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Seton Hall Law Professor Eugene Mazo, a candidate for the Democratic nomination for Congress in New Jersey. (Photo: Eugene Mazo).

Lawsuit challenging use of party organization slogans tossed by court

By David Wildstein, July 30 2021 6:22 pm

A federal judge has dismissed a lawsuit filed by two former congressional candidates who alleged that a requirement to get the consent of a party organization to use their ballot slogan was unconstitutional.

U.S. District Court Judge Freda L. Wolfson ruled that the plaintiffs were unable to “plausibly” claim that the statute that provides for lines violated their First Amendment rights.

Eugene Mazo, a Rutgers law professor who challenged Rep. Donald Payne, Jr. (D-Newark) in the 2020 Democratic primary, claimed that he was denied the chance to use organization line slogan when county clerks refused to him.

Attorneys Secretary of State Tahesha Way argued that the issue was moot because the 2020 primary was over and that the 2022 primary – Mazo and shadowy perennial candidate Lisa McCormick claimed they planned to run again – was not yet relevant.

Wolfson disagreed.

“There is no reason to doubt that plaintiffs will take advantage of the opportunity afforded by the Slogan Statutes should they decide to run in 2022, since they attempted to do so repeatedly in 2020. That fact is crucial,” Wolfson wrote., “Moreover, entering the primary reasonably entails invoking the Slogan Statutes to communicate with voters, advocate for a certain brand of political reform, or support particular causes with particular viewpoints.”

But Wolfson found that the statute requiring permission of the owner of a slogan to use it on the ballot constitute a freedom of speech violation.

“Certain aspects of the slogan statutes indicate both neutrality and narrowness,” Wolfson stated.  “By their terms, the statutes do not draw any classifications or distinctions, but rather impose a single burden uniformly on all candidates for office: obtain consent to name someone or some incorporated association.”

She also noted that the slogan statutes “regulate just one speech opportunity in the scheme of a primary  season  with  many  other-and  more  substantial-opportunities to  speak,  and  they have no impact on what candidates may say outside the confines  of  the  ballot.”

“The State has chosen to minimize certain  risks when  slogans include  names of persons or entities who may be improperly referenced, such as creating misleading or false impressions in voters’ minds, which could sway an election outcome at the last minute or throw a result into doubt with allegations of deception,” the decision said. “I cannot find that policy choice to be unreasonable, illegitimate, or otherwise not ‘sufficiently weighty to justify’ the ancillary burdens that flow from it.”

Mazo had sought to use the Essex, Hudson and Union Democratic organization slogans for his House bid.

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