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

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 Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

---------------------------------♦--------------------------------AMICUS CURIAE BRIEF OF GOOD

GOVERNMENT COALITION OF NEW JERSEY

AND REPRESENTUS OF NEW JERSEY

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------LORI OUTZS BORGEN

Counsel of Record

JON ROMBERG

SETON HALL LAW SCHOOL

CENTER FOR SOCIAL JUSTICE

833 McCarter Hwy.

Newark, NJ 07102

(973) 642-8700

lori.borgen@shu.edu

Counsel for Amici Curiae

May 25, 2023

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... iii

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

SUMMARY OF ARGUMENT ......................................2

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

I.

The Purpose and History of New Jersey’s

Slogan Statute Demonstrates that It Is Intended to and Operates to Restrict Core

Political Speech and to Empower Local Political Machines ................................................ 5

A. The Slogan Statute Has Twin Purposes: Establishing a Forum for Core

Political Speech and Empowering Local Political Machines to Control Slogans and Thereby Give Their Favored

Candidates an Overwhelming Advantage in Primary Elections ................... 5

B. The Slogan Statute’s Name Restrictions Have the Purpose and Effect

of Barring Core Political Speech and of

Empowering Local Political Machines

to Use Slogans to Create a County

Line, Effectively Dictating Primary

Results ........................................................ 7

II.

The Actual Operation of New Jersey’s Slogan Statute Demonstrates That It Is

Vague, Underinclusive, and Overbroad ....... 13

A. Inclusion of or Reference to the Name

of a Person ................................................ 15

ii

TABLE OF CONTENTS—Continued

Page

B. Inclusion of or Reference to the Name

of an Incorporated Association of this

State.......................................................... 20

III.

The Slogan Statute Violates the First

Amendment Because It Is Vague and

Overbroad ....................................................... 24

CONCLUSION ...........................................................28

iii

TABLE OF AUTHORITIES

Page

CASES

Allen v. Francisco Sugar Co., 92 N.J. Eq. 431 (Ct.

Err. & App. 1921) .....................................................21

Am. Employers’ Ins. Co. v. Elf Atochem N. Am.,

157 N.J. 580 (1999) ..................................................21

Anderson v. Martin, 375 U.S. 399 (1964)......................6

Austin v. Reagan Nat’l Adver. of Austin, 142

S. Ct. 1464 (2022) ....................................................17

Bd. of Airport Comm’rs v. Jews for Jesus, 482

U.S. 569 (1987) ........................................................13

Brown v. Hartlage, 456 U.S. 45 (1982) .........................5

Cook v. Gralike, 531 U.S. 510 (2001) ...................... 6, 19

Keyishian v. Bd. of Regents, 385 U.S. 589 (1967) .......19

Kolender v. Lawson, 461 U.S. 352 (1983) ............. 24, 25

Mazo v. N.J. Sec’y of State, 54 F.4th 124 (3d Cir.

2022) .................................................................... 6, 14

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334

(1995) .........................................................................5

Mochary v. Caputo, 100 N.J. 119 (1985) .....................12

Moskowitz v. Grogan, 243 A.2d 280 (N.J. Super.

Ct. App. Div. 1968) ...................................................11

Norman v. Reed, 502 U.S. 279 (1992) .........................26

Stevenson v. Gilfert, 100 A.2d 490 (N.J. 1953) .............7

iv

TABLE OF AUTHORITIES – Continued

Page

Vill. of Schaumburg v. Citizens for a Better Env’t,

444 U.S. 620 (1980) .............................................. 27

Washington State Grange v. Washington State

Republican Party, 552 U.S. 442 (2008) ............. 14, 25

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I .......................... 1, 2, 4-6, 8, 12-14,

.......................................................... 17-19, 24, 25, 27

STATUTES

N.J. Stat. Ann. § 19:13-4 .............................................26

N.J. Stat. Ann. § 19:23-17 ......................... 2, 7, 8, 15, 16

N.J. Stat. Ann. § 19:23-24 ...........................................11

N.J. Stat. Ann. § 19:23-25.1 ...................................... 2, 8

N.J. Stat. Ann. § 19:49-2 ......................................... 3, 10

N.J. Stat. Ann. § 19:49-4 ...............................................6

N.J. Stat. Ann. § 40:45-10 ...........................................26

N.J. Stat. Ann. § 40:45-14 ...........................................26

OTHER AUTHORITIES

Bill to Help Dewey Keep Mum to Pass, The Jersey Journal (Feb. 21, 1944) ................................... 8, 9

Brett M. Pugach, The County Line: The Law and

Politics of Ballot Positioning in New Jersey,

72 Rutgers U. L. Rev. 629 (2020) ........ 3, 7, 10, 11, 13

v

TABLE OF AUTHORITIES – Continued

Page

Court Dismisses Challenge of Law, Trenton

Evening Times (Apr. 16, 1944) ................................15

David M. Halbfinger, State Court Judge Rebuffs

a Ballot Ploy by Florio, The New York Times

(Apr. 19, 2000), https://www.nytimes.com/

2000/04/19/nyregion/state-court-judge-rebuffsa-ballot-ploy-by-florio.html .....................................23

David Wildstein, Judges Issues TRO On Camden Democratic Slogan (Apr. 2, 2020) ....................22

David Wildstein, McCann Wins Fight Over

Lonegan Slogan, N.J. Globe (Apr. 5, 2018),

https://newjerseyglobe.com/congress/mccannwins-fight-over-lonegan-slogan/..............................16

David Wildstein, State Allows DeNeufville To Use

Reagan Slogan (Apr. 10, 2018), https://new

jerseyglobe.com/congress/state-allows-deneufvilleto-use-reagan-slogan/ ..............................................18

G.O.P. Rift Over Voiding Dewey Name, The Jersey

Journal (Feb. 23, 1944)..............................................9

Julia Sass Rubin, Does the County Line Matter?

An Analysis of New Jersey’s 2020 Primary

Election Results, N.J. Policy Perspective (Aug.

13, 2020), https://bit.ly/42HXlQj .............................12

Julia Sass Rubin, New Jersey’s Primary Ballot

Design Enables Party Insiders to Pick Winners

(2020), http://dx.doi.org/doi:10.7282/t3-31dy0j57 .................................................................... 11, 12

vi

TABLE OF AUTHORITIES – Continued

Page

Letter from Eugene Mazo to Robert F. Giles

(Apr. 7, 2020) ...........................................................17

Letter from Robert F. Giles to Eugene Mazo

(Apr. 6, 2022) ..................................................... 16, 20

Matt Friedman, Anti-machine Democrats in

Camden County Complain of ‘Phantom Candidates,’ Politico (Apr. 10, 2019), https://www.

politico.com/states/new-jersey/story/2019/04/09/

anti-machine-democrats-in-camden-countycomplain-of-phantom-candidates-960442 ..............12

Merriam-Webster Dictionary, https://www.

merriam-webster.com/dictionary/person ................18

New Court Fight on Dewey Slogan, Trenton

Evening Times (Apr. 10, 1944) ................................15

New Jersey Voter Information Portal, 2014 Elections Results, U.S. House of Representatives,

https://www.state.nj.us/state/elections/assets/

pdf/election-results/2014/2014-official-primaryresults-us-house.pdf ................................................19

O’Toole, Kevin, Courage and Strategy of Getting on the Ballot, InsiderNJ (Apr. 6 2017),

www.insidernj.com/courage-strategy-gettingballot/ .......................................................................22

Ralph Simpson Boots, The Direct Primary in NJ

(1917) .........................................................................7

Trenton Legislature Keeping Dewey Mum Suits

N.Y. Governor, The Jersey Journal (Feb. 23,

1944) ..........................................................................9

vii

TABLE OF AUTHORITIES – Continued

Page

Webster’s II New College Dictionary .........................18

Wittreich Files for U.S. Senate, The Jersey Journal

(Mar. 24, 1944) ...........................................................9

1

INTEREST OF AMICI CURIAE1

The Good Government Coalition of New Jersey

(GGCNJ) is a nonpartisan, grassroots group whose

mission is to strengthen democracy by working with

residents across New Jersey to bring greater transparency, accountability, and participation to New Jersey’s

state and local governments and political system.

GGCNJ advocates for fairer primary ballots in New

Jersey and nonpartisan rules of good ballot design.

RepresentUS of New Jersey is the New Jersey

chapter of RepresentUs, America’s leading nonpartisan, anti-corruption organization fighting to fix broken

and ineffective government. It unites people across the

political spectrum to pass laws that hold corrupt politicians accountable, defeat special interests, and

strengthen American democracy.

Amici are interested in this case because New Jersey’s slogan statute impairs New Jersey voters’ First

Amendment rights and its operation undermines democracy. They respectfully submit that the Court

should grant the petition.

---------------------------------♦---------------------------------

1

The parties were timely notified of this amicus curiae brief

as required by Rule 37.2. No counsel for a party authored this

brief in whole or in part, and no person or entity other than amici

and their counsel funded its preparation or submission.

2

SUMMARY OF ARGUMENT

New Jersey’s “slogan statute,” N.J. Stat. Ann.

§ 19:23-17, grants a primary election candidate the

right to speak to New Jersey voters by placing on the

ballot a slogan of up to six words for either of two

overtly stated purposes: (1) engaging in core political

speech to voters stating the candidate’s position on

matters of policy, or (2) aligning the candidate with a

faction of his political party.2 The slogan statute was

amended in 1944 by (3) regulating the substantive content of such slogans to dictate that they may not include or refer to the name of a person or New Jersey

corporation absent written permission.

The slogan statute’s name restrictions violate the

First Amendment. They are not only content- and

viewpoint-based, as the petition for certiorari argues

convincingly, but, as this brief from New Jersey amici

demonstrates, operate on the ground in a manner both

vague and overbroad, providing additional reasons the

2

Any primary candidate may “request” “a designation, in not

more than six words” to appear on the ballot “for the purpose of

indicating either [1] any official act or policy to which he is

pledged or committed, or [2] to distinguish him as belonging to a

particular faction or wing of his political party; provided, however,” that [3] “no such designation or slogan shall include or refer

to the name of any person or any incorporated association of this

State” without that person’s or corporation’s “written consent.”

N.J. Stat. Ann. § 19:23-17.

A separate provision, N.J. Stat. Ann. § 19:23-25.1, imposes

the same name restriction, though only as to persons. The statutes are sometimes collectively known as the slogan statutes; this

brief refers to the entirely overlapping, more comprehensive provision, N.J. Stat. Ann. § 19:23-17, as the slogan statute.

3

petition should be granted. Furthermore, the slogan

statute’s primary purpose and effect is to empower local political machines to use slogans to create a nearly

outcome-dispositive “county line” in primary elections,

undermining democracy.

The purpose and history of the slogan statute, as

amended to add name restrictions, demonstrates that

it was intended, and operates, to achieve twin goals:

(1) limiting core political speech through name restrictions that are not only content- and viewpointbased, but that are also vague and both underinclusive

and overbroad, and (2) enabling New Jersey’s countylevel political machines to exert extraordinary control

not only over their own faction of the party, but over

the outcome of the overwhelming majority of New Jersey primary elections.3 See Brett M. Pugach, The

County Line: The Law and Politics of Ballot Positioning

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

(“Pugach”).

First, the state’s actual implementation of the slogan statute’s opaque name restrictions has, for more

than 75 years, repeatedly proved arbitrary and inconsistent, as journalistic investigation and public records

requests have revealed. The statute’s opacity obligates

3

See also N.J. Stat. Ann. § 19:49-2 (authorizing local party

machines to decide whether to permit “bracketing” of candidates

whom the machine has permitted to use its incorporated name as

a slogan so that all such candidates—across races—appear together in a favorable, prominent position on the ballot).

4

local officials to divine what the statute means. It is

therefore unconstitutionally vague.

Second, the statute is unconstitutionally overbroad. The slogan statute’s actual primary interest is

different than a simple review of its text might reveal;

in practice, its primary purpose and effect is empowering local political machines to use slogans to control

primary election results. The state suggests that the

statute is supported by its interests in avoiding voter

confusion and preserving election integrity, both of

which are interests the slogan statute operates to undermine. And the state’s compelling interest in preventing false factual statements of endorsement is

only minimally advanced by the slogan statute,

whereas it bars a substantial sweep of First Amendment-protected political speech. The slogan statute is

therefore unconstitutionally overbroad.

---------------------------------♦---------------------------------

5

ARGUMENT

I.

The Purpose and History of New Jersey’s

Slogan Statute Demonstrates that It Is Intended to and Operates to Restrict Core

Political Speech and to Empower Local Political Machines.

A. The Slogan Statute Has Twin Purposes:

Establishing a Forum for Core Political

Speech and Empowering Local Political Machines to Control Slogans and

Thereby Give Their Favored Candidates an Overwhelming Advantage in

Primary Elections.

1. The first of the slogan statute’s overt purposes

is to establish a forum for candidates to engage in core

political speech, communicating policy positions directly to voters to influence their vote. Such “speech designed to influence the voters in an election” does not

concern “the mechanics of the electoral process. It is a

regulation of pure speech,” McIntyre v. Ohio Elections

Comm’n, 514 U.S. 334, 345 (1995), “seek[ing] to restrict

directly the offer of ideas by a candidate to the voters,”

Brown v. Hartlage, 456 U.S. 45, 52-54 (1982), and is

thus subject to strict First Amendment scrutiny.

New Jersey was not, of course, required to establish a forum for core political speech on the ballot. But

given New Jersey’s idiosyncratic choice, it may not restrict that speech, selectively undermining First

Amendment expression “at the most crucial stage in

the election process—the instant before the vote is

6

cast.” Cook v. Gralike, 531 U.S. 510, 525 (2001) (quoting

Anderson v. Martin, 375 U.S. 399, 402 (1964)). The

Third Circuit’s legal standard has this precisely reversed: “[T]he speech that occurs within a ballot slogan

is confined to the ballot itself at the moment a vote is

cast” and is thus not “core political speech” entitled to

robust First Amendment protection. Mazo v. N.J. Sec’y

of State, 54 F.4th 124, 145 (3d Cir. 2022).

The Third Circuit brushed aside the state’s rejection of Petitioner Lisa McCormick’s slogan, “Bernie

Sanders Betrayed the NJ Revolution”—barred for using Sanders’s name—as somehow not core political

speech, and not a direct restriction of a candidate’s

ideas offered to voters. The court’s exceedingly narrow

test for political speech meant it did not construe that

denial to be meaningful enough even to present an unsuccessful as-applied challenge. Id. at 133, 134 n.6.

The other reason the Third Circuit held slogans

not to be core political speech is that they are purportedly “one-way communication” that appear only on the

ballot and thus “cannot inspire any sort of meaningful

conversation regarding political change.” Mazo, 54

F.4th at 145. This is not only a highly dubious legal

proposition, it is demonstrably false: New Jersey election law requires that “sample ballots shall be mailed

to each registered voter,” N.J. Stat. Ann. § 19:49-4,

providing voters with the slogans intended to influence

their vote not only on the ballot itself, but beforehand

as they contemplate political change.

7

2. The second, overtly expressed purpose of the

slogan statute is to enable candidates to align with

other candidates belonging to a particular faction of

their party. The slogan statute operates in practice,

along with other New Jersey election provisions and

state judicial decisions, to supercharge the power of local political machines to use slogans as the glue to bind

together a county line of favored primary candidates

that almost always prevails.

In the early 1900s, New Jersey had sought to minimize the power of such local machines, establishing

direct primaries to increase the voice of voters, Stevenson v. Gilfert, 100 A.2d 490, 491-92 (N.J. 1953), and

passing the Geran Act in 1911, as Governor Woodrow

Wilson explained it, to “break up the private and secret

management of party machines.” Pugach, 633 & n.16

(quoting Ralph Simpson Boots, The Direct Primary in

NJ 30-31 (1917)). Over the coming decades, local machines regained significant power.

B. The Slogan Statute’s Name Restrictions

Have the Purpose and Effect of Barring

Core Political Speech and of Empowering Local Political Machines to Use Slogans to Create a County Line, Effectively

Dictating Primary Results.

New Jersey enacted the slogan statute, N.J. Stat.

Ann. § 19:23-17, in 1930, absent name restrictions. The

statute was amended in 1944 to impose name restrictions, barring slogans that “include or refer to the

8

name of any person or any incorporated association of

this State” without that person or corporation’s “written consent.” N.J. Stat. Ann. § 19:23-17.4 First, these

name restrictions violate the First Amendment because they were intended at their inception—and continue to operate—to bar the content of core political

speech that criticizes (or, for that matter, praises) politicians (and other people) or New Jersey corporations.

Second, they operate in practice to empower local party

machines to control the use of slogans as a means of

exerting extraordinary control over primary election

results.

1. The name restriction amendments were imposed for the very purpose of preventing disfavored,

core political speech, as was recognized at the time by

everyone who favored or opposed the 1944 amendment. A splinter group of Republicans wished to use

the slogan “Draft Dewey for President,” overtly supporting Dewey, New York’s governor, for the Republican presidential nomination. This slogan greatly

concerned New Jersey “Republican state leaders” who

did not want to commit to Dewey and did not want voters to be swayed by the substantive content of slogans

favoring Dewey. Bill to Help Dewey Keep Mum to Pass,

The Jersey Journal, at 2 (Feb. 21, 1944). Republican

leaders thus “plan[ned] to jam through legislation that

will prevent the use of Dewey’s name on the

4

The provision imposing name restrictions on persons, N.J.

Stat. Ann. § 19:23-25.1, was also enacted in 1944.

9

Republican primary ballot” “without first having [his]

permission.” Id.

The “bill aimed to void the petition filed by Morris

County Dewey supporters naming Gov. Thomas

Dewey” in their proposed primary slogan on the Republican ballot. G.O.P. Rift Over Voiding Dewey Name,

The Jersey Journal, at 16 (Feb. 23, 1944). The “Democratic minority leader,” recognizing the restriction of

free speech, “assailed” the bill “as a gag rule and as an

attempt to prevent free expression by [primary] voters.” Id.

The name restriction on slogans was “supposed to

be a spanking for Mott,” the “Morris County leader”

who sought to use Dewey’s name in his slogan, “and a

notice to all local leaders not to get ahead of the parade,” i.e., not to defy the substantive political wishes

of party leaders. Trenton Legislature Keeping Dewey

Mum Suits N.Y. Governor, The Jersey Journal, at 22

(Feb. 23, 1944); see also Wittreich Files for U.S. Senate,

The Jersey Journal at 1, 12 (Mar. 24, 1944) (reporting

that Senate candidate Andrew Wittreich objected that

the name restriction amendment was passed to prevent his use of “Draft Dewey” as a slogan). The slogan

statute barred Wittreich from expressing his policy

preference.

2. The slogan statute’s name restriction on New

Jersey corporate names is even more perfidious: The

restriction not only prevents policy-based criticism (or

praise) of New Jersey corporations, it also reveals the

state legislature’s actual interest underlying a statute

10

that is ill-fitted to furthering any legitimate state purpose. Slogans are the means enabling local political

machines to control the county line, exerting nearly

complete control over New Jersey primary election results.

“New Jersey law provides advantages to machinebacked candidates that are extremely difficult for any

challenger to overcome. In state primaries, partybacked candidates are given the opportunity to bracket

with one another, to use the same party slogan, and to

appear on the same line on the ballot.” Pugach 630-31.

The slogan statute, in conjunction with N.J. Stat. Ann.

§ 19:49-2 (the bracketing provision), and state court judicial interpretation, Pugach 637, 701, “combine to

guarantee that each party-backed candidate always

receives a favorable position on the ballot,” a practice

“used by the state’s party bosses and county chairs”

that “is often referred to as ‘the County Line.’ ” Pugach

630-31.

Political machines at the county level incorporate

their own name as a slogan; they put up multiple,

“joint” county-level commissioners (previously called

“freeholders”) whom they authorize to use that slogan.

The machines then choose a slate of candidates they

favor—up and down the county’s primary ballot, from

Congressional and gubernatorial candidates to sheriffs

and county clerks—whom they also permit to use that

slogan. The joint commissioners’ campaign chair (in

practice, virtually always the county party chair, head

of the local machine) is empowered to grant permission

to all those candidates who have been permitted to

11

share the machine’s slogan to also “bracket” with the

freeholders. Bracketed candidates appear together on

the “county line,” so-called because bracketed candidates appear on a single column (or row) of the ballot.

Id.

County clerks—themselves running on the county

line—then have vast discretion to structure the ballot

such that the county line gets a highly favorable ballot

position (in or very near the left column or top row),

placing the county line in a preferential ballot draw

with absolute priority over unbracketed candidates.

See N.J. Stat. Ann. § 19:23-24; Moskowitz v. Grogan,

243 A.2d 280, 283 (N.J. Super. Ct. App. Div. 1968).

County clerks strategically exile opposing candidates

who are not on the line to scattered, unfavorable ballot

positions. Pugach 654-55, 661. The slogan is the glue

that binds together the county line.

Voters with great regularity select each candidate

on that coherent line, headed by a prominent candidate they recognize and favor, rather than making the

effort to hunt around on the otherwise-fragmented ballot for disfavored candidates who have been exiled to

the ballot’s fringes. A sample ballot best illustrates

the county line in operation. See Julia Sass Rubin,

New Jersey’s Primary Ballot Design Enables Party Insiders to Pick Winners (2020) at 4, http://dx.doi.org/

doi:10.7282/t3-31dy-0j57.

Empirical research has demonstrated that the

county line’s boost is almost always outcome-dispositive, with “no state legislative incumbent on the line

12

[losing] a primary election in New Jersey between

2009 and 2018,” id., or, for that matter, since 2018.

Placement on the county line increases a candidate’s

vote total by approximately “35 percentage points.”

Julia Sass Rubin, Does the County Line Matter? An

Analysis of New Jersey’s 2020 Primary Election Results, N.J. Policy Perspective (Aug. 13, 2020),

https://bit.ly/42HXlQj.5

The county line has substantial relevance to this

case: The practical effect of the slogan statute, on the

ground, demonstrates that this Court’s review is of exceptional importance, even beyond the obvious First

Amendment violations imposed by the name restrictions. The slogan statute’s essential role in enabling the county line demonstrates that, rather than

avoiding voter confusion or preventing misrepresentation, as the state suggests, the primary interest of legislators—beholden to the local political machines when

seeking re-election because of New Jersey campaign

5

The operation of the county line is deeply problematic when

it is implemented pursuant to the slogan statute as written. There

is compelling reason to believe that the corruption enabled by the

slogan statute is not limited to that which is directly authorized.

See Mochary v. Caputo, 100 N.J. 119, 122 (1985) (addressing “random” draw for first ballot position in which “Democrat” was in the

“first capsule” drawn “on 40 out of the last 41 times that the draw

in Essex County had been made”). See also Matt Friedman, Antimachine Democrats in Camden County Complain of ‘Phantom

Candidates,’ Politico (Apr. 10, 2019), https://www.politico.com/

states/new-jersey/story/2019/04/09/anti-machine-democrats-incamden-county-complain-of-phantom-candidates-960442.

13

finance law, Pugach 652-53—is far more plausibly to

empower those machines and thus their own re-election.

II.

The Actual Operation of New Jersey’s Slogan Statute Demonstrates That It Is Vague,

Underinclusive, and Overbroad.

The state’s implementation of the slogan statute

over the past 75 years demonstrates its vagueness and

overbreadth. A statute is vague when statutory distinctions between permitted and prohibited conduct is

“at best, murky,” thereby granting lower-level officials

“alone the power to decide in the first instance”

whether particular conduct violates unclear statutory

dictates. Bd. of Airport Comm’rs v. Jews for Jesus, 482

U.S. 569, 576 (1987). The slogan statute’s opaque language has resulted in arbitrary and inconsistent restrictions of core political speech.

Moreover, the statute is facially overbroad, given

the mismatch between the state’s quite narrow compelling interest—preventing false factual statements

of endorsement—and the slogan statute’s quite modest

furtherance of that interest, compared with the statute’s far more extensive prohibition of First Amendment-protected speech, which bars any mention of a

person or New Jersey corporation absent permission.

The slogan statute is overbroad because “a substantial

number of its applications are unconstitutional, judged

in relation to the statute’s plainly legitimate sweep.”

14

Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008) (cleaned up).

The Third Circuit rejected overbreadth because it

found it “easy to imagine legitimate applications” of

the name restrictions, to wit, barring false factual

statements of endorsement. Mazo, 54 F.4th at 152.

That application is admittedly easy to imagine, but its

sweep is quite narrow.6

The Third Circuit concluded that the statute is not

overbroad because “at least some constitutional applications exist,” i.e., the name restrictions could bar false

endorsements, and constitutionally so. Id. (citing

Washington State Grange, 552 U.S. at 457). The court

thereby imposed a test for First Amendment-overbreadth that conflicts with those of other circuits, and

of this Court, by failing to compare the relative scope

of the statute’s legitimate sweep with that of its unconstitutional applications. Id.

Washington State Grange recognized the meaningful possibility that state courts might provide a limiting construction if given an opportunity and pointed

to “the absence of evidence” in that case that voters

would be harmed by the challenged statute. Id. at 45657. In New Jersey, however, state courts have imposed

6

Indeed, the only apparent instances in which proposed slogans have implicated the interest in barring false endorsements

since the slogan statute’s enactment in 1930 (including the 14

years prior to implementation of the name restrictions) have been

by Petitioner Mazo, since the filing of this suit, who submitted

slogans to demonstrate the statute’s arbitrariness because the

name restrictions did not actually apply.

15

no coherent limiting construction on the slogan statute

in more than 75 years, and there is abundant evidence

that New Jersey voters are harmed by inconsistent

and overbroad application of the slogan statute, both

as to persons, Point II.A, and corporations, Point II.B.

A. Inclusion of or Reference to the Name

of a Person.

1. The state has been repeatedly inconsistent

about whether a slogan that contains a politician’s title

“include[s] or refer[s] to the name of any person.” N.J.

Stat. Ann. § 19:23-17. The plain statutory language

bars including or referring to “the name of any person”—not referring to a person, but “refer[ring] to the

name of a person.” Id. As explained above, 1944 Senate

candidate Wittreich was barred from employing the

slogan “Draft Dewey for President” because it used

Dewey’s name.

Shortly thereafter, Wittreich revised his slogan,

eliminating the inclusion or reference to a name of a

person, submitting the “new slogan, ‘Draft New York’s

Governor’ for President.” New Court Fight on Dewey

Slogan, Trenton Evening Times at 10 (Apr. 10, 1944).

New Jersey courts nonetheless barred the revised slogan, ruling that “the slogan ‘Draft New York’s Governor for President’ placed on the ballot ‘was an evasion

of what the Legislature intended’ in the primary law,”

rejecting the argument “that the slogan designated an

office, not a person.” Court Dismisses Challenge of Law,

Trenton Evening Times, at 16 (Apr. 16, 1944).

16

Similarly, Petitioner Mazo submitted the slogan,

“Supported by the Governor” (intended to demonstrate

the slogan statute’s arbitrary application and unconstitutionality) containing a politician’s title but not using or referring to a person’s name. Robert F. Giles,

Director of New Jersey’s Division of Elections, wrote a

letter to Mazo, ruling: “[B]ecause your proposed Union

County ballot slogan, ‘Supported by the Governor,’ refers to a specific governor, you must obtain and submit

written consent from that person, the specific governor

referred to in the slogan.” Giles Letter (Apr. 6, 2022) at

2.7

In contrast, Tahesha Way, New Jersey’s Secretary

of State, ruled in an April 4, 2018, letter that congressional candidate Steve Lonegan was not barred from

using the slogan, “Republicans for the President’s

Agenda” (regardless of whether it used a title or referred to a specific president), rejecting “the argument

that permission from Donald Trump is necessary before [a] candidate may use the slogan. The slogan does

not include or refer by name to Mr. Trump. N.J.S.A.

19:23-17.” (Way barred Lonegan’s slogan on other

grounds.) David Wildstein, McCann Wins Fight Over

Lonegan Slogan, N.J. Globe (Apr. 5, 2018) (including

attached letter from Way), https://newjerseyglobe.com/

congress/mccann-wins-fight-over-lonegan-slogan/. The

letter was copied to Director Giles, who ruled in

7

Giles’s letters to and from Mazo, available through public

records requests, are subject to judicial notice.

17

precisely the opposite way as to Mazo’s slogan four

years later.8

Both the state court in 1944, and Director Giles in

2022, read the slogan statute through the lens of what

they believed the restrictions were intended to accomplish rather than what the statutory language provides. This demonstrates not only the statute’s

arbitrariness, inconsistency, and vagueness in application, but also makes plain that the name restrictions

are interpreted by lower-level officials and judges in a

way that is content-based, turning on the official’s understanding of the purpose of the statute’s prohibiting

certain content, rather than as a content-neutral, firstorder sorting mechanism with minimal First Amendment implications. Compare Austin v. Reagan Nat’l

Adver. of Austin, 142 S. Ct. 1464, 1473 (2022) (“The

[billboards’] on-/off-premises distinction” “inform[ing]

the sign’s relative location” is “similar to ordinary time,

place, or manner restrictions,” thus “not requir[ing] the

application of strict scrutiny to this kind of locationbased regulation.”).

2. The state has similarly ruled that dead persons are not persons within the meaning of the slogan

statute in a conclusion also seemingly imbued with

8

Giles’s office also rejected Mazo’s proposed slogan, “No to

Nepotism, No to Menendez” (referring to Senator Robert Menendez’s anointing of his son, Robert Menendez, Jr., to be the Democratic nominee for an open seat in the House of Representatives),

without answering the opaque question: Which Menendez’s consent was necessary? Letter from Mazo to Director Giles (Apr. 7,

2020).

18

officials’ understanding of the purpose of the name restrictions rather than the statutory language.

Secretary Way ruled that Congressional Candidate Peter DeNeufville could use the slogan “New Jersey Reagan Republican” because “the plain meaning of

the word ‘person’ is ‘A living human being’ [and] former President Reagan is deceased and therefore is not

a ‘person’ within the meaning of the statute,” citing to

Webster’s II New College Dictionary. David Wildstein,

State Allows DeNeufville To Use Reagan Slogan (Apr.

10, 2018) (attached decision letter at 2), https://new

jerseyglobe.com/congress/state-allows-deneufville-touse-reagan-slogan/.

This conclusion is highly contestable as a matter

of plain statutory language and of the definition of persons in Merriam-Webster dictionaries. See MerriamWebster Dictionary, https://www.merriam-webster.com/

dictionary/person; neither the definition nor the “Legal

Definition” of “person” contains any suggestion that a

deceased person is not a person. Secretary Way’s conclusion that a dead person is not a person again

demonstrates both that the slogan statute’s application, in practice, has proved content-based, and that

the scope of the name restrictions is indeterminate,

and thus unlawfully vague, in violation of the First

Amendment.

3. The statute is also vague as to whether it prohibits a slogan that contains a person’s name, but only

as a reference to a policy. In 2014, Congressional Candidate Bruce Todd used the slogan, “For Glass-Steagall

19

and Nuclear Power” and Congressional Candidate

Diane Sare used the slogan, “Glass-Steagall and Impeachment Now.” New Jersey Voter Information Portal,

2014 Elections Results, U.S. House of Representatives,

https://www.state.nj.us/state/elections/assets/pdf/electionresults/2014/2014-official-primary-results-us-house.pdf.

Are such references—or ones criticizing or praising

“McCain-Feingold” (or, for that matter, “Citizens

United”)—permissible because, in this context, a rose

by any other name passes the official’s smell test?

The answer is hazy. “Where statutes have an overbroad sweep, just as where they are vague, ‘the hazard

of loss or substantial impairment of those precious

rights may be critical,’ ” because “those covered by the

statute are bound to limit their behavior to that which

is unquestionably safe.” Keyishian v. Bd. of Regents,

385 U.S. 589, 609 (1967) (cleaned up). A candidate who

proposes a slogan that is rejected as violating the name

restrictions only has three days under state law to submit an amended slogan; if he fails to do so, he is informed that “No Slogan” will be printed on the ballot

next to his name if he does not get a slogan approved

in that short window. Am. Compl. ¶ 38.

This not only denies the candidate his desired,

First Amendment-protected slogan, it unconstitutionally imposes forced speech on him by placing “No

Slogan” next to his name—speech that makes the candidate look like an imbecile or contrarian, unable or

unwilling to provide a slogan. See Cook, 531 U.S. at

524-26 (disapproving of state’s placement of “adverse

labels” attached to candidates on ballot). The slogan

20

statute thus operates to chill candidates from submitting slogans that even arguably include or refer to persons or New Jersey corporations.

B. Inclusion of or Reference to the Name

of an Incorporated Association of this

State.

The slogan statute’s bar on inclusion or reference

to the name of an “incorporated association of this

state” is similarly vague.

1. First, and most obviously, the slogan statute

only applies to incorporated associations of this state,

not to out-of-state corporations. Insofar as the state’s

actual interest is preventing misrepresentation in the

form of false statements of endorsement, there is no

rational reason why the slogan statute should insulate

in-state corporations, providing them veto power over

criticism, while leaving out-of-state corporations unable to prevent even false statements of endorsement.

Moreover, as with persons, notwithstanding the

plain language of the statute, the state has implemented the slogan statute in a way that is both unpredictable and content-based. Petitioner Mazo (in an

effort to illuminate the slogan statute’s unpredictability and arbitrariness) submitted the slogan, “Endorsed

by the N.Y. Times.” Director Giles’s letter of April 6,

2022, barred Mazo from using that slogan because, he

ruled, “the ‘New York Times’ is an incorporated entity

in the State of New Jersey.” Giles Letter (Apr. 6, 2022)

at 2.

21

The New York Times is, indeed, an incorporated

entity in the State of New Jersey, but it is decidedly not

an incorporated association of this state, the actual

language of the slogan statute. It is a New York corporation (registered to do business in New Jersey). New

Jersey’s highest court has held, contrary to Giles’s ruling, that a “corporation of this state” refers to “a corporation organized under the laws of this state,” not to a

foreign corporation. Allen v. Francisco Sugar Co., 92

N.J. Eq. 431, 432-33 (Ct. Err. & App. 1921); accord Am.

Employers’ Ins. Co. v. Elf Atochem N. Am., 157 N.J. 580,

588-89 (1999).

County clerks in New Jersey assessing whether a

slogan includes or refers to the name of an incorporated

association of New Jersey simply check the state’s

Business Name Search portal, https://www.njportal.com/

DOR/BusinessNameSearch/Search/BusinessName. Such

a search returns “The New York Times Company,”

though as a “foreign-for-profit” corporation, not as an

incorporated association of this state. Such searches return both domestic corporations and foreign corporations (so denominated)—and even names of easily

reserved businesses, which are created through a simple filing on https://www.njportal.com/DOR/Business

Amendments/Unrr/AmendmentInformation and a payment of just over $50.

2. The slogan statute also makes a content-based

distinction between slogans that include or reference

the names of incorporated associations of this state

as opposed to slogans including or referencing unincorporated New Jersey associations. Amici are both

22

unincorporated associations of New Jersey. They respectfully submit that whatever interest they have in

vetoing criticism in a slogan, they have no less interest

than do New Jersey corporations. No legitimate interest supports this content-based distinction.

3. The further absurdity and confusion caused

by the slogan statute is shown by New Jersey politicians’ and organizations’ repeated attempts to “poach”

the slogans of their rivals. New Jersey operatives have

repeatedly seized the opportunity, when a local political machine has let the corporate registration for its

slogan lapse, to incorporate that slogan for themselves,

and—sometimes successfully, and sometimes not—

thereby usurp the county line throne.

“The ‘take their slogan’ move was originated in

1996 by then-Assemblyman Kevin J. O’Toole when he

incorporated the Essex County GOP slogan that allowed him to seize control of the county Republican

organization from longtime chairman John Renna.”

David Wildstein, Judges Issues TRO On Camden Democratic Slogan (Apr. 2, 2020). See also O’Toole, Kevin,

Courage and Strategy of Getting on the Ballot, InsiderNJ

(Apr. 6 2017), www.insidernj.com/courage-strategygetting-ballot/ (“[T]he campaign manager for the joint

candidates gets to decide who brackets on ‘the line’

with the countywide candidates (in many counties,

they require the Chairman be designated as the campaign manager for this reason). [This] means that

the campaign manager has the sole discretion to pick

and choose who will appear with the county candidates—whether that be for governor or council or

23

anything in between. This insider tidbit of information

can change the dynamics of a primary election very

quickly.”).

In 2000, former New Jersey Governor Florio

stealthily incorporated the name of numerous counties’ democratic party machines (even though they had

endorsed Jon Corzine), thereby using his control over

their slogans to seek “the coveted county line, the top

position on the ballot.” David M. Halbfinger, State

Court Judge Rebuffs a Ballot Ploy by Florio, The New

York Times, B8 (Apr. 19, 2000), https://www.nytimes.com/

2000/04/19/nyregion/state-court-judge-rebuffs-a-ballotploy-by-florio.html. A state court rejected Florio’s use

of these slogans he owned, finding that “only public

confusion and misunderstanding would result,”

though there was no indication Florio was other than

in full compliance with the slogan statute. Id.

Poaching success is arbitrary. O’Toole successfully

poached the local machine’s slogan and thereafter rode

the county line to electoral success, establishing himself as the new leader of the local party machine. Florio

was unsuccessful when doing precisely the same thing,

the court held, because Florio’s gambit was “[t]oo

clever by half.” Id.

Judicial assessment of a politician’s quantum of

cleverness—i.e., whether a politician is just clever

enough for his skullduggery to prevail under the statute’s actual language, or too clever by half in evading

the statutory purpose despite compliance with its

24

language—is profoundly unpredictable. The statutory

language has proved unconstitutionally vague.

III. The Slogan Statute Violates the First

Amendment Because It Is Vague and Overbroad.

New Jersey’s implementation of the slogan statute

over its more than 75-year history demonstrates that

it is not only content- and viewpoint-based, but also

vague and overbroad, further compelling reasons for

the Court to grant the petition.

First, the state’s application of the statute’s name

restrictions has been, and remains, exceedingly unpredictable because the slogan statute is vague. State officials and courts have repeatedly (1) applied the

slogan statute, contrary to its actual language, to

achieve results thought sensible, and (2) applied the

slogan statute inconsistently, reaching arbitrary and

conflicting results.

The slogan statute would prevent a small (in practice, virtually nonexistent) subset of slogans as to

which the state has an actual compelling interest—slogans that knowingly assert false factual statements of

a person’s or corporation’s endorsement, speech warranting little First Amendment protection. Under the

“vagueness doctrine,” however, the “legislature [must]

establish minimal guidelines” that prevent officials

from implementing a statute in a manner permitting a

“standardless sweep.” Kolender v. Lawson, 461 U.S.

25

352, 358 (1983) (cleaned up). The slogan statute has no

such guidelines.

Moreover, the slogan statute is an exceedingly

poorly crafted means of furthering the state’s compelling interest in barring false statements of endorsement. The statute is profoundly underinclusive in

relation to this interest. The statutory language applies only to a slogan that includes or refers to a person’s name—not, e.g., one that refers to a politician’s

title. And the statute applies only to New Jersey corporations, not to corporations of other states or to unincorporated associations.

Second, the slogan statute is radically overbroad.

It prevents a substantial sweep of First Amendmentprotected core political speech criticizing (or praising)

persons and New Jersey corporations, expression that

the state has no legitimate, let alone compelling, interest in barring. The legitimate application of the statute

to prevent false factual statements of endorsement is

exceedingly narrow; the curtailment of protected

speech is exceedingly broad. Because “a substantial

number of its applications are unconstitutional, judged

in relation to the statute’s plainly legitimate sweep,”

the slogan statute is unconstitutionally overbroad.

Washington State Grange, 552 U.S. at 449 n.6 (cleaned

up).

Finally, the state’s inconsistent application of

name restrictions reveals its principal, actual purpose.

The slogan statute’s name restrictions apply only to

primary elections—those in which the local party

26

machines wield the county line, and the only elections

in which bracketing of candidates sharing a slogan is

permitted.

The name restrictions do not apply to the threeword slogans permitted in the general election. N.J.

Stat. Ann. § 19:13-4. Moreover, the name restrictions

do not apply to the otherwise parallel slogans permitted in certain nonpartisan municipal elections; in such

elections, “[a]ny candidate” may request a “designation, in not more than six words,” “for the purpose of

indicating either an official act or policy to which he is

pledged or committed.” N.J. Stat. Ann. § 40:45-10. “The

designation shall not indicate political party affiliation,” but there are no name restrictions as to persons

or New Jersey corporations. Id.9

In Norman v. Reed, 502 U.S. 279, 294 (1992), this

Court held that the state’s purported interest in ensuring geographic distribution of supporting petition signatures at the county level was sharply undercut by its

failure to require such geographic distribution at the

state level. “[I]f the State deems it unimportant to ensure that” its purported interest is applied consistently

whenever that interest pertains, “it requires elusive

logic to demonstrate a serious state interest” that actually exists. Id. The state’s serious interest here is

similarly elusive.

9

See also N.J. Stat. Ann. § 40:45-14 (“When persons bearing

the same name are nominated for the same office” in nonpartisan

municipal elections, each may use a six-word slogan “as a means

of identification”—without any name restriction.).

27

The slogan statute—and the county line it enables—does not prevent voter confusion; it could hardly

do a better job of causing voter confusion by enabling

a prominent, coherent county line and the scattering

of disfavored candidates for the same office across the

far reaches of the ballot, a practice differing from that

of every other state. And while the state has a compelling interest in preventing false factual statements of

endorsement, the slogan statute is both highly underinclusive and vastly overbroad in furthering that interest.

The government “may serve its legitimate interests, but it must do so by narrowly drawn regulations

designed to serve those interests without unnecessarily interfering with First Amendment freedoms.”

Vill. of Schaumburg v. Citizens for a Better Env’t, 444

U.S. 620, 637 (1980). The slogan statute fails that

test. It has a narrow legitimate application, bars a

broad sweep of constitutionally protected free speech,

and perpetuates a county line that undermines democracy.

---------------------------------♦---------------------------------

28

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for certiorari.

Respectfully submitted,

LORI OUTZS BORGEN

Counsel of Record

JON ROMBERG

SETON HALL LAW SCHOOL

CENTER FOR SOCIAL JUSTICE

833 McCarter Hwy.

Newark, NJ 07102

(973) 642-8700

lori.borgen@shu.edu

Counsel for Amici Curiae

May 25, 2023