Supreme Court takes up New Jersey political ‘slogan’ statutes

(The Center Square) — The Supreme Court is taking up a legal challenge to a New Jersey law that allows political candidates to include a short phrase next to their name on the ballot but restricts what they can say to voters.

The case before the high court calls for overturning a decision that tossed out a lawsuit filed by a pair of Democratic congressional candidates claiming the law is unconstitutional.

New Jersey’s so-called “slogan statutes” allow candidates listed on the primary ballot to include a six-word message to voters. The 1930 law lets candidates highlight their commitment to a platform or identify with a faction of their political party. But the law prohibits candidates from using the name of any individual unless they’ve received written consent.

Two candidates for U.S. House seats, both Democrats, sued New Jersey in 2020 after they were blocked from listing specific groups and businesses next to their names on their ballots. They argued it violated the First Amendment by restricting political speech.

Lisa McCormick was blocked from using her campaign slogan, which criticized Vermont Sen. Bernie Sanders, according to court filings. At the same time, Eugene Mazo was prevented from naming local wings of the New Jersey Democratic party in his ballot slogan.

“New Jersey’s regulation of campaign slogans is one of the country’s most blatant violations of candidates’ right to free speech,” Ryan Morrison, an attorney with the Institute for Free Speech, who argued the case in federal court, said in a 2020 statement. “The state effectively allows groups to register slogans just to prevent candidates from using them.”

A U.S. District Court judge rejected the lawsuit, ruling that New Jersey’s slogan statutes regulate election mechanics, not political speech and the plaintiffs couldn’t “plausibly” claim that the statute violated their First Amendment rights.

The Court of Appeals for the 3rd Circuit upheld that dismissal, but the plaintiffs appealed to the Supreme Court, which agreed to take it up.

In court filings, a lawyer for plaintiffs’ appeal argues that the 3rd Circuit’s court decision was “fatally flawed” because it would allow New Jersey to regulate core political speech “at the election’s critical moment” while “insulating entrenched political machines from serious primary challenges.”

“The New Jersey slogan statutes are not just unconstitutional, but pernicious,” Attorney Paul Clement wrote in a legal filing. “They restrict political speech when it matters most, and do so in a way that skews the debate and entrenches political machines.”

The plaintiffs argue that New Jersey has “no obligation” to allow candidates to add a slogan to the ballot next to their name, but because it does, that speech should be protected.

“Although candidates do not have an absolute constitutional right to extend the political debate onto the ballot, states that allow such core political speech at the moment of decision must fully respect the First Amendment when it matters most,” Clement wrote.

Plaintiffs in the case also want the Supreme Court to clarify the so-called Anderson-Burdick doctrine, a legal standard by which courts weigh the benefits of election rules on a sliding scale against the impact on First Amendment rights to participate in the democratic process.

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