Eugene Mazo v. New Jersey Secty State

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_______________________

No. 21-2630
_______________________

EUGENE MAZO;
LISA MCCORMICK,

Appellants

v.

NEW JERSEY SECRETARY OF STATE;
E. JUNIOR MALDANADO, in his official capacity as
Hudson County Clerk;
JOANNE RAJOPPI, in her official capacity as Union County
Clerk;
PAULA SOLLAMI COVELLO, in her official capacity as
Mercer County Clerk;
ELAINE FLYNN, in her official capacity as Middlesex
County Clerk;
CHRISTOPHER DURKIN, in his official capacity as Essex
County Clerk;
STEVE PETER, in his official capacity as Somerset County
Clerk
_______________________

On Appeal from the United States District Court
for the District of New Jersey
District Court No. 3-20-cv-08174
District Judge: The Honorable Freda L. Wolfson
__________________________
 Argued July 6, 2022

Before: SHWARTZ, KRAUSE, and ROTH, Circuit Judges

(Filed: November 23, 2022)

Ryan Morrison [ARGUED]
Institute for Free Speech
1150 Connecticut Avenue, N.W.
Suite 801
Washington, DC 20036

Walter M. Luers
Cohn Lifland Pearlman Herrmann & Knopf
Park 80 West - Plaza One
250 Pehle Avenue, Suite 401
Saddle Brook, NJ 07663
Counsel for Appellants

Angela Cai [ARGUED]
Nicole E. Adams
Dominic L. Giova
Office of Attorney General of New Jersey
Division of Law
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Counsel for Appellee New Jersey Secretary of State

2
Walter S. Zimolong, III
Zimolong
353 West Lancaster Avenue
Suite 300
Wayne, PA 19087
Counsel for Amicus Appellants
Professor Derek T. Muller and Professor Michael R. Dimino

__________________________

OPINION OF THE COURT
__________________________

KRAUSE, Circuit Judge

Nowhere are the First Amendment rights of free speech
and association more essential, or more fiercely guarded, than
in the context of free and open elections. Self-government
depends on ensuring that speech intended to support,
challenge, criticize, or celebrate political candidates remains
unrestricted. But at the end of every hard-fought political
campaign lies the ballot box, where our constitutional
democracy depends equally on States fulfilling their solemn
duty to regulate elections to ensure fairness and honesty, even
where doing so may burden some First Amendment rights. For
this reason, courts have long applied the more flexible
Anderson-Burdick balancing test to evaluate constitutional
challenges to state election laws that govern the mechanics of
the electoral process. At the same time, however, courts
continue to apply a traditional—and often quite stringent—
First Amendment analysis to state election laws that implicate
core political speech outside of the voting process.

3
 This case asks us to determine where the campaign ends
and the electoral process begins. New Jersey permits
candidates running in primary elections to include beside their
name a slogan of up to six words to help distinguish them from
others on the ballot. N.J. Stat. § 19:23-17. But New Jersey
also requires that candidates obtain consent from individuals
or New Jersey incorporated associations before naming them
in their slogans. Appellants Eugene Mazo and Lisa
McCormick challenged this requirement after their desired
slogans were rejected for failure to obtain consent. They argue
that New Jersey’s ballot slogans are, in effect, part of the
campaign—a final, crucial opportunity for candidates to
communicate directly with voters—and that the consent
requirement should therefore be subject to traditional First
Amendment scrutiny. The District Court disagreed. It held
that, though the ballot slogans had an expressive function, the
consent requirement regulates the mechanics of the electoral
process, and so applied the Anderson-Burdick test, ultimately
finding the consent requirement constitutional.

We agree with the District Court. In so doing, we
recognize the line separating core political speech from the
mechanics of the electoral process has proven difficult to
ascertain: “Not only has the Supreme Court itself fractured
deeply in the application of this jurisprudence, but so too has
the judiciary in general.” PRINCIPLES OF THE L. OF ELECTION
ADMIN.: NON-PRECINCT VOTING AND RESOL. OF BALLOT-
COUNTING DISP. § 201 (AM. L. INST., Tentative Draft No. 2,
2017). Thus to “develop[] . . . this constitutional jurisprudence
in ways that most promote rule-of-law values and the
legitimacy of the electoral process, including the critical value
of clarity,” we take this opportunity to survey the range of
election laws to which the Supreme Court and appellate courts

4
have applied the Anderson-Burdick test, as opposed to a
traditional First Amendment analysis. Id. From that review,
we derive criteria to help distinguish—along the spectrum of
mechanics of the electoral process to pure political speech—
which test is applicable. And applying those criteria here, we
conclude that New Jersey’s consent requirement is subject to
Anderson-Burdick’s balancing test. We also conclude that
because New Jersey’s interests in ensuring election integrity
and preventing voter confusion outweigh the minimal burden
imposed on candidates’ speech, the consent requirement passes
that test. We will therefore affirm the judgment of the District
Court.

I. Background

A. New Jersey’s Ballot Slogan Statutes

In New Jersey, a candidate who wants to have her name
placed on the ballot for a primary election must file a petition
containing certain information about the candidate and the
requisite signatures for the public office sought. See N.J. Stat.
Ann. §§ 19:23-5 to -11.1 For candidates seeking federal office,
these petitions must be directed to the Secretary of State, id.
§ 19:23-6, who is responsible for certifying petitions, id.
§§ 19:13-3, 19:23-21, and instructing local election officials
about the names and information that are to be placed on the
primary ballots, id. §§ 19:23-21 to -22.4.2

1
New Jersey has adopted a similar system for unaffiliated
candidates seeking to be placed on the general election ballot.
See N.J. Stat. §§ 19:13-1 to -3.
2
The Secretary of State is also responsible for petitions for
statewide offices; candidates seeking county or local office,

5
 Since 1930, New Jersey law has permitted candidates
running in a primary election for “any public office” to
“request that there be printed opposite his name on the primary
ticket a designation, in not more than six words, . . . for the
purpose of indicating either any official act or policy to which
he is pledged or committed, or to distinguish him as belonging
to a particular faction or wing of his political party.” N.J. Stat.
§ 19:23-17.

In 1944, the New Jersey legislature amended the law to
include the proviso that “no such designation or slogan shall
include or refer to the name of any person or any incorporated
association of this State unless the written consent of such
person or incorporated association of this State has been filed
with the petition of nomination of such candidate or group of
candidates.” Id. This consent requirement is reiterated in N.J.
Stat. § 19:23-25.1, which states that no ballot slogan “shall be
printed” that “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.”3 These “Slogan Statutes” and their consent
requirement are enforced by the Secretary of State in all federal

however, must direct their petitions to the appropriate county
or municipal clerks. See N.J. Stat. § 19:23-6.
3
New Jersey allows for unaffiliated candidates running in a
general election to include a similar three-word slogan
conveying “the party or principles” the candidate represents,
so long as that slogan does not include any part of the name of
another political party. N.J. Stat. § 19:13-4.

6
and state-wide primary races as part of the certification
process. See N.J. Stat. § 19:23-21.4

B. Appellants’ Slogans

Appellants Eugene Mazo and Lisa McCormick were
candidates in the July 7, 2020, Democratic Primary for the
House of Representatives in New Jersey’s Tenth and Twelfth
Congressional Districts, respectively. Mazo requested ballot
slogans for each of the ballots printed by the three counties that
comprise New Jersey’s Tenth District:

• In Essex County: “Essex County Democratic
Committee, Inc.”
• In Hudson County: “Hudson County Democratic
Organization.”
• In Union County: “Regular Democratic
Organization of Union County.”

Am. Compl. ¶ 37 (App. 48). Because each of these slogans
“referred to the names of New Jersey incorporated
associations,” state officials informed Mazo that authorization
from the chairperson of the organizations was required and that
if he did not obtain authorization, “his nomination petition
would be certified as ‘NO SLOGAN.’” Am. Compl. ¶ 38
(App. 48-49). Mazo never obtained the required consent, and
instead “used three different slogans with the authorization of
three other New Jersey incorporated associations that he
created.” Am. Compl. ¶ 39 (App. 49).

4
For local primary elections, county and municipal clerks are
responsible for enforcing the consent requirements. See N.J.
Stat. §§ 19:23-22; 19:23-22.1.

7
 McCormick originally requested the ballot slogan “Not
Me. Us.,” Am. Compl. ¶ 41 (App. 49), but was told that,
because this slogan referred to another New Jersey
incorporated association, she also required the organization’s
authorization. McCormick did not obtain the necessary
consent and instead requested, as an alternative slogan, “Bernie
Sanders Betrayed the NJ Revolution.” Am. Compl. ¶¶ 43-44
(App. 49). But because this new slogan still named an
individual, again she was told consent was required.
McCormick did not obtain consent and ultimately settled on a
different slogan, “Democrats United for Progress,” for which
she did obtain authorization. Am. Compl. ¶ 45 (App. 49).

C. Procedural Background

On July 2, 2020, five days before the primary election,
Mazo and McCormick filed suit in the District of New Jersey,
naming the New Jersey Secretary of State and various county
clerks as defendants, collectively “the Government.” Their
complaint sought declaratory and injunctive relief, claiming
that the consent requirement was unconstitutional, both
facially and as-applied, under the First and Fourteenth
Amendments.5 In response, both the Secretary of State and the
Clerks moved to dismiss.

The Secretary of State argued that Appellants’ claims
were both moot (because the primary election had passed) and
unripe (because the next primary was more than a year away),
and also that the consent requirement was constitutional. For

5
Appellants initially also sought nominal damages but
abandoned that claim as against the Secretary of State and no
longer press the issue on appeal.

8
their part, the Clerks primarily urged that they were improper
defendants because, under New Jersey law, they did not
enforce the Slogan Statutes for congressional elections and
lacked discretion to contradict the Secretary of State’s
instructions.

The District Court considered each of these arguments
and concluded that (1) Appellants’ claims were both ripe and
not moot, Mazo v. Way, 551 F. Supp. 3d 478, 491-98 (D.N.J.
2021), (2) the Clerks did not exercise any discretion with
respect to enforcing the Slogan Statutes, id. at 509, and (3) the
consent requirement was constitutional, both facially and as-
applied, id. at 498-508. The Court thus dismissed the case, and
Appellants timely appealed.

II. Standard of Review

We review a district court’s denial of a Rule 12(b)(6)
motion de novo. Keystone Redev. Partners, LLC v. Decker,
631 F.3d 89, 95 (3d Cir. 2011). We also accept all of
Appellants’ well-pleaded factual allegations as true and draw
“all reasonable inferences” in their favor. Simko v. U.S. Steel
Corp., 992 F.3d 198, 203-04 (3d Cir. 2021) (citing Connelly v.
Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016)).
To prevail on a facial challenge6, a plaintiff must
“establish that no set of circumstances exists under which the

6
Appellants purport to raise both a facial and an as-applied
challenge to the Slogan Statutes. But as the District Court
observed, Appellants have not “plead[ed] any facts showing
that [the Secretary of State] enforced the [consent requirement]
against them in an unconstitutional or otherwise irregular
manner.” Mazo, 551 F. Supp. 3d at 498 n.7 (D.N.J. 2021)
(citation omitted). Instead, their complaint merely repeats the

9
[law] would be valid,” United States v. Salerno, 481 U.S. 739,
745 (1987), or, in the First Amendment context, show that the
law is overbroad because “a substantial number” of its
applications are unconstitutional, “judged in relation to [its]
plainly legitimate sweep,” New York v. Ferber, 458 U.S. 747,
770-71 (1982).7
III. Jurisdiction and Justiciability

The District Court had jurisdiction under 28 U.S.C.
§ 1331, and we have jurisdiction over its final order of
dismissal under 28 U.S.C. § 1291. As we have an obligation
to determine whether a controversy is justiciable before
resolving its merits, we examine whether the challenge is both
ripe and not moot. See Larsen v. Senate of Pa., 152 F.3d 240,
246 (3d Cir. 1998).

legal conclusion that the consent requirement “restricted
[Appellants’] freedom of expression,” Am. Compl. ¶ 59 (App.
51) and does not specify how their freedom of speech or
association was burdened by enforcement of the consent
requirement. We therefore construe their Complaint as raising
only a facial challenge. Cf. United States v. Marcavage, 609
F.3d 264, 274 (3d Cir. 2010) (construing an unclear complaint
as bringing an as-applied claim where the plaintiff’s argument
was “entirely dependent on the facts of th[e] case”).
7
The standard for bringing an as-applied challenge is less
demanding; a plaintiff need only show that a law’s “application
to a particular person under particular circumstances deprived
that person of a constitutional right.” Marcavage, 609 F.3d at
273.

10
 To determine if a claim is ripe, we consider “whether
the parties are in a ‘sufficiently adversarial posture,’ whether
the facts of the case are ‘sufficiently developed,’ and whether
a party is ‘genuinely aggrieved.’” Plains All Am. Pipeline L.P.
v. Cook, 866 F.3d 534, 539 (3d Cir. 2017) (quoting Peachlum
v. City of York, 333 F.3d 429, 433-34 (3d Cir. 2003)). In the
declaratory judgment context, we apply these principles by
considering three enumerated factors: “(1) the adversity of the
parties’ interests, (2) the conclusiveness of the judgment, and
(3) the utility of the judgment.” Khodara Env’t, Inc. v. Blakey,
376 F.3d 187, 196 (3d Cir. 2004) (quoting Pic-A-State Pa., Inc.
v. Reno, 76 F.3d 1294, 1298 (3d Cir. 1996)); see also Step-
Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d 643, 646-50 (3d
Cir. 1990).

Here, Appellants satisfy all three ripeness factors. First,
the parties’ interests are sufficiently adverse, as Appellants
aver that they will suffer a “substantial threat of real harm” in
the form of a First Amendment injury “if the declaratory
judgment is not entered.” Plains, 866 F.3d at 541 (quoting
Presbytery of N.J. of Orthodox Presbyterian Church, 40 F.3d
1454, 1463 (3d Cir. 1994) and Travelers Ins. Co. v. Obusek, 72
F.3d 1148, 1154 (3d Cir. 1995)). Second, because the issues
in this case are purely legal, and because Appellants plan to
request similar ballot slogans without obtaining consent in the
future, a declaratory judgment would conclusively resolve
Appellants’ facial challenge. See Florio, 40 F.3d at 1468
(“[P]redominantly legal questions are generally amenable to a
conclusive determination in a preenforcement context.”).
Third, a declaratory judgment would be particularly useful for
Appellants here, as New Jersey typically does not provide
nominating petitions until the December or January before the
spring primary campaign, meaning Appellants would

11
otherwise be left with uncertainty as they plan their future
campaigns. See, e.g., Arsenault v. Way, 539 F. Supp. 3d 335,
340-41 (D.N.J. 2021) (describing abbreviated timeline). In
short, Appellants’ claim is ripe for decision.

Appellants’ claim is also not moot. A claim is moot
“when the issues presented are no longer ‘live’ or the parties
lack a legally cognizable interest in the outcome.” Chafin v.
Chafin, 568 U.S. 165, 172 (2013) (quoting Already, LLC v.
Nike, Inc., 568 U.S. 85, 91 (2013)). There is an important
exception, however, for claims that are “capable of repetition,
yet evading review,” i.e., where “(1) the challenged action is in
its duration too short to be fully litigated prior to cessation or
expiration, and (2) there is a reasonable expectation that the
same complaining party will be subject to the same action
again.” Kingdomware Techs., Inc. v. United States, 579 U.S.
162, 170 (2016) (alterations omitted) (quoting Spencer v.
Kemna, 523 U.S. 1, 17 (1998)). Courts frequently apply this
exception to election cases given the recurring nature of
elections and the often strict time frames associated with
running for office. See, e.g., Norman v. Reed, 502 U.S. 279,
288 (1992) (“There would be every reason to expect the same
parties to generate a similar, future controversy subject to
identical time constraints[.]”).

That exception applies with full force in this case. New
Jersey need not certify a proposed ballot slogan until fifty-four
days prior to the primary election, and county clerks may begin
printing ballots any time after fifty days prior to the election.
That leaves only a narrow window in which candidates might
challenge a rejected slogan, N.J. Stat. Ann. §§ 19:23-21;
19:23-22.4, and Appellants have affirmed their intent to run for
office again without obtaining the necessary consent.

12
Appellants’ challenges to the consent requirement thus present
a live controversy over which we may exercise jurisdiction.

IV. Discussion

The central issue in this case is the parties’ disagreement
over which constitutional test applies to New Jersey’s consent
requirement. The Government maintains that the District
Court correctly applied the sliding-scale approach for election
regulations developed in Anderson v. Celebrezze, 460 U.S. 780
(1983), and Burdick v. Takushi, 504 U.S. 428 (1992).
Appellants argue that the District Court should have employed
a traditional First Amendment analysis applying strict scrutiny
because the consent requirement is a content-based restriction
of their speech. Thus, to determine the constitutionality of the
consent requirement, we must first determine which test
applies.

Below we consider: (a) the need for clarification given
the case law to date; (b) circumstances in which the Anderson-
Burdick test applies; (c) the test applicable to New Jersey’s
consent requirement; and (d) applying this test, whether the
consent requirement is constitutional.

A. The Case Law to Date

Elections occupy a special place in our constitutional
system, as do election laws. The Constitution expressly grants
States the authority to set rules for the time, place, and manner
of federal elections. U.S. Const. Art. I, § 4, cl. 1; Art. II, § 1,
cl. 2. Pursuant to these clauses, States have long maintained
“comprehensive, and in many respects complex, election codes
regulating . . . the time, place, and manner of holding primary
and general elections.” Storer v. Brown, 415 U.S. 724, 730

13
(1974). States’ authority over federal elections is broad,
encompassing “notices, registration, supervision of voting,
protection of voters, prevention of fraud and corrupt practices,
counting of votes, duties of inspectors and canvassers, and
making and publication of election returns.” Smiley v. Holm,
285 U.S. 355, 366 (1932). It is even broader with respect to
state and local elections. See Sugarman v. Dougall, 413 U.S.
634, 647 (1973). That is because, if elections “are to be fair
and honest and if some sort of order, rather than chaos, is to
accompany the democratic process,” Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 358 (1997) (quoting Burdick,
504 U.S. at 433), it is “[c]ommon sense” that States must take
an “active role in structuring elections,” Burdick, 504 U.S. at
433.

Yet because States “comprehensively regulate the
electoral process,” Council of Alt. Pol. Parties v. Hooks, 179
F.3d 64, 70 (3d Cir. 1999), their election laws “inevitably
affect[,] at least to some degree[,]” certain fundamental rights,
including the right to vote8 and First Amendment rights of free
expression and association, Anderson, 460 U.S. at 788. So the
question arises, what test should courts apply to evaluate the
constitutionality of those laws?

In some cases, a traditional First Amendment test fails
to account for the fact that, for elections to run smoothly, some
restrictions on expression and association are necessary.
Recognizing this, the Supreme Court in Anderson and Burdick

8
The right to vote has long been recognized as a fundamental
political right under the Constitution. See, e.g., Wesberry v.
Sanders, 376 U.S. 1, 6-7 (1964).

14
crafted a unique test for “[c]onstitutional challenges to specific
provisions of a State’s election laws.” Anderson, 460 U.S. at
789. This test is “more flexible” than the rigid tiers of scrutiny
under a traditional First Amendment analysis, Burdick, 504
U.S. at 434, reflecting the reality that there is no “‘litmus-paper
test’ that will separate valid from invalid restrictions,”
Anderson, 460 U.S. at 789 (quoting Storer, 415 U.S. at 730).

The Anderson-Burdick test requires the reviewing court
to (1) determine the “character and magnitude” of the burden
that the challenged law imposes on constitutional rights, and
(2) apply the level of scrutiny corresponding to that burden.
Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789).
If the burden is “severe,” the court must apply exacting
scrutiny and decide if the law is “narrowly tailored and
advance[s] a compelling state interest.” Timmons, 520 U.S. at
358. But if the law imposes only “reasonable,
nondiscriminatory restrictions,” Anderson, 460 U.S. at 788, the
court may use Anderson-Burdick’s sliding scale approach
under which a State need only show that its “legitimate
interests . . . are sufficient to outweigh the limited burden,”
Burdick, 504 U.S. at 440.

Courts have applied Anderson-Burdick to a wide range
of state election laws covering nearly every aspect of the
electoral process. See, e.g., Belitskus v. Pizzingrilli, 343 F.3d
632, 643-47 (3d Cir. 2003) (applying Anderson-Burdick in
challenge to Pennsylvania ballot access law requiring
candidates to pay filing fee to have their names placed on the
general election ballot); Ohio Democratic Party v. Husted, 834
F.3d 620, 626-36 (6th Cir. 2016) (applying Anderson-Burdick
to a challenge to Ohio law that changed the first day of early

15
absentee voting from 35 days before election day to the day
after the close of voter registration).

In other cases, however, the Supreme Court has
declined to apply Anderson-Burdick’s balancing test and has
reverted instead to a traditional First Amendment analysis.
See, e.g., McIntyre v. Ohio Elections Comm’n, 514 U.S. 334,
345 (1995) (rejecting application of Anderson-Burdick in
challenge to ban on anonymous leafletting of political
materials as it constituted the “regulation of pure speech”);
Meyer v. Grant, 486 U.S. 414, 420 (1988) (declining to apply
Anderson-Burdick to free expression challenge to ban on
paying petitioner circulators for ballot initiatives). The
problem we confront today is that the Supreme Court has never
laid out a clear rule or set of criteria to distinguish between
these two categories of election laws, nor has any Court of
Appeals to our knowledge. So to decide the category in which
New Jersey’s consent requirement falls, we must first identify
their defining characteristics.

B. When Does the Anderson-Burdick Test
Apply?

A survey of the Supreme Court’s case law both before
and after Anderson and Burdick reveals two principal
characteristics of the laws to which their test applies. First, the
law must burden a relevant constitutional right, such as the
right to vote or the First Amendment rights of free expression
and association. Second, the law must primarily regulate the
mechanics of the electoral process, as opposed to core political
speech. We address each below.

16
 1. Anderson-Burdick Applies Beyond
Free Association Claims.
Appellants espouse a narrow view of the constitutional
rights that trigger review under Anderson-Burdick, contending
that the test is limited to challenges based on First Amendment
free association claims. But precedent from the Supreme
Court and our sister circuits defies this cramped view and
applies Anderson-Burdick to vindicate a variety of
constitutional rights.

True, Anderson itself focused on “voters’ freedom of
association,” 460 U.S. at 787-88, and associational rights have
also played a central role in many of the Supreme Court’s other
cases applying the Anderson-Burdick test. See, e.g., Clingman
v. Beaver, 544 U.S. 581, 588 (2005) (focusing on the
associational interests of voters); Norman, 502 U.S. at 288, 290
(focusing on “the constitutional interest of like-minded voters
to gather in pursuit of common political ends” under the “First
Amendment right of political association”); Timmons, 520
U.S. at 358 (discussing “associational rights”); Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 444
(2008) (focusing on “political parties’ associational rights”).

But the Court has also applied Anderson-Burdick to free
speech claims. Indeed, Burdick itself concerned a claimed
right to send a message by casting a “protest vote.” 504 U.S.
at 438. Other examples abound. See Eu v. S.F. Cnty.
Democratic Cent. Comm., 489 U.S. 214, 222, 224 (1989)
(applying the Anderson test where the challenged law “directly
affect[ed] speech” in addition to “infring[ing] upon [voters’]
freedom of association”); Timmons, 520 U.S. at 357, 363 (tying
associational rights to “the independent expression of a
political party’s views” and recognizing that the challenged

17
law, in addition to burdening associational rights, “also
limit[ed], slightly, the party’s ability to send a message to the
voters and to its preferred candidates”) (quoting in part Colo.
Republican Fed. Campaign Comm’n v. Fed. Election Comm.,
518 U.S. 604, 616 (1996)). As these cases make clear,
Anderson-Burdick pertains not only to association claims, but
also to challenges to election laws that “have the effect of
channeling expressive activity at the polls.” Burdick, 504 U.S.
at 438.

Nor is Anderson-Burdick limited to First Amendment
challenges. Certainly, it does not apply where the alleged right
relates only to a statutory right or there is otherwise no
cognizable constitutional right at issue9 or where the burden on

9
Valenti v. Lawson declined to apply Anderson-Burdick to a
law that banned a registered sex offender from voting at a
school because sex offenders were not a suspect class and
convicted felons had no constitutional right to vote, “only . . .
a statutory right to vote” to the extent permitted by a State. 889
F.3d 427, 429-30 (7th Cir. 2018); see also Donatelli v.
Mitchell, 2 F.3d 508, 514, 515 n.10 (3d Cir. 1993) (no
constitutional right implicated where state reapportionment
plan resulted in the temporary reassignment of a state senator
to a new district for the remainder of his term, statute was not
targeted at a discrete group of voters, and did not deprive voters
of equal access to ballot); Biener v. Calio, 361 F.3d 206, 215
(3d Cir. 2004) (noting that “[t]he right to run for office has not
been deemed a fundamental right” and “voter’s rights are not
infringed where a candidate chooses not to run because he is
unwilling to comply with reasonable state requirements”)
(quoting in part Adams v. Askew, 511 F.2d 700, 703 (5th Cir.
1975)); Cecelia Packing Corp. v. U.S. Dept. of Agric./Agric.

18
a constitutional right is no more than de minimis.10 But it has

Mktg. Serv., 10 F.3d 616, 624 (9th Cir. 1993) (declining to
apply Anderson-Burdick to a law regulating voting in
agricultural marketing order referenda because the right to vote
did not extend to elections for government officials who “do
not exercise general governmental powers”); Hayden v.
Paterson, 594 F.3d 150, 169-70 (2d Cir. 2010) (applying
rational basis review to a felon disenfranchisement law that
was otherwise nondiscriminatory); Kessler v. Grand Cent.
Dist. Mgmt. Ass’n, Inc., 158 F.3d 92, 105, 108 (2d Cir. 1998)
(declining to apply Anderson-Burdick balancing to a
malapportionment challenge because, while the elected body
performed types of services “often provided by local
government,” its role was secondary to city and therefore did
not exercise “responsibilities or general powers typical of a
governmental entity”).
10
See Molinari v. Bloomberg, 564 F.3d 587, 606 (2d Cir. 2009)
(declining to apply Anderson-Burdick where the only effect on
First Amendment rights was “incidental[] and constitutionally
insignificant”) (alteration in original) (quoting Cohen v.
Cowles Media Co., 501 U.S. 663, 672 (1991)). In Clingman,
for example, the Supreme Court considered a semi-closed
primary law, under which members of a given party and
Independents could vote in that party’s primary, but not
members of other parties. 544 U.S. at 584. The law was
challenged by a group of Democratic and Republican voters
who wished to vote in the Libertarian Party’s primary without
changing their party affiliation. See id. at 588. The Court was
skeptical of the alleged burden on plaintiffs’ association
claims, however, and, observing they did “not want to
associate with the [Libertarian Party], at least not in any formal

19
been applied to the right to vote,11 the right to “travel
throughout the United States,”12 and the right to procedural due

sense,” noted that “a voter who is unwilling to disaffiliate from
another party to vote in [another party’s] primary forms little
‘association.’” Id. at 588-89; see also Rodriguez v. Popular
Democratic Party, 457 U.S. 1, 12 (1982) (applying rational
basis review to a challenge to a State’s choice to fill legislative
vacancies by appointment because any effect on individual
rights was “minimal”).
11
In Crawford v. Marion County Election Board, for instance,
the Supreme Court recognized that “‘evenhanded restrictions
that protect the integrity and reliability of the electoral process
itself’ are not invidious,” and proceeded to apply Anderson-
Burdick’s balancing test to the voter identification law at issue.
553 U.S. 181, 189-91 (2008) (plurality opinion) (quoting
Anderson, 460 U.S. at 788 n.9). The plurality opinion from
which these quotations are taken commanded only the votes of
three Justices. But while the three concurring Justices
disagreed on how exactly to apply the Anderson-Burdick test,
they all agreed that “generally applicable, nondiscriminatory
voting regulation[s]” are subject to the balancing test. See
Crawford, 553 U.S. at 205-06 (Scalia, J., concurring).
12
In Dunn v. Blumstein, the Court observed that a State’s
durational residency requirements burdened not only the right
to vote, but also the distinct right “to travel throughout the
United States.” 405 U.S. 330, 338 (1972) (quoting United
States v. Guest, 383 U.S. 745, 758 (1966)); see also Donatelli
v. Mitchell, 2 F.3d 508, 515 (3d Cir. 1993) (distinguishing
State’s reapportionment plan from Dunn on grounds that it did
not burden right to travel).

20
process,13 among others.

We have no occasion here to exhaust the list of
constitutional claims reviewable under the Anderson-Burdick
test. It suffices for present purposes that this test is not limited
to laws that burden free association.

2. Anderson-Burdick Applies to Laws
that Regulate the Mechanics of the
Electoral Process

The fact that an election law burdens a fundamental
right is necessary but not sufficient to trigger Anderson-
Burdick; the law also must regulate “the mechanics of the
electoral process.” McIntyre, 514 U.S. at 345. After all, the
basic premise of Anderson-Burdick is that ordinary election
laws necessarily have incidental burdens on political speech by
“channeling expressive activity at the polls[,]” meaning that
courts must examine whether a law that burdens speech is
nonetheless directed primarily at regulation of the electoral
process. Burdick, 504 U.S. at 438. Thus, if the law primarily
regulates the electoral process, we employ Anderson-Burdick
and determine the appropriate level of scrutiny. Conversely, if
the law does not primarily regulate the electoral process and

13
See Ariz. Democratic Party v. Hobbs, 18 F.4th 1179, 1194-
95 (9th Cir. 2021); Richardson v. Tex. Sec’y of State, 978 F.3d
220, 233-35 (5th Cir. 2020); New Ga. Project v. Raffensperger,
976 F.3d 1278, 1282 (11th Cir. 2020).

21
instead aims at regulating political speech, it is subject to a
traditional First Amendment analysis.14

The Supreme Court’s case law bears this out, applying
Anderson-Burdick to a wide range of electoral-process
regulations. These include the time, place, and manner of
elections, such as “notices, registration, supervision of voting,
protection of voters, prevention of fraud and corrupt practices,
counting of votes, duties of inspectors and canvassers, and
making and publication of election returns.” Smiley, 285 U.S.
at 366. In line with this broad authority, the Supreme Court
has also applied Anderson-Burdick to ballot access rules, see
Anderson, 460 U.S. at 788-806; Norman, 502 U.S. at 288-91;
regulation of party primaries, see Tashjian v. Republican
Party, 479 U.S 208, 214-29 (1986); Grange, 552 U.S. at 451-
59; voter identification laws, see Crawford, 553 U.S. at 189-
204; and the content of ballots, see Burdick, 504 U.S. at 428;
Timmons, 520 U.S. at 351-52.

The Courts of Appeals have followed suit, scrutinizing
under Anderson-Burdick laws regulating, e.g., the order in

14
The Supreme Court has also explained that the Elections and
Electors Clauses themselves impose limits on a state’s power
to regulate federal elections. See, e.g., Cook v. Gralike, 531
U.S. 510, 525-26 (2001) (holding that requiring ballot
designation reflecting candidates’ views on term limits fell “far
from regulating the procedural mechanisms of elections” and
instead attempted to dictate electoral outcomes). Because such
laws fall outside of State’s constitutional authority, they do not
enjoy the deference afforded by the Anderson-Burdick
balancing test.

22
which candidates’ names appear on the ballot,15 whether the
ballot is electronic,16 the form and content of ballot
initiatives,17 absentee voting,18 early voting,19 nomination of

15
Pavek v. Donald J. Trump for President, Inc., 967 F.3d 905,
907-08 (8th Cir. 2020).
16
See, e.g., Wexler v. Anderson, 452 F.3d 1226, 1232-33 (11th
Cir. 2006); Weber v. Shelley, 347 F.3d 1101, 1106 (9th Cir.
2003).
17
See, e.g., Thompson v. DeWine, 976 F.3d 610, 615-16 (6th
Cir. 2020); Lemons v. Bradbury, 538 F.3d 1098, 1103-04 (9th
Cir. 2008); Kendall v. Balcerzak, 650 F.3d 515, 525, 528 (4th
Cir. 2011); Schmitt v. LaRose, 933 F.3d 628, 639-42 (6th Cir.
2019); Campbell v. Buckley, 203 F.3d 738, 741, 743-45 (10th
Cir. 2000).
18
See, e.g., Hobbs, 18 F.4th at 1181; Tully v. Okeson, 977 F.3d
608, 615-16 (7th Cir. 2020); Short v. Brown, 893 F.3d 671,
676-79 (9th Cir. 2018); Price v. N.Y. State Bd. of Elections, 540
F.3d 101, 107-12 (2d Cir. 2008).
19
See, e.g., Husted, 834 F.3d at 626-27.

23
candidates,20 voter registration,21 the counting of ballots,22
polling hours,23 voter identification and proof-of-citizenship

20
See, e.g., N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S.
196, 205 (2008).
21
See, e.g., Fish v. Schwab, 957 F.3d 1105, 1121-23 (10th Cir.
2020); Harlan v. Scholz, 866 F.3d 754, 759-61 (7th Cir. 2017);
Voting for Am., Inc. v. Steen, 732 F.3d 382, 387-88 (5th Cir.
2013). Importantly, the law at issue in Steen regulated only the
qualifications for voter registration volunteers, not any of the
expressive elements of voter registration, such as one-on-one
communication. See Steen, 732 F.3d at 389-90. This
demonstrates that voter registration can have both “electoral
mechanics” and “pure speech” components, and that courts
must carefully examine which components are implicated by a
particular regulation.
22
See George v. Hargett, 879 F.3d 711, 724-25 (6th Cir. 2018);
Libertarian Party v. D.C. Bd. of Elections and Ethics, 682 F.3d
72, 73-74 (D.C. Cir. 2012). For a comprehensive discussion of
the range of courts’ application of Anderson-Burdick in the
ballot-counting context, see PRINCIPLES OF THE L. OF
ELECTION ADMIN.: NON-PRECINCT VOTING AND RESOL. OF
BALLOT-COUNTING DISP. § 201 (AM. L. INST., Tentative Draft
No. 2, 2017).
23
See, e.g., Common Cause Ind. v. Lawson, 978 F.3d 1036,
1040-41 (7th Cir. 2020).

24
requirements,24 regulation of voter data,25 the appointment and
qualifications of election workers,26 the use of primaries or
caucuses,27 the use of straight-ticket voting,28 the use of ranked
choice voting,29 the cancellation of an uncontested primary,30
the use of district-level or at-large election systems,31 and the

24
See, e.g., Lee v. Va. State Bd. of Elections, 843 F.3d 592,
605-07 (4th Cir. 2016); Gonzalez v. Arizona, 485 F.3d 1041,
1050-51 (9th Cir. 2007).
25
See, e.g., Fusaro v. Howard, 19 F.4th 357, 361, 363-64 (4th
Cir. 2021).
26
See, e.g., Werme v. Merrill, 84 F.3d 479, 483-84 (1st Cir.
1996).
27
See, e.g., Cool Moose Party v. Rhode Island, 183 F.3d 80,
82-88 (1st Cir. 1999).
28
See Tx. All. for Retired Ams. v. Scott, 28 F.4th 669, 670-74
(5th Cir. 2022); Mich. State A. Philip Randolph Inst. v.
Johnson, 833 F.3d 656, 660-69 (6th Cir. 2016).
29
See Dudum v. Artnz, 640 F.3d 1098, 1100-17 (9th Cir. 2011).
30
See Yang v. Kosinski, 960 F.3d 119, 126-36 (2d Cir. 2020).
31
Pub. Integrity All., Inc. v. City of Tucson, 836 F.3d 1019-28
(9th Cir. 2016). We note that several of our sister Circuits have
in recent years employed the Anderson-Burdick framework to
evaluate challenges to the appointment of Presidential electors.
See Baten v. McMaster, 967 F.3d 345, 373-75 (4th Cir. 2020);

25
composition of Independent Redistricting Commissions.32
Even beyond laws governing the voting process itself, the
appellate courts regularly apply Anderson-Burdick to
regulations affecting candidates, including the qualifications of
elected and appointed officers,33 the filling of vacancies and
special elections,34 term limits,35 and even the expulsion of
elected officials.36 Though each of these regulations
necessarily implicated speech and association to some degree,
each was nonetheless primarily directed at regulating specific
mechanics of the electoral process.

Rodriguez v. Newsom, 974 F.3d 998, 1011 (9th Cir. 2020);
Lyman v. Baker, 954 F.3d 351, 376-78 (1st Cir. 2020).
32
Daunt v. Benson, 999 F.3d 299, 303-22 (6th Cir. 2021).
33
See, e.g., Lindsay v. Bowen, 750 F.3d 1061, 1063-64 (9th
Cir. 2014); Grizzle v. Kemp, 634 F.3d 1314, 1322-26 (11th Cir.
2011).
34
See, e.g., Tedards v. Ducey, 951 F.3d 1041, 1067-68 (9th Cir.
2020); Ayers-Schaffner v. DiStefano, 37 F.3d 726, 729-31 (1st
Cir. 1994).
35
See, e.g., Kowall v. Benson, 18 F.4th 542, 546-49 (6th Cir.
2021), cert. denied, 2022 WL 4651422 (Oct. 3, 2022); Citizens
for Legis. Choice v. Miller, 144 F.3d 916, 920-24 (6th Cir.
1998).
36
See Monserrate v. N.Y. State Senate, 599 F.3d 148, 155-57
(2d Cir. 2010).

26
 In contrast, the Anderson-Burdick test does not apply to
laws that are primarily directed at regulating “pure speech.”
McIntyre, 514 U.S. at 345. The distinction between “pure
speech” and the mechanics of the electoral process is not
always easy to ascertain. There are, however, two
distinguishing factors to consider: the location and timing (the
“where and when”) and the nature and character (the “how and
what”) of the regulated speech.

a) Location and Timing of the
Regulated Speech

The first factor courts should consider is where and
when the regulated speech occurs. At one end of the spectrum,
speech that occurs on the ballot or within the voting process
will typically trigger application of the Anderson-Burdick
balancing test. See, e.g., Burdick, 504 U.S. at 437-38 (applying
Anderson where the speech being regulated was a voter’s
desire to cast a write-in vote on the ballot itself); cf. Tashjian,
479 U.S. at 217 (“It is, of course, fundamental . . . that this
impingement upon the associational rights of the Party and its
members occurs at the ballot box . . . .”). At the other end of
the spectrum, speech that relates to an election but occurs
nowhere near the ballot or any other electoral mechanism is
treated as core political speech entitled to the fullest First
Amendment protection. See, e.g., McIntyre, 514 U.S. at 347
(applying strict scrutiny where the speech being regulated was
leafletting that occurred far from the polling place and
potentially weeks or months before Election Day).

In between these two extremes, close analysis is
necessary to examine the challenged law with a functional
approach in mind, rather than drawing any bright lines based
on physical location. States have a legitimate interest, for

27
example, in regulating the polling place to ensure order and
fairness, as with any other mechanic of the electoral process.
See Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1887 (2018)
(“Casting a vote is a weighty civic act, akin to a jury’s return
of a verdict, or representative’s vote on a piece of legislation.
It is a time for choosing, not campaigning. The State may
reasonably decide that the interior of the polling place should
reflect that distinction.”)

b) Nature and Character of the
Regulated Speech

The second factor courts should consider in
distinguishing between laws directed to the mechanics of the
electoral process and those aimed at core political speech is the
nature and the character of the regulated speech: what is being
said and how it is communicated. In Buckley v. American
Constitutional Law Foundation, Inc., the Supreme Court
characterized the lodestar for “core political speech” as the
involvement of “interactive communication concerning
political change.” 525 U.S. 182, 186 (1999) (quoting Meyer,
486 U.S. at 422). Under this rationale, the Court has declined
to apply Anderson-Burdick to election-related regulations that
burdened such interactive communication between
individuals. See Meyer, 486 U.S. at 421-22 (concluding that
law prohibiting payment for petition circulators was a
regulation of core political speech because circulators must
engage one-on-one with potential signatories about the
pressing issues of the day); McIntyre, 514 U.S. at 345-46 &
n.10 (concluding ban on anonymous political leafleting
regulated pure political speech); Buckley, 525 U.S. at 199
(concluding that a requirement that petition circulators be
registered voters implicated “core political speech” no less
than the “fleeting encounter” of leafletting or the more

28
involved “discussion of the merits” that attended the petition
circulation) (quoting in part Meyer, 486 U.S. at 421). This
principle aligns with other precedents: both the campaign
speech in Burson and the political attire in Mansky had the
potential to spark direct interaction and conversation, while
Burdick’s write-in vote did not.

With these two factors in mind, the line dividing core
political speech from the mechanics of the electoral process
comes into sharper focus. Extensive case law reaffirms the
wide range of electoral mechanics that States must necessarily
regulate to safeguard the honesty and fairness of elections, and
we are wary of categorically removing any particular area of
election regulation from Anderson-Burdick’s ambit. At the
same time, however, we do not mechanically apply Anderson-
Burdick balancing any time a state election law is challenged.
Rather, we must engage in a careful analysis to determine if the
challenged law primarily regulates the mechanics of the
electoral process, or if it is in fact directed to the type of
interactive, one-on-one communication that constitutes core
political speech. With these considerations in mind, we turn to
the challenged law at issue today.

C. Which Test Applies to New Jersey’s Consent
Requirement?

Having clarified the standards that determine when
courts should apply the Anderson-Burdick balancing test to a
challenged election law, we now apply that standard to New
Jersey’s consent requirement. For the reasons that follow, we
conclude that Anderson-Burdick is indeed the appropriate
framework.

29
 1. The Consent Requirement Burdens
Expressive Rights

The first requirement, that the law burden a relevant
constitutional right, is satisfied, as the consent requirement
burdens Appellants’ freedom of expression.

Under the consent requirement, candidates must obtain
authorization from any individual or New Jersey-incorporated
association before using their name in a ballot slogan.
Appellants argue that, where a candidate has not obtained
authorization, the consent requirement “forbid[s] an explicit
message Plaintiffs want to send to voters,” thereby burdening
their freedom of speech. Appellant Br. at 22. As discussed
above, the Supreme Court has been skeptical of efforts to assert
an unqualified right to speech via the ballot, but it has
nonetheless applied the Anderson-Burdick balancing test to
laws that regulate ballot speech. See Burdick, 544 U.S. at 438
(ban on write-in votes burdened speech by prohibiting “protest
vote” on a ballot); Timmons, 520 U.S. at 363 (requirement that
candidates only appear under one party on the ballot “also
limit[ed], slightly, the party’s ability to send a message to the
voters and to its preferred candidates”).37

37
While Appellants focus on the consent requirement’s impact
on speech rights, the consent requirement also burdens
associational rights by limiting a candidate’s ability to
associate with particular individuals or incorporated
associations, and as a result with voters, via the ballot. Indeed,
the interests asserted by the Government—protecting election
integrity and preventing voter deception and confusion—
demonstrate that a primary function of the consent requirement
is to prevent candidates from associating with other entities

30
 In sum, the consent requirement burdens freedom of
expression, such that the first threshold requirement of the
Anderson-Burdick framework has been satisfied.

2. The Consent Requirement Regulates a
Mechanic of the Electoral Process

The other requirement—that the law primarily regulate
a mechanic of the electoral process, rather than core political
speech—is also satisfied. The consent requirement regulates
the words that may appear on the ballot, which is the
archetypical mechanic of the electoral process for which the
Anderson-Burdick test is designed. For ballots to be effective
tools for selecting candidates and conveying the will of voters,
they must be short, clear, and free from confusing or fraudulent
content. This necessarily limits the degree to which the ballot
may—or should—be used as a means of political
communication. See Burdick, 504 U.S. at 438 (“[T]he function
of the election process is to ‘winnow out and finally reject all
but the chosen candidates[.]’”) (quoting Storer, 415 U.S. at

without those entities’ consent. Appellant McCormick’s
proposed slogan “Not Me. Us.” is a perfect example: Under the
consent requirement, she is precluded from associating with
the Bernie Sanders campaign or his supporters via his
campaign’s slogan without authorization. The consent
requirement thus imposes a similar burden on association as
the ban on “fusion candidates” in Timmons. See 520 U.S. at
360 (“Respondent is free to try to convince Representative
Dawkins to be the New Party’s, not the DFL’s, candidate . . . .
Whether the party still wants to endorse a candidate who,
because of the fusion ban, will not appear on the ballot as the
party’s candidate, is up to the party.”) (citation omitted).

31
735); id. (“Attributing to elections a more generalized
expressive function would undermine the ability of States to
operate elections fairly and efficiently.”); Timmons, 520 U.S.
at 365 (treating ballots as forums for political expression
“would undermine the ballot’s purpose by transforming it from
a means of choosing candidates to a billboard for political
advertising”); Caruso v. Yamhill Cnty. Ex rel. Cnty Comm’r,
422 F.3d 848, 851, 856 (9th Cir. 2005) (“[T]he fact that the
ballot is ‘crucial’ to an election does not imply that [initiative
proponent] therefore has a First Amendment right to
communicate a specific message through it.”); Rosen v. Brown,
970 F.2d 169, 175 (6th Cir. 1992) (ballots are “State-devised
form[s]” that are “necessarily short” and thus not suitable “for
narrative statements by candidates”).

Appellants and Amicus protest that, even if the ballot is
usually an electoral mechanic, it ceases to be one once a State
opens the ballot up for candidates to communicate to voters.
As the Government points out, however, courts regularly apply
the Anderson-Burdick test to laws that regulate the content of
ballots, including the information placed beside a candidate’s
name. See Chamness v. Bowen, 722 F.3d 1110, 1116-17 (9th
Cir. 2013) (challenge to restrictions on “party preference”
ballot designations); Rubin v. City of Santa Monica, 308 F.3d
1008, 1013-14 (9th Cir. 2002) (challenge to “ballot
designation” law that allowed candidates to list their
occupations beside their names but which prevented the
plaintiff from designating himself a “peace activist”); Caruso,
422 F.3d at 851, 855-57 (challenge to requirement that ballot
initiatives “proposing local option taxes include a statement”
that the “measure may cause property taxes to increase”).

32
 But, say Appellants, the slogan statutes explicitly
provide that ballot slogans exist “for the purpose of indicating
either any official act or policy to which [a candidate] is
pledged or committed, or to distinguish him as belonging to a
particular faction or wing of his political party.” N.J.S.A.
§ 19:23-17. That may be so, but it does not alter our analysis.
Whether a State chooses to allow communication via the ballot
for a specific purpose changes neither the fact that the State
nonetheless has a duty to regulate the content of ballots, nor the
fact that the State’s policy choices in this area are due
deference under the Anderson-Burdick framework.

As a fallback, Appellants attempt to characterize New
Jersey’s consent requirement as a regulation of core political
speech, but New Jersey’s ballot slogans differ in two important
respects from core political speech. First, unlike the core
political speech at issue in Meyer or McIntyre, which occurred
outside of the polling place and over a long period of time
leading up to Election Day, the speech that occurs within a
ballot slogan is confined to the ballot itself at the moment a
vote is cast. Second, ballot slogans are different in kind from
core political speech. The Supreme Court has emphasized the
“interactive” nature of “core political speech.” See Meyer, 486
U.S. at 421-22. That crucial element, however, is missing here.
Ballot slogans, unlike leafletting, petition circulating, or even
the wearing of political clothing at the polling place, cannot
inspire any sort of meaningful conversation regarding political
change. Rather, the ballot slogan, like the protest vote at issue
in Burdick, is a one-way communication confined to the
electoral mechanic of the ballot. See Burdick, 504 U.S. at 438.

In sum, New Jersey’s consent requirement regulates
only the ballot itself—a classic electoral mechanic—and does

33
not regulate core political speech. Thus, Anderson-Burdick is
the appropriate constitutional standard to be applied.

D. The Consent Requirement Is Constitutional
Under the Relevant Test

Having established that the Anderson-Burdick test is the
correct constitutional standard, we now apply that standard to
New Jersey’s consent requirement. The Anderson-Burdick
framework employs a “two-track approach.” Crawford, 553
U.S. at 205 (Scalia, J., concurring). “[O]ur scrutiny is a
weighing process: We consider what burden is placed on the
rights which plaintiffs seek to assert and then we balance that
burden against the precise interests identified by the state and
the extent to which these interests require that plaintiff’s rights
be burdened.” Rogers v. Corbett, 468 F.3d 188, 194 (3d Cir.
2006); see also Burdick, 504 U.S. at 434 (“Under this standard,
the rigorousness of our inquiry into the propriety of a state
election law depends upon the extent to which a challenged
regulation burdens [constitutional] rights.”). If the law
imposes a “severe” burden, then “[s]trict scrutiny is
appropriate.” Crawford, 553 U.S. at 205 (Scalia, J.,
concurring) (quoting Clingman, 544 U.S. at 592). But if a
burden is not severe and “imposes only ‘reasonable,
nondiscriminatory restrictions’” on constitutional rights, “the
State’s important regulatory interests are generally sufficient to
justify the restrictions.” Burdick, 504 U.S. at 434 (quoting
Anderson, 460 U.S. at 788).

For the reasons that follow, we conclude that New
Jersey’s consent requirement is constitutional, as it does not
impose a severe burden on Appellants’ First Amendment
rights, and New Jersey’s interests in protecting the integrity of
elections and preventing voter deception and confusion are

34
sufficient to justify the consent requirement’s minimal
burdens.

1. The Consent Requirement Does Not
Impose Severe Burdens on First
Amendment Rights

As discussed above, New Jersey’s consent requirement
burdens the expressive rights of candidates. The question,
however, is the severity of that burden. There is no “litmus test
for measuring the severity of a burden that a state [election]
law imposes.” Crawford, 553 U.S. at 191. Here, though, we
conclude that the consent requirement imposes only a minimal
burden because (a) the requirement is nondiscriminatory and
applies equally to all candidates and slogans; (b) the
requirement leaves open ample and adequate alternatives for
expression and association; and (c) Appellants have failed to
provide evidence of any specific burden on either themselves
or any other candidate.

a) The Consent Requirement is
Non-Discriminatory

Election laws that discriminate by “limit[ing] political
participation by an identifiable political group whose members
share a particular viewpoint, associational preference, or
economic status” impose severe burdens and will be
“especially difficult for the State to justify.” Anderson, 460
U.S. at 793. That discrimination can come in different forms.38
None, however, is implicated by the consent requirement.

38
Laws that burden the right to vote based on classifications
unrelated to voter qualifications, and therefore

35
 i. Discrimination Among
Candidates, Parties, or
Voters.

In the case of discrimination among candidates, parties,
or voters, the Court’s “ballot access cases . . . focus on the
degree to which the challenged restrictions operate as a
mechanism to exclude certain classes of candidates from the
electoral process. The inquiry is whether the challenged
restriction unfairly or unnecessarily burdens ‘the availability of
political opportunity.’” Anderson, 460 U.S. at 793 (quoting
Clements v. Fashing, 457 U.S. 957, 964 (1982) (plurality
opinion)); cf. Williams v. Rhodes, 393 U.S. 23, 24, 32 (1968)
(applying strict scrutiny where state laws in effect gave the two
major parties “a complete monopoly” by making it “virtually
impossible for a new political party . . . to be placed on the state
ballot”). In Anderson, for example, Ohio required Independent
candidates seeking a place on the ballot to file in March, long
before major-party candidates, thus “totally exclud[ing] any
candidate who [made] the decision to run for President as an
independent after the March deadline.” Id. at 792. The law
also burdened the associational rights of two distinct groups of
voters: Independent voters who wished to nominate
Independent candidates, due to the added difficulty of

disproportionately affect certain classes of voters, impose a
severe burden and therefore would trigger strict scrutiny under
Anderson-Burdick. See, e.g., Hussey v. City of Portland, 64
F.3d 1260, 1265-66 (9th Cir. 1995) (applying strict scrutiny
under Anderson-Burdick to a law denying a utility subsidy to
voters who voted against annexation because it
“disproportionately affect[ed] the poor” and “severely”
interfered with the right to vote).

36
campaigning further out from Election Day, and “disaffected”
voters who decided to support an Independent candidate only
after seeing the nominees put forward by the two major parties.
See id. at 790-91. The early filing deadline therefore
“discriminate[d] against those candidates and—of particular
importance—against those voters whose political preferences
lie outside the existing political parties.” Id. at 794.

In contrast, burdens that apply to all voters, parties, or
candidates are less likely to be severe. In Storer, California
prohibited Independent candidates from appearing on the
ballot as such if they had been a member of a political party or
voted in a party’s primary in the past year, but it also
“impose[d] a flat disqualification upon any candidate seeking
to run in a party primary” who had been a member of a
different party within the past year. See 415 U.S. at 733-34.
The law therefore “involve[d] no discrimination against
independents.” Id. at 733. Likewise, in Timmons, Minnesota’s
ban on “fusion candidates,” who are candidates designated as
the candidate for more than one party, was not discriminatory
because it “applie[d] to major and minor parties alike.” 520
U.S. at 360. Even laws that give modest preferential treatment
to major political parties at the expense of minor parties may
be constitutionally firm. See, e.g., Jenness v. Fortson, 403 U.S.
431, 432 (1971) (upholding higher petition requirement for
non-major parties); Norman, 502 U.S. at 279 (same, for greater
signature requirement); Daunt v. Benson, 956 F.3d 396, 402
(6th Cir. 2020) (concluding no severe burden where Michigan
law required certain composition of members on redistricting
commission based on party affiliation).

Here, New Jersey’s consent requirement applies to all
primary candidates and to any slogans mentioning a person or

37
a New Jersey incorporated association. The law thus draws no
distinctions and does not impose unique burdens on any
identifiable group of voters or candidates.

ii. Discrimination Based on
Content or Viewpoint.

Whether a law is viewpoint- or content-based may also
bear on the severity of the burden imposed.39 New Jersey’s
consent requirement, however, is neither content- nor
viewpoint-based.

The government may not restrict speech because of its
“message, its ideas, its subject matter, or its content.” United
States v. Stevens, 559 U.S. 460, 468 (2010) (quoting Ashcroft
v. ACLU, 535 U.S. 564, 573 (2002)). A regulation of speech
is “facially content based” if it target[s] speech ‘based on its
communicative content.’” City of Austin v. Reagan Nat’l
Advert. of Austin, LLC, 142 S. Ct. 1464, 1471 (2022) (quoting

39
A content-based law does not necessarily impose a severe
burden, however, if it does not prohibit or limit speech on any
particular topic or otherwise favor certain candidates or
outcomes. See, e.g., Caruso, 422 F.3d at 857-58 (upholding an
Oregon law requiring ballot initiatives proposing local taxes to
include a statement that the measure “may cause property taxes
to increase more than three percent” because—in contrast to a
Missouri law that was “not neutral” and that “skew[ed] the
ballot listings,” Cook v. Gralike, 531 U.S. 510, 532 (2001)
(Rehnquist, C.J. concurring)—the tax-statement requirement
“applie[d] to all ‘measures authorizing the imposition of local
option taxes,’ . . . so no measure or group of measures was
‘singled out’”) (cleaned up).

38
Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015)) (alteration
in original). In other words, a regulation is content based if the
regulation applies to speech “because of the topic discussed or
the idea or message expressed.” Id. (quoting Reed, 576 U.S. at
163). Content-based election regulations may be severe when
they “[l]imit[] speech based on its ‘topic’ or ‘subject’”; such
laws “present, albeit sometimes in a subtler form, the same
dangers as laws that regulate speech based on viewpoint”
because they “favor[] those who do not want to disturb the
status quo” and may “interfere with democratic self-
government and the search for truth.” Reed, 576 U.S. at 174
(Alito, J., concurring).

Content neutral laws, on the other hand, do not regulate
speech based on its content, but rather do so based on some
other neutral characteristic of the speech. Most content neutral
laws fall into the category of “Time, Place, or Manner”
regulations, which dictate only when, where, or how speech
must be conveyed, regardless of the message. See Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989). “[T]he
essence of time, place, or manner regulation lies in the
recognition that various methods of speech, regardless of their
content, may frustrate legitimate governmental goals. No
matter what its message, a roving sound truck that blares at 2
a. m. disturbs neighborhood tranquility.” Consol. Edison Co.
of N.Y., Inc. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530, 536
(1980).

Appellants contend that the consent requirement is
content based because whether it applies to a given ballot
slogan will depend on whether the slogan names an individual
or a New Jersey incorporated association. Appellants rest their
argument almost entirely on the Supreme Court’s decision in

39
Reed, where a town’s sign ordinance treated certain categories
of signs, like “Ideological,” “Political,” and “Temporary
Directional Signs,” differently. 576 U.S. at 159-60. Observing
that a law is content-neutral if it “target[s] speech based on its
communicative content,” the Supreme Court held that the sign
code was “content based on its face” because each of these
categories was defined by the subject matter conveyed by the
signs. Id. at 164. Appellants seize on the phrase “target[s]
speech based on its communicative content” in Reed. The
upshot, according to Appellants, is that “the law applies only
when certain words are present in a statement,” Appellant Br.
at 10, or when an official would need to “examine the content
of the message that is conveyed to determine whether a
violation has occurred,” Appellant Br. at 11 (quoting McCullen
v. Coakley, 573 U.S. 464, 479 (2014)).

The Supreme Court expressly rejected that argument in
City of Austin v. Reagan National Advertising of Austin, LLC,
142 S. Ct. 1464 (2022). At issue was Austin, Texas’s sign
code, which allowed digital signs for businesses operating on
the premises of a building but generally prohibited signs for
off-premises activities. Id. at 1472. The Fifth Circuit had held
that the on-/off-premises distinction was facially content based
because its application depended on the sign’s message, but the
Supreme Court disagreed, explaining that the message only
mattered insofar as it informed the sign’s location, making the
law analogous to a content neutral “time, place, or manner
restriction[].” Id. at 1470, 1473.

By way of illustration, the Court pointed to Heffron v.
International Society for Krishna Consciousness, Inc., 452
U.S. 640, 649 (1981). There, the Minnesota State Fair
prohibited the sale or distribution of any merchandise by “all

40
persons, groups or firms which desire to sell, exhibit or
distribute materials,” except from a booth rented by the fair.
Id. at 643-44. The Court upheld the anti-solicitation law as a
content neutral “time, place, or manner” regulation because it
“applie[d] evenhandedly to all who wish[ed] to distribute and
sell written materials or to solicit funds,” id. at 648-49,
regardless of whether “one must read or hear [the speech]” to
“identify whether speech entails solicitation,” City of Austin,
142 S. Ct. at 1473 (discussing Heffron). The Court thus
distinguished Reed as “swapping an obvious subject-matter
distinction for a ‘function or purpose’ proxy that achieves the
same result” and reaffirmed that classifications that consider
function or purpose are not always content based. Id. at 1474.

Under City of Austin, then, a law is “agnostic as to
content,” if it “requires an examination of speech only in
service of drawing neutral” lines. Id. at 1471. One category of
such neutral line-drawing tracks ordinary time, place, or
manner regulations, such as the on-/off-premises distinction at
issue in City of Austin, which related only to the location of
speech. See id. at 1472-73. A second category of neutral line-
drawing distinguishes between speech based on its function or
purpose without indirectly regulating subject matter, such as
whether speech constitutes “solicitation.” Id. at 1473.

New Jersey’s consent requirement falls into a third
category of permissible neutral line-drawing that distinguishes
between speech based on extrinsic features unrelated to the
message conveyed. Unlike the sign code in Reed, the consent
requirement applies to all slogans, regardless of message, and
does not “single out any topic or subject matter for differential
treatment.” Id. at 1472. Appellants argue that the consent
requirement regulates slogans based “entirely on the

41
communicative content of [slogans,]” but this is not so. Reply
Br. at 4 (quoting Reed, 576 U.S. at 164). Rather, the
communicative content of the slogan—i.e., whether the slogan
names an individual or a New Jersey incorporated
association—only matters to determine whether the consent
requirement applies at all. Once a regulator has read a slogan
to determine whether the consent requirement applies, the
communicative content of the slogan ceases to be relevant.
Accordingly, the consent requirement is content neutral.

The consent requirement is also viewpoint neutral.
Laws that directly regulate speech based on political viewpoint
constitute a severe burden. “Viewpoint discrimination is an
‘egregious form of content discrimination’” that targets speech
based not on its subject but rather on “particular views taken
by speakers.” Ne. Pa. Freethought Soc’y v. Cnty. of
Lackawanna Transit Sys., 938 F.3d 424, 432 (3d Cir. 2019)
(quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515
U.S. 819, 829 (1995)). Because regulation of particular views
is especially offensive to the First Amendment, viewpoint
discrimination is generally not permitted under any
circumstances. See Mansky, 138 S. Ct. at 1885. Laws that
restrict speech “regardless of the viewpoint that is expressed,”
in contrast, are viewpoint neutral. Porter v. City of
Philadelphia, 975 F.3d 374, 391 (3d Cir. 2020).

The consent requirement applies equally to any
viewpoint related to the person or entity named and the consent
procedure is the same regardless of whether the candidate
wishes to convey support or criticism of the named individual
or association. Nonetheless, Appellants urge that the
requirement indirectly discriminates against slogans that
criticize individuals and New Jersey incorporated associations

42
because these entities are unlikely to give consent to be named
in slogans that criticize them. This argument fails for two
reasons. First, the Supreme Court has held that laws that ban
“criticism” without regard to any particular viewpoint are
content based, not viewpoint based. See Boos v. Barry, 485
U.S. 312, 319 (1988) (noting that, because a law prohibiting
criticism of foreign governments outside embassies
“determine[d] which viewpoint is acceptable in a neutral
fashion,” the law was content based, rather than viewpoint
based). Second, the consent requirement does not directly
regulate criticism, and “a facially neutral law does not become
content based simply because it may disproportionately affect
speech on certain topics.” McCullen, 573 U.S. at 480.

Appellants also argue that the consent requirement
“deter[s] candidates from using their desired slogans, causing
them to alter their messages,” again citing the potential chilling
effect on political speech. Appellant Br. at 32. One category
of chilling effects involves laws that attach punitive
consequences to particular exercises of protected speech after
the fact. See Bd. of Cnty. Comm’rs, Wabaunsee Cnty., Kan. v.
Umbehr, 518 U.S. 668, 672-73 (1996) (termination of an
independent contractor for criticizing a local government);
Circle Schs. v. Pappert, 381 F.3d 172, 180, 183 (3d Cir. 2004)
(requiring school officials to notify parents of students who
declined to recite the Pledge of Allegiance). This category is
not implicated here, as New Jersey’s consent requirement does
not impose any consequences on a candidate’s speech, but
rather sets forth a condition that must be satisfied prior to a
slogan being allowed on the ballot.

The Supreme Court has nonetheless acknowledged that
an election law setting forth such an ex ante condition may

43
nonetheless have a chilling effect on speech, and therefore
impose a severe burden, where the condition relates in some
way to the viewpoint of the speech or association. See
Tashjian, 479 U.S. at 218-25 (holding that requiring
independent voters to affiliate publicly with a political party as
a condition of voting in that party’s primary imposed a severe
burden). The District Court, citing to Matal v. Tam, 137 S. Ct.
1744 (2017), acknowledged that the consent requirement could
“channel dissenting, negative, controversial, or unpopular
slogans into more tolerable forms or benign/positive tones”
because either individuals or New Jersey incorporated
associations would not consent to being criticized on the ballot
or because candidates would alter their own speech in order to
obtain consent. Mazo, 551 F. Supp. 3d at 504. In Matal, the
Supreme Court struck down a facially even-handed law
prohibiting offensive trademarks with reference to whether the
targeted speech was “offensive to a substantial percentage of
the members of any group.” 137 S. Ct. at 1763. The Court
observed that “[g]iving offense is a viewpoint” and concluded
that the restriction was viewpoint discriminatory. Id.

The consent requirement, in contrast, does no such
thing: a candidate who wishes to criticize a public figure
widely despised in New Jersey would be required to get the
same consent as a candidate who wishes to criticize Bruce
Springsteen. The consent requirement thus does not target any
specific viewpoint, nor does it compel candidates to speak or
associate in any particular way as a condition of using a given
slogan. It is, instead, non-discriminatory. Thus, the potential,
or even likely, effect of the consent requirement on critical
speech is immaterial to both the viewpoint and content based
inquiries.

44
 b) The Consent Requirement
Leaves Open Alternatives for
Speech and Association

A law that operates to explicitly or effectively exclude
a group of candidates, voters, or parties from the ballot imposes
a severe burden. See, e.g., Anderson, 460 U.S. at 792-93
(concluding that early filing deadline imposed a severe burden
by “totally exclud[ing]” Independent candidates who wanted
to file after the March deadline); Norman, 502 U.S. at 289
(barring “candidates running in one political subdivision from
ever using the name of a political party established only in
another. . . . would obviously foreclose the development of any
political party lacking the resources to run a statewide
campaign”); cf. Williams, 393 U.S. at 32 (election laws were
unconstitutional where they made it “virtually impossible for a
new political party . . . to be placed on the state ballot”);
Libertarian Party of Conn. v. Lamont, 977 F.3d 173, 177 (2d
Cir. 2020) (“[The] hallmark of a severe burden is exclusion or
virtual exclusion from the ballot.”) (quoting Libertarian Party
of Ky. v. Grimes, 835 F.3d 570, 574 (6th Cir. 2016)).

One way that a State can lessen the burden imposed by
an election law, then, is to provide alternative methods for the
exercise of burdened rights. In Timmons, for instance, the
Court agreed that Minnesota’s “fusion candidate” ban “shut[]
off one possible avenue a party might use to send a message,”
but nonetheless found the burden to be not severe because
parties “retain[ed] great latitude in [their] ability to
communicate ideas to voters and candidates through [their]
participation in the campaign,” and because voters could still
“campaign for, endorse, and vote for their preferred candidate
even if he [was] listed on the ballot as another party’s

45
candidate.” 520 U.S. at 362-63; see also Rubin, 308 F.3d at
1015-16 (concluding that law limiting how a peace activist
candidate “may describe his occupation on the ballot” did not
impose a severe burden because candidate retained ample
alternative channels “for communicating his peace activities to
the public”).

Here, New Jersey’s consent requirement leaves open
the same two adequate alternatives as the “fusion candidate”
ban in Timmons: first, candidates are free to try and earn the
consent of individuals and incorporated associations with
whom they would like to associate on the ballot; and second,
Appellants remain free to say whatever they want and
communicate any message about any individual or
incorporated association so long as they do not do so via the
ballot slogan. Appellants push back on this point, arguing that
this reasoning would allow “New Jersey to violate a
candidate’s First Amendment rights once per primary season.”
Appellant Br. at 33. But their disagreement is misplaced. We
do not examine each burden on speech in isolation. To the
contrary, whether a particular restriction on speech violates the
First Amendment depends in part on whether alternative
channels exist. Cf. Ward, 491 U.S. at 791 (narrowly-tailored,
content-neutral restrictions on speech are constitutional if they
“leave open ample alternative channels for communication of
the information”) (quoting Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 293 (1984)). So where, as here,
Appellants have every other possible avenue to criticize or
align themselves with individuals and groups, keeping that
speech off the ballot simply does not impose a severe burden.

46
 c) Appellants Provide No Evidence
of Any Specific Burden to
Either them or any other
Candidate

Appellants bring a facial challenge to the consent
requirement, which requires them to show that the consent
requirement lacks “a plainly legitimate sweep,” Grange, 552
U.S. at 449, or that a “substantial number” of its applications
are unconstitutional, “judged in relation to [its] plainly
legitimate sweep,” Ferber, 458 U.S. at 770-71. But it is easy
to imagine legitimate applications of the consent requirement,
such as where a candidate may try to use a ballot slogan to
mislead or confuse voters into thinking they have been
endorsed by a popular candidate or organization. Here, the
consent requirement serves to protect the associational rights
of others. As the Supreme Court observed in Grange, “a facial
challenge fails where ‘at least some’ constitutional applications
exist.” 552 U.S. at 457 (quoting Schall v. Martin, 467, U.S.
253, 264 (1984)).

Evidence is key to the balancing of interests at the heart
of the Anderson-Burdick framework. Cf. Grange, 552 U.S. at
449 (emphasizing that facial challenges “raise the risk of
‘premature interpretation of statutes on the basis of factually
barebones records’”) (quoting Sabri v. United States, 541 U.S.
600, 609 (2004)). A court assessing whether a plaintiff has met
his or her burden in a facial challenge “must be careful not to
go beyond the statute’s facial requirements and speculate about
‘hypothetical’ or ‘imaginary’ cases.” Id. at 450. Thus, to
determine whether the consent requirement’s constitutional
applications are outweighed by impermissibly burdensome
applications, we need evidence of both the existence and

47
prevalence of such unconstitutional applications. Appellants,
however, provide none—their Complaint does not allege how
many candidates want to use the names of individuals or New
Jersey incorporated associations in their slogans, how many of
those candidates sought consent, how many were denied
consent, or the nature of the slogans that were ultimately
rejected. See id. (“[A]n empirically debatable assumption . . .
is too thin a reed to support a credible First Amendment
distinction’ between permissible and impermissible
burdens . . . .”) (alteration in original) (quoting Cal.
Democratic Party v. Jones, 530 U.S. 567, 600 (2000) (Stevens,
J., dissenting)).

Appellants’ Complaint does not suggest that Appellants
themselves faced any burdens in seeking consent. The most
we can infer from Appellants’ Complaint is that a candidate
who wishes to use the name of an individual or group in their
slogan must take some steps to seek consent, and that in some
cases said consent is not given. Such a burden is not trivial,
but it is the sort of “ordinary and widespread” burden that the
Supreme Court has long held to not be severe. Clingman, 544
U.S. at 593; Crawford, 553 U.S. at 206 (“Clingman’s holding
that burdens are not severe if they are ordinary and widespread
would be rendered meaningless if a single plaintiff could claim
a severe burden.”) (Scalia, J., concurring); cf. Norman, 502
U.S. at 290 (concluding that total prohibition on using name of
established party warranted strict scrutiny but acknowledging
that State have could avoided constitutional infirmity “merely
by requiring the candidates to get formal permission to use the
name from the established party they seek to represent”).

The District Court also suggested that candidates who
are not able to use their preferred slogans might lose out on

48
“‘the potential power of [naming a person or group] as a signal
to voters of a candidate’s ideological bona fides,’ a valuable
voting cue without which a candidate may face ‘a potentially
serious handicap.’” Mazo, 551 F. Supp. 3d at 504 (quoting
Soltysik v. Padilla, 910 F.3d 438, 442 (9th Cir. 2018)). That
may be so, but for a burden to be severe, it is not enough that
it makes it more difficult for a candidate or party to win an
election. Indeed, as the Court observed in Timmons, “[m]any
features of our political system—e.g., single-member districts,
‘first past the post’ elections, and the high costs of
campaigning—make it difficult for third parties to succeed in
American politics,” but nonetheless, “the Constitution does not
require States to permit fusion [candidacies] any more than it
requires them to move to proportional-representation elections
or public financing of campaigns.” 520 U.S. at 362. The same
is true here.

In sum, New Jersey’s consent requirement does not
discriminate against any particular voters, candidates, parties,
or viewpoints, and to the extent it limits candidates’ ability to
communicate or associate with voters via their preferred ballot
slogans, that burden is mitigated by the availability of
alternative avenues. New Jersey’s consent requirement thus
imposes only a minimal burden on Appellants’ First
Amendment rights, so application of strict scrutiny under
Anderson-Burdick is unwarranted.

2. New Jersey’s Interests are Sufficient
to Justify the Consent Requirement’s
Minimal Burden

Where a state election law imposes only minimal
burdens, the State’s “‘important regulatory interests’ will
usually be enough to justify ‘reasonable, nondiscriminatory

49
restrictions.’” Timmons, 520 U.S. at 358 (quoting Burdick, 504
U.S. at 434). New Jersey asserts four interests that are
furthered by the consent requirement: “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.” Mazo,
551 F. Supp. 3d at 506.40 Because the consent requirement
does not impose a severe burden, a state must show “relevant
and legitimate” interests that are “sufficiently weighty to
justify the limitation” for the consent requirement to survive
lesser scrutiny. Crawford, 553 U.S. at 191 (quoting in part
Norman, 502 U.S. at 288-89). In considering the weight of
these interests, our review is “quite deferential,” Price v. N.Y.
State Bd. of Elections, 540 F.3d 101, 109 (2d Cir. 2008), and
we will not require “elaborate, empirical verification of the
weightiness of the State’s asserted justifications,” Timmons,
520 U.S. at 364.41

40
The District Court also held that “[p]rotecting the
associational rights of third parties who may be named in
slogans” as a separate interest that was “closely correlated”
with the other interests asserted by the Government. Mazo,
551 F. Supp. 3d at 507. We agree that protecting third parties’
associational rights is a legitimate and important state interest
for purposes of Anderson-Burdick balancing.
41
Because the consent requirement does not impose a severe
burden, there is no requirement that the law be narrowly
tailored to the Government’s asserted interests. See, e.g.,
Timmons, 520 U.S. at 365. Furthermore, as stated previously,
the Supreme Court expressly acknowledged in Norman that a
State could “avoid” the ills of foreclosing one political party
from using the name of an established party “merely by

50
 Appellants concede that these are important and
legitimate interests and the caselaw agrees. See, e.g., Eu, 489
U.S. at 231 (“A State indisputably has a compelling interest in
preserving the integrity of its election process.”); Rosario v.
Rockefeller, 410 U.S. 752, 761 (1973) (“It is clear that
preservation of the integrity of the electoral process is a
legitimate and valid state goal.”); Jenness, 403 U.S. at 442
(“There is surely an important state interest . . . in avoiding
confusion, deception, and even frustration of the democratic
process[.]”); Norman, 502 U.S. at 290 (States have a legitimate
interest in preventing “misrepresentation and electoral
confusion”); Tashjian, 479 U.S. at 221-22 (States have
“legitimate interests in preventing voter confusion and
providing for educated and responsible voter decisions”);
Anderson, 460 U.S. at 796 (“There can be no question about

requiring the candidates to get formal permission to use the
name from the established party they seek to represent.” 502
U.S. at 290. Because New Jersey’s policy choices satisfy
Anderson-Burdick, our inquiry ends there.

Appellants’ proffered alternatives also fail on the merits. First,
Appellants contend that “New Jersey could place a disclaimer
on the ballot to alert voters that each slogan is an unverified
statement of fact or opinion” and proceed to allow any and all
slogans. Appellant Br. 17. But, as the Government points out,
this could actually undermine voter confidence and would thus
be less capable of achieving the State’s legitimate end. Gov.
Br. 37-38. Second, Appellants contend that New Jersey should
make a carve-out for slogans that express criticism. Appellant
Br. 17. But that accommodation would itself be a form of
content and viewpoint based discrimination, and so would not
be an appropriate alternative. Gov. Br. 38-39.

51
the legitimacy of the State’s interest in fostering informed and
educated expressions of the popular will.”).

Because these interests are all important, they need only
outweigh the minimal burden imposed by the consent
requirement. Burdick, 504 U.S. at 439. We conclude that the
balance weighs decisively in the Government’s favor, and thus
hold that the consent requirement is constitutional.

V. Conclusion

To safeguard the promise of democratic self-
governance, our constitution charges States with the noble but
often difficult duty to protect the fairness and integrity of
elections without stifling the free exchange of ideas and
associations that takes place between voters, parties, and
candidates as part of every political campaign. And while
courts have their own duty to fiercely guard First Amendment
rights, where States enact politically neutral regulations of the
mechanics of the electoral process itself, the deference
embodied in the Anderson-Burdick balancing test is both
appropriate and necessary. Here, New Jersey has struck a
proper balance between the rights of voters, candidates, and
third parties on the one hand, and the need to ensure order and
fairness on the ballot on the other. We will therefore affirm the
judgment of the District Court.

52