Mark Balsam v. Secretary of the State of NJ , 607 F. App'x 177 ( 2015 )


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  •                                                     NOT PRECEDENTIAL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)
    _______________
    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
    _______________
    2
    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.
    3
    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
    4
    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).
    5
    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,
    6
    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
    7
    “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
    8
    (“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
    9
    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
    10
    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.”).
    11
    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
    12
    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.
    13