsed candidates will often request to use those slogans on the primary ballot.
Nonetheless, in most counties, the county chairs
make the “ultimate decision” over which candidates
to endorse in a primary election, and even if, as matter
of law, that function should reside with the county
10
committee, “the practical reality” is that when the
county party chairs control the corporations that lend
out their names as ballot slogans, these county chairs
“exert pressure to ensure their handpicked candidates”
are the candidates the county committee endorses.
Pugach, supra, at 659. Political candidates in New Jersey have “all of the incentive in the world to provide
unwavering support to their county chairs,” and “[a]nything short of unwavering support could amount to political suicide.” Id. The county party chairs in each
county are colloquially known as “party bosses.” They
head the state’s infamously corrupt political machines.
See Kathleen Hopkins, Gallery of New Jersey’s Crooked
Politicians, ASBURY PARK PRESS, Apr. 1, 2015,
https://perma.cc/CK6D-NCEL (noting how “New Jersey has a long and storied history of political corruption” and chronicling the activities of some of its
political machines). New Jersey’s twenty-one county
clerks, the officials who are primarily responsible for
designing the ballot by state law, see N.J. Stat. Ann.
§ 19:23-24, are also beholden to these party bosses in
each of New Jersey’s twenty-one counties.
2. Political Elites In New Jersey Abuse The
Slogan Statutes To Control The Core Political Speech Of Their Political Rivals
Usurping a rival’s ballot slogan is a sport played
with particular gusto in the Garden State. See, e.g.,
David Wildstein, Progressive Leaders Now Own Camden Democratic Machine Slogan, N.J. GLOBE, Mar. 30,
2020, https://perma.cc/JV3B-Y29L (Working Families
11
Party steals slogan of the Democratic political machine
in Camden County); David Wildstein, Somerset Democrats Let Slogan Lapse, and GOP Now Owns It, N.J.
GLOBE, Apr. 5, 2021, https://perma.cc/5KUU-ZAVF (Republicans in Somerset County steal slogan of Democratic rivals). New Jersey’s political insiders engage in
this mischief by surreptitiously registering the name
of the corporate entity whose consent is needed to use
a particular ballot slogan whenever its owners inadvertently let that registration lapse.
One famous example of this kind of gamesmanship occurred in 1996, when the chairman of the Essex
County Republican Committee, John Renna, inadvertently let his corporate slogan lapse. That allowed the
Republican county executive in Essex County, Jim
Treffinger, with whom Renna was feuding, to steal the
slogan “Essex Republican Party Organization.” Treffinger
registered that corporate name and then awarded that
slogan to his own friendly county committee candidates on the primary ballot, and in this way engineered
a coup to oust Renna as party boss. Treffinger then became the new party boss in Essex County before eventually being indicted and convicted of corruption charges.
See Ronald Smothers, Treffinger Pleads Guilty To Corruption, N.Y. TIMES, May 31, 2003, https://perma.cc/
NST4-TA84. Today, amicus owns the slogan “Essex Republican Party Organization,” which, given its political
value, he always makes sure to renew in a timely manner.
By 2017, Al Barlas was the Essex County Republican party boss. He went a step further than his predecessor, Treffinger. Barlas registered the slogan
12
“Republicans for Responsible Government” when his
rival party boss in Bergen County failed to renew that
corporate name. Bergen County Republicans had long
used “Republicans for Responsible Government” as
their ballot slogan, and this episode was an embarrassment for them. Unsurprisingly, it made headlines
throughout the state. See John F. X. Graham, DiGaetano v. Barlas: Bergen and Essex GOP Chairs War Over
Party Slogan, INSIDER NJ, Mar. 21, 2017,
https://perma.cc/Y2EZ-2EQ8 (noting that “Owning the
slogan is party chairmanship 101.”). Ironically, while
Barlas was able to steal “Republicans for Responsible
Government” from his neighboring party boss in Bergen County, he managed to lose his own political machine slogan, “Essex Republican Party Organization,”
to amicus after inexplicably neglecting to register its
corporate name with the state.
In addition to stealing each other’s slogans, political insiders in New Jersey often create fake corporations to chill the ballot speech of their political rivals.
See Joey Fox, Off-the-Line Toms River Slates Descend
into Legal Battle over Ballot Slogan, N.J. GLOBE, Apr.
12, 2023, https://perma.cc/WSP2-YCH5 (Republican
insurgents—whom amicus was advising—reserved the
corporate name “Save Toms River” in an attempt to
prevent Republican incumbents from using those
words on the ballot); David M. Halbfinger, State Court
Judge Rebuffs a Ballot Ploy by Florio, N.Y. TIMES,
Apr. 19, 2000, https://perma.cc/MS75-X4Q6 (Democratic machines endorsed Jon Corzine for U.S. Senate,
only for Corzine to find that his primary opponent,
13
former governor Jim Florio, “had set up 20 non-profit
corporations” to deny Corzine his machine-backed
ballot slogans); David Wildstein, McCann Wins Fight
Over Lonegan Slogan, N.J. GLOBE, Apr. 5, 2018,
https://perma.cc/H8VE-47DR (Republican Steve Lonegan sought to run for Congress in 2018 under the slogan “Republicans for the President’s Agenda,” only to
find that his opponent, John McCann, had formed a
corporation with that name to chill Lonegan’s ballot
speech; the Secretary of State then denied that ballot
slogan to Lonegan).
Such games take place in New Jersey all because
of the slogan statutes. In each case, they radically violate the First Amendment. The slogan statutes allow
New Jersey’s party bosses and party machines to regulate the speech that appears on the ballot—in essence, to regulate a candidate’s core political speech—
both for their own endorsed candidates and for the rival candidates they oppose. Given how New Jersey’s
political system works, it may be little wonder that
even the state’s longtime political insiders refer to the
Garden State’s politics as “colorful,” see RAYMOND LESNIAK, CULTIVATING JUSTICE IN THE GARDEN STATE: MY
LIFE IN THE COLORFUL WORLD OF NEW JERSEY POLITICS
(2022) (longtime New Jersey state senator), “roughand-tumble,” see RICHARD J. CODEY, ME, GOVERNOR? MY
LIFE IN THE ROUGH-AND-TUMBLE WORLD OF NEW JERSEY
POLITICS (2011) (former governor and state senator),
and “corrupt[ ].” WILLIAM E. SCHLUTER, SOFT CORRUPTION: HOW UNETHICAL CONDUCT UNDERMINES GOOD
GOVERNMENT AND WHAT TO DO ABOUT IT (2017)
14
(longtime state senator). To some observers, the shenanigans here may be acceptable in the ordinary
course of politics. But they also operate at the expense
of the First Amendment and violate the core political
speech rights of candidates running for public office.
3. The Third Circuit’s View That New Jersey’s
Ballot Slogans Do Not Comprise Core Political Speech Was Profoundly Wrong
The Third Circuit affirmed the dismissal of the petitioners’ complaint, but only after stating that this
case presented “difficult” issues and bemoaning that
“the Supreme Court has never laid out a clear rule or
set of criteria” to guide a case like this. Mazo, 54 F.4th
at 132, 137. Although the court below acknowledged
that laws that “aim[ ] at regulating political speech”
are “subject to a traditional First Amendment analysis,” it concluded that the slogan statutes do not regulate political speech, reasoning that a slogan is a
“classic electoral mechanic” that purportedly “cannot
inspire any sort of meaningful conversation regarding
political change,” whereas the “lodestar for core political speech” is “the involvement of interactive communication” between individuals. Id. at 140, 142, 145
(quotation marks and citations omitted). The Third
Circuit then concluded that the “more flexible Anderson-Burdick balancing test” supplies the “appropriate
framework” to resolve the issues presented in this case.
Id. at 131-32, 143.
15
The Third Circuit based its chilling conclusion on
two grounds. First, the Third Circuit reasoned that
core political speech supposedly occurs only “outside of
the polling place and over a long period of time leading
up to Election Day,” whereas the slogan statutes regulate speech that is “confined to the ballot itself at the
moment a vote is cast.” Id. at 145. Second, the Third
Circuit found that “ballot slogans are different in kind
from core political speech,” in part because “[t]he Supreme Court has emphasized the ‘interactive’ nature
of ‘core political speech.’ ” Id. “That crucial element,
however”—being interactive—“is missing here,” the
Third Circuit reasoned. Id. “Ballot slogans, unlike leafletting, petition circulating, or even the wearing of political clothing at the polling place, cannot inspire any
sort of meaningful conversation regarding political
change” because a “ballot slogan . . . is a one-way communication confined to the electoral mechanic of the
ballot.” Id. at 145.
On both fronts, the Third Circuit’s reasoning was
gravely mistaken, not to mention divorced from political reality. The court did not explain why ballot slogans
cannot inspire any “meaningful conversation regarding political change.” If the message a candidate prints
in his ballot slogan happens to be the same message
his supporters circulate through “leafleting” or wear on
their “political clothing,” it belies common sense that
the message on the ballot would be any less inspiring.
And why must core political speech take place “outside
of the polling place” before Election Day, or why must
it be “interactive”? Numerous cases from this Court
16
have treated one-way communication as core political
speech, see, e.g., Fed. Election Comm’n v. Wis. Right To
Life, Inc., 551 U.S. 449 (2007); Brown v. Hartlage, 456
U.S. 45 (1982); Mills v. Alabama, 384 U.S. 214 (1966),
and have consistently subjected restrictions of that
speech to strict scrutiny. The Third Circuit, wholly detached from retail politics, got this wrong. Political
change, by definition, comes from casting a vote. In that
sense, a ballot slogan has the potential to inspire political change more than the “leafletting” or wearing of
“political apparel” that takes place several steps from
the polling place. This is especially true because the
words that appear on the New Jersey ballot belong to
the candidate himself. (And it may be equally true because, in practice, the majority of New Jerseyeans today are absentee voters who receive their ballots at
home long before “Election Day” even arrives.)
The Third Circuit went astray in this case, and
came to baffling conclusions, because it failed to conduct a complete survey of the various kinds of activities that the courts have found constitute “core
political speech.” Had it done so, the Third Circuit
would have realized that core political speech is a
much broader concept. But the court did not do this.
Instead, it relied on the definition of core political
speech advanced by but two election law cases, Meyer
v. Grant, 486 U.S. 414 (1988), and Buckley v. American
Constitutional Law Foundation, Inc., 525 U.S. 182
(1999). In Meyer, this Court said that “the circulation of a petition involves the type of interactive
communication concerning political change that is
17
appropriately described as ‘core political speech.’ ” 486
U.S. at 421-22. And in Buckley, this Court characterized the lodestar for “core political speech” as the involvement of “interactive communication concerning
political change.” 525 U.S. at 186 (quoting Meyer, 486
U.S. at 422). Only by relying exclusively on these precedents did the Third Circuit find that what “constitutes core political speech” is “interactive, one-on-one
communication.” Mazo, 54 F.4th at 143.
In defining core political speech, the Third Circuit
wore these cases as blinders. The court found that
“speech that relates to an election but occurs nowhere
near the ballot or any other electoral mechanism”
should be “treated as core political speech entitled to
the fullest First Amendment protection,” id. at 142,
but, inexplicably, it excluded speech that occurred on
the ballot from this category. The Third Circuit noted
that a “ballot is usually an electoral mechanic,” id. at
145, which is correct, but it did not offer any explanation of what specific electoral mechanism New Jersey’s
ballot slogans performed. Even if the ballot itself is an
electoral mechanism, in that it is used to elect candidates, that does not mean that the slogans printed on
the ballot are as well. The failure to reason carefully
led the Third Circuit to conclude that New Jersey’s
statutory scheme “regulates only the ballot itself—a
classic electoral mechanic—and does not regulate core
political speech.” Id. at 145.
To its credit, the Third Circuit admitted that “the
line separating core political speech from the mechanics of the electoral process has proven difficult to
18
ascertain[.]” Id. at 132. Moreover, the court conceded
that “the Supreme Court itself [has] fractured deeply
in the application of this jurisprudence.” Id. Nonetheless, the Third Circuit waded into these waters in an
attempt “to develop . . . this constitutional jurisprudence” on its own. Id. at 132. It would have been wiser
had the Third Circuit not gotten its toes wet, at least
not without first considering how the slogans that appear on New Jersey ballots work in practice.
4. The Court Should Grant Certiorari To Clarify What Core Political Speech Entails, For
There Is Widespread Confusion On This Issue
Coming to terms with what constitutes “core political speech” is crucial because “core political speech [is]
the ‘primary object of First Amendment protection.’ ”
Citizens United v. Fed. Election Comm’n, 558 U.S. 310,
485 (2010) (Thomas, J., concurring in part, concurring
in judgment in part) (quoting McConnell v. Fed. Election Comm’n, 540 U.S. 93, 264 (2003) (Thomas, J., concurring in part, concurring in judgment in part, and
dissenting in part)). It is “an area in which the importance of First Amendment protections is ‘at its zenith.’ ” Meyer, 486 U.S. at 425. Because “it would be
dangerous for the Government to regulate core political speech for the asserted purpose of improving that
speech,” Davis v. Fed. Election Comm’n, 554 U.S. 724,
744 n.8 (2008), this Court has repeatedly held that
“[w]hen a law burdens core political speech, we apply ‘exacting scrutiny.’ ” McIntyre v. Ohio Elections
19
Comm’n, 514 U.S. 334, 347 (1995). But what core political speech entails, in the first instance, has never quite
been settled.
The Third Circuit, not realizing this, relied on the
definition of core political speech advanced by Meyer
and Buckley. These cases, however, are not the only
ones where the concept of “core political speech” has
been discussed or defined. Restrictions on campaign
contributions and expenditures also burden “core political speech.” Only last Term, this Court found that
the provision of the Bipartisan Campaign Reform Act
that limited the amount of personal loans that could
be repaid to federal candidates by their campaigns
from post-Election Day contributions “burden[ed] core
political speech without proper justification.” Fed.
Election Comm’n v. Cruz, 142 S. Ct. 1638, 1657 (2022).
Likewise, two decades ago, Justice Thomas noted how,
“[w]ith breathtaking scope, the Bipartisan Campaign
Reform Act[’s]” restrictions “directly target and constrict core political speech,” McConnell, 540 U.S. at 265
(Thomas, J., concurring in part and dissenting in part)
(quoting Nixon v. Shrink Missouri Government PAC,
528 U.S. 377, 410-11 (2000) (Thomas, J., dissenting)),
and how “limitations on independent expenditures”
should be “recognize[d]” “as a direct restriction on core
political speech.” McConnell, 540 U.S. at 272 (Thomas,
J., concurring in part and dissenting in part).
Obviously, the contours of what “core political
speech” entails have created uncertainty. But references to core political speech can be found beyond the
context of campaign finance law. “A documentary film
20
critical of a potential Presidential candidate is core political speech.” Citizens United, 558 U.S. at 393 (Scalia,
J., concurring). If that is so, it begs the question of why
Lisa McCormick’s ballot slogan criticizing a potential
presidential candidate—i.e., “Bernie Sanders Betrayed
the NJ Revolution”—would not constitute core political speech as well.
Because “[t]he precise contours of what constitutes ‘core political speech’ are less than perfectly
clear[,]” Pest Committee v. Miller, 626 F.3d 1097, 1105
(9th Cir. 2010), the courts have struggled to define this
concept. Does all speech “critical” of a presidential candidate count, as in Citizens United? Do only “one-onone interactive communications” count, as in Meyer?
Do only “communications concerning political change”
count, as in Buckley? There is lack of clarity, and as a
result splits have arisen within the circuit courts. Cf.
Angle v. Miller, 673 F.3d 112, 1133 (9th Cir. 2012) with
Voting for America, Inc. v. Steen, 732 F.3d 382, 389-96
(5th Cir. 2013). Is the trigger a specific call for political
change? Do broader efforts at ballot access count? All
voter registration activity as a whole?
As the nature of communication has changed, the
need to clarify what counts as core political speech is
even more pressing. Today, Buckley’s sentiment that
“core political speech” requires “interactive communication concerning political change,” 525 U.S. at 186,
seems antiquated. It fails to account for how candidates communicate with their voters in the modern
era. The call for “political change” today is more likely
to happen on television, over the Internet, and via
21
social media. It is through these fora, rather than “leafletting” or the “wearing of political apparel,” that voters learn about proposals to “Make American Great
Again,” to enact “Medicare-for-All,” or to pass the “The
Green New Deal.” These well-known candidate slogans
constitute calls for political change, and they are certainly core political speech, even though no voter interacts one-on-one with the television set where he first
hears these slogans.
“The political speech of candidates is at the heart
of the First Amendment, and direct restrictions on the
content of candidate speech are simply beyond the
power of government to impose.” Republican Party of
Minn. v. White, 536 U.S. 765, 793 (Kennedy, J., concurring). This Court’s precedents have been unwavering
in finding that candidate speech is “core” political
speech and that strict scrutiny must apply “[w]hen a
State seeks to restrict directly the offer of ideas by a
candidate to the voters.” Brown, 456 U.S. at 52-54. Indeed, a candidate’s speech to his voters lies at the absolute “core” of the First Amendment, regardless of the
medium in which it is broadcast. All of the words uttered by a political candidate to his voters constitutes
core political speech. Still, this Court should clarify its
definition of this term to acknowledge today’s era of
digital communications. Otherwise, there will be more
absurd results like the Third Circuit’s opinion below.
For instance, if a candidate posts a message on Facebook and has the “comment” function turned on, that
would constitute “one-on-one interactive communication,” and, under Meyer, it would be deemed to
22
constitute core political speech. But if the comment
function is turned off, it wouldn’t? Meyer’s definition is
incomplete.
“Of course, core political speech need not center on
a candidate for office.” McIntyre, 514 U.S. at 347. Other
speech should count as core political speech as well;
the concept should be broadly construed. As the Ninth
Circuit has recognized, one-on-one communication
through the circulation of petitions is “a form of core
political speech,” Pierce v. Jacobsen, 441 F.4th 853, 86263 (9th Cir. 2022) (emphasis added), but it is not the
only form. There are others. It was in excluding these
other forms of core political speech that the Third Circuit erred.
This Court should take the opportunity to clarify
what core political speech entails, for the alternative is
the chilling result that the Third Circuit reached in
Mazo v. New Jersey Secretary of State.
---------------------------------♦---------------------------------
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CONCLUSION
For the reasons stated, this Court should grant
certiorari in this case.
Respectfully submitted,
May 25, 2023
STEPHEN R. KLEIN
Counsel of Record
BARR & KLEIN PLLC
1629 K St. NW, Ste. 300
Washington, DC 20006
Telephone: (202) 804-6676
steve@barrklein.com
Counsel for Amicus Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.