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New Jersey’s voter registration procedures infringe on the rights of alternative political parties to free expression, free association and equal protection of the laws, a New Jersey appeals court ruled last Monday. The Appellate Division affirmed a Mercer County judge’s decision declaring unconstitutional two statutes, one that prohibits voters from declaring a party affiliation other than Democrat or Republican (N.J.S.A. 19:23-45) and another that requires county clerks to provide free copies of registry lists to state-recognized political parties (N.J.S.A. 19:31-18.1). “[T]he failure of the Legislature to recognize that alternative parties are entitled to the same opportunity to have their followers declare their affiliation and to have the county registrars maintain and disseminate this information to alternative parties on the same terms as the [Democrats] and [Republicans] constitutes an impermissible burden on their First Amendment rights and denies to plaintiffs the equal protection of the law,” wrote Judge Mary Cuff in Council of Alternative Political Parties v. State of New Jersey, Division of Elections, A-5698, A-5701-99. Judges Dorothea Wefing and Steven Lefelt joined. The suit was brought by an alliance of alternative political parties that includes the Reform Party, the Green Party, the Libertarian Party, the Natural Law Party and the U.S. Taxpayers Party. Aligned against them were the state and the New Jersey Democratic and Republican State Committees, as intervenors. “We’re very ecumenical. We succeeded in uniting the Democrats and the Republicans against us,” quips CAPP lawyer Frank Askin, of Rutgers Law School’s Constitutional Litigation Clinic. Like the lower court, the appeals panel followed Anderson v. Celebrezze, 460 U.S. 780 (1983), in weighing the burdens on constitutional rights against the state justifications for those burdens. It found the third parties similarly situated as the two major parties and that the disparate treatment bestows on the major parties “a substantial benefit” that “amounts to a state subsidy of their party-building efforts.” The opinion notes that the party chairmen, Democrat Thomas Giblin and Republican Garabed Haytaian, admitted that “the ability to identify voters sympathetic to their cause is significant and the lists obtained of registered and declared voters are a primary base for canvassing, fund-raising and other party-building activities.” Denying the same to alternative parties imposes “a significant hardship” on their ability to organize and reinforces the position of the established parties. “The State is not free, particularly at State expense, to enhance or subsidize the party building activities of the statutorily recognized parties,” wrote Cuff. Balanced against these concerns were the state’s asserted interests in maintaining ballot integrity, avoiding voter confusion and ensuring electoral fairness. While finding these interests valid, the court said they fail to justify the burdens on the plaintiffs and are “irrelevant” in the context of voter declaration and maintenance of lists. The court also found “minimal” the administrative burden of listing the third parties on voter registration forms, noting that computerized voter registration systems in 16 of the state’s 21 counties would require no modification and that the cost to the rest would be minor. The appeals court expressly limited its holding to the plaintiff parties, which have defined organizations and nominating procedures. Nevertheless, Republican State Committee lawyer Peter Sheridan says he is concerned that “any group can get together and ask to be recognized.” Sheridan, a partner with the Trenton, N.J., office of Graham Curtin & Sheridan, had argued that confusion could stem from two different groups having claimed the Reform Party label and another of the plaintiff parties having changed its name. Senior Deputy Attorney General Donna Kelly, who represented the Division of Elections, says the decision on whether to appeal is under review but otherwise declines comment. Sheridan and Democrat State Committee attorney John Harrington say their clients have also not yet reached a decision on seeking appeal. Harrington, a Medford, N.J., solo practitioner, declines further comment. The case also involves a challenge, not yet addressed at the trial court level, to the state’s definition of a political party. N.J.S.A. 19:1-1 defines a political party as an organization that received at least 10 percent of the total statewide vote at the previous election of the Assembly. Askin’s co-counsel Renee Steinhagen says that New Jersey’s definition is the most restrictive in the nation. A handful of other states also use a 10 percent threshold but no other state uses polling in a nonstatewide election, says Steinhagen, of the Public Interest Law Center in Newark. The result, according to Askin, is that “New Jersey is the only state in the whole 20th century that never had a third party officially recognized in any way.” As a result, they cannot appear on the coveted first two lines of the ballot, cannot have party poll watchers and may not contribute unlimited amounts to their candidates, says Steinhagen. The appeals court noted that resolution of the registration issue “does not presage the outcome of the other issues raised in the plaintiffs’ complaints.” A previous lawsuit by CAPP obtained a ruling from the 3rd Circuit that enjoined enforcement of N.J.S.A. 19:13-9, which required third parties to file petitions for the November ballot as early as April, 54 days before the primary. CAPP v. Hooks, 121 F.3d 876 (1997). In 1998, CAPP won summary judgment in the district court that the early deadline was unconstitutional. The 3rd Circuit reversed, because during the case, the Legislature amended the statute to extend the time for filing to the day of the primary, placing the parties on a more equal footing. CAPP v. Hooks, 179 F.3d 64 (1999).

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