Appellate court backs up right of N.J. election officials to limit use of ballot slogans

New Jersey’s limit on appropriate ballot slogans was upheld by the U.S. Court of Appeals for the Third Circuit on Wednesday, allowing election officials to prevent candidates from using other people’s names or slogans.

The lawsuit came after Eugene Mazo, a constitutional law professor at Rutgers University, tested the state’s slogan law after a brief bids for the Democratic congressional nomination in New  Jersey’s 10th district in 2020 and the 8th district in 2022.

In 2020, Mazo attempted to run under the slogans “Essex County Democratic Committee, Inc.,” “Hudson County Democratic Organization” and “Regular Democratic Organization of Union County” but was blocked because the county organizations are backing Payne.

He filed a lawsuit with shadowy perennial candidate Lisa McCormick in 2020 after she tried to run under the slogans, “Not Me, Us” and “Bernie Sanders Betrayed the NJ Revolution” were rejected because she lacked authorization to use them.

Last summer, U.S. District Court Chief Judge Freda Wolfson dismissed a lawsuit filed by Mazo arguing that a requirement to get the consent of a party organization to use their ballot slogan was unconstitutional.   Wolfson said that Mazo couldn’t “plausibly” claim that the statute violated his First Amendment rights.

“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,” wrote Judge Cheryl Ann Krause of the U.S. Court of Appeals for the Third Circuit.  “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.”

Krause said that “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.”

Earlier this year, Mazo sought to use the slogan “Supported by the Governor” in the Union County portion of the 8th; Gov. Phil Murphy had already endorsed Robert J. Menendez for the seat.  He sought to use “Endorsed by the New York Times” in Hudson.

But then-Division of Elections director Robert Giles rejected both slogans, allowing Mazo to only use the “Professor.  Lawyer.  Author.  Immigrant.  Proud Newarker” slogan that he had filed in Essex.  Giles told Mazo that he could not use the slogans without the consent of Murphy and the New York Times, respectively.

The U.S. District Court agreed with Giles, saying that

In the 4th district, Republican Robert Shapiro was permitted to swap out his original slogan, “Let’s Go Brand*n – FJB” with “Let’s Go Brand*n” after election officials explained that “FJB” referred to a particular individual – in this case, an acronym widely known to mean “Fuck Joe Biden” – and that he would need Biden’s permission.

Ultimately, Mazo and Shapiro did not run in the June primary because they failed to obtain fifty valid signatures to get on the ballot.

Manzo and McCormick are on the hook for the costs of the appeal.