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

No. 22-1033

IN THE

Supreme Court of the United States

EUGENE MAZO, et al.,

v.

Petitioners,

NEW JERSEY SECRETARY OF STATE, et al.,

Respondents.

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the Third Circuit

BRIEF OF AMICI CURIAE NEW JERSEY

PROFESSORS OF LAW AND POLITICS

IN SUPPORT OF PETITION FOR CERTIORARI

BRIAN A. KULP

DECHERT LLP

Cira Centre

2929 Arch Street

Philadelphia, PA

19104

MICHAEL H. MCGINLEY

Counsel of Record

JUSTIN W. AIMONETTI

DECHERT LLP

1900 K Street, NW

Washington, DC 20006

(202) 261-3378

michael.mcginley@dechert.com

Counsel for Amici Curiae

May 25, 2023

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................2

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

I. The Framers Designed Our Constitution To

Empower The People And Thwart Political

Corruption ..............................................................5

II. The Slogan Statutes Hamstring The People’s

Will By Granting Outsized Influence To Party

Machines.................................................................9

A. Political Insiders Exploit New Jersey’s

“County Line” Bracketing System To

Influence Primary Election Outcomes .............9

B. Empirical Evidence Shows That New

Jersey’s County Line Bracketing System

Influences Voters, Entrenches Incumbents,

And Skews Elections ......................................13

C. New Jersey’s County Line Bracketing

System Violates The First Amendment .........15

CONCLUSION ..........................................................18

ii

TABLE OF AUTHORITIES

CASES

Ams. for Prosperity Found. v. Bonta,

141 S. Ct. 2373 (2021) ........................................... 16

Anderson v. Martin,

375 U.S. 399 (1964) ................................................. 9

Brown v. Hartlage,

456 U.S. 45 (1982) ................................................... 7

Buckley v. Valeo,

424 U.S. 1 (1976) ..................................................... 8

Bullock v. Carter,

405 U.S. 134 (1972) ............................................... 17

Cal. Democratic Party v. Jones,

530 U.S. 567 (2000) ............................................... 16

Citizens United v. FEC,

558 U.S. 310 (2010) ....................................... 7, 8, 16

Cook v. Gralike,

531 U.S. 510 (2001) ........................................... 9, 17

Elrod v. Burns,

427 U.S. 347 (1976) ................................................. 8

FEC v. Ted Cruz for Senate,

142 S. Ct. 1638 (2022) ............................................. 7

Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv.,

LLC, 140 S. Ct. 1649 (2020) .................................... 4

First Nat’l Bank of Bos. v. Bellotti,

435 U.S. 765 (1978) ............................................... 16

McConnell v. FEC,

540 U.S. 93 (2003) ................................................... 7

iii

McCutcheon v. FEC,

572 U.S. 185 (2014) ................................................. 9

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995) ............................................... 16

Meyer v. Grant,

486 U.S. 414 (1988) ................................................. 8

Powell v. McCormack,

395 U.S. 486 (1969) ................................................. 5

Republican Party of Minn. v. White,

536 U.S. 765 (2002) ............................................... 16

Ullmann v. United States,

350 U.S. 422 (1956) ................................................. 6

STATUTES

N.J. Stat. Ann. § 19:5-3 ............................................. 10

N.J. Stat. Ann. § 19:23-17 ..................................... 2, 10

N.J. Stat. Ann. § 19:23-18 ......................................... 10

N.J. Stat. Ann. § 19:23-24 ..................................... 4, 10

N.J. Stat. Ann. § 19:23-25 ......................................... 10

N.J. Stat. Ann. § 19:23-25.1 .................................. 2, 10

N.J. Stat. Ann. § 19:49-2 ..................................... 10, 11

OTHER AUTHORITIES

Akhil Amar, America’s Constitution: A Biography

(2005) ....................................................................... 4

4 Annals of Cong. (1794) ............................................. 4

Centinel No. 1, in 2 The Complete Anti-Federalist

(Herbert J. Storing ed., 1981) ................................. 7

iv

Ronald Chen & John Farmer, Jr., New Jersey’s

primary election ballots are rigged, The StarLedger (June 27, 2021), bit.ly/3okjy7G ................ 15

2 Debates on the Federal Constitution (J. Elliot ed.,

1876) ........................................................................ 5

4 Debates on the Federal Constitution (J. Elliot ed.,

1876) ........................................................................ 7

Francisco Diez, The Likely Advantages of the Line,

Commc’n Workers of Am. (July 29, 2019) ............ 15

Michael R. Dimino et al., Voting Rights and Election

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

ed. 2020)............................................................. 3, 17

Erik J. Engstrom & Jason M. Roberts, The Politics

of Ballot Design: How States Shape American

Democracy (2020) .............................................. 3, 10

The Federalist No. 22 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) .................................... 6

The Federalist No. 68 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) .................................... 6

Patrick Henry, Speech on the Expediency of Adopting

the Federal Constitution (June 7, 1788), in 1

Eloquence of the United States (E. B. Williston ed.,

1829) ........................................................................ 6

Alexander J. Law, The Restoration of Anti-Corruption

as a Constitutional Principle, 14 Alb. Gov’t L. Rev.

144 (2021) .......................................................... 4, 11

Abraham Lincoln, Gettysburg Address (Nov. 19,

1863) ........................................................................ 6

v

James Madison, Report on the Virginia Resolutions,

in 4 Debates on the Federal Constitution (J. Elliot

ed., 1876).................................................................. 8

Brett M. Pugach, The County Line: The Law

and Politics of Ballot Positioning in New

Jersey, 72 Rutgers U. L. Rev. 629

(2020) ..................................... 4, 9, 10, 11, 12, 13, 14

Suzi Ragheb, How New Jersey Political Parties Rig

the Ballot, J. of Pub. & Int’l Affs. (June 23, 2021),

https://bit.ly/40hR3F2 ........................................... 13

1 The Records of the Federal Convention of 1787

(Max Farrand ed., 1911) ..................................... 3, 6

Julia Sass Rubin, Does the County Line Matter?

An Analysis of New Jersey’s 2020 Primary (2020),

bit.ly/3q6TwF9..................................... 10, 13, 14, 15

Julia Sass Rubin, Toeing the Line: New Jersey

Primary Ballots Enable Party Insiders to Pick

Winners (2020), bit.ly/433xfa2 .............................. 14

William E. Schluter, Soft Corruption: How Unethical

Conduct Undermines Good Government and What

To Do About It (2017) .......................................... 5, 9

Third Am. Compl., Mazo v. Durkin, No. 3:20-cv08336-ZNQ-TJB (D.N.J. Feb. 21, 2023) ............... 12

Seth Barrett Tillman, The Original Public Meaning

of the Foreign Emoluments Clause: A Reply to

Professor Zephyr Teachout, 107 Nw. U. L. Rev.

Colloquy 180 (2013) ................................................. 7

Samuel S.-H. Wang, Two Tests for Bias Arising from

the Design of Primary Election Ballots in New

vi

Jersey, 47 Seton Hall Leg. J.

(forthcoming 2023) ...................................... 3, 13, 14

David Wildstein, Most New Jerseyans oppose

organization lines, FDU poll says, N.J. Globe

(Nov. 15, 2022), bit.ly/3Wt3YCY ........................... 14

1

INTEREST OF AMICI CURIAE 1

Amici curiae are four professors at various New

Jersey universities (Princeton, Rutgers, and Seton

Hall). They are all longtime observers of New Jersey’s

political system, intimately knowledgeable about the

“slogan statutes,” and particularly interested in the

outcome of this case. They have each also served in

various capacities in New Jersey State government.

Ronald K. Chen is Distinguished Professor of Law,

University Professor, and Judge Leonard I. Garth

Scholar at Rutgers Law School. He has been a faculty

member since 1987 and served as the school’s Dean

from 2013 to 2018. From 2006 to 2010, Chen served

as the Public Advocate of New Jersey, a cabinet

position to which he was nominated by Governor Jon

S. Corzine and confirmed by the State senate.

John J. Farmer, Jr. is University Professor of Law

at Rutgers Law School and Director of the Eagleton

Institute of Politics at Rutgers University. He served

as Dean of Rutgers Law School from 2009 to 2013.

From 1999 to 2002, Farmer was the Attorney General

of New Jersey. Before that, he served as chief counsel

to Governor Christine Todd Whitman.

Paula A. Franzese is Peter W. Rodino Professor of

Law at Seton Hall Law School, where she has taught

Pursuant to Rule 37.6, amici curiae affirm that no counsel

for a party authored this brief in whole or in part and that no

person other than amici curiae, their members, and their counsel

made a monetary contribution to its preparation or submission.

Amici curiae further affirm that counsel of record for all parties

received notice of the intent to file this brief at least 10 days

before its due date.

1

2

since 1986. She has also served in many government

roles, including chair of the New Jersey State Ethics

Commission, chair of the State Commission on

Professionalism, vice-chair of the State Election Law

Enforcement Commission, and special ethics counsel

to Governor Richard J. Codey.

Samuel S.-H. Wang is Professor of Neuroscience at

Princeton University, where he is a faculty associate

of the Program in Law and Public Affairs. He also

directs the Electoral Innovation Lab, a nonpartisan

policy analysis organization. In 2021, Wang served as

a consultant to both the New Jersey Apportionment

Commission and the New Jersey Redistricting

Commission. 2

INTRODUCTION AND SUMMARY OF

ARGUMENT

This case provides a clean vehicle for this Court to

resolve a constitutional issue of exceptional

importance. As the Petition for Certiorari explains,

New Jersey’s “slogan statutes” suppress core political

speech through unmistakable content and viewpoint

discrimination. See Pet. at 1–3; N.J. Stat. Ann.

§§ 19:23-17, 19:23-25.1. And the decision below that

upholds those statutes is incorrect. It applies the

wrong analytical framework, and it threatens to

undermine the First Amendment’s role in preserving

our republican democracy. Amici curiae submit this

brief to emphasize how the Third Circuit’s decision

2 Institutional affiliations are provided for identification only

and amici are speaking solely in their individual capacities. The

contents of this amicus brief do not necessarily reflect the views

of Princeton, Rutgers, or Seton Hall.

3

cements an unconstitutional ballot system that stifles

political competition.

It is no secret that ballot design can have a

profound effect on election outcomes. See, e.g., Erik J.

Engstrom & Jason M. Roberts, The Politics of Ballot

Design: How States Shape American Democracy 4–5

(2020) (“The form and structure of the ballot presented

to voters can affect . . . how those who choose to vote

cast their ballots.”).

For instance, “[d]ue to a

phenomenon known as the ‘primacy effect,’ candidates

listed first on a ballot have an advantage over laterlisted candidates.” Michael R. Dimino et al., Voting

Rights and Election Law: Cases, Explanatory Notes,

and Problems 525 (3d ed. 2020). Similarly, because of

a cognitive bias some have described as “weight of the

line,” voters are naturally drawn to candidates whose

names are grouped together in a row or column. See

Samuel S.-H. Wang, Two Tests for Bias Arising from

the Design of Primary Election Ballots in New Jersey,

47 Seton Hall Leg. J. (forthcoming 2023) (manuscript

at 4) (on file with author).

By leveraging these phenomena in favor of their

preferred candidates, entrenched political leaders can

significantly impair the electoral prospects of

challengers.

That is precisely what the slogan

statutes enable. But such preferential balloting

systems undermine the integrity of our elections.

They corrupt the democratic process. And they

threaten our constitutional order.

Indeed, the

Framers considered political corruption among the

greatest threats to the nascent country. See, e.g., 1

The Records of the Federal Convention of 1787, at 391–

92 (Max Farrand ed., 1911) [hereinafter “Farrand’s

4

Records”] (George Mason) (“[I]f we do not provide

against corruption, our government will soon be at an

end.”). So they deliberately structured our Nation’s

charter to thwart abuses of power by political insiders.

Those bulwarks of democracy—including the First

Amendment—serve to ensure that the ultimate power

remains “in the people over the Government, and not

in the Government over the people.” 4 Annals of Cong.

934 (1794) (James Madison); see Fin. Oversight &

Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 140 S. Ct.

1649, 1675 (2020) (Thomas, J., concurring) (explaining

that the Framers “embraced a concept of government

in which the people are sovereign” (cleaned up)

(quoting Akhil Amar, America’s Constitution: A

Biography 278–79 (2005))).

New Jersey’s ballot system inverts that hierarchy

of power. Through the slogan statutes, “New Jersey

law provides advantages to machine-backed

candidates that are extremely difficult for any

challenger to overcome.” Brett M. Pugach, The County

Line: The Law and Politics of Ballot Positioning in

New Jersey, 72 Rutgers U. L. Rev. 629, 630 (2020).

The State organizes its primary elections by allowing

a “bracketed” group of candidates to line up together

on a ballot based on a common slogan, rather than by

political office. See N.J. Stat. Ann. § 19:23-24. In turn,

the favorites of the entrenched political machines get

to use the same party-controlled slogan and thereby

benefit from the “weight of the line” phenomenon.

And, through other aspects of New Jersey law, those

candidates are often given favorable ballot positioning

too. See Alexander J. Law, The Restoration of AntiCorruption as a Constitutional Principle, 14 Alb. Gov’t

L. Rev. 144, 174–75 (2021). Meanwhile, the slogan

5

statutes’ consent restrictions can serve to prevent

challengers from using their preferred slogans—or

from adopting the party insiders’ chosen slogans.

Then those opposition candidates “are spread across

the ballot into ‘ballot Siberia,’” where they predictably

lose votes. Id. (citation omitted). The result is that

“strong party bosses control the selection of

candidates” in New Jersey, and “real competition is

snuffed out.” William E. Schluter, Soft Corruption:

How

Unethical

Conduct

Undermines

Good

Government and What To Do About It 10 (2017).

This Court should end the electoral distortion

facilitated by New Jersey’s slogan statutes. Allowing

the Third Circuit’s decision to stand would entrench

the influence of party machines over electoral

behavior and greenlight intrusions into core political

speech. Amici curiae respectfully urge this Court to

grant certiorari and reverse.

ARGUMENT

I.

The Framers Designed Our Constitution To

Empower The People And Thwart Political

Corruption.

“A fundamental principle of our representative

democracy” is that “‘the people should choose whom

they please to govern them.’” Powell v. McCormack,

395 U.S. 486, 547 (1969) (quoting 2 Debates on the

Federal Constitution 257 (J. Elliot ed., 1876)

[hereinafter

“Elliot’s

Debates”]

(Alexander

Hamilton)). To that end, the Framers insisted that

popular elections—as the “great source of free

government”—“be perfectly pure, and the most

unbounded liberty allowed.” 2 Elliot’s Debates at 257

6

(Alexander Hamilton). Only then could the streams of

political power flow “from that pure, original fountain

of all legitimate authority”—“the consent of the

people.” The Federalist No. 22, at 152 (Alexander

Hamilton) (Clinton Rossiter ed., 1961).

The Framers knew, however, that this vision for

the New Republic would face constant threats. After

all, they “had much experience with a tendency in

human nature to abuse power.” Ullmann v. United

States, 350 U.S. 422, 428 (1956); see, e.g., 1 Farrand’s

Records at 379 (Pierce Butler) (lamenting the nature

of mankind as revealed by “the history of the

government of Great Britain”); Patrick Henry, Speech

on the Expediency of Adopting the Federal

Constitution (June 7, 1788), in 1 Eloquence of the

United States 178, 223 (E. B. Williston ed., 1829)

(“Look at Britain; see there the bolts and bars of

power; see bribery and corruption defiling the fairest

fabric that ever human nature reared.”). And the

Framers recognized that their country would not be

immune from that natural tendency. If they were to

sustain the “government of the people, by the people,

for the people,” that they envisioned, see Abraham

Lincoln, Gettysburg Address (Nov. 19, 1863),

“[n]othing was more to be desired than that every

practicable obstacle” be placed in the way of “cabal,

intrigue, and corruption,” The Federalist No. 68, at

412 (Alexander Hamilton).

The Delegates to the Constitutional Convention

thus set out to erect those guardrails in the summer of

1787. The result of their efforts was that the vices of

political corruption were “more effectually guarded

against, in the manner this government was

7

constituted, than in any other that had ever been

formed.” 4 Elliot’s Debates at 302 (Charles Pinckney);

see also Seth Barrett Tillman, The Original Public

Meaning of the Foreign Emoluments Clause: A Reply

to Professor Zephyr Teachout, 107 Nw. U. L. Rev.

Colloquy 180, 208 (2013) (“[C]orruption-speak

dominated the worldview of the Framers, and of the

ratifiers, and of the public of 1787-1789[.]” (emphasis

omitted)).

Still, the People were wary from their recent

experience with the British Empire. It was not lost on

them that “[t]he first instinct of power is the retention

of power.” McConnell v. FEC, 540 U.S. 93, 263 (2003)

(Scalia, J., concurring in part and dissenting in part).

And so they responded by demanding greater

assurances than the Constitution had initially

provided. In particular, the Anti-Federalists insisted

on a declaration of rights that would explicitly

guarantee the “freedom of speech,” among other

protections. See Centinel No. 1, in 2 The Complete

Anti-Federalist 136, 136 (Herbert J. Storing ed., 1981).

That guarantee soon made its way into the First

Amendment. “Premised on mistrust of governmental

power, the First Amendment stands against attempts

to disfavor certain subjects or viewpoints.” Citizens

United v. FEC, 558 U.S. 310, 340 (2010). And nowhere

is the fundamental freedom that it enshrines more

zealously guarded than in the context of a political

campaign. See FEC v. Ted Cruz for Senate, 142 S. Ct.

1638, 1650 (2022).

That is no mistake. The political campaign is “at

the heart of American constitutional democracy.”

Brown v. Hartlage, 456 U.S. 45, 53 (1982). And “the

8

system of government the First Amendment was

intended to protect” is a “democratic system whose

proper functioning is indispensably dependent on the

unfettered judgment of each citizen on matters of

political concern.” Elrod v. Burns, 427 U.S. 347, 372

(1976) (plurality op.). In that system, free speech is

“the means to hold officials accountable to the people.”

Citizens United, 558 U.S. at 339. And even marginal

burdens on that freedom can exact intolerable costs.

When our political leaders use their positions to stifle

or manipulate the content of election-related speech,

democracy suffers—as does the future of our country.

See Buckley v. Valeo, 424 U.S. 1, 14–15 (1976) (per

curiam) (“In a republic where the people are sovereign,

the ability of the citizenry to make informed choices

among candidates for office is essential, for the

identities of those who are elected will inevitably

shape the course that we follow as a nation.”).

Simply put, “[t]he First Amendment was fashioned

to assure unfettered interchange of ideas for the

bringing about of political and social changes desired

by the people.” Meyer v. Grant, 486 U.S. 414, 421

(1988) (quotation marks omitted). And its democratic

underpinnings cannot be overstated.

As James

Madison explained when opposing the Sedition Act,

the First Amendment forbids “those in power” from

suppressing speech to “derive an undue advantage for

continuing themselves in [power].” James Madison,

Report on the Virginia Resolutions, in 4 Elliot’s

Debates at 576.

Such self-serving attempts by

politically entrenched actors to manipulate the public

debate over who should govern “impair the right of

election” and the right of the people to govern

themselves. Id. Or, as this Court put it more recently:

9

“[T]hose who govern should be the last people to help

decide who should govern.” McCutcheon v. FEC, 572

U.S. 185, 192 (2014) (plurality op.).

New Jersey’s slogan statutes flip that principle on

its head. They “handicap candidates ‘at the most

crucial stage in the election process—the instant

before the vote is cast.’” Cook v. Gralike, 531 U.S. 510,

525 (2001) (quoting Anderson v. Martin, 375 U.S. 399,

402 (1964)). And as the Petitioners correctly explain,

the statutes “operate to discriminate on the basis of

viewpoint and in favor of entrenched political

machines.” Pet. at 14. That much cannot be disputed.

But the reality is that the situation in New Jersey is

even worse than appears at first blush.

II.

The Slogan Statutes Hamstring The People’s

Will By Granting Outsized Influence To

Party Machines.

A.

Political Insiders Exploit New Jersey’s

“County Line” Bracketing System To

Influence Primary Election Outcomes.

In New Jersey, “manipulating the primary ballot

structure in the selection of candidates for office” has

long represented “standard operating procedure

among political pros.” Schluter, supra, at 6. And one

particular feature of the system—known as the

“County Line”—illustrates with striking clarity just

how “the state’s party bosses and county chairs”

exploit the slogan statutes “to deprive [New Jersey’s]

citizens of their right to exercise a free and fair vote.”

Pugach, supra, at 631.

Here is how the County Line operates: By law,

candidates who file a joint petition and “choose the

10

same designation or slogan” for the primary election

have their names “drawn for position on the ballot as

a unit,” and “shall have their names be placed on the

same line” of the ballot by the county clerks. N.J. Stat.

Ann. § 19:49-2; see also id. § 19:23-18. Each political

party has a “county committee,” see id. § 19:5-3, and

one of the committee’s principal functions is to endorse

favored candidates, see Pugach, supra, at 653–54.

“The slogan used by county committee-endorsed

candidates is often owned by a corporation” controlled

by insiders, “which grants permission for the slogan’s

use to the slate of candidates endorsed by the county

committee.” Id. at 654. Thus, through New Jersey’s

slogan consent restrictions, see N.J. Stat. Ann.

§§ 19:23-17, 19:23-25.1, county committees ensure

that a cherrypicked slate of candidates appear

together as a group on primary ballots, see Pugach,

supra, at 654–55.

Candidates grouped together in this way possess

significant advantages in primary elections. See Julia

Sass Rubin, Does the County Line Matter? An Analysis

of New Jersey’s 2020 Primary 2–12 (2020),

bit.ly/3q6TwF9. They are “bracketed” together on the

same column or row of the primary ballot. See N.J.

Stat. §§ 19:23-24, 19:23-25. And because of the

“weight of the line,” voters will often engage in

straight-ticket voting to select all the candidates

grouped together. See Engstrom & Roberts, supra, at

27 (“A ballot design that lines candidates into party

columns encourages straight-ticket voting.”). As a

matter of practice, then, “the county committeeendorsed candidates receive the County Line

advantage, while ‘off the line’ candidates remain

significantly disadvantaged.” Pugach, supra, at 657.

11

To make matters worse, New Jersey also allows

bracketed candidates to participate in a preferential

ballot draw, which means that they will receive more

prominent ballot positioning. See id. at 637–38. That

means that the “machine candidates” get placed on the

same row or column, “often the first,” despite running

for different offices. Law, supra, at 174; see N.J. Stat.

Ann. § 19:49-2. Then unbracketed candidates are

relegated to obscure parts of the ballot, colloquially

known as “ballot Siberia.” Law, supra, at 174 (citation

omitted); see also Pugach, supra, at 661–62

(explaining how “phantom candidates” are “placed on

the ballot solely by the political machines to push

candidates who [are] not on the party line onto obscure

portions of the ballot”).

Consider the following sample ballot for the 2018

New Jersey Democratic primary in Camden County:

12

See Pugach, supra, at 663. The nine “County Line”

candidates occupy column 2.

See id. at 662.

Incumbent Senator Robert Menendez occupies the

column’s top row. See id. at 663. The candidates in

Column 2 all have the same slogan. Id. And the

remaining candidates for the various electoral offices

are scattered across the other columns with different

slogans. Id. These “ballot tricks are obviously

designed” to benefit the machine-backed candidates in

column 2, by encouraging voters to choose all the

candidates bracketed together on the County Line. Id.

As a result, obtaining the county committee’s

endorsement—and in turn, its slogan—has become

“synonymous with winning the primary election.”

Pugach, supra, at 656.

Petitioner Eugene Mazo experienced these

problems first-hand. He ran for office in 2020, and

below is a sample primary ballot from Essex County

for the 2020 Democratic primary election (Essex

County brackets candidates by row instead of column):

See Third Am. Compl. at 11, Mazo v. Durkin, No. 3:20cv-08336-ZNQ-TJB (D.N.J. Feb. 21, 2023). Mr. Mazo

13

does not appear in the same row as incumbent Senator

Cory Booker or now-President Joe Biden because he

did not bracket with those candidates. See id. And

that placement “off the line” put him at a distinct

disadvantage vis-à-vis Donald M. Payne, Jr., who was

bracketed with those prominent candidates on the

County Line. See Pugach, supra, at 655 (“Parties

know that voters are much more likely to vote down

[or across] the line for all candidates who are

associated with the few recognized names at the top of

the ballot than they are to vote for a candidate with a

different slogan on a different line of the same

ballot.”). Predictably, Mr. Mazo lost the primary.

Pet.App.52.

The ability to select a slogan and then bracket

candidates together provides a tremendous source of

political power. And, of course, the party insiders—

who usually control the slogans that candidates need

to bracket with one another—exploit the County Line

bracketing system to advantage their hand-picked

candidates at the expense of challengers. That skews

primary elections in ways that do not fairly reflect the

people’s will.

B.

Empirical Evidence Shows That New

Jersey’s County Line Bracketing System

Influences

Voters,

Entrenches

Incumbents, And Skews Elections.

This electoral distortion is not just theoretical.

Scholarly studies reveal that “structuring ballots

around the county line impacts election outcomes by

steering voters towards specific candidates.” Rubin,

Does the County Line Matter?, supra, at 2; see also, e.g.,

Wang, supra (manuscript at 8); Suzi Ragheb, How

14

New Jersey Political Parties Rig the Ballot, J. of Pub.

& Int’l Affs. (June 23, 2021), https://bit.ly/40hR3F2.

Indeed, “[c]andidates’ share of the vote varied by as

much as 50 percentage points, based on whether or not

they were on the county line.” Rubin, Does the County

Line Matter?, supra, at 2. It is no wonder that political

insiders regard this “faulty design [as] a feature rather

than a bug” for controlling elections. Julia Sass Rubin,

Toeing the Line: New Jersey Primary Ballots Enable

Party Insiders to Pick Winners 4 (2020),

bit.ly/433xfa2. 3 The ballot structure “intentionally

and effectively deprives the state’s voters from being

able to replace party-backed insiders with

challengers.” Pugach, supra, at 631.

Given the power of the County Line, “what matters

most to political candidates” in New Jersey, “at least

as far as primary elections go, is that they have the

support of their county party chair, rather than the

support of the state’s voters.” Id. That is especially

true when it comes to incumbents. Amicus Samuel

Wang has demonstrated that New Jersey incumbents

“who are listed on the county line have success rates

that are higher than their counterparts [in] the other

49 states.” Wang, supra (manuscript at 6). And the

odds of this overperformance by New Jersey

incumbents arising by chance are “less than one in 1

million.” Id. In fact, over the course of a decade, not

one State legislative incumbent featured on the

3 The majority of New Jersey voters, by contrast, oppose the

County Line bracketing system and the distorting influence it

has on the State’s politics. See David Wildstein, Most New

Jerseyans oppose organization lines, FDU poll says, N.J. Globe

(Nov. 15, 2022), bit.ly/3Wt3YCY.

15

County Line lost a New Jersey primary election. See

Rubin, Does the County Line Matter?, supra, at 3

(citing Francisco Diez, The Likely Advantages of the

Line, Commc’n Workers of Am. (July 29, 2019)).

When an incumbent does lose his or her seat these

days, “it is usually not as the legitimate result of the

voters’ rejection, but rather because whoever controls

the county line . . . simply decides . . . to give the line

to someone else.” Ronald Chen & John Farmer, Jr.,

New Jersey’s primary election ballots are rigged, The

Star-Ledger (June 27, 2021), bit.ly/3okjy7G. This

insider-controlled system is fundamentally at odds

with our democratic ideals. It “enables entrenched

political machines to remain in power and frustrate

the ambitions of emerging and historically

marginalized groups.” Id. Even incumbents “must

tailor [their] positions to satisfy the party

establishment rather than the voters whose wishes a

primary election is ostensibly designed to measure.”

Id. As a result, in many New Jersey races, “the

primary winner is . . . a foregone conclusion,” which is

“precisely the intention and the effect of the ‘county

line’ primary ballot.” Id. “Given the advantages of

ballot positioning,” “very few candidates who are not

favored by the county line are able to prevail” in the

Garden State. Id.

C.

New Jersey’s County Line Bracketing

System Violates The First Amendment.

This statutory scheme is unconstitutional in

multiple ways. To start, the State’s slogan statutes

restrict core political speech on the basis of content

and discriminate on the basis of viewpoint in favor of

entrenched partisan machines. See Pet. at 16–22. The

16

First Amendment simply does not tolerate those sorts

of restraints.

After all, political speech is

“indispensable to decisionmaking in a democracy.”

First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 777

(1978). So it “must prevail against laws that would

suppress it, whether by design or inadvertence.”

Citizens United, 558 U.S. at 340. In fact, this Court

has “never allowed the government to prohibit

candidates from communicating relevant information

to voters during an election.” Republican Party of

Minn. v. White, 536 U.S. 765, 782 (2002). It instead

applies “exacting scrutiny” to any law that burdens

such core political speech, “uphold[ing] the restriction

only if it is narrowly tailored to serve an overriding

state interest.” McIntyre v. Ohio Elections Comm’n,

514 U.S. 334, 347 (1995) (citation omitted). The slogan

statutes flunk that test. See Pet. at 20–22.

Yet the First Amendment flaws in the slogan

statutes run even deeper. “This Court has long

understood as implicit in the right to engage in

activities protected by the First Amendment a

corresponding right to associate with others.” Ams. for

Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2382

(2021) (quotation marks omitted). And “a corollary of

the right to associate is the right not to associate.”

Cal. Democratic Party v. Jones, 530 U.S. 567, 574

(2000). Absent some overriding government interest,

the States must respect both of these associational

rights. See id. at 581 (“We have consistently refused

to overlook an unconstitutional restriction upon some

First Amendment activity simply because it leaves

other First Amendment activity unimpaired.”).

17

New Jersey, however, does not. The County Line

system bestows a clear advantage on political

candidates who bracket with one another. See supra

Section II.B. And, by doing so, it elevates some

candidates over others who choose to exercise their

right not to associate with the County Line. By

affording preferential ballot treatment to bracketed

candidates, “the State injects itself into the election

process at an absolutely critical point—the

composition of the ballot, which is the last thing the

voter sees before he makes his choice—and does so in

a way that is not neutral as to issues or candidates.”

Cook, 531 U.S. at 532; see also Dimino et al., supra, at

535 (noting that caselaw “demonstrates very clearly

that a ballot design that is neutral on its face can be

employed to manipulate election results”). That

impermissibly burdens the unbracketed candidate’s

associational freedoms, as well as the rights of his

supporters. See Bullock v. Carter, 405 U.S. 134, 143

(1972) (“[T]he rights of voters and the rights of

candidates do not lend themselves to neat separation;

laws that affect candidates always have at least some

theoretical, correlative effect on voters.”). And that

further underscores the need for this Court’s

intervention.

18

CONCLUSION

For the foregoing reasons, amici curiae respectfully

urge this Court to grant the petition for certiorari.

Respectfully submitted,

BRIAN A. KULP

MICHAEL H. MCGINLEY

DECHERT LLP

Counsel of Record

Cira Centre

JUSTIN W. AIMONETTI

2929 Arch Street

DECHERT LLP

Philadelphia, PA 19104 1900 K Street, NW

Washington, DC 20006

(202) 261-3378

michael.mcginley@dechert.com

Counsel for Amici Curiae

May 25, 2023