Mark Balsam v. Secretary of the State of NJ

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-3882
_____________
MARK BALSAM; CHARLES DONAHUE; HANS HENKES;
REBECCA FELDMAN; JAIME MARTINEZ; WILLIAM CONGER;
TIA WILLIAMS; INDEPENDENT VOTER PROJECT;
COMMITTEE FOR A UNIFIED INDEPENDENT PARTY INC,
doing business as INDEPENDENT VOTING.ORG,
Appellants
v.
SECRETARY OF THE STATE OF NEW JERSEY
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-14-cv-01388)
District Judge: Hon. Stanley R. Chesler
_______________
Argued
March 17, 2015
Before: SMITH, JORDAN, and VAN ANTWERPEN, Circuit Judges.
(Filed: April 8, 2015)
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Samuel Gregory, Esq. [ARGUED]
Suite 2008
16 Court Street
Brooklyn, NY 11241
Harry Kresky, Esq.
Suite 419
505 W. 54th Street
New York, NY 10019
S. Chad Peace, Esq. [ARGUED]
Peace Crowell
3625 Fifth Avenue
San Diego, CA 92103
Counsel for Appellants
Donna Kelly, Esq. [ARGUED]
Eric S. Pasternack, Esq.
Office of Attorney General of New Jersey
Department of Law & Public Safety
Division of Law
25 Market Street
P.O. Box 112
Trenton, NJ 08625
Counsel for Appellee
Dave Frohnmayer, Esq.
Harrang Long Gary Rudnick
360 E. 10th Avenue
Suite 300
Eugene, OR 97401
Counsel for Amicus Equal Vote Coalition
Stephen A. Loney, Jr., Esq.
Hogan Lovells US
1835 Market Street
29th Floor
Philadelphia, PA 19103
Counsel for Amicus Fair Vote
Richard T. Robol, Esq.
433 W. Sixth Avenue
Columbus, OH 43201
Counsel for Amici Independent Ohio,
Independent Pennsylvanians, Massachusetts
Coalition of Independent Voters, North
Carolina Independents, Utah League of
Independent Voters, and Virginia
Independent Voters Association
_______________
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OPINION
_______________
JORDAN, Circuit Judge.
The Appellants challenge an order of the United States District Court for the
District of New Jersey dismissing their complaint. We will affirm.
I. Background
A. New Jersey’s Closed Primary Election System
New Jersey has created a comprehensive statutory scheme to govern elections in
the state. See N.J. Stat. Ann. §§ 19:1-1 to 19:63-28. A “general” election is held on the
first Tuesday after the first Monday in November, at which time voters “elect persons to
fill public office.” Id. at § 19:1-1. There are two ways in which a candidate can secure a
place on the ballot for a general election. The first is to be nominated by a political party
in a primary election; the second is to submit a petition with the requisite number of
signatures.
Under the first option, “members of a political party … nominate candidates” in
the month of June “to be voted for at general elections.” Id. at §§ 19:1-1 and 19:2-1.
New Jersey law defines a “political party” as any party that garners at least ten percent of
the votes cast in the last general election for the office of a member of the General
Assembly. Id. at § 19:1-1. To appear on a primary election ballot, a candidate must file a
nominating petition accompanied by the requisite number of signatures at least sixty-four
days before the primary election. Id. at §§ 19:23-8 and 19:23-14. To be eligible to vote

This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
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in a political party’s primary election, a voter must be deemed a member of that party at
least fifty-five days before the election, unless the voter is newly registered or the voter
has not previously voted in a primary election. Id. at § 19:23-45. The state bears the cost
of conducting primary elections. Id. at § 19:45-1.
Under the second option, candidates unaffiliated with a political party may
“bypass the primary election and proceed directly to the general election” upon
submission of a petition bearing the necessary number of signatures. Council of Alt.
Political Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999); see also N.J. Stat. Ann.
§§ 19:13-3 to 19:13-13.
B. The Appellants’ Complaint
Appellants Mark Balsam, Charles Donahue, Hans Henkes, and Rebecca Feldman
are registered as unaffiliated voters, which means that they were not permitted to vote in
New Jersey’s 2013 primary election because they “exercis[ed] their right not to affiliate
with either the Democratic or Republican parties.” (Opening Br. at 10.) Appellant Jaime
Martinez is a registered Democrat, and Appellants William Conger and Tia Williams are
registered Republicans; each of whom was, as the Appellants put it, “required to forfeit
their right of non-association in order to exercise their right to vote in the 2013 Primary
Election.” (Opening Br. at 11.) Appellants Independent Voter Project and Committee
for a Unified Independent Party, Inc., “seek to protect the rights of all voters to cast a
meaningful vote.” (Opening Br. at 11.)
Appellants filed this lawsuit against Kim Guadagno in her official capacity as New
Jersey’s Secretary of State, alleging violations of (1) 42 U.S.C. § 1983; (2) the New
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Jersey Civil Rights Act, N.J. Stat. Ann. § 10:6-2(c); (3) the First and Fourteenth
Amendments of the United States Constitution; and (4) Article II, Section I and Article
VIII, Section III of the New Jersey Constitution. In their complaint, the Appellants
sought three forms of relief: (1) an order declaring the state’s primary election scheme
unconstitutional on its face and as applied; (2) an injunction restraining the state from
funding and administering its current primary election scheme; and (3) an order directing
the state legislature or Secretary of State to implement a different primary election
scheme, in keeping with the Appellants’ views of the United States Constitution.
C. Procedural History
Guadagno filed a motion to dismiss, which the District Court granted. The Court
held that “[a]ny attempt to use the Constitution to pry open a state-sanctioned closed
primary system is precluded by current Supreme Court doctrine.” (App. at 6.) In
addition, the Court reasoned that the Appellants’ state law claims had to be dismissed as
being barred by the Eleventh Amendment. This timely appeal followed.
II. Discussion1
As acknowledged by the Appellants at oral argument, their main argument boils
down to the following syllogism: (1) all voters in New Jersey, regardless of party
affiliation, have a constitutional right to participate at each stage of the electoral process
1
The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of the
District Court’s order granting the motion to dismiss for lack of subject matter
jurisdiction and for failure to state a claim. United States ex rel. Schumann v.
AstraZeneca Pharms. L.P., 769 F.3d 837, 845 (3d Cir. 2014); Rea v. Federated Investors,
627 F.3d 937, 940 (3d Cir. 2010).
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that materially impacts the outcome of non-presidential elections in the state; (2) New
Jersey’s closed primary elections materially impact the outcome of non-presidential
elections in the state; therefore, (3) all voters in New Jersey, regardless of party
affiliation, have a constitutional right to participate in New Jersey’s closed primary
elections – i.e., the primaries may not be closed. But it appears that the Appellants are
aware that controlling precedents preclude us from ordering New Jersey to force political
parties to open their primary elections to non-party members. Therefore, the Appellants
argue instead that, in order to protect their fundamental right to meaningfully participate
at all stages of an election, we force New Jersey to abolish the closed primary election
scheme altogether.
A. Federal Claims
The Appellants rely on First Amendment and Fourteenth Amendment theories to
support their federal claims. They contend that New Jersey’s primary election system
violates the First Amendment because it burdens their associational rights by “requir[ing]
that a voter ‘qualify’ for the right to vote in the Primary Election by joining a political
party.” (Opening Br. at 36.) They further argue that it violates their Fourteenth
Amendment right to equal protection of the law because it is inconsistent with the “one
person, one vote” standard articulated in Reynolds v. Sims, 377 U.S. 533 (1964). See id.
at 566 (“[T]he Equal Protection Clause guarantees the opportunity for equal participation
by all voters in the election of state legislators.”). According to the Appellants, the state’s
system creates two classes of voters: “(1) major party members who enjoy full
participation in both the Primary Election and the general election; and[] (2) voters who,
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by reason of choosing not to associate with one of the dominant political parties, are
allowed only limited participation in the general election.” (Opening Br. at 35.) As a
result, they say, the latter class’s Fourteenth Amendment rights are violated because,
“[w]ithout equality of the right to vote within all integral stages of the process, there is
essential[ly] no meaningful right to vote at all.” (Opening Br. at 34-35.) Their position,
however, is untenable.
States possess a “‘broad power to prescribe the “Times, Places and Manner of
holding Elections for Senators and Representatives,” [U.S. Const.] Art. I, § 4, cl. 1, which
power is matched by state control over the election process for state offices.’” Clingman
v. Beaver, 544 U.S. 581, 586 (2005) (quoting Tashjian v. Republican Party of Conn., 479
U.S. 208, 217 (1986)). That power is not absolute, but is “subject to the limitation that
[it] may not be exercised in a way that violates … specific provisions of the
Constitution.” Williams v. Rhodes, 393 U.S. 23, 29 (1968). In particular, New Jersey has
a “‘responsibility to observe the limits established by the First Amendment rights of [its]
citizens,’” including the freedom of political association or, in this case, non-association.
Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 222 (1989) (quoting Tashjian,
479 U.S. at 217). Election regulations that impose a severe burden on associational rights
are subject to strict scrutiny and may be upheld only if they are “narrowly tailored to
serve a compelling state interest.” Clingman, 544 U.S. at 586. If a statute imposes only
modest burdens, however, then “the state’s important regulatory interests are generally
sufficient to justify reasonable, nondiscriminatory restrictions” on election procedures.
Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). Accordingly, the Supreme Court has
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“repeatedly upheld reasonable, politically neutral regulations that have the effect of
channeling expressive activity at the polls.” Burdick v. Takushi, 504 U.S. 428, 438
(1992).
While “a citizen has a constitutionally protected right to participate in elections on
an equal basis with other citizens in the jurisdiction,” Dunn v. Blumstein, 405 U.S. 330,
336 (1972), no court has ever held that that right guarantees participation in primary
elections. The Appellants nevertheless rely on United States v. Classic, 313 U.S. 299
(1941), as authority for their argument that voters have a constitutional right to participate
in primary elections. Their reliance is misplaced. In Classic, the federal government
prosecuted certain Louisiana state elections commissioners for allegedly falsifying ballots
in a Democratic primary election for the House of Representatives. The Supreme Court
held that the Constitution gives Congress the power to regulate intraparty primaries
through the criminal code and secures the right to have one’s “vote counted in both the
general election and in the primary election, where the latter is a part of the election
machinery.” Id. at 322.
In answering the question presented to it, the Court in Classic presupposed that the
right it recognized only applied to voters who were “qualified” to cast votes in
Louisiana’s Democratic primary. Id. at 307 (stating that one of the “questions for
decision [is] whether the right of qualified voters to vote in the Louisiana primary and to
have their ballots counted is a right ‘secured … by the Constitution’ within the meaning
of … the Criminal Code” (second alteration in original)). But Classic did not expound on
who was “qualified,” and instead left that distinction up to Louisiana law. See id. at 311
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(“Pursuant to the authority given by [§] 2 of Article I of the Constitution … the states are
given, and in fact exercise a wide discretion in the formulation of a system for the choice
by the people of representatives in Congress.”). Fairly read, Classic speaks to the
constitutional protections that inure to qualified primary voters, but it is completely silent
as to who is qualified. It is, therefore, of no help to the Appellants’ argument.
The Appellants also quote Friedland v. State, 374 A.2d 60, 63 (N.J. Super. Ct.
Law Div. 1977), for the proposition that “courts have held that the right to vote in the
Primary Election is ‘as protected as voting in a general election.’” (Opening Br. at 20.)
As noted by the District Court, however, the Appellants’ citation to Friedland is
“puzzling.” (App. at 10.) Friedland rejected an attack on New Jersey’s primary election
system that is similar to the one mounted by the Appellants in this case. See Friedland,
374 A.2d at 63-67 (dismissing complaint that contended New Jersey’s primary election
law violates the First and Fourteenth Amendments, “in that it deprives [plaintiffs] of their
right to vote and to affiliate with political parties of their own choice and denies them
equal protection”). When read in context, the language that the Appellants have lifted
from Friedland does not advance their argument.
The Appellants identify no other precedent even arguably suggesting that voters
have a constitutional right to unqualified participation in primary elections. There is,
however, relevant precedent that cogently rebuts their position. In Nader v. Schaffer, the
Supreme Court summarily affirmed a decision upholding Connecticut’s closed primary
election system, a system which, in broad strokes, looks like New Jersey’s. 417 F. Supp.
837 (D. Conn.) (three-judge panel), aff’d, 429 U.S. 989 (1976) (mem.). The Nader
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plaintiffs were registered voters who refused to enroll in a political party. Id. at 840. As
a result of that choice, they were prohibited from voting in Connecticut’s closed primary
elections. Id. They argued that Connecticut’s closed primary election system violated
their constitutional rights in the following ways: (1) it violated their Fourteenth
Amendment right to equal protection by denying them the right to participate in primary
elections while extending that right to enrolled party members; (2) it violated their First
Amendment associational rights by compelling them to either enroll in a political party or
forgo the right to vote in a primary; and (3) it violated their right to vote, as guaranteed
by Article I, Section 2, cl. 1 and the Fourteenth and Seventeenth Amendments, by
preventing them from participating in an “‘integral part’” – namely the primary elections
– “‘of the process by which their United States Senators and Representatives are
chosen.’” Id. The Nader plaintiffs argued that participation in a primary election was an
exercise of their constitutionally protected rights to vote and associate (or not associate)
with others in support of a candidate. Id. at 842. They further asserted that they wished
to exercise both of those rights but that Connecticut’s closed primary election scheme
limited them to one or the other; that is, in order to vote in a party’s primary election,
they were wrongly forced to enroll in a party. Id.
Nader rejected those arguments and struck a balance of competing First
Amendment associational rights and Fourteenth Amendment rights that undermines the
Appellants’ position here. The court in Nader concluded that, in order to safeguard the
constitutional rights of party members, Connecticut could “legislat[e] to protect the party
from intrusion by those with adverse political principles,” during the candidate selection
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process. Id. at 845 (internal quotation marks omitted). Nader also reasoned that “a state
has a more general, but equally legitimate, interest in protecting the overall integrity of
[primary elections],” which “includes preserving parties as viable and identifiable interest
groups[, and] insuring that the results of primary elections … accurately reflect the voting
of party members.” Id. Thus, “in order to protect party members from intrusion by those
with adverse political principles, and to preserve the integrity of the electoral process, a
state legitimately may condition one’s participation in a party’s nominating process on
some showing of loyalty to that party,” including party membership. Id. at 847 (internal
quotation marks omitted).
The reasoning of Nader is directly applicable here. The Appellants claim that
Nader recognized political parties’ associational rights without considering the
countervailing rights of individuals who are not members of a political party to not have
their vote unconstitutionally diluted. (Opening Br. at 39, 42.) But that is simply
incorrect. The court in Nader did consider the countervailing rights of individuals who
were not members of a political party, and it found that the associational rights of party
members and the regulatory interests of the state outweighed those rights. See 417 F.
Supp. at 844, 845 (“Because the political party is formed for the purpose of engaging in
political activities, constitutionally protected associational rights of its members are
vitally essential to the candidate selection process. … The rights of party members may
to some extent offset the importance of claimed conflicting rights asserted by persons
challenging some aspect of the candidate selection process.”).
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We conclude, in keeping with Nader, that the burden, if any, imposed on the
Appellants’ First Amendment and Fourteenth Amendment rights is outweighed and
constitutionally justified by the interests identified by New Jersey in this case. See
Answering Br. at 15 (“[T]he State has a legitimate interest in protecting the overall
integrity of the … electoral process as well as the associational rights of political
associations, maintaining ballot integrity, avoiding voter confusion, and ensuring
electoral fairness.”).
B. State Law Claims
Under the Eleventh Amendment, state officials acting in their official capacity
cannot be sued unless Congress specifically abrogates the state’s immunity or the state
waives its own immunity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66, 70-71
(1989). The Appellants assert that, because their state law claims are premised on
violations of the federal Constitution and seek prospective injunctive relief, the principles
of Ex Parte Young, 209 U.S. 123 (1908), are implicated and the action against Guadagno
strips her of her official or representative character and subjects her to the consequences
of her individual conduct. Thus, the Appellants argue, this suit is “not really a suit
against the state itself” and Eleventh Amendment immunity does not apply. (Opening
Br. at 44-45.)
We disagree. Although Ex Parte Young held that the Eleventh Amendment does
not bar a party from bringing suit for prospective injunctive relief on the basis of federal
law, the Supreme Court held in Pennhurst State School & Hospital v. Halderman, 465
U.S. 89 (1984), that state officials are immune from suits in federal court based on
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violations of state law, including suits for prospective injunctive relief under state law,
unless the state waives sovereign immunity. Id. at 106 (“We conclude that Young … [is]
inapplicable in a suit against state officials on the basis of state law.”). Moreover, the
supplemental jurisdiction statute, 28 U.S.C. § 1367, does not authorize district courts to
exercise jurisdiction over claims against non-consenting States. See Raygor v. Regents of
the Univ. of Minnesota, 534 U.S. 533, 541-42 (2002) (“[W]e hold that § 1367(a)’s grant
of jurisdiction does not extend to claims against nonconsenting state defendants.”).
The Appellants’ attempt to tie their state law claims into their federal claims is
unpersuasive. Even assuming that they are correct that violation of the federal
Constitution could be used to establish a violation of the state law on which they rely, it is
state law that provides the cause of action, if any, and the attendant relief they seek.
Therefore, Ex Parte Young’s exception to Eleventh Amendment immunity does not
apply. In short, because Congress has not abrogated and New Jersey has not waived its
sovereign immunity, the Appellants cannot invoke federal jurisdiction over their state law
challenge to New Jersey’s closed primary election system.
III. Conclusion
For the foregoing reasons, we will affirm the District Court’s dismissal of the
Appellants’ federal and state law claims.
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