BALSAM et al v. GUADAGNO

Filing 25

OPINION. Signed by Judge Stanley R. Chesler on 8/14/2014. (nr, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARK BALSAM, CHARLES
DONAHUE, HANS HENKES, REBECCA
FELDMAN, JAIME MARTINEZ,
WILLIAM CONGER, TIA WILLIAMS,
INDEPENDENT VOTER PROJECT, and
COMMITTEE FOR A UNIFIED
INDEPENDENT PARTY, INC.,
Plaintiffs,
v.
KIM GUADAGNO, in her official capacity
as New Jersey Secretary of State,
Defendant.

:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:

Civil Action No. 14-01388 (SRC)

OPINION

CHESLER, District Judge
The Complaint filed in this case challenges the manner in which New Jersey conducts its
primary elections, the process by which political parties as defined by New Jersey law choose
candidates for a general election. The Complaint raises a number of claims under the federal
Constitution and its New Jersey counterpart. Plaintiffs are a collection of individual voters and
not-for-profit entities who ask this Court to enter judgment (1) declaring unconstitutional certain
laws governing New Jersey’s primary elections and the way those elections are funded, and (2)
ordering Defendant Kim Guadagno (“Defendant”) to “implement a constitutional . . . primary
election system.” (Compl. at 20.) Defendant now moves to dismiss the Complaint, pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [Docket Entry 11.] For the foregoing
reasons, the motion will be granted, and the Complaint dismissed with prejudice.

BACKGROUND
Under New Jersey law, general elections are held “on the Tuesday next after the first
Monday in November . . . .” N.J. Stat. Ann § 19:2-3. Primary elections, by which “the members
of a political party in this State or any subdivision thereof nominate candidates to be voted for at
the general elections,” N.J. Stat. Ann. § 19:1-1, are held the preceding June. See N.J. Stat. Ann.
§ 19:2-1. Pursuant to N.J. Stat. Ann. § 19:45-1, all “primary elections for general elections and
primary elections for delegates and alternates to national conventions” are “conducted at the
expense of the state or its political subdivisions.” According to the Complaint, “New Jersey
spent at least $12 million conducting non-presidential special primary elections” in 2013.
(Compl. ¶ 34.)
New Jersey, similar to at least a dozen other states, limits participation in primary
elections to members of the political party conducting the primary. N.J. Stat. Ann. § 19:23-45. 1
This process is known as a “closed” primary. States differ regarding the steps a prospective
primary voter must takes to be eligible to participate in the primary; New Jersey conditions that
right on a voter being either “newly registered at the first primary at which he is eligible to vote”
or “deemed . . . a member of that party” fifty-five days before the primary election. Id. There is
no dispute that the only political parties currently recognized by New Jersey law are the
Republican and Democratic parties. See N.J. Stat. Ann. § 19:1-1 (defining “political party” to
mean any party that garners “at least 10% of the total vote cast” in the last statewide election for
New Jersey’s General Assembly).
Candidates who are unaffiliated with a “political party” – read, those who are not
Republicans or Democrats – and who seek placement on the general election ballot do so by way
1

For instance, Pennsylvania, Delaware, and New York all conduct “closed” primaries. See 25
Pa. Cons. Stat. § 2812; Del. Code. Ann. tit. 15, § 3110; N.Y. Elec. Law §§ 5-300 to -310.
2

of a statutorily prescribed “petition” process. See N.J. Stat. Ann. §§ 19:13-3 to -13. As the
Third Circuit describes this process, unaffiliated candidates “bypass the primary election and
proceed directly to the general election” upon submission of a petition that comports with New
Jersey law and which contains the requisite amount of signatures. See Council of Alternative
Political Parties v. Hooks, 179 F.3d 64, 68-69 (3d Cir. 1999). In many ways, the direct
nomination by petition process presents lower ballot access hurdles to a candidate for public
office than does the primary process. See id. at 79. For instance, unaffiliated gubernatorial
candidates need to collect fewer signatures than their political party counterparts; unaffiliated
candidates also receive nearly two months more time to gather signatures for a general election
nominating petition than do those candidates seeking access to a primary election ballot. See id.
at 68.
Plaintiffs allege this statutory regime, and specifically N.J. Stat. Ann. § 19:23-45,
constitutionally “disenfranchises” them and violates their First and Fourteenth Amendment
rights, including their associational and non-associational rights and their rights under the Equal
Protection clause. 2 According to Plaintiffs, the fundamental right to vote extends to primary
elections, (Compl. ¶ 1), and New Jersey violates this right by conditioning primary participation
on voter affiliation “with a political party approved by the State . . . .” (See id. at ¶ 2.)
Consequently, by denying New Jersey’s 2.6 million registered unaffiliated voters “the right to
cast a vote in primary elections, the State has disenfranchised nearly half of its electorate . . . .”
(Id. at ¶ 5.) The Complaint also asserts a trio of state law claims, two of which – for violations of
the New Jersey Civil Rights Act, N.J. Stat. Ann. § 10:6-2(c) and the right to vote secured by
2

The Complaint asserts a claim under 42 U.S.C. § 1983 (Count One), as well as three separate
federal constitutional claims (Counts Three, Five, and Six). The Court exercises jurisdiction
over these causes of action pursuant to 28 U.S.C. § 1331.
3

Article II, Section I of the New Jersey Constitution – mimic Plaintiffs’ federal claims. The third
state law claim alleges that because primary elections are “conducted at the expense of the state,”
N.J. Stat. Ann. § 19:45-1, those elections unconstitutionally appropriate public funds for a
private purpose in violation of Article VIII, Section III of the New Jersey Constitution. (Compl.
¶ 72.) 3
Defendant now moves to dismiss, arguing that N.J. Stat. Ann. §19:23-45 is a
constitutionally permissible way to regulate the manner in which political parties select their
candidates for the general election ballot. (Mov. Br. at 13, 18.) Defendant also contends that all
three state law claims should be dismissed on Eleventh Amendment sovereign immunity grounds
and that Plaintiffs lack standing to assert their Article VIII, Section III claim. (See Mov. Br. at
19, 21.)
DISCUSSION
A.

Federal Constitutional Claims

Any attempt to use the Constitution to pry open a state-sanctioned closed primary system
is precluded by current Supreme Court doctrine, and Plaintiffs’ federal claims must therefore be
dismissed. Specifically, “[t]he Supreme Court has emphasized – with increasing firmness – that
the First Amendment Guarantees a political party great leeway in governing its own affairs.”
Maslow v. Bd. of Elections of City of New York, 658 F.3d 291, 296 (2d Cir. 2011) (citing, inter
alia, N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 197 (2008), Cal. Democratic Party v.
Jones, 530 U.S. 567 (2000), and Tashjian v. Republic Party of Conn., 479 U.S. 208 (1986)).
3

The state law claims (Counts Two, Four, and Seven) are before the Court pursuant to the
supplemental jurisdiction statute, 28 U.S.C. § 1367(a). (See Compl. ¶ 9.) Count Eight, which
alleges that the closed primary system “affords private political parties special access to the
voting franchise” in violation of the federal and New Jersey constitutions, appears to be a
duplicative amalgamation of the first seven claims.
4

This power reaches its apex in the primary context. Tashjian, 479 U.S. at 216 (“selecting the
Party’s candidates” is the “critical juncture at which the appeal to common principles may be
translated into concerted action, and hence political power in the community”). Indeed, “[i]n no
area is the political association’s right to exclude more important than in the process of selecting
its nominee . . . .” See Jones, 530 U.S. at 575.
For example, to help prevent “party raiding,” 4 the Supreme Court has upheld against a
constitutional challenge a New York law that required voters wishing to vote in New York’s
“closed” primary elections to have enrolled in the party of their choice at least thirty days prior to
the previous general election. See Rosario v. Rockefeller, 410 U.S. 752, 760-62 (1973)). More
recently, in California Democratic Party v. Jones, the Court invalidated California’s “blanket”
primary, “reasoning that it [unconstitutionally] permitted non-party-members to determine the
candidate bearing the party’s standard in the general election.” See Lopez Torres, 552 U.S. at
203 (citing Jones, 530 U.S. at 575). 5 Jones, in no uncertain terms, held that a political party’s
interest in excluding non-members trumps a non-member’s interest in sharing in the party’s
nominating process. See 530 U.S. at 583 (“a ‘nonmember’s desire to participate in the party’s
affairs is overborne by the countervailing and legitimate right of the party to determine its own
4

Party raiding occurs where voters “in sympathy with one party designate themselves as voters
of another party so as to influence or determine the results of the other party’s primary.” Rosario
v. Rockefeller, 410 U.S. 752, 760 (1973).
5

As the Supreme Court explains, “blanket” and “open” primaries are fundamentally different. In
the former, “each voter’s primary ballot . . . lists every candidate regardless of party affiliation
and allows the voter to choose freely among them.” Jones, 530 U.S. at 570. In the latter, “any
registered voter can vote in the primary of either party.” Democratic Party of U.S. v. Wis. ex rel.
La Follette, 450 U.S. 107, 111 n.4 (1981) (internal quotation omitted). In other words, the
choice of candidate in an “open” primary is more circumscribed, in that the voter’s “choice is
limited to [one] party’s nominees for all offices. [An open primary voter] may not, for example,
support a Republican nominee for Governor and a Democratic nominee for attorney general.”
Jones, 530 U.S. at 576 n.6 (emphasis in original).
5

membership qualifications’” (quoting Tashjian, 479 U.S. at 215 n.6)). As the Second Circuit has
concluded, after surveying Jones and other relevant precedent, “[b]ecause political parties have a
strong associational right to exclude non-members from their candidate nomination process,
[individuals seeking non-member participation in partisan primaries] have no constitutional right
pursuant to which such participation may be effected.” Maslow, 658 F.3d at 296.
Plaintiffs in this case believe otherwise. Indeed, their entire lawsuit – at least the federal
portion of it – proceeds from the premise that all registered voters have a fundamental right to
vote in the primary elections conducted by political parties they are not members of. (See Opp.
Br. at 18.) This is, however, not the law. The Supreme Court has drawn an important distinction
between casting a ballot in a general election, which implicates the “fundamental” right to vote,
and nominating a candidate for general election, which does not. According to the Court in
Jones, “[s]electing a candidate is quite different from voting for the candidate of one’s choice. If
the ‘fundamental right’ to cast a meaningful vote were really at issue in this context [i.e., the
primary election], Proposition 198 [California’s blanket primary law] would not only be
constitutionally permissible but constitutionally required, which no one believes.” See 530 U.S.
at 573 n.5. Plaintiffs do not cogently explain how their claim that a closed primary abridges the
“right to a meaningful vote” survives this pronouncement. See also Nader v. Shaffer, 417 F.
Supp. 837 (D. Conn.) (three-judge panel) (rejecting non-party member’s challenge to
Connecticut’s closed primary system and drawing distinction between participating in primary
nomination process and voting in general election), aff’d, 429 U.S. 989 (1976); Ziskis v.
Symington, 47 F.3d 1004, 1006 (9th Cir. 1995) (citing Nader to reject similar challenge to
Arizona’s “closed party primary system”)

6

Plaintiffs instead cite to the Supreme Court’s decision in United States v. Classic, 313
U.S. 299 (1941), in which the federal government prosecuted certain Louisiana state elections
commissioners for allegedly falsifying ballots in the Democratic House of Representatives
primary. Classic 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 . . . .” See id. at 322. Seizing on language used in that case, Plaintiffs here contend
that “[t]he right to a meaningful vote includes voting at the primary stage, where the primary is
an integral part of the electoral process.” (Opp. Br. at 18.)
And this statement is true, as far as it goes. Indeed, the proposition that all primary votes
cast should count equally, be undiluted, etc. is noncontroversial. Classic, however, does not
extend as far as Plaintiffs would stretch it. Classic itself presupposes that the right it
acknowledges only applies to voters who were “qualified” to cast votes in Louisiana’s
Democratic primary. 313 U.S. 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”). But
Classic does not expound on who is “qualified,” instead leaving that distinction up to Louisiana
state law. See id. at 311 (“Pursuant to the authority given by § 2, 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 the representatives in Congress.”). In other words, Classic speaks to the
constitutional protections that obtain once a primary vote is cast, but is silent as to who under
state law has the right to cast one. The decision is therefore of little help to Plaintiffs here.

7

Also puzzling is Plaintiffs’ citation to Friedland v. State, 374 A.2d 60, 63 (N.J. Sup. Ct.
App. Div. 1977), for the proposition that the right to cast a primary vote is “as protected as
voting in the general election.” (See Opp. Br. at 18.) Friedland in fact rejected the exact same
challenge to N.J. Stat. Ann. § 19:23-45 Plaintiffs advance here, and after applying rational basis
review held that the Constitution allows New Jersey to require voters to affiliate with a political
party before participating in a primary election. See 374 A.2d at 63-64 (citing Rosario, 410 U.S.
752, and Nader, 417 F. Supp. 837). More puzzling is that Plaintiffs would cite to any New
Jersey law on this topic at all; the New Jersey Supreme Court has held that New Jersey’s closed
partisan primary system passes both federal and state constitutional muster. Smith v. Penta, 405
A.2d 350, 353 (N.J.) (“Rosario and Nader make it abundantly clear that the New Jersey statute
under attack [N.J. Stat. Ann. § 19:23-45] suffers from no federal constitutional infirmity.”),
appeal dismissed, 444 U.S. 986 (1979); Lesniak v. Budzash, 626 A.2d 1073, 1080-81 (N.J.
1993).
As the foregoing reveals, Plaintiffs base their federal case on what they believe is their
unfettered right to participate in the process that New Jersey has established for its major
political parties to choose their general election candidates. But this is not a right at all, and if
the Plaintiffs had their way, rending open New Jersey’s exclusionary primary system against the
will of the State would likely tread upon associational rights that have been enshrined by a long
and increasingly firm line of Supreme Court precedent.
Thus, whatever guise the Plaintiffs’ federal constitutional claims take – right to vote,
right to associate or not associate, or right to equal protection – there is no reason here to impose
any level of heightened scrutiny to N.J. Stat. Ann. § 19:23-45. See Clingman v. Beaver, 544

8

U.S. 581, 592 (2005) (“There must be more than a minimal infringement on the rights to vote
and of association . . . before strict judicial review is warranted.” (quoting Nader, 417 F. Supp. at
849)). The Supreme Court has made it clear that elections laws that impose only minimal
burdens on individual rights logically “trigger less exacting review, and a State’s ‘important
regulatory interests’ will usually be enough to justify ‘reasonable, nondiscriminatory
restrictions.’” See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (quoting
Burdick v. Takushi, 504 U.S. 428, 434 (1992)); see also Hooks, 179 F.3d at 71 (“When the
election regulation imposes a lesser burden . . . it need only be justified by important state
regulatory interests.”). The regulatory interests implicated in this case are no different than those
which have been cited to uphold elections laws in earlier cases – including the prevention of
“party raiding” so as to preserve “the integrity of the electoral process,” Rosario, 410 U.S. at
760-61, and “preserv[ing] [political] parties as viable and identifiable interest groups,”
Clingman, 544 U.S. at 594 (quoting Nader, 417 F. Supp. at 845). Plaintiffs fail to suggest a
reason in law or logic why these considerations do not govern this case, considering the de
minimis effect that N.J. Stat. Ann. § 19:23-45 has on their constitutional rights.
Consequently, New Jersey’s closed partisan primary system passes muster under the
Constitution, and because Plaintiffs cannot state viable claims on the theories presented, the
federal causes of action must be dismissed. 6 Fed. R. Civ. P. 12(b)(6).
6

The Court recognizes that two of the named Plaintiffs are registered Republicans, and one is a
registered Democrat. Those Plaintiffs, however, do not in this case assert the associational rights
of their respective political parties; because these Plaintiffs allege they chose to register with the
two parties strictly to vote in those parties’ primaries, they are effectively asserting their own
rights as independent voters with this lawsuit. (Compl. ¶ 26 (“These plaintiffs were required to
forfeit their First Amendment right to not affiliate with a private organization in order to vote in
the State’s primary elections.”).) This case is therefore dissimilar to Tashjian, in which the
Supreme Court sustained the Republican Party’s as-applied challenge to Connecticut’s closedprimary law on the grounds that the law limited “the group of registered voters whom the Party
9

B.

State Law Claims

Defendants are correct that the Eleventh Amendment operates to bar Plaintiffs’ state law
official capacity claims against Defendant. 7 The Court is therefore without subject matter
jurisdiction to hear those claims.
None of the three limited exceptions to state sovereign immunity – “congressional
abrogation,” “waiver by the state,” and “the doctrine of Ex parte Young” – are present here. See
Pa. Fed’n of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002). Plaintiffs do not
invoke congressional abrogation, nor do they argue that New Jersey has expressly waived its
federal immunity to suit under the New Jersey Constitution or the New Jersey Civil Rights Act.
Insofar as Plaintiffs opposition brief can be read to invoke an argument that the Ex parte Young
doctrine applies, such an argument would be misguided– “[t]he theory behind Young is that a
suit to halt the enforcement of a state law in conflict with the federal constitution is an action
against the individual officer charged with that enforcement,” and is thus not really a suit against
the state itself. MCI Telecomm. Corp. v. Bell Atlantic Pa., 271 F.3d 491, 506 (3d Cir. 2001)
(citing 209 U.S. 123, 159-60 (1908)). Claims premised upon New Jersey’s state constitution and
its civil rights statute, even if they are for prospective injunctive relief, could not by definition fit
under the Young exception. See Hess, 297 F.3d at 325 (“[I]t is difficult to think of a greater
may invite to participate in the basic function of selecting the Party’s candidates.” See 479 U.S.
at 215-16. In other words, Tashjian is an “analytically distinct” case where there was “no
conflict between the associational interest of members and nonmembers” – the conflict in that
case being between Connecticut’s closed primary law and the Republican Party’s associational
interest in welcoming unaffiliated voters into the fold. Ziskis, 47 F.3d at 1005 (quoting Tashjian,
479 U.S. at 215 n.6). Here, Plaintiffs’ attempt to inject outsiders into otherwise closed party
primaries conflicts directly with the right not to associate (and therefore exclude) held by
members of those parties.
7

Because the Court disposes of the state law claims on sovereign immunity grounds, it need not
reach Defendant’s standing argument – both are effectively determinations that the Court lacks
subject matter jurisdiction over the claims, and thus one need not be considered before the other.
10

intrusion on state sovereignty than when a federal court instructs state officials on how to
conform their conduct to state law.” (quoting Pennhurst State Sch. and Hosp. v. Halderman, 465
U.S. 89, 106 (1984))).
It is unclear why in this context Plaintiffs principally rely City of Chicago v. International
College of Surgeons, 522 U.S. 156 (1997), a case that has nothing to do with sovereign
immunity. Plaintiffs assert that City of Chicago stands the proposition that a “state law claim
can be considered to ‘arise under’” federal law when the state law “right to relief . . . requires
resolution of a substantial question of federal law.” (Opp. Br. at 32 (citing 522 U.S. at 164).)
But this rule of federal question jurisdiction – most recently refined in Grable & Sons Metal
Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005), and Empire
Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677 (2006) – has nothing to do with whether
or not New Jersey can be sued in federal court for violations of state law. If Plaintiffs cite to
City of Chicago to argue their state law claims are of the “special and small category” which
present “an important issue of federal law that sensibly belongs in federal court,” see Empire
Healthchoice, 547 U.S. at 699-700, Plaintiffs are belied by their own Complaint – Plaintiffs have
affirmatively pleaded their state law claims are supplemental or pendent, and only before the
Court pursuant to 28 U.S.C. § 1367. (Compl. ¶ 9; Opp. Br. at 28 (“Count VII deals with the
violations of the New Jersey state constitution brought under supplemental jurisdiction”).) And,
if Plaintiffs mean to argue that their federal claims are somehow intertwined with their entirely
distinct state constitutional claims, such that Ex parte Young is implicated, Plaintiffs cite no legal
authority for this novel proposition.

11

What is instead reasonably clear is that this Court cannot entertain an official capacity
lawsuit based on New Jersey law and initiated by private parties while also remaining faithful to
the Eleventh Amendment. Consequently, Plaintiffs’ state law claims must be dismissed. 8
CONCLUSION
For the foregoing reasons, the Court will grant the motion to dismiss filed by Defendant
Kim Guadagno. [Docket Entry 11.] An appropriate form of Order accompanies this Opinion.

s/ Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
Dated: August 14th, 2014

8

The Court notes that it appears the fundamental right to vote claim brought pursuant to the New
Jersey Constitution (Count 4) is foreclosed by New Jersey law. The New Jersey Supreme Court
has in no uncertain terms decided that N.J. Stat. Ann. § 19:23-45 does not violate New Jersey’s
constitutional right to vote. Smith, 405 A.2d at 357 (“Suffice it to say that the two-party system,
including a closed primary with durational affiliation requirements such as we have in New
Jersey, characterizes the governments of most states. If it is to be changed, the change must
come from the legislature or from the people. It cannot come from the courts.”).
12