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CNCL OF ALTERNATIVE v HOOKS

Filed June 1, 1999

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUI T

No. 98-5256

THE COUNCIL OF ALTERNATIVE POLITICAL PARTIES, GREEN PARTY OF NJ, NATURAL LAW PARTY, NJ CONSERVATIVE PARTY, NJ LIBERTARIAN PA RTY, US TAXPAYERS PARTY OF NEW JERSEY, ALBERT LAROTONDA, GARY NOVOSIE LSKI, MADELYN HOFFMAN, JIM MOHN, MARY JO CHRISTIAN, JEFFREY M. LE VINE, TOM BLOMQUIST, BERNARD SOBOLEWSKI, SAL DUSCIO, ANNE STOMMEL, LEONA RD FLYNN, JOHN PAFF, MICHAEL BUONCRISTIANO, EMERSON ELLETT, CHARLES NOVI NS, LOWELL T. PATTERSON, EUGENE R. CHRISTIAN, SCOTT JONES, RICHAR D S. HESTER, SR.,

BARBARA HESTER, AUSTIN S. LETT, ARNOLD KOKANS, LEONA LAVONE , SHIRLEY BONCHEFF, CHRISTIAN ZEGLER, VICTORIA SPRUIELL, HARLEY TYLER,

v.

LONNA R. HOOKS, Secretary of State of the State of New Jersey, in her official capacity and her successors, Appellant

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. No. 97-cv-01966) (District Judge: Hono rable Mary Little Cooper)

Argued: November 4, 1998

Before: SCIRICA, ALITO, Circuit Judges, and GREEN, Senior District Judge*

___________________________________________________ ______________

* The Honorable Clifford Scott Green, United States Senior District Judge

for the Eastern District of Pennsylvania, sitting by designation.

(Opinion Filed: June 1, 1999)

PETER VERNIERO ATTORNEY GENERAL OF NEW JERSEY JOSEP H L. YANNOTTI ASSISTANT ATTORNEY GENERAL OF COUNSEL DONNA KELLY ( ARGUED) SENIOR DEPUTY ATTORNEY GENERAL R.J. Hughes Justice Complex P.O. Box 112 Trenton, New Jersey

08625

Counsel for Defendant-Appellant

LENORA M. LAPIDUS DAVID R. ROCAH (ARGUED) AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY 35 Halsey Street, Suite 4B Newark, Ne w Jersey 07102

Counsel for Plaintiffs-AppelleesOPINION OF THE COURT

ALITO, Circuit Judge:

This appeal concerns the constitutionality of a pro vision of New Jersey's election law, N.J.S.A. § 19:13-9, that, as recently amended, requires independent and so-called "alternative political party" candidates seeking access to the general election ballot to file nomin ating petitions by the day of the primary election. Because we conclude that the filing deadline is a reasonabl e, nondiscriminatory regulation, justified by New Jersey's important regulatory interests, we reverse the deci sion of the District Court declaring § 19:13-9 unconstitutional and enjoining its operation.

I.

The plaintiffs in this case -- the Council of Alter native Political Parties, various alternative political parties,1 several candidates for elective office, and several voters -- commenced this action on April 8, 1997, pursuant to 42 U.S.C. § 1983, alleging that the fil ing deadline set out in N.J.S.A. § 19:13-9 (amended 1999) imposed a"severe" burden on the right to vote , the right to free association, and the right to the equal protection of laws under the First and Fourteenth A mendments. (See Amended Complaint, May 23, 1997, at 18-20). At that time, N.J.S.A.§ 19:13-9 required all candidates seeking a place on the general election ballot to file nominating petitions 54 days before the primary election. On May 9, 1997, the plaintiffs moved for a preliminary injunction to restrain the Secret ary of State from refusing to accept nominating petitions submitted after the filing deadline.2 The District Court denied their motion on June 17, 1997, finding that although the plaintiffs were likely to succeed on t he merits and would be irreparably harmed if relief were not granted, the State would be more severely harmed, a nd the public interest

disfavored such relief.

The plaintiffs filed a timely appeal on June 23, 19 97, seeking an expedited review and an injunction pending appeal. This Court granted their request for expedi ted review and heard argument on July 21, 1997. Relying primarily on the Supreme Court's decision in Anders on v. Celebrezze, 460 U.S. 780 (1983), a panel of this Court (the "prior panel") concluded that the plaint iffs were likely to

succeed on the merits and that the remaining preliminary injunction factors favored gr anting their prayer for

relief.

___________________________________________________ ______________1. The alternative political parties in this case a re the Green Party of

New Jersey, the Natural Law Party, the New Jersey Conservative Party, the New Jersey Liber tarian Party, and the U.S. Taxpayers Party of New Jersey. The Council of Alternative Political Partie s is an unincorporated association that represents these alternative political parties.

2. Since commencement of this action, the statutory electoral duties of the Secretary of State have been transferred to the Attorney General pursuant to an Executive Reorganization Plan. For convenience, we

refer to the defendant as the "State." Council of A lternative Political Parties v. Hooks , 121 F.3d 876, 884 (3d Cir. 1997). The prior panel therefore reversed the decision of the District Court and ordered the entry of preliminary relief in favor of the plaintiffs.3 Id. Pursuant to an interim consent order, the parties agreed to extend the 1998 filing deadline from April 9 to Jul y 27, 1998.

The plaintiffs then moved for summary judgment. Pre mising its ruling on the prior panel's decision and concluding that there were no genuine issues of mat erial fact, the District Court granted the plaintiffs' motion.

See Council of Alternative Political Parties v. Hoo ks , 999 F. Supp. 607 (D.N.J. 1998). The State then took this appeal, and we heard argument on November 4, 1998. On December 24, 1998, after we heard oral argument, the New Jersey Legislature amended s ection 19:13-9, effective January 1, 1999, so that nominating petitions are no longer due 54 days befo re the primary, as they

were under the version of the law examined by the District Court and the prior panel, but are due by the day of the primary. In light of this amendment, we requested additional briefing from th e parties on whether New Jersey's recently amendedfiling deadline violates plaintiffs' First a nd Fourteenth Amendment rights. Although plaintiffs acknowledge that "the amended statute is an improve ment over the former statute," they assert that "it continues to impose an unconstitutional burden on a lternative political party candidates and is not justified by any legitimate state interest." Appellees' Suppleme ntal Br. at 1. The State, on the other hand, asserts that the amended statute is "equally constitutional" to the prior statutory deadline and is "illustrative that New Jersey has a viable and open electoral process . . . ." Ap pellant's Supplemental

Br. at 3.

II.

In determining whether New Jersey's amended filing deadline imposes an

unconstitutional burden onplaintiffs' rights, we begin by examining New Jerse y's ballot access

scheme in its entirety. Williams v. Rhodes, 393 U.S. 23, 34

___________________________________________________ ______________

3. Judge Scirica dissented, finding that plaintiffs had not established a

likelihood of success on the merits. Hooks, 121 F.3d at 884-86. (1968); Rainbow Coalitio n of Oklahoma v. Oklahoma State Election Bd., 844 F.2d 740, 741 (10th Cir. 1988).

Under New Jersey law, the general election for cand idates seeking statewide or local office takes place on the first Tuesday after the first Monday in Novembe r, N.J.S.A. § 19:2-3, and the primary election takes place on the first Tuesday after the first Monday i n June. See N.J.S.A. § 19:2- 1; see also N.J.S.A. § 19:1-1 (defining "primary election" as "the procedu re whereby the members of a political party . . . nominate candidates to be voted for at general elections . . . ."). To obtain placement on the November general election ballot for statewide or local office, 4 a candidate may take one of the two mutually exclusive routes: the primary election process or the petition proces s.

The first route, the primary election process, is a vailable only to candidates representing a "political party," as defined under New Jersey's election law. See N.J .S.A. § 19:1-1. Under that law, a "political party" is any party that garners at least 10% of the votes cast i n the last general

election for the office of the member of the General Assembly. Id. At present, the only reco gnized political parties in New Jersey are the Democratic and Republican parties.

Candidates participating in the primary election pr ocess begin their electoral involvement by filing nominating petitions at least 54 days before the primary elect ion. See N.J.S.A. §

19:23-14. Petition forms are made available in late December to early January, but ca ndidates are free to create their own forms and to begin soliciting signatures at any time. See N.J.S.A. § 1 9:23-7 (contents of petition).

The number of eligible voters required to sign a no minating petition varies, depending on the office sought. For instance, candidates running for Governor or Un ited

___________________________________________________ ______________

4. Unlike candidates seeking statewide or local off ices, candidates seeking the presidency must file a nominating petition with the requisite number of si gnatures 99 days before the general election. In 1997, thepresidential filing deadline was July 28. The previ ous filing deadline was

40 days before the primary election,

but after Anderson this deadline was struck down as unconstitutional as applied to presidential elections. See LaRouche v. Burgio, 594 F. Supp. 614 (D.N.J. 19 84). States Senator must obtain the signatures of 1,000 voters. See N.J.S.A. § 19:23-8. The number of signatures required for candidates seeking other state offices is even less: generally, candidates need co llect only 100 signatures, and in some cases, 50 signatures is all that is required.5 See id. If the statutory requirements are met, candidates' names appear on the June primary election ballot, and if they are successful , their names are listed on the general election ballot.

Candidates not affiliated with one of the "politica l parties" -- which we will call alternative political party candidates -- must make use of the petition process . See generally N.J.S.A. § 19:13-3 to 13 (formally designating petition process as "[d]irect nominatio ns by petition").6 Prior to the recent amendment, this route required alternative political party candidates, li ke the political party candidates, to file nominating petitions 54 days before the primary election. The amended ve rsion, however, allows alternative political party candidates to file nominating petitions by the date of the primary. See N.J.S.A. § 19:13-9. In other words, while political party candidates must file their no minating petitions in early April, alternative political party candidates are given an additional 54 days in which to file, and thus their nominating petitions are due in early

June.

The other statutory requirements are generally the same as the ones applicable to political party candidates, but there are a few additional differences that req uire mention. First, alternative political party candidates may solicit signatures from all registered voters, regardless of their political affiliation. See N.J.S.A. § 19:13-5. Second, alternative political party gubern atorial candidates are required to gather only 800 signatures, whereas major party gubernatorial candi dates, as previously noted, must

___________________________________________________ ______________

5. Because there are two candidates elected for eac h Assembly district, candidates seeking this state office can file a"joint petition," and therefore such cand idates need obtain only 50 signatures each.

6. None of the alternative political parties in thi s action received 10% of the electoral vote at the last general election, and therefore none is a recognized "polit ical party." As a result, they may nominate candidates onlythrough the petition process. collect 1,000 signatu res. Id. Last, upon

meeting these requirements, alternative political party candidates bypass the primary elect ion and proceed directly to the general election. Moreover, since New Jersey voters are always free t o write in the name of the candidate of their choice, N.J.S.A. § 19:48-1(m), alternative political party candidates who are unable to have their names placed on the general election ballot through the statutory m eans discussed above may still participate in the election process as write- in candidates.

III.

At the outset, we reject plaintiffs' contention tha t this Court should

remand the case to the District Court for

an initial determination on whether the amended fil ing deadline violates plaintiffs' constitutional rights."The matter of what questions may be taken up and resolv ed for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercise d on the facts of individual cases." Singleton v. Wulff, 428 U.S. 106, 121 (1976); see also Roe v. Casey, 623 F. 2d 829, 833 n.11 (3d Cir. 1980) (exercising discretion to review issue not raised below). The i ssue involved in this case concerns a pure question of law, and in the interest of avoiding further delay, we c onclude that this case represents an appropriate instance for

us to exercise our discretion and address the matte r in this appeal.

Before addressing the merits of this case, we also consider plaintiffs' contention that the prior panel's decision, granting their request for preliminary in junctive relief, see Hooks, 121 F.3d 876, is the law of the case. The law of the case doctrine developed "to ma intain consistency and

avoid reconsideration of matters once decided during the course of a single continui ng lawsuit." 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: J urisdiction 3d § 4478 at 788 (1981) (hereinafter, "Wright & Miller"). Under this doctrine, an appeals court should generally

decline to reconsider an issue that another panel has decided on a prior appeal in the same case. In re City of Philadelphia Litigation, 158 F.3d 711, 717 (3d Cir. 1998); see also 18 Wright & Mille r, § 4478, at 788 (1981 & 1996 Supp.). We have recognized, however, that reconsideration is justif ied in extraordinary circumstances such as where: (1) there has been an intervening change in the law; (2) new evidence has become available; or (3) reconsideration is necessary to prevent clear error or a manifest inju stice. In re City of Philadelphia Litigation, 158 F.3d at 718 (citing Public Interest Research Group of New Jerse y, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111,116 (3d Cir. 1997)); see also 18 Wright & Miller, § 4478, at 790. Here, we

are presented with an intervening change in the law, and thus we are not now bound by law- ofthe-case principles to adhere to the prior panel's decision.

In addition, while the law of the case doctrine bar s courts from reconsidering matters actually decided, it does not prohibit courts from revisiting matters th at are"avowedly preliminary or tentative." See Wright & Miller, § 4478, at 798. As the Supreme Court has ex plained:

The purpose of a preliminary injunction is merely t o preserve the relative positions of the parties until a trial on the merits can be held. Given this limited purpo se, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunc tion is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. A party thus is not required to prove his case in full at a preliminary-injunction hearing, and the findings of fact and conclusions of law made by a court granting a preliminary injunction are no t binding at trial on the merits. University of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (citations omit ted) (emphasis added); see also New Jersey Hosp. Ass'n v. Waldman, 73 F.3d 509, 519 (3d Cir. 1995) ( stating that findings

of fact and conclusions of law made on preliminary injunction motions do not bar c ourts from making contrary findings or conclusions at a final hearing); Clark v. K-Mart Corp., 979 F.2d 965 , 967-68 (3d Cir. 1992). And as we observed in United States v. Local 560 (I.B.T.), 974 F.2d 315, 330 (3d Cir. 1992): [A] trial court . . . is not bound by its decision or the appellate court's decision abou t preliminary relief. The burden of proof on a moving plaintiff is different on a motion for preliminary injunction. Additionally, a decision on a preliminary injunctio n is, in effect, only a prediction about the merits o f the case.

Local 560, 974 F.2d at 330 (citing Board of Trade v . Commodity Futures Trading Comm'n, 605 F.2d 1016, 1020 (7th Cir. 1979), cert. denied, 446 U.S. 928 (1980)); accord Camenisch, 451 U.S. at 394 (explaining that there are "significant procedural differences between preliminary and permanent injunctions"); cf. ACLU of N.J. v. Black Horse Pike Reg. Bd. of Educ., 84 F.3d 1471, 1477 (3d Cir. 1996) (en banc) (holding that the District Court er red in concluding it was bound by the appellate court's preliminary ruling). A court's preliminary ruling, therefore, "neither

constitutes nor substitutes for an actual finding that [the movant] ha[s] succeeded on the me rits and [is] entitled to permanent relief." Id. at 1477.Here, the prior panel did not hold that the plainti ffs were entitled to

succeed; instead, it concluded that they were likely to succeed. Hence, law-of-the-case prin ciples do not dictate our decision, and we accordingly proceed to consider the merits of the case.

IV.

A. Although "the rights of qualified voters to cast their votes effectively" and "the rights of individuals to associate for political purposes" are "of the most fundamental significance under our constitutional structure," Burdick v. Takushi, 504 U.S. 428, 433 (1992), they are not absolute. Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986). The Supreme Court has obs erved that, "as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." T immons v. Twin Cities Area New Party, 520 U.S. 1364, 1369 (1997) (quoting Storer v. Brown , 415 U. S. 724, 730 (1974)). Therefore, states have broad power to enact election codes that comprehensively regulate the electoral process. Id. States must exercise this power, however, within the limits imposed by t he First and Fourteenth

Amendments.7 Williams v. Rhodes, 393 U.S. 23, 29 (1968).

Although ballot access statutes "inevitably affect[ ] -- at least to some degree -- the individual's right to vote and his right to associate with others for politica l ends," not all such

restrictions are unconstitutional. Anderson , 460 U.S. at 788. Where the statute impos es only a minimal nondiscriminatory burden on minor parties, yet affords "reasonable access" to the bal lot, it generally has been upheld. Burdick, 504 U.S. at 438 ("[W]e have repeatedly upheld reasonable, political ly neutral regulations that have the effect of channeling expressive activity at the polls."); accord Anderso n, 460 U.S. at 788 n.9 (noting that "generally applicable and evenhanded restrictions" ordinarily have been u pheld).8 Conversely, election regulations have been invalidated where they "unfairly or unnecessarily b urden[ ] the `availability of political opportunity.' " Anderson, 460 U.S. at 793 (quoting Clements v. Fash ing, 457 U.S. 957, 964 (1982) (plurality opinion)). Under the Supreme Court's election jurisprudence, a state burdens the "availability of political opportunity" by enacting ballot access laws that unfairly discri minate

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7. As in Anderson, "we base our conclusions directl y on the First and

Fourteenth Amendments and do notengage in a separate Equal Protection Clause analys is. We rely, however,

on the analysis in a number of . . . prior election cases resting on the Equal Protectio n Clause of the

Fourteenth Amendment." 460 U.S. at

786-87 n.7.

8. See also Munro v. Socialist Workers Party, 479 U .S. 189 (1986) (upholding statute requiring parties to garner 1% of primary votes to obtain place on gener al election ballot); American Party of Texas v. White, 415 U.S. 767 (1974) (upholding statute requiring mi nor party candidates to file nominating petitions with signatures of 1% of the vote for governor at the la st general election); Storer v. Brown, 415 U.S. 724 (1974) (upholding statute requiring independent can didates to be politically disaffiliated for at least one year before declaring candidacy, reasoning that the Stat e's interests were sufficiently compelling); Rosario v. Rockefeller, 410 U.S. 752 (1973) (upholding statute requiring voters affiliated with one party to wait 11 months prior to voting for another party's candidat e); Jenness v. Fortson, 403 U.S. 431 (1971) (upholding statute requiring minor party candidates to file no minating petitions signed by 5% of previous election's voters). against minor parties9 or "absolutely" or "directly preclude" minor parties from gaining a place on the ballot. 10 See Timmons, 520 U.S. at 1371 (upholding statute because it did not "exclude[ ] a particular group" from electoral participation, nor did it "di rectly preclude[ ] minor political parties from developing and organizing"); see also Williams, 393 U.S. at 25 (in validating statute that made it "virtually impossible" for minor party candidates to gain access to the ballot ).

The Supreme Court has recognized that "[c]onstituti onal challenges to specific provisions of [a state's] election laws" cannot be resolved by any "litmus-pa per test" and that

there is "no substitute for the hard judgments that must be made." Storer, 415 U.S. at 7 30. Nonetheless, the Anderson Court developed a balancing test for use in determining whether a bal lot access statute is

unconstitutional:

[The Court] must first consider the character and m agnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaint iff seeks to vindicate. It must then identify and evaluate the precise interests put forward by the State as j ustifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the leg itimacy and strength of each of those interests, it also

must consider the extent to which those interests m ake it necessary to burden the plaintiff's rights. Only afterweighing all these factors is the reviewing court i n a position to decide

whether the challenged provision is unconstitutional. Anderson, 460 U.S. at 789. Regula tions imposing "severe" burdens must be narrowly tailored to serve a compelling state interest. Timm ons, 520 U.S. at 1370. When the election regulation imposes a lesser burden, however, it need only be j ustified by important state regulatory interests. Id.; Burdick, 504 U.S. at 433 (requiring election regula tions to survive strict scrutiny in every case"would

___________________________________________________ ______________

9. Anderson, 460 U.S. 780; Williams v. Rhodes, 393 U.S. 23 (1968).

10. Norman v. Reed, 502 U.S. 279 (1992); Kusper v. Pontikes, 414 U.S. 51 (1973); Bullock v. Carter, 405 U.S. 134 (1972). tie the hands of States seekin g to assure that elections are operated equitably and efficiently").

B. Before engaging in this balancing analysis, we m ust address the plaintiffs' argument that the outcome in this case is squarely governed by the Supreme Court 's Anderson decision. While we agree that Anderson and its balancing test are relevant to our analysis , we do not believe

that the outcome of that case controls our decision here. See Fishbeck v. Hechler, 85 F.3d 162 (4th Cir. 1996), cert. denied, 513 U.S. 1126 (1995); Hagelin for President Comm. of Kansas v. Gr aves, 25 F.3d 956 (10th Cir. 1994); see also Libertarian Party of Washington v. Munro, 31 F.3d 7 59, 762 (9th Cir. 1994); Rainbow Coalition of Oklahoma v. Oklahoma State Election Bd., 844 F.2d 7 40, 746 n.9 (10th Cir. 1988); McLain v. Meier, 851 F.2d 1045 (8th Cir. 1988); Stevenson v. State B d. of Elections, 794 F.2d 1176, 1181-82 (7th Cir. 1986). But see Hooks, 121 F.3d at 882 (concluding t hat Anderson governs constitutionality of prior version of statute).

In Anderson, the Supreme Court invalidated an Ohio election statute that required independent presidential candidates seeking a place on the November general election ballot to file a nominating petition with 5,000 signatures 75 days before the primary election. 460 U.S. at 808. In holding that the statute imposed an unconstitutional burden on independent candidates a nd their voters, the Supreme Court found two factors to be significant.

First, the Court stressed that the Ohio statute reg ulated presidential

elections and not state or local elections. Anderson, 460 U.S. at 794. The Anderson Court expla ined that presidential selection procedures "implicatea uniquely important national interest" because "th e President and the

Vice President of the United States are the only elected officials who represent all the vo ters in the Nation." Id. at 794-95; see also Cousins v. Wigoda, 419 U.S. 477, 490 (1975) (announcing the pr inciple that "the pervasive national interest in the

selection of candidates for national office . . . i s greater than any interest of an individual State"). The Court repeatedly emphasized that Ohio's statute interfere d with a nationwide electoral process. See, e.g., Anderson, 460 U.S. at 790, 794-96, 804 & 806. Of pa rticular significance, the Supreme Court declared that "the State has a less important interest in re gulating Presidential

elections than statewide or local elections, because the outcome of the former will b e largely determined by voters beyond the State's

boundaries." Id. at 795.

Second, the Court noted that the early filing deadl ine did not apply "equally" to all candidates and placed independent candidates at a relative disadvantage. Id. at 790-94. Independent candidates who failed to file by the early filing deadline (in 1980, by March 20) could not appear on the Ohio general election ballot, but the candidates selected by the major parties at the ir conventions in late summer, even if they had notfiled nominating petitions and had not participated in th e Ohio primary, were guaranteed a spot on the general election ballot. Id. at 790-91. Thus, minor parties were locked into their selection of candidates by the early spring, whereas the major parties retained the flex ibility to react to changing events by nominating candidates who did not emerge until months later. Id. at 790-9 1 n.11. In addition, the signature-gathering efforts of independent candidates were burdened by the early f iling deadline. Id. at 792. Signatures had to be gathered when "the primary campaigns [were] far in the futur e," and therefore volunteers were difficult to recruit, and voters were disinterested. Id. Finding that this sc heme"place[d] a particular burden on an indentifiable segment of Ohio's independent-minded voters," the C ourt stated:

A burden that falls unequally on new or small polit ical parties or on independent candidates impinges, by its very nature, on associational choices protected by the First Amendment. It discriminates against those candidates and -- of particular importance -- again st those voters whose political preferences lie outside the existing political parties. Id. at 792-94.

After finding that the early filing deadline severe ly burdened the independents' associational rights, the Court considered the State's articulated justifications: voter education, equal treatment, and political stability. Id. at796. The Court noted that a State's interest in an informed and educated

electorate is important and legitimate, but the Court concluded that, because o f advances in communication technology, persons voting in the presidential election could receive sufficie nt information in less

than five months. Id. at 796-97. The Court next rejected the "equal treatment" justifica tion because, even though the statute required all parties to file a nominating petition if they intended to part icipate in the primary, the consequences of failing to do so were drastically different for independents and maj or parties. Id. at 799. Finally, the interest in "political stability" was rejected because Ohio's deadline was neither a "sore loser"11 nor a "disaffiliation"12 provision and was not precisely drawn to protect the parties from "intra-party feuding." Id. at 804-05, 804 n.31. The Court concluded that the State's proffered justific ations were not narrowly tailored to advance compelling

state interests and that these interests were outwe ighed by the "severe" burdens imposed on the independent presidential candidates. Id. at 806.

Although the statute in Anderson and the one challe nged here undoubtedly possess certain similarities, there are also important factual differences. For one thi ng, the statute here applies to state and local elections, rather than the national presidential election, and therefore the State's interest is appreciably greater. In addition, the New Jersey statute does not impose a discriminatory burden on the alternative political party candidates; instead, it favors them by allowing the m -- unlike the political party candidates -- an additional 54 days in which to gather signatures. Nor are the political party candidates given a preference,

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11. A "sore loser" candidacy is one in which an ind ividual loses in a party primary and then seeks to run in the same election as an independent or minor party candidate. Anderson ,

460 U.S. at 784 n.2.

12. A "disaffiliation" provision denies access to t he ballot to any independent who had voted in a party primary or had been registered as a member of a pol itical party within a specified period of time prior to the immediately preceding primary election. Storer v. B rown, 415 U.S. 726. bypass, or "political advantage." The New Jersey scheme does not provide a mechanism by which a political party candidate who has failed to file a timely nominating petition may neverthele ss appear on the general election ballot. Finally, the statute here requires far fewer signatures (100 signatures in most instances, as opposed to the 5,000 required inAnderson) and imposes a significantly later filing deadline (the day of

the primary, as opposed to 75 days before the primary in Anderson).

In light of these factual differences, we cannot me chanically adopt the outcome in that case. Instead, we look to Anderson for guidance, but assess the statute's validity in the context of the Supreme Court's election jurisprudence, including its most recent decision i n Timmons, 520 U.S.

1364.

With this in mind, we turn now to the analysis of w hether New Jersey's filing deadline imposes an unconstitutional burden on plaintiffs' constitution al rights. We begin by examining the burdens imposed on the plaintiffs, and then consider the State's justifica tions.

V.

The first step in the analysis prescribed by Anders on is to "consider the character and magnitude of the asserted injury to the rights protected by the Firs t and Fourteenth Amendments . . . ." Anderson, 460 U.S. at 789. The rights in question are the right to vot e, the right to associate for political purposes, and the right to the equal protection of the laws. Id. at 787. Th e plaintiffs argue that New Jersey's filing deadline (1) prevents them from reacting to events occurring aft er the filing deadline, and (2) is substantially more burdensome on them than on their political party co unterparts and thus hinders their ability to obtain "political party" status. Appellees' Br. at 36. We conclude, h owever, that the burden imposed in this case, viewed in light of the Supreme Court's election jurisprudence , is minimal.

A. Plaintiffs argue that New Jersey's filing deadli ne burdens them by "prevent[ing] alternative political parties and their supporters from responding to disaffectio n with the candidates chosen by the recognized political parties at their June primaries." Appellees' Supple mental Br. at 2. Specifically, they assert that, like in Anderson, "voters dissatisfied with the primary res ults and desiring a

broader candidate choice cannot work together to create such a choice." Id. (citing Hook s, 121 F.3d at 881 n.5).

Plaintiffs fail to recognize that, unlike in Anders on, they are able to respond to the events taking place in the political landscape during the 54-day interval betw een the political party and the alternative political party deadlines. Therefore, what the plaintiffs wish to e njoy on a permanent basis -- and what they obtained in 1998 under the interim consent order -- is a petiti on deadline that is substantially later than the date of theprimary, when the major party candidates are nomina ted. (In 1998, their

deadline was July 27.) Accordingly, what they are seeking cannot be termed equal treatment. On the contrary, they are asserting a constitutional right to preferential treatment.

Anderson does not support this argument. In that ca se, independent candidate John Anderson's petition, although filed after Ohio's filing deadline, was su bmitted well before the major party candidates were chosen, and while the Court held that Ohio could no t constitutionally reject his petition, the Court never suggested that Ohio was constitutionally precluded from imposing any deadline prior to the conclusion of the major party convention.

The Supreme Court has recognized that "some cut off period is necessary," American, 415 U.S. at 787 n.18, and accordingly it has approved of state stat utes that require minor party candidates to file their petitions around the time of the primary election. For instance, in Jenness, 403 U.S. at 433-34, the election law required independent candidates to submit nomin ating petitions signed byfive percent of the voters in the previous election by the second Wednesday in June p receding the November general election. See also American Party, 415 U.S. at 787 n.18 (stating that "the 120-day preelection filing deadline is neither unreasonable nor unduly burdensome"); Burdick, 504 U.S. at 437 (giving little weight to a candidate's interest in "making a later rather than an early de cision to seek . . . ballot status") (citing Storer, 415 U.S. at 736 (requiring candidates to be politically disaffi liated for at least one year prior to the primary in which they seek participation)). Although the Court's holding addressed only whether the signature requirements imposed an impermissible burden, the Court nonethel ess declared that Georgia had not"fix[ed] an unreasonably early filing deadline for candidates n ot endorsed by established parties." Id. at 438.13 Finding the Supreme Court's comment in Jenness relevant, we fail to see how plaintiffs can claim they are entitled to an even later filing deadline than New Jersey has a lready provided.

Nor do we see any support in any other Supreme Cour t decision for the plaintiffs' claim of right to preferential treatment. Rather, the Supreme Court's election jurisprudence suggests that no candidates should be given any relative advantage over the oth er. See Timmons, 520 U.S. at 1374; Munro, 479 U.S.

at 198.

Timmons provides an apt illustration. There, the Su preme Court upheld Minnesota's ban on fusion, "theelectoral support of a single set of candidates by two or more parties."

520 U.S. at 1367 n.1. In doing so, the Court rejected the petitioners' argument that w ithout fusion minor political parties could not survive. Id. at 1371. "The supposed benefits of fusion to minor parties," the Court wrote, "does not require that [the State] permit it." Id. Although minor parties face many hurdles in entering the political arena, the Court explained that states are under no duty to alleviat e those difficulties. Id. Indeed, states have broad power to enact reasonable election codes that"may, in practi ce, favor the traditional two-party system."14 Id. at

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13. Moreover, two circuits have upheld similarfilin g deadlines, see, e.g., Fishbeck v. Hechler, 85 F.3d 162 (4th Cir. 1996) (finding primary-eve filing deadlin e constitutional); Hagelin for President Comm. of Kansas v. Graves, 25 F.3d 956 (10th Cir. 1994) (same), cer t. denied, 513 U.S. 1126 (1995), and four circuits have upheld filing deadlines imposing substantially earlier deadlines, see, e.g., Libertarian Party of Washington v. Munro, 31 F.3d 759 (9th Cir. 1994); R ainbow Coalition of

Oklahoma v. Oklahoma State Election Bd., 844 F.2d 740 (10th Cir. 1988); McLain v. Meier, 851 F.2d 1045 (8th Cir. 1988); Stevenson v. State Bd. of Elections, 794 F.2d 1176 (7th Cir. 1986).

14. Plaintiffs argue that Timmons is not relevant t o the present matter because it is a voters' rights -- not ballot access -- case. The Supreme 1374; see also M unro, 479 U.S. at 198 ("States are not burdened with a constitutional imperative to reduce voter apathy or to `handicap' an unpopular candidate to increase the likelihood that the candidate will gain access to t he general election ballot.").

Here, any burden imposed does not fall unequally up on the alternative political party candidates. See American Party of Texas v. White, 415 U.S. 767, 784 n.16 (1974) ("It is sufficient to note that the system does not create or promote a substantial imbalance in the relative difficulty of each group to qualify for the ballot."); id. at 788 (upholding statute and noting that it provided an "essentially equal opportunity" for ballot access). Rather, the current version of the statute (unlike its predecessor) allows all parties to select their

candidates on the same date and favors alternative political party candidates by allowing them an additional 54 days in which to file their nominating petitions . If any candidate fails to file a nominating petition by the requisite deadline, he or she is absolutely denied access to the general election ballot, regardless of his or herpolitical affiliation. Cf. Anderson, 460 U.S. at 79 0-91 & n.11. To order

the relief that plaintiffs request would tip the scales in their favor and provide the m with a relative advantage over their political party counterparts. We therefore reject the plaintiffs' c laim that they are constitutionally entitled to file their nominating petitions after the major party candidat es are chosen so that they can recruit and nominate candidates who can capitalize on disaffection with the major political parties' nominees.

B. Plaintiffs further argue that because of their l imited resources and small staffs, the statutory requirements are substantially more burdensome on them than on t heir political party counterparts and thus hinders their ability to achieve "political party" status. Appell ees' Br. at 29; see also Hooks, 121 F.3d at 880-81. They report that "no group other than Democrats and Repu blicans has qualified as `a

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Court, however, has cautioned that "the rights of v oters and the rights of

candidates do not lend themselves to neat separation." Burdick, 504 U.S. at 438. Thus , in this context, there is no significant distinction between the two. [political] party' in New Jersey s ince at least 1913." Appellees' Br. at 29. We reject this argument for several reasons.

First, any connection between the filing deadline-- the feature of the New Jersey scheme that is at issue here -- and the difficulty of achieving "political party " (i.e., major party) status is extremely speculative. As will be discussed below, New Jersey's former filing deadlin e -- which provided alternative political party candidates fewer days in which to gather signatures than the a mended version-- did not prevent scores of alternative party and independent candidates from securing spot s on the general election ballot. Therefore, the plaintiffs' theory must be that the alternative parties would f are much better in the general election (and might obtain 10% of the vote) if they could select their candida tes after the major party candidates are chosen, but this theory is entirely unproven and seems doubtful.

Second, even if such an effect could be shown, as d iscussed above, Munro

and Timmons make clear that the Constitution does not impose an affirmative dut y upon the states to give minor parties preferential treatment. Timmons, 520 U.S. at 1374 (commenting th at states may enact regulations which, "in practice, favor the traditional two-party system"); Munro, 47 9 U.S. at 198 (emphasizing that states are not "burdenedwith the constitutional imperative . . . to `handic ap' an unpopular

candidate to increase the likelihood that the candidate will gain access to the general election ballot").

Third, the Supreme Court has refused to recognize a statute's incidental effect on a minor party's future viability as justification for overturning an other wise reasonable, nondiscriminatory regulation. Timmons, 520 U.S. at 1371 (upholding statute prohibiting fusion despite plaintiffs' argument that without fusion minor parties could not enhance their electoral viability ). For instance, in Munro, 32 minor party candidates appeared on the primary ballot. Munro, 479 U.S. at 192. The State then enacted a law requiring candidates to procure one percent of the primary votes in the preceding election in order to be placed on the general election ballot. Id. at 196-97. After that change, only one minor party appeared on the general election ballot, but the Court sustained the restriction, im plicitly recognizing that a state's interest in protecting the integrity of its electoral process may outweigh a m inor party's interest in ballot access. Id.; cf. Democratic Party v. Wisconsin, 450 U.S. 107, 126 (1974) (findi ng unconstitutional a statute that enhanced minor party viability through broader electoral participation i n the selection of officials).

Last, the Supreme Court has upheld signature requir ements that are substantially more onerous. The Court has repeatedly recognized that "States may conditio n access to the general election ballot by a minor party or independent candidate upon a showing of a modicu m of support among the potential voters for the office." Munro, 479 U.S. at 193; see also American Party v. White, 415 U.S. 767 (1974) (upholding statute requiring minor parties to obtain approxima tely 400 signatures per day within a 55- day period); Jenness v. Fortson, 403 U.S. 431 (1971) (upholding Georgia's law requiring minor parties tofile a nominating petition signed by voters equaling 5% of the votes cast at the prior election within a 180-day period).

New Jersey's filing deadline is vastly different fr om that found unconstitutionally burdensome in Anderson , and even more reasonable than those upheld in Jenne ss and American. For one thing, the burden of gathering signatures falls upon all candidates equa lly. Alternative political party candidates, unlike the political party candidates, are given an additional 54 days i n which to gather signatures. Nominating petitions are due in early June, during the height of the primary cam paign when voters are interested and volunteers are willingto participate. Candidates must gather a minimal nu mber of signatures,

they can be solicited from voters of any affiliation, and candidates have an unlimited a mount of time in which to gather signatures. Further, candidates unable to satisfy these requirements are afforded the opportunity to appear on the ballot through the write-in process.15

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15. Though we recognize that constitutional infirmi ty cannot be cured by the availability of a write-in process, Anderson, 460 U.S. at 799 n.26, we nonethe less believe that permitting write-in voting allows alternative political party candidates and their su pporters additional opportunities for participating in the general election ballot. See Hooks, 121 F.3d at 885 (Scirica, J., dissenting). That New Jersey's statutory requirements impose only a minimal burden is made c lear when one considers the plethora of candidates who qualified for the general election ballot under the former statutory scheme, which imposed an earlier filing deadline than the one at issue here. America n Party, 415 U.S. at 787 (discounting argument that burden imposed by state is onerous, because"two of the original party plaintiffs themselves satisfied the[ ] requirements"); Munro, 479 U.S. at 197 n.11 (statin g that Washington's statute imposed an "insubstantial obstacle" on minor party candidates because many su ch candidates had qualified for the ballot); see Storer, 415 U.S. at 742 (stating that the appropriate quest ion is whether under the statutory scheme a "reasonably diligent" minor party candidate could gain a place on the State's general election ballot); cf. Anderson, 460 U.S. at 791-92 n.12. In 1997, the State held electi ons for the governorship, the State senate, and the general assembly. Despite the early filing deadline , more than 100 alternative political party candidates appeared on the general election ballot after obtai ning the requisite number of signatures and filing a nominating petition on the filing deadline. Of thes e candidates, eight filed petitions for the office of Governor, 25filed for the State senate, and 68 filed for the general assembly. Indeed, five of the individual alternative political party candidates in this action -- repres enting four of the five alternative political party plaintiffs -- were successful in obtaining a place on that year's general election ballot. In previous election years, the number of alternative political party candidates ap pearing on the general

election ballot for statewide and local office was equally numerous: from 1993 throug h 1996, 231 alternative political party candidates were able to satisfy the statutory requirements and secu re a place on the general election ballot.16 In other words,the empirical evidence demonstrates that, in fact, diligent alternative

political party candidates were not hindered in their ability to satisfy the statutory requirements and

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16. Specifically, in 1993, 66 alternative political party candidates appeared on the general election ballot; in 1994, 33 appeared on the ballot; in 1995, 82 appear ed on the ballot; and in 1996, 50 appeared on the ballot. obtain a place on the general election ball ot. As the amended version provides alternative political party candidates an additional 54 days in which to file their nominating petitions, it seems likely that a substantial number of alternative political party c andidates will continue to gain access to the general election

ballot.

In sum, we conclude that New Jersey's filing deadli ne does not unfairly discriminate against the plaintiffs and does not "absolutely" or "directly preclude" them f rom gaining access to the ballot. Rather, the deadline is a reasonable, nondiscriminatory regulation that impos es at most a minimal burden on plaintiffs' rights.

VI.

The next step in our analysis is to identify and ev aluate the State's asserted interests in support of itsfiling

deadline. The State identifies three such interests : encouraging political stability, promoting a fair electoral process, and ensuring an informed electorate. Becau se the burden is not severe, the State need not proffer a narrowly- tailored regulation that advances a compe lling state interest. Instead, important regulatory interests provide a sufficient justification.

We reject at the outset plaintiffs' argument taking the State to task for repeatedly referring to its interests as "weighty" but failing to elucidate, through empiric al evidence, exactly how its interests are promoted by the filing deadline. In Munro, the Court reaffirmed the principle that it has "never required a State to make a particularized showing of the existence of [its art iculated interests] prior to the imposition of reasonable

restrictions on ballot access." 479 U.S. at 194-95. The Court further explained:

To require States to prove [its articulated interes ts] . . . as a predicate to the imposition of reasonable ballot access restrictions would invariably lead to endles s court battles over the sufficiency of the "evidence" marshaled by a State to prove the predicate. Such a requirement would necessitate that a State's politicalsystem sustain some level of damage before the legi slature could take

corrective action. Legislatures, we think, should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively . . . .

Id. at 195-96. Thus, the State was not required to proffer empirical evidence in support of its articulated

interests.

A. New Jersey has a strong interest in treating all candidates equally. See Hooks, 121 F.3d at 885 (Scirica, J., dissenting). The filing deadline provides all c andidates with the same

amount of time to win the nomination from their respective parties, and it subjects all candidates participating in the general election to voter assessment for the same period of time. See Senate State Gov't, Banking & Financial Instits. Comm., Statement to Senate, No. 1227, State of New Jersey (June 25, 1998), at 3 (stating that the filing deadline "simultaneously identif[ies] all candidates for a p olitical office, both party-affiliated and independent, placing them on equal footing before the electorate"). Allo wing minor parties to file on a later date-- after the major party's primary -- would give them a significant ad vantage, and it is entirely reasonable for New Jersey to regard any such advantage as unfair. Because the Co nstitution does not impose an affirmative duty upon the states to "handicap" alternative political party ca ndidates in order to facilitate their access to the ballot, see Munro, 479 U.S. at 198, it was entirely proper for the State to enact legislation that ensures that such a

result does not occur. We therefore find that the S tate has proffered an important regulatory interest in ensuring a fair electoral process.

Plaintiffs argue that the primary-day deadline "can not be justified as serving an interest in equal treatment," because "alternative political parties are not perm itted to hold primaries," and "[o]n primary day, major party candidates do not file anything." Appellees' Supple mental Br. at 3. However, New Jersey's creation of two separate procedural mechanisms for gaining access t o the ballot does not necessarily mean that candidates are treated unequally; nor is this scheme inherentl y impermissible, provided the procedures impose no undue burden on minor political parties. American Party, 415 U.S. at 781-82 (stating that the "procedures [may be] different," but the Constitution "does not nece ssarily forbid the one in preference to the other"); Jenness, 403 U.S. at 441 (explaining that states may establi sh alternative paths to the ballot, "neither of which can be assumed to be inherently more burdensome than the o ther"). As the Supreme Court has explained:[T]here are obvious differences in kind between the needs and potentials

of a political party with historically established broad support, on the one hand, and a n ew or small political organization on the other. [A State is not] guilty of invidious discrimination in recog nizing these differences and providing different routes to the printed ballot.

Jenness, 403 U.S. at 441-42; id. at 442 (declaring that "sometimes the grossest discrimination can lie in treating things that are different as though they w ere exactly alike"). Therefore, it is entirely reasonable for New Jersey to allow alternative political party can didates to gain access to the ballot by way of the petition process, while at the same time requiring political party candidates to participate in the primary election. See Jenness, 403 U.S. at 442 (upholding scheme that req uired major parties to participate in primary, while allowing minor parties to gain access through petit ion process); American Party, 415 U.S. at 781- 82 (upholding scheme that required major party to part icipate in primary and minor party candidates to participate by way of convention). Indeed, this sta tutory scheme, if anything, places a heavier burden on the political party candidates: Not only must they coll ect the requisite number of signatures, but they must also participate in -- and win -- the primary election i n order to gain a place on the general election ballot. Alternative political party candidates, on the othe r hand, can focus their resources and time during the April to June interval on gathering signatures rather tha n preparing for the primary, and if they gather the requisite number of signatures, they are automatically listed on the general election ballot. Jenness, 403 U.S. at 440 ("Surely an argument could as well be made on behal f of [losing primary candidates] that it is they who were denied equal protection vis-a-vis a candidate who c ould have had his [or her] name printed on the ballot simply by filing a nominating petition signed by 5% of the total electorate."). We therefore reject plaintiffs' argument, and find that New Jersey has advanced a l egitimate interest in providing an essentially equal ballot

access mechanism.

B. The State also asserts a legitimate interest in voter education. Anderson, 460 U.S. at 796 ("There can be no question about the legitimacy of the State's int erest in fostering informed and educated expressions of the popular will in a general election."). New Jersey's filing deadline is designed to allow primary voters to identify and evaluate all candidates in advance of casting their votes at the primary election. Because thedeadline "guarantees that primary voters, when sele cting candidates, have

at least some knowledge of the political terrain they are approaching," Cromer, 91 7 F.2d 819, 832 (4th Cir. 1990) (Wilkinson, J., dissenting), and insures that they cast an informed and "educated expression[ ] of popular will," Anderson, 460 U.S. at 796, the State's interest is important and legitimate.17

C. Last, the State correctly notes that it has a le gitimate interest in limiting frivolous candidacies and maintaining a stable and efficient election process . Anderson, 460 U.S. at 803; Storer, 415 U.S. at 736. See The Federalist, No. 10 (James Madison) (explain ing that splintered parties and unrestrained factionalism may do significant damage to a state's political st ructure). By requiring

all candidates to demonstrate a modicum of support before gaining access to the bal lot, the filing deadline serves important State interests "in avoiding confusion, deception, and even frustration of the democratic process at the general election." Jenness, 403 U.S. at 442; see also Burdick, 504 U.S . at 432-36.

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17. Plaintiffs contend that the State's interest in voter education should not be considered by the Court because it was not articulated by the State but by Judge Scirica in the prior appeal. Wefind this argument unpersuasive. First, in Timmons, the Court recogniz ed, sua sponte, that

fusion bans serve the State's interest in maintaining a stable two-party system, 520 U.S. at 1374, and second,

the State raised this interest before amendment of the statute. Therefore, the State's in terest in voter education is properly before us. Cf. Reform Party of Allegheny, 1999 WL 171326, at *39-41 n.11 (refusing to hear state

interest raised for first time at oral argument). In addition, by requiring alternati ve political party candidates to file nominating petitions before the results of the primary are available, Ne w Jersey's filing

deadline serves the State's interest in preventing "sore loser" candidacies. A "sore loser" candidacy is one in which an individual loses in a party primary and then seeks to run in the same election as an independent or minor party candidate. In Anderson, the Court found that Ohio's asserted interest in pr eventing "sore loser"

candidacies did not survive strict scrutiny because the Ohio statute was really "not a `sore loser' statute," 460 U.S. at 804 n.31, and because the statute was not precisely drawn to effectuate O hio's alleged aims. Id.

at 804-05 & n.31.

We agree that here, as in Anderson, the State's int erest in preventing "sore loser" candidacies is not narrowly tailored to effectuate a compelling state interest. We also recognize that New Jersey has a disaffiliationprovision that arguably prevents "sore loser" candi dacies.18 Nonetheless,

we find that New Jersey's interest in preventing "sore losers" rises to the level of a legitimate and important State interest. Cf. Reform Party of Allegheny County v. Allegheny County Dep't of Elect ions, Nos. 97-3359, 96- 3677, 1999 WL 171326, at *10-11 (3d Cir. Mar. 30, 1999) (en banc) (finding s tate's interest in preventing sore loser candidacies insufficient to satisfy heightened scrutiny).

Finally, we reject plaintiffs' contention that New Jersey's filing

deadline is unconstitutional because it cannot be ________________________________________________

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18. That statute provides, in relevant part:

No petition for direct nomination, including a peti tion filed pursuant to R.S. 19:13-19, which, for any reason,

is filed after the deadline established in R.S. 19: 13-9 shall nominate to any elective public office a candidate who unsuccessfully sought the nomination of a polit ical party to that office in the primary election held in the same calendar year and no unsuccessful primary cand idate shall sign an acceptance of such a petition for

direct nomination .

N.J.S.A. § 19:13-8.1 (emphasis added). This provisi on prevents "sore loser" candidacies, as that term has

been defined. Even if the deadline for alternative political parties were to take place after the June primary, unsuccessful primary candidates would not be able t ofile a nominating petition to run as a candidate for an alternative political party. justified based on adm inistrative need. Contrary to plaintiffs' suggestion, an administrative justification is not a sine qua non of the constitutionality of election regulations. Where, a s here, the statute is justified by important and leg itimate interests such as political stability, a fair electoral process, and voter education, those interests alone are sufficient.

VII.

In conclusion, we hold that the State's interests i n a fair electoral process, voter education, and political stability are sufficient to outweigh the small burd en imposed upon the plaintiffs' rights under the First and

Fourteenth Amendments. Because we conclude that New Jersey'sfiling deadline is a reasonable, nondiscriminatory regulation and is justified by Ne w Jersey's important regulatory interests, we reverse the

decision of the District Court.

A True Copy: Teste:Clerk of the United States Court of Appeals for the Third Circuit