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 A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

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

NEW JERSEY LIBERTARIAN PARTY

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------GEORGE SUMMERFIELD

Counsel of Record

K&L GATES LLP

70 W. Madison Street, Suite 3300

Chicago, IL 60602

(312) 372-1121

george.summerfield@klgates.com

Counsel for Amicus Curiae

July 5, 2023

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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TABLE OF CONTENTS

Page

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

ii

INTEREST OF AMICUS CURIAE ......................

1

INTRODUCTION AND SUMMARY OF ARGUMENT ...............................................................

2

ARGUMENT ........................................................

3

I.

After New Jersey Officials Reject a Candidate’s Preferred Slogan, Their Practice of

Printing “No Slogan” Next to the Candidate’s Name on the Ballot against His

Wishes Amounts to Compelled Speech ......

7

II.

New Jersey Has No Recognizable State

Interests in Compelling a Candidate to

Speak on the Ballot ................................... 10

III.

This Court Has Already Held That Forcing

a Political Candidate to Engage in Compelled Speech on the Ballot is Unconstitutional .......................................................... 12

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

ii

TABLE OF AUTHORITIES

Page

CASES

Agency for Int’l Dev. v. All. for Open Soc’y Int’l,

Inc., 570 U.S. 205 (2013)............................................9

Anderson v. Martin, 375 U.S. 399 (1964)... 10, 11, 14-16

Buckley v. Valeo, 424 U.S. 1 (1976) ...............................7

Clark v. Community for Creative Non–Violence,

468 U.S. 288 (1984) .................................................15

Cook v. Gralike, 531 U.S. 510 (2001) ... 2, 3, 10-14, 16, 17

Debs v. United States, 249 U.S. 211 (1919) .............. 2, 4

Doe v. Reed, 561 U.S. 186 (2010) ...................................7

Elrod v. Burns, 427 U.S. 347 (1976) ...........................10

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

124 (3d Cir. 2022) ............................................ 2, 4, 10

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

(1995) .........................................................................7

Miami Herald Publ’g Co. v. Tornillo, 418 U.S.

241 (1974) ..................................................................8

NAACP v. Alabama ex rel. Patterson, 357 U.S.

449 (1958) ..................................................................7

Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138

S. Ct. 2361 (2018) ......................................................8

Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of

Cal., 475 U.S. 1 (1986) ...............................................7

Police Dept. of Chicago v. Mosley, 408 U.S. 92

(1972) .......................................................................16

iii

TABLE OF AUTHORITIES—Continued

Page

PruneYard Shopping Ctr. v. Robins, 447 U.S. 74

(1980) .........................................................................7

Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487

U.S. 781 (1988) ..........................................................8

Rumsfeld v. F. for Acad. & Institutional Rts., Inc.,

547 U.S. 47 (2006) .....................................................7

Shelton v. Tucker, 364 U.S. 479 (1960) .......................12

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779

(1995) ................................................................. 12, 14

United States v. O’Brien, 391 U.S. 367 (1968) ............11

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) ...................................3, 7-9

Wooley v. Maynard, 430 U.S. 705 (1977) ................ 9, 12

Zauderer v. Off. of Disciplinary Couns. of Sup.

Ct. of Ohio, 471 U.S. 626 (1985) ................................8

STATUTES AND RULES

N.J. Stat. Ann. §§ 19:23-17, 19:23-25.1 ................ 2, 4, 5

N.J. Stat. Ann. §§ 47:1A-1 et seq. ..................................5

Sup. Ct. R. 37.2 .............................................................1

Sup. Ct. R. 37.6 .............................................................1

iv

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Alan K. Chen, Compelled Speech and the Regulatory State, 97 IND. L.J. 881 (2022) ................. 3, 7, 8

David Wildstein, Is Gene Mazo Looking for a

Fight on Ballot Slogans?, N.J. Globe (April 7,

2022), https://bit.ly/3pFoTXw ...................................5

David Wildstein, N.J. GOP Congressional Candidate Can’t Use ‘Let’s Go Brand*n’ Slogan on

Primary Ballot, State Says, N.J. Globe (Apr. 6,

2022), https://bit.ly/42Aiyvg ......................................6

Letter from Robert F. Giles, Director of the Division of Elections, State of New Jersey, to Eugene D. Mazo (Apr. 6, 2022) ......................................6

Letter from Robert F. Giles, Director of the Division of Elections, New Jersey, to Robert

Shapiro (April 6, 2022) ..............................................6

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INTEREST OF AMICUS CURIAE1

Libertarians seek a world of liberty, in which individuals control their own lives, and no one is forced to

sacrifice his values for the benefit of others. Libertarians believe that respect for individual rights is essential for a peaceful, prosperous world. Consequently,

libertarians defend each person’s right to engage in

any activity that is peaceful and honest, and they welcome the diversity that freedom brings. Libertarians

seek to create a world where individuals are free to

achieve their goals using their own judgments, without

interference from government.

Amicus curiae the New Jersey Libertarian Party

(“NJLP”) opposes all attempts by government to

abridge the freedom of speech, which the state’s slogan

statutes do. The NJLP respectfully submits this amicus brief to highlight New Jersey’s practice of compelling ballot speech, and to explain why that is

unconstitutional. In New Jersey, state officials will

compel a political candidate to speak on the ballot by

printing the words “No Slogan” next to his name when

the state does not approve of the candidate’s own slogan, regardless of whether the candidate wants those

words to be printed or not. Amicus NJLP opposes this

1

Pursuant to Supreme Court Rule 37.6, no counsel for any

party authored this brief in whole or in part and no entity or person, aside from amicus curiae, its members, and its counsel, made

any monetary contribution toward the preparation or submission

of this brief. Proper notice of this filing was provided under Rule

37.2.

2

form of compelled speech, and thus has a particular interest in the outcome of this case.

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

INTRODUCTION AND

SUMMARY OF ARGUMENT

It has been more than a hundred years since this

Court has upheld any kind of restriction or sanction on

the words that a political candidate may wish to communicate to his voters. See Debs v. United States, 249

U.S. 211 (1919). Yet, by allowing candidates for public

office in a primary election to print a slogan next to

their name on the ballot, and then by restricting what

those candidates can say, see N.J. Stat. Ann. §§ 19:2317, 19:23-25.1, New Jersey does just that. It restricts

and sanctions candidate speech.

New Jersey’s egregious restrictions on speech,

however, are even worse than they appear. If New Jersey officials disapprove of a primary candidate’s speech

and deny his chosen ballot slogan, the state will actually speak for the candidate by printing the words “No

Slogan” next to his name on the ballot. Mazo v. New

Jersey Secretary of State, 54 F.4th 124, 133 (3d Cir.

2022). In effect, state officials interpret the slogan statutes to give themselves the power to compel the candidate to utter words to his voters that are not his,

whether that candidate likes it or not.

Printing the phrase “No Slogan” on the ballot next

to a candidate’s name and without his consent is an

example of government compelled speech, and it is unconstitutional. See Cook v. Gralike, 531 U.S. 510 (2001).

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New Jersey cannot require candidates to say or display

any message on the ballot with which they disagree.

See Alan K. Chen, Compelled Speech and the Regulatory State, 97 IND. L.J. 881, 885 (2022). This Court has

held that “no official, high or petty, can prescribe what

shall be orthodox in politics, nationalism, religion, or

other matters of opinion or force citizens to confess by

word or act their faith therein.” West Virginia State

Board of Education v. Barnette, 319 U.S. 624, 642

(1943).

Amicus seeks to highlight three points for this

Court. First, after New Jersey officials reject a primary

candidate’s ballot slogan, their practice is to print the

words “No Slogan” next to that candidate’s name. This

amounts to compelled political speech by the state.

Second, New Jersey can offer no recognizable state

interest in promoting such compelled speech. The state

could just as easily print nothing next to the candidate’s name on the ballot, which would surely cause

him less harm. Finally, this Court has already held, in

Cook v. Gralike, 531 U.S. 510 (2001), that forcing a political candidate to engage in compelled speech on the

ballot violates the Constitution. This case thus provides the Court with an opportunity to reaffirm its earlier decision.

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

ARGUMENT

It has been more than a hundred years since the

Supreme Court has upheld any kind of restriction or

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sanction on the words that a political candidate may

wish to communicate to his voters. See Debs v. United

States, 249 U.S. 211 (1919). New Jersey’s slogan statutes, see N.J. Stat. Ann. §§ 19:23-17, 19:23-25.1,

amount to one such restriction or sanction on a candidate’s speech. By allowing a primary candidate to print

a slogan next to his name on the ballot, and then by

placing content and viewpoint restrictions on that candidate’s slogan, New Jersey sanctions a candidate’s

speech and runs afoul of the First Amendment. Both

the Petition for Certiorari and other amici have already made this point.

Yet New Jersey’s egregious regulation of political

speech is even worse than it appears. If New Jersey

disapproves of a primary candidate’s chosen ballot slogan, the state will go ahead and speak for the candidate by printing the words “No Slogan” next to his

name on the ballot. As the Third Circuit explained in

this case, “state officials informed Mazo that authorization from . . . the organizations [he referenced in his

preferred slogans] was required and that if he did not

obtain authorization, his nomination petition would be

certified as ‘NO SLOGAN.’ ” Mazo v. New Jersey Secretary of State, 54 F.4th 124, 133 (3d Cir. 2022) (internal

quotation marks omitted). The Petition for Certiorari

referenced this practice, too. “State officials informed

Mazo that he could reference those organizations only

if he obtained their consent to do that—and that, if he

failed to do that, the state would include the words ‘NO

SLOGAN’ next to his name.” See Pet. at 9; see also

Pet.App.6.

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In effect, state officials interpret the slogan statutes to give themselves the power to compel the candidate to utter words to his voters that are not his. These

may be words to which the candidate objects or with

which he disagrees, but the state will print them nonetheless, whether the candidate likes it or not.

State officials derive the power to print the words

“No Slogan” next to a candidate’s name after they reject his preferred ballot slogan based on their interpretation of N.J. Stat. Ann. §19:23-25.1. That statute

provides: “No designation or slogan shall be printed on

any ballot to be used in the conduct of any primary

election in connection with any candidate or group of

candidates for office, which designation or slogan includes or refers to the name of any other person unless

the written consent of such other person has been filed

with the petition of nomination of such candidate or

group of candidates.” Id.

Slogan rejection letters obtained from the state

pursuant to the New Jersey Open Public Records Act

(“OPRA”), see N.J. Stat. Ann. §§ 47:1A-1 et seq., confirm

the above practice. In 2022, when Mr. Mazo again filed

to run for Congress, one of the slogans he tried to use

on the ballot in Union County was “Supported by the

Governor.” See David Wildstein, Is Gene Mazo Looking

for a Fight on Ballot Slogans?, N.J. Globe (April 7,

2022), https://bit.ly/3pFoTXw. This slogan did not mention any person’s “name” in contravention of state law.

See N.J. Stat. Ann. §§ 19:23-17, 19:23-25.1. Nonetheless, officials from the Division of Elections, acting arbitrarily, as they are known to do, rejected that slogan,

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reasoning that because, in their eyes, it “refers to a

specific governor, you must obtain and submit written

consent from that person, the specific governor referred to in the slogan,” and “If no slogan is received

[by our deadline], you will be certified as ‘No Slogan’

for Union County.” See Letter from Robert F. Giles, Director of the Division of Elections, State of New Jersey,

to Eugene D. Mazo, at 2 (Apr. 7, 2022) (response to open

records request).

Separately, a U.S. House candidate in 2022 filed to

use the slogan “Let’s Go Brand*n—FJB” on the ballot.

Again, though no person’s actual “name” was mentioned in this slogan, state officials from the Division

of Elections wrote to the candidate, Robert Shapiro,

stating: “[y]our proposed slogan refers to a person and

you did not include the statutorily required written

consent. Therefore, your slogan cannot be approved at

this time.” Letter from Robert F. Giles, Director of the

Division of Elections, New Jersey, to Robert Shapiro

(April 6, 2022) (open records request). The staff from

the Division of Elections then added: “If you do not

have the necessary written consent, you may file a

replacement slogan,” and “If no slogan is received [by

our deadline], you will be certified as ‘No Slogan.’ ” Id.;

see also David Wildstein, N.J. GOP Congressional

Candidate Can’t Use ‘Let’s Go Brand*n’ Slogan on

Primary Ballot, State Says, N.J. Globe (Apr. 6, 2022),

https://bit.ly/42Aiyvg.

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I.

After New Jersey Officials Reject a Candidate’s Preferred Slogan, Their Practice of

Printing “No Slogan” Next to the Candidate’s Name on the Ballot against His

Wishes Amounts to Compelled Speech

As various commentators have noted, there is no

single compelled speech doctrine, but rather several

doctrines that apply to different forms of what may be

conceptualized as government compelled speech. See

Chen, supra, at 885. First, there are the classic cases

concerning laws that require individuals to say or display statements of an ideological nature with which

they disagree. See, e.g., West Virginia State Board of

Education v. Barnette, 319 U.S. 624 (1943); Wooley v.

Maynard, 430 U.S. 705 (1977). A second category of

cases deals with government regulations that compel

the disclosure of private, personal information about

people who have engaged in political association or

speech. See, e.g., NAACP v. Alabama ex rel. Patterson,

357 U.S. 449, 451 (1958).2 Third, there is a group of

cases that addresses whether the government may, under the First Amendment, compel private entities to

allow access to their property for other speakers. See,

e.g., Rumsfeld v. F. for Acad. & Institutional Rts.,

Inc., 547 U.S. 47 (2006); Pac. Gas & Elec. Co. v. Pub.

Utils. Comm’n of Cal., 475 U.S. 1 (1986); PruneYard

2

Included in this category are cases assessing the constitutionality of measures that prohibit the anonymity of speakers and

people who sign petitions or contribute money to election campaigns. See, e.g., Doe v. Reed, 561 U.S. 186 (2010); McIntyre v.

Ohio Elections Comm’n, 514 U.S. 334 (1995); Buckley v. Valeo, 424

U.S. 1 (1976).

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Shopping Ctr. v. Robins, 447 U.S. 74 (1980); Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974). Finally,

there are cases that involve laws that require licensed

professionals and businesses to disclose truthful factual information relating to their services, operations,

and products. See, e.g., Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361 (2018); Riley v. Nat’l

Fed’n of the Blind of N.C., Inc., 487 U.S. 781 (1988);

Zauderer v. Off. of Disciplinary Couns. of Sup. Ct. of

Ohio, 471 U.S. 626 (1985). See generally Chen, supra,

at 885-886 (delineating these categories)

New Jersey’s practice under the slogan statutes

falls into the first of the above categories of compelled

speech. It is by now axiomatic that the “right of freedom of thought . . . as guaranteed by the Constitution

against State action includes both the right to speak

freely and the right to refrain from speaking at all,”

Barnette, 319 U.S. at 645 (Murphy, J., concurring), “except in so far as essential operations of government

may require it for the preservation of an orderly society.” Id. Eighty years ago, in Barnette, this Court applied the above principle to protect the right of public

school children to refrain from reciting the Pledge of

Allegiance and saluting the flag of the United States.

In so doing, the Court explained how, “[i]f there is any

fixed star in our constitutional constellation, it is that

no official, high or petty, can prescribe what shall be

orthodox in politics, nationalism, religion, or other

matters of opinion or force citizens to confess by word

or act their faith therein.” Id. at 642. And “[i]f there are

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any circumstances which permit an exception,” the

Court went in to say, “they do not now occur to us.” Id.

Almost thirty-five years later, the Court further

defined compelled speech to include an unwanted association with a slogan, see Wooley, 430 U.S. at 706,

when it ruled that the state of New Hampshire could

not require its citizens to display the state motto “Live

Free or Die” on automobile license plates. Id. “No matter how acceptable to some” the state’s purported intent or interest might be, “such interest cannot

outweigh an individual’s First Amendment right to

avoid becoming the courier for [the] message” that the

government wishes to disseminate by compelling an

individual to speak against his wishes. Id. at 717. More

recently, this Court has struck down other forms of

compelled speech, including when it has been tied to

receiving government funding. See, e.g., Agency for Int’l

Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013).

There is little question that New Jersey’s practice

of affixing the words “No Slogan” on the ballot amounts

to compelled speech. It forces the candidate to display

words next to his name which he does not approve and

with which he may disagree. Before it mandates the

printing of those words, the state first must reject the

candidate’s preferred slogan, so the state knows full

well that the candidate wishes to have different words

printed by his name instead. But the state nonetheless

forces its words upon the candidate, despite the fact

that the average voter who sees those words next to his

name will believe they reflect negatively on the candidate. Those words are, at best, facially ambiguous, and

10

at worst they are harmful to him. Either way, they are

likely to cause voter confusion, and to cause an injury

to the candidate 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)). “The loss of First

Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury.”

Elrod v. Burns, 427 U.S. 347, 373-374 (1976).

II.

New Jersey Has No Recognizable State Interests in Compelling a Candidate to

Speak on the Ballot

In the litigation below, the Third Circuit upheld

New Jersey’s consent requirement for the slogan statutes, arguing that it was necessary to justify the state’s

purported interests. Mazo, 54 F.4th at 154. The state’s

four asserted interests were “preserving the integrity

of the nomination process, preventing voter deception,

preventing voter confusion, and protecting the associational rights of third parties who might be named in

a slogan.” Id. at 153.

While the Third Circuit clearly recognized that

New Jersey compels a primary candidate to speak on

the ballot and to have “his nomination petition . . . certified as ‘NO SLOGAN[ ]’ ” if the state does not approve

of the candidate’s actual, preferred slogan, Mazo v.

New Jersey Secretary of State, 54 F.4th at 133, nowhere

did the Third Circuit explain how the state’s interests

were advanced by this practice.

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Simply put, affixing the words “No Slogan” next to

a candidate’s name does not seem to support any of

New Jersey’s interests. Instead, it does the opposite.

First, it leads to voter deception and confusion. A voter

who sees the words “No Slogan” printed by a candidate’s name may believe any number of things: that

the candidate chose not to select a slogan to represent

his policies; that the candidate was too lazy to think of

a slogan; or that the candidate did something wrong

and had his slogan rejected by the state, among other

things. Without knowing which may be the case, the

voter is led to form a lessened view of the candidate,

whom New Jersey thus harms at “the most crucial

stage in the electoral process—the instant before the

vote is cast.” Cook, 531 U.S. at 525 (quoting Anderson,

375 U.S. at 402).

Contrary to the Third Circuit’s findings, New Jersey’s practice also does not protect the integrity of the

state’s primary nomination process. Rather, it does the

opposite. It compromises the integrity of the nomination process by compelling a candidate to speak

against his wishes when it matters to him most and to

communicate ideas to voters that he does not want.

And of course, New Jersey's practice of forcing primary

candidates to engage in compelled speech on the ballot

does nothing at all to protect the associational rights

of third parties, which is anyway hardly a compelling

state interest.

Compelled speech may be allowed if New Jersey’s

countervailing interests are sufficiently compelling to

justify the government’s practice. See, e.g., United

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States v. O’Brien, 391 U.S. 367, 376-377 (1968). But

here, it is hard to see how any state interests are

served by affixing “No Slogan” to a ballot in the event

the state rejects a candidate’s slogan, when instead the

state could simply stay neutral and print nothing next

to the candidate’s name. Any countervailing interest

that New Jersey may urge “must also be viewed in the

light of less drastic means for achieving the same basic

purpose.” Wooley, 430 U.S. at 716 (citing Shelton v.

Tucker, 364 U.S. 479, 488 (1960)). In New Jersey’s case,

printing no words at all in the event a candidate’s preferred slogan is rejected would be preferable to affixing

the words “No Slogan” to a candidate’s name. Thus, any

countervailing interest that New Jersey may urge in

this case does not outweigh Petitioner’s interest in protecting his constitutional right of not being forced to

speak.

III. This Court Has Already Held That Forcing

a Political Candidate to Engage in Compelled Speech on the Ballot is Unconstitutional

The compelled ballot speech that New Jersey

forces on its primary candidates does not present a

new issue for this Court. Rather, this Court has already

held, in Cook v. Gralike, 531 U.S. 510 (2001), that forcing political candidates to speak on the ballot is unconstitutional. This is therefore an easy case.

In the aftermath of U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779 (1995), in which this Court

struck down, under the Qualification Clause of the U.S.

13

Constitution, an Arkansas law that prohibited an otherwise eligible federal candidate from appearing on the

general election ballot if he or she had already served

three terms in the U.S. House of Representatives or

two terms in the U.S. Senate, other states began to contemplate how they could impose term limits on their

federal officials. In 1996, Missouri adopted an amendment to its state constitution, Article VIII, that was designed to lead to the same result. Cook, 531 U.S. at 513.

Missouri wanted its federal candidates to pledge to

support a “Congressional Term Limits Amendment” to

the U.S. Constitution once they were elected. Id.

Thus, Missouri amended its state constitution to

allow state officials to print the words “DISREGARDED

VOTERS’ INSTRUCTION ON TERM LIMITS” next to

the names of all incumbent federal candidates running

in primary and general elections who failed to support

the Congressional Term Limit Amendment. Id. at 514.

The state was also authorized to print the words “DECLINED TO PLEDGE TO SUPPORT TERM LIMITS”

next to the name of all non-incumbent federal challengers who refused to take a pledge to support term

limits once elected. See id. at 514-515. Explaining that

Missouri’s new constitutional amendment “is plainly

designed to favor candidates who are willing to support

the particular form of a term limits amendment set

forth in its text and to disfavor those who either oppose

term limits entirely or would prefer a different proposal,” Cook, 531 U.S. at 524, this Court upheld the

Eighth Circuit’s judgment that Missouri’s practices

were unconstitutional. Id. at 526-527. This Court

14

found that Missouri’s labels impose a “substantial political risk” on “current and prospective congressional

members who, for one reason or another, fail to comply

with the conditions set forth [by the state],” and that

“the adverse labels handicap candidates ‘at the most

crucial stage in the election process—the instant before the vote is cast.’ ” Id. at 525 (quoting Anderson, 375

U.S. at 402).

In Cook, this Court struck down Missouri’s compelled ballot speech for violating Article I, Section 4 of

the U.S. Constitution, explaining how “the Framers understood the Elections Clause as a grant of authority

to issue procedural regulations, and not as a source of

power to dictate electoral outcomes, to favor or disfavor

a class of candidates, or to evade important constitutional restraints.” Cook, 531 U.S. at 523 (quoting U.S.

Terms Limits, Inc., 514 U.S. at 833-834). And in a concurrence, Justice Rehnquist explained that Missouri’s

provisions violated the First Amendment as well:

I would affirm the judgment of the Court of

Appeals, but on the ground that Missouri’s

Article VIII violates the First Amendment to

the United States Constitution. Specifically, I

believe that Article VIII violates the First

Amendment right of a political candidate,

once lawfully on the ballot, to have his name

appear unaccompanied by pejorative language required by the State . . .

Article I, § 4, provides that “[t]he Times,

Places and Manner of holding Elections for

Senators and Representatives, shall be

15

prescribed in each State by the Legislature

thereof. . . .” Missouri justifies Article VIII as

a “time, place, and manner” regulation of

election. Restrictions of this kind are valid

“provided that they are justified without reference to the content of the regulated speech,

that they are narrowly tailored to serve a significant governmental interest, and that they

leave open ample alternative channels for

communication of the information.” Clark v.

Community for Creative Non–Violence, 468

U.S. 288, 293 (1984). Missouri’s Article VIII

flunks two of these three requirements. Article VIII is not only not content neutral, but it

actually discriminates on the basis of viewpoint because only those candidates who fail

to conform to the State’s position receive derogatory labels. The result is that 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. The candidates who are thus singled

out have no means of replying to their designation which would be equally effective with

the voter.

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

we held that a Louisiana statute requiring

the designation of a candidate’s race on the

ballot violated the Equal Protection Clause.

In describing the effect of such a designation, the Court said: “[B]y directing the citizen’s attention to the single consideration of

race or color, the State indicates that a

16

candidate’s race or color is an important—

perhaps paramount—consideration in the citizen’s choice, which may decisively influence

the citizen to cast his ballot along racial

lines.” Id., at 402. So, too, here the State has

chosen one and only one issue to comment on

the position of the candidates. During the

campaign, they may debate tax reform, Social

Security, national security, and a host of other

issues; but when it comes to the ballot on

which one or the other of them is chosen, the

State is saying that the issue of term limits is

paramount. Although uttered in a different

context, what we said in Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972), is

equally applicable here: “[Government] may

not select which issues are worth discussing

or debating.”

If other Missouri officials feel strongly about

the need for term limits, they are free to urge

rejection of candidates who do not share

their view and refuse to “take the pledge.”

Such candidates are able to respond to that

sort of speech with speech of their own. But

the State itself may not skew the ballot listings in this way without violating the First

Amendment.

Cook, 531 U.S. at 530-532 (Rehnquist, J., concurring)

(cleaned up).

Here, as noted, if a New Jersey primary candidate

does not select a slogan for which he has written consent, the words “No Slogan” will be printed without his

consent next to his name. It is the state that

17

determines which slogans require written consent and

which do not, on a seemingly random basis. Therefore,

the state also determines which primary candidates

will be forced to speak on the ballot, and which will

not. And while the words “No Slogan” are not necessarily as derogatory as the labels employed by Missouri in Cook, they are not neutral either. Indeed, by

virtue of the fact that a candidate’s original slogan has

been rejected, we know the words “No Slogan” do not

constitute the candidate’s preferred slogan. Rather, as

in Cook, they constitute the government’s compelled

speech.

In short, non-compliance with New Jersey’s slogan

statutes results in a grave infringement of a candidate’s First Amendment rights through government

compelled speech. Those rights are, in effect, violated

twice. The first time is when the candidate’s chosen slogan is denied by the state based on its content and

viewpoint. The second time is when the state then dictates what shall be printed by the candidate’s name for

him, when it prints the word “No Slogan” there, instead of nothing at all.

New Jersey’s compelled speech practices result in

voter deception. Voters are led to believe that certain

candidates have chosen not to endorse a platform or

party faction when, in fact, the candidate did do so, but

his slogan was simply rejected because it may have

mentioned another person’s name or the name of the

New Jersey corporation—or, as the above examples

from public records requests show, because state officials, though a slogan did not mention the name of

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another person or that of a New Jersey corporation,

simply did not like a candidate’s slogan.

New Jersey’s compelled speech practices also lead

to voter confusion, because voters are not able to understand equally the platforms upon which each of the

state’s primary candidates are running—they only see

the slogans of those candidates that have been approved by the state. The compelled speech behind New

Jersey’s slogan statutes not only impacts the integrity

of the state’s electoral process, but it also violates the

First Amendment—indeed, twice over.

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

CONCLUSION

For the foregoing reasons, amicus respectfully

urges this Court to grant the petition for certiorari.

Respectfully submitted,

GEORGE SUMMERFIELD

Counsel of Record

K&L GATES LLP

70 W. Madison Street, Suite 3300

Chicago, IL 60602

(312) 372-1121

george.summerfield@klgates.com

Counsel for Amicus Curiae

July 5, 2023