Democratic-Republican Organization of New Jersey v. Guadagno, No. 3:12-cv-05658; U.S. District Court (DNJ); opinion by Wolfson, U.S.D.J.; filed October 11, 2012. DDS No. 21-7-7967 [30 pp.]

Plaintiffs, the Democratic-Republican Organization of New Jersey and individual candidates for various elected public offices who have satisfied the requirements to be placed on the November 2012 general election ballots as candidates nominated by petition, challenge the “preferences” New Jersey provides to the two main political parties by placing them in the first two columns of the general election ballots and prohibiting the use of any part of their name by other, unaffiliated candidates. Plaintiffs allege that they have been denied placement together and on the left side of the ballot and the use of the slogan “Democratic-Republican.”

Plaintiffs seek a preliminary injunction that declares unconstitutional N.J.S.A. 19:1-1, 19:5-1, 19:12-1, 19:14-2 and 19:13-4. They also seek an order directing defendants, the lieutenant governor, various county clerks and the New Jersey Republican and Democratic parties, to reconfigure the ballots to allow them to appear bracketed together in the first and second columns and to use “Democratic-Republican” as a slogan, or an order directing that they have the right to use their slogan and appear to the right of all other independent candidates to the exclusion of any other unaffiliated candidates in the column.

Held: Placing political party candidates on the left side of the ballot and all other candidates on the right side, as prescribed by N.J.S.A. 19:5-1 and 19:12-14, does not violate the Equal Protection Clause or the First Amendment. The limitations on permissible slogans imposed by 19:13-4 are not so severe as to outweigh the state’s interests in ensuring the integrity of the election process and avoiding voter confusion and do not violate plaintiff’s constitutional rights.

The court begins by noting New Jersey Conservative Party v. Farmer, 324 N.J. Super. 451 (App. Div. 1999), a similar action in which plaintiffs argued that they were unconstitutionally excluded from the lottery process that determines which parties are entitled to ballot positions pursuant to 19:14-12. The Chancery Division held that 19:14-12 was not unconstitutional.

As to plaintiffs’ facial challenge to 19:5-1, the court says they claim that while the state may treat political party candidates differently than unaffiliated candidates regarding ballot access, 19:5-1, which provides that political party candidates are placed on the left side of the ballot via a lottery and grants county clerks the discretion to determine the placement of candidates nominated by petition, impermissibly confers a benefit on political party candidates that violates the Equal Protection Clause.

The court says the state has an interest in regulating elections to ensure that voters are able to understand the ballot, and may do so by treating political party candidates differently than unaffiliated candidates. The constitutionality of 19:5-1 and 19:14-12 turns on whether they impose burdens on voters and candidates that are not outweighed by the state’s interest in regulating elections.

The court rejects plaintiffs’ claim that they are burdened by not having an equal opportunity to be placed on the left side of the ballot because they offer no support for a constitutional right to ballot placement and because they provide no evidence showing that certain ballot placements confer any benefit, such as additional votes. Further, the court says even assuming that ballot placement might burden some candidates, this is less onerous than the burdens imposed by statutes upheld by the Supreme Court.

The court concludes that placing political party candidates on the left side of the ballot and all other candidates on the right side does not violate plaintiffs’ constitutional rights. N.J.S.A. 19:5-1 and 19:12-14 impose, at most, a minimal burden on plaintiffs’ ballot access that is outweighed by the state’s interest in ensuring that voters can clearly identify which candidates are affiliated with political parties. N.J.S.A. 19:5-1 and 19:14-12 do not violate the Equal Protection Clause or the First Amendment.

The court also rejects plaintiffs’ claim that 19:5-1 is unconstitutional as applied to them because they have failed to provide any facts showing that the statute is being applied specifically against them in an unconstitutional manner. Rather, it appears that their “as applied” challenge is actually an attack on Farmer‘s interpretation of 19:5-1. However, they have not shown how this interpretation results in arbitrary — and, therefore, unconstitutional — application of the statute. Therefore, they have not shown that a constitutional violation exists.

The court then considers plaintiffs’ challenge to 19:13-4, under which unaffiliated candidates can request that a three-word slogan be placed next to their names on the ballots. The statute prohibits the use of a political party name, or part thereof, in the slogans. In this case, no slogan may contain the term “Democratic” or “Republican.”

Plaintiffs claim that the statute violates the First Amendment as it prevents candidates from meaningfully associating through placing the slogan of their choice on the ballot.

The court says plaintiffs apparently believe that they have an unqualified right to dictate what appears next to their name on the ballot but they provide no support for this proposition, and there is no fundamental right regarding ballot treatment. It concludes that plaintiffs have not shown that 19:13-4 imposes a burden beyond preventing them from using a slogan similar to the names of the recognized political parties.

The court says the state has an important interest in avoiding ballot confusion and that it is well within its regulatory powers to enact nondiscriminatory rules to do so. Although 19:13-4 restricts the content of a candidate’s slogan to a certain degree, it does not directly limit the party’s access to the ballot. Accordingly, the burden the statute imposes on plaintiffs is not so severe as to outweigh the state’s stated interests in ensuring the integrity of the election process and avoiding voter confusion. N.J.S.A. 19:13-4, on its face, does not infringe on plaintiffs’ constitutional rights. The court also rejects plaintiffs’ “as applied” challenge.

For plaintiffs — Richard T. Luzzi (Oller & Luzzi). Plaintiff Eugene Martin LaVergne appeared pro se. For defendants — Donna Kelly (Office of Attorney General of New Jersey), James F. Ferguson (Atlantic City Law Department), James B. Arsenault Jr. (Office of County Counsel, Cape May County), Brendan J. Kavanagh (Kavanagh & Kavanagh), Edward J. Florio (Florio & Kenny), John M. Carbone (Carbone & Faasse), Michael David Witt (Chasan Leyner & Lamparello), Joseph A. Bilal (Middlesex County Counsel), Robert B. Campbell (McConnell, Lenard & Campbell) and Moshood Muftau (Union County Counsel).