1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-1-1999

Cncl of Alternative Parties v. Hooks

Precedential or Non-Precedential:

Docket 98-5256

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Recommended Citation

"Cncl of Alternative Parties v. Hooks" (1999). 1999 Decisions. Paper 146.

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U.S. 3rd Circuit Court of Appeals 

 CNCL OF ALTERNATIVE v HOOKS 

Filed June 1, 1999 

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

No. 98-5256 

THE COUNCIL OF ALTERNATIVE POLITICAL PARTIES, GREEN PARTY OF NJ, NATURAL 

LAW PARTY, NJ CONSERVATIVE PARTY, NJ LIBERTARIAN PARTY, US TAXPAYERS 

PARTY OF NEW JERSEY, ALBERT LAROTONDA, GARY NOVOSIELSKI, MADELYN 

HOFFMAN, JIM MOHN, MARY JO CHRISTIAN, JEFFREY M. LEVINE, TOM BLOMQUIST, 

BERNARD SOBOLEWSKI, SAL DUSCIO, ANNE STOMMEL, LEONARD FLYNN, JOHN PAFF, 

MICHAEL BUONCRISTIANO, EMERSON ELLETT, CHARLES NOVINS, LOWELL T. 

PATTERSON, EUGENE R. CHRISTIAN, SCOTT JONES, RICHARD 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: Honorable 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 JOSEPH 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, New Jersey 07102 

Counsel for Plaintiffs-Appellees 
OPINION OF THE COURT 

ALITO, Circuit Judge: 

This appeal concerns the constitutionality of a provision 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 nominating petitions by the 

day of the primary election. Because 

we conclude that the filing deadline is a reasonable, nondiscriminatory 

regulation, justified by New Jersey's 

important regulatory interests, we reverse the decision of the District 

Court declaring § 19:13-9 

unconstitutional and enjoining its operation. 

I. 

The plaintiffs in this case -- the Council of Alternative 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 filing 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 Amendments. (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 Secretary 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 the merits and would be 

irreparably harmed if relief were not 

granted, the State would be more severely harmed, and the public interest 

disfavored such relief. 

The plaintiffs filed a timely appeal on June 23, 1997, seeking an 

expedited review and an injunction pending 

appeal. This Court granted their request for expedited review and heard 

argument on July 21, 1997. Relying 

primarily on the Supreme Court's decision in Anderson v. Celebrezze, 460 

U.S. 780 (1983), a panel of this 

Court (the "prior panel") concluded that the plaintiffs were likely to 

succeed on the merits and that the 

remaining preliminary injunction factors favored granting their prayer for 

relief. 

_________________________________________________________________ 
1. The alternative political parties in this case are the Green Party of 

New Jersey, the Natural Law Party, the 

New Jersey Conservative Party, the New Jersey Libertarian Party, and the 

U.S. Taxpayers Party of New 

Jersey. The Council of Alternative Political Parties 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 Alternative 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 July 27, 1998. 

The plaintiffs then moved for summary judgment. Premising its ruling on 

the prior panel's decision and 

concluding that there were no genuine issues of material fact, the 

District Court granted the plaintiffs' motion. 

See Council of Alternative Political Parties v. Hooks , 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 section 19:13-9, 

effective January 1, 1999, so that 

nominating petitions are no longer due 54 days before 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 the parties on whether 

New Jersey's recently 

amendedfiling deadline violates plaintiffs' First and Fourteenth Amendment 

rights. Although plaintiffs 

acknowledge that "the amended statute is an improvement over the former 

statute," they assert that "it 

continues to impose an unconstitutional burden on alternative political 

party candidates and is not justified by 

any legitimate state interest." Appellees' Supplemental 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 . . . ." Appellant's Supplemental 

Br. at 3. 

II. 

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

unconstitutional burden on 
plaintiffs' rights, we begin by examining New Jersey'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 Coalition of Oklahoma v. 

Oklahoma State Election Bd., 

844 F.2d 740, 741 (10th Cir. 1988). 

Under New Jersey law, the general election for candidates seeking 

statewide or local office takes place on 

the first Tuesday after the first Monday in November, N.J.S.A. § 19:2-3, 

and the primary election takes 

place on the first Tuesday after the first Monday in June. See N.J.S.A. § 

19:2- 1; see also N.J.S.A. § 

19:1-1 (defining "primary election" as "the procedure 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 process. 

The first route, the primary election process, is available 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 in the last general 

election for the office of the member of 

the General Assembly. Id. At present, the only recognized political 

parties in New Jersey are the 

Democratic and Republican parties. 

Candidates participating in the primary election process begin their 

electoral involvement by filing nominating 

petitions at least 54 days before the primary election. See N.J.S.A. § 

19:23-14. Petition forms are made 

available in late December to early January, but candidates are free to 

create their own forms and to begin 

soliciting signatures at any time. See N.J.S.A. § 19:23-7 (contents of 

petition). 

The number of eligible voters required to sign a nominating petition 

varies, depending on the office sought. 

For instance, candidates running for Governor or United 

_________________________________________________________________ 

4. Unlike candidates seeking statewide or local offices, candidates 

seeking the presidency must file a 

nominating petition with the requisite number of signatures 99 days before 

the general election. In 1997, the 
presidential filing deadline was July 28. The previous 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. 1984). 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 collect 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 "political 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 nominations by petition").6 

Prior to the recent amendment, this route 

required alternative political party candidates, like the political party 

candidates, to file nominating petitions 

54 days before the primary election. The amended version, 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 nominating 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 require 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 gubernatorial candidates are 

required to gather only 800 

signatures, whereas major party gubernatorial candidates, as previously 

noted, must 

_________________________________________________________________ 

5. Because there are two candidates elected for each Assembly district, 

candidates seeking this state office 

can file a"joint petition," and therefore such candidates need obtain only 

50 signatures each. 

6. None of the alternative political parties in this action received 10% 

of the electoral vote at the last general 

election, and therefore none is a recognized "political party." As a 

result, they may nominate candidates only 
through the petition process. collect 1,000 signatures. Id. Last, upon 

meeting these requirements, alternative 

political party candidates bypass the primary election and proceed 

directly to the general election. 

Moreover, since New Jersey voters are always free to 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 means discussed above 

may still participate in the election 

process as write- in candidates. 

III. 

At the outset, we reject plaintiffs' contention that this Court should 

remand the case to the District Court for 

an initial determination on whether the amended filing deadline violates 

plaintiffs' constitutional rights."The 

matter of what questions may be taken up and resolved for the first time 

on appeal is one left primarily to the 

discretion of the courts of appeals, to be exercised 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 issue involved in this 

case concerns a pure question of law, 

and in the interest of avoiding further delay, we conclude that this case 

represents an appropriate instance for 

us to exercise our discretion and address the matter 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 injunctive relief, see 

Hooks, 121 F.3d 876, is the law of the 

case. The law of the case doctrine developed "to maintain consistency and 

avoid reconsideration of matters 

once decided during the course of a single continuing lawsuit." 18 Charles 

A. Wright, Arthur R. Miller & 

Edward H. Cooper, Federal Practice and Procedure: Jurisdiction 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 & Miller, § 4478, at 788 (1981 

& 1996 Supp.). We have 

recognized, however, that reconsideration is justified 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 injustice. In re City of 

Philadelphia Litigation, 158 F.3d at 718 

(citing Public Interest Research Group of New Jersey, 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 bars courts from 

reconsidering matters actually decided, it 

does not prohibit courts from revisiting matters that are"avowedly 

preliminary or tentative." See Wright & 

Miller, § 4478, at 798. As the Supreme Court has explained: 

The purpose of a preliminary injunction is merely to preserve the relative 

positions of the parties until a trial 

on the merits can be held. Given this limited purpose, and given the haste 

that is often necessary if those 

positions are to be preserved, a preliminary injunction 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 not binding at trial on 

the merits. University of Texas v. 

Camenisch, 451 U.S. 390, 395 (1981) (citations omitted) (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 courts 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 about preliminary relief. 

The burden of proof on a moving 

plaintiff is different on a motion for preliminary injunction. 

Additionally, a decision on a preliminary injunction 

is, in effect, only a prediction about the merits of 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 erred 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 merits and [is] entitled 

to permanent relief." Id. at 1477. 
Here, the prior panel did not hold that the plaintiffs were entitled to 

succeed; instead, it concluded that they 

were likely to succeed. Hence, law-of-the-case principles 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 observed 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." Timmons 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 the 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 political ends," not all such 

restrictions are unconstitutional. 

Anderson , 460 U.S. at 788. Where the statute imposes only a minimal 

nondiscriminatory burden on minor 

parties, yet affords "reasonable access" to the ballot, it generally has 

been upheld. Burdick, 504 U.S. at 438 

("[W]e have repeatedly upheld reasonable, politically neutral regulations 

that have the effect of channeling 

expressive activity at the polls."); accord Anderson, 460 U.S. at 788 n.9 

(noting that "generally applicable 

and evenhanded restrictions" ordinarily have been upheld).8 Conversely, 

election regulations have been 

invalidated where they "unfairly or unnecessarily burden[ ] the 

`availability of political opportunity.' " 

Anderson, 460 U.S. at 793 (quoting Clements v. Fashing, 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 discriminate 

_________________________________________________________________ 

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

Fourteenth Amendments and do not 
engage in a separate Equal Protection Clause analysis. We rely, however, 

on the analysis in a number of . . . 

prior election cases resting on the Equal Protection 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 general election ballot); 

American Party of Texas v. White, 

415 U.S. 767 (1974) (upholding statute requiring minor party candidates to 

file nominating petitions with 

signatures of 1% of the vote for governor at the last general election); 

Storer v. Brown, 415 U.S. 724 

(1974) (upholding statute requiring independent candidates to be 

politically disaffiliated for at least one year 

before declaring candidacy, reasoning that the State'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 candidate); Jenness v. Fortson, 

403 U.S. 431 (1971) (upholding 

statute requiring minor party candidates to file nominating 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 "directly preclude[ ] 

minor political parties from developing and 

organizing"); see also Williams, 393 U.S. at 25 (invalidating statute that 

made it "virtually impossible" for 

minor party candidates to gain access to the ballot). 

The Supreme Court has recognized that "[c]onstitutional challenges to 

specific provisions of [a state's] 

election laws" cannot be resolved by any "litmus-paper test" and that 

there is "no substitute for the hard 

judgments that must be made." Storer, 415 U.S. at 730. Nonetheless, the 

Anderson Court developed a 

balancing test for use in determining whether a ballot access statute is 

unconstitutional: 

[The Court] must first consider the character and magnitude of the 

asserted injury to the rights protected by 

the First and Fourteenth Amendments that the plaintiff seeks to vindicate. 

It must then identify and evaluate 

the precise interests put forward by the State as justifications for the 

burden imposed by its rule. In passing 

judgment, the Court must not only determine the legitimacy and strength of 

each of those interests, it also 

must consider the extent to which those interests make it necessary to 

burden the plaintiff's rights. Only after 
weighing all these factors is the reviewing court in a position to decide 

whether the challenged provision is 

unconstitutional. Anderson, 460 U.S. at 789. Regulations imposing "severe" 

burdens must be narrowly 

tailored to serve a compelling state interest. Timmons, 520 U.S. at 1370. 

When the election regulation 

imposes a lesser burden, however, it need only be justified by important 

state regulatory interests. Id.; 

Burdick, 504 U.S. at 433 (requiring election regulations 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 seeking to assure that 

elections are operated equitably and 

efficiently"). 

B. Before engaging in this balancing analysis, we must 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. Graves, 25 F.3d 956 (10th 

Cir. 1994); see also 

Libertarian Party of Washington v. Munro, 31 F.3d 759, 762 (9th Cir. 

1994); Rainbow Coalition of 

Oklahoma v. Oklahoma State Election Bd., 844 F.2d 740, 746 n.9 (10th Cir. 

1988); McLain v. Meier, 

851 F.2d 1045 (8th Cir. 1988); Stevenson v. State Bd. of Elections, 794 

F.2d 1176, 1181-82 (7th Cir. 

1986). But see Hooks, 121 F.3d at 882 (concluding that 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 and their voters, the 

Supreme Court found two factors to 

be significant. 

First, the Court stressed that the Ohio statute regulated presidential 

elections and not state or local elections. 

Anderson, 460 U.S. at 794. The Anderson Court explained that presidential 

selection procedures "implicate 
a uniquely important national interest" because "the President and the 

Vice President of the United States are 

the only elected officials who represent all the voters in the Nation." 

Id. at 794-95; see also Cousins v. 

Wigoda, 419 U.S. 477, 490 (1975) (announcing the principle that "the 

pervasive national interest in the 

selection of candidates for national office . . . is greater than any 

interest of an individual State"). The Court 

repeatedly emphasized that Ohio's statute interfered with a nationwide 

electoral process. See, e.g., 

Anderson, 460 U.S. at 790, 794-96, 804 & 806. Of particular significance, 

the Supreme Court declared 

that "the State has a less important interest in regulating Presidential 

elections than statewide or local 

elections, because the outcome of the former will be largely determined by 

voters beyond the State's 

boundaries." Id. at 795. 

Second, the Court noted that the early filing deadline 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 their conventions in late 

summer, even if they had notfiled 

nominating petitions and had not participated in the 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 flexibility to react to 

changing events by nominating candidates 

who did not emerge until months later. Id. at 790-91 n.11. In addition, 

the signature-gathering efforts of 

independent candidates were burdened by the early filing deadline. Id. at 

792. Signatures had to be gathered 

when "the primary campaigns [were] far in the future," and therefore 

volunteers were difficult to recruit, and 

voters were disinterested. Id. Finding that this scheme"place[d] a 

particular burden on an indentifiable 

segment of Ohio's independent-minded voters," the Court stated: 

A burden that falls unequally on new or small political 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 -- against those voters whose 

political preferences lie outside the 

existing political parties. Id. at 792-94. 

After finding that the early filing deadline severely burdened the 

independents' associational rights, the Court 

considered the State's articulated justifications: voter education, equal 

treatment, and political stability. Id. at 
796. The Court noted that a State's interest in an informed and educated 

electorate is important and 

legitimate, but the Court concluded that, because of advances in 

communication technology, persons voting 

in the presidential election could receive sufficient information in less 

than five months. Id. at 796-97. The 

Court next rejected the "equal treatment" justification because, even 

though the statute required all parties to 

file a nominating petition if they intended to participate in the primary, 

the consequences of failing to do so 

were drastically different for independents and major 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 justifications were not 

narrowly tailored to advance compelling 

state interests and that these interests were outweighed by the "severe" 

burdens imposed on the independent 

presidential candidates. Id. at 806. 

Although the statute in Anderson and the one challenged here undoubtedly 

possess certain similarities, there 

are also important factual differences. For one thing, 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 them -- unlike the 

political party candidates -- an additional 

54 days in which to gather signatures. Nor are the political party 

candidates given a preference, 

_________________________________________________________________ 

11. 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. Anderson , 

460 U.S. at 784 n.2. 

12. A "disaffiliation" provision denies access to the ballot to any 

independent who had voted in a party 

primary or had been registered as a member of a political party within a 

specified period of time prior to the 

immediately preceding primary election. Storer v. Brown, 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 nevertheless 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 in 
Anderson) 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 mechanically 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 in Timmons, 520 U.S. 

1364. 

With this in mind, we turn now to the analysis of whether New Jersey's 

filing deadline imposes an 

unconstitutional burden on plaintiffs' constitutional rights. We begin by 

examining the burdens imposed on the 

plaintiffs, and then consider the State's justifications. 

V. 

The first step in the analysis prescribed by Anderson is to "consider the 

character and magnitude of the 

asserted injury to the rights protected by the First and Fourteenth 

Amendments . . . ." Anderson, 460 U.S. 

at 789. The rights in question are the right to vote, the right to 

associate for political purposes, and the right 

to the equal protection of the laws. Id. at 787. The plaintiffs argue that 

New Jersey's filing deadline (1) 

prevents them from reacting to events occurring after the filing deadline, 

and (2) is substantially more 

burdensome on them than on their political party counterparts and thus 

hinders their ability to obtain "political 

party" status. Appellees' Br. at 36. We conclude, however, 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 deadline burdens them by 

"prevent[ing] alternative political parties 

and their supporters from responding to disaffection with the candidates 

chosen by the recognized political 

parties at their June primaries." Appellees' Supplemental Br. at 2. 

Specifically, they assert that, like in 

Anderson, "voters dissatisfied with the primary results and desiring a 

broader candidate choice cannot work 

together to create such a choice." Id. (citing Hooks, 121 F.3d at 881 

n.5). 

Plaintiffs fail to recognize that, unlike in Anderson, they are able to 

respond to the events taking place in the 

political landscape during the 54-day interval between the political party 

and the alternative political party 

deadlines. Therefore, what the plaintiffs wish to enjoy on a permanent 

basis -- and what they obtained in 

1998 under the interim consent order -- is a petition deadline that is 

substantially later than the date of the 
primary, when the major party candidates are nominated. (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 case, independent 

candidate John Anderson's petition, 

although filed after Ohio's filing deadline, was submitted well before the 

major party candidates were 

chosen, and while the Court held that Ohio could not 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 statutes 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 nominating petitions signed 

byfive percent of the voters in the 

previous election by the second Wednesday in June preceding 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 decision to seek . . . 

ballot status") (citing Storer, 415 U.S. at 

736 (requiring candidates to be politically disaffiliated 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 nonetheless declared that 

Georgia had not"fix[ed] an 

unreasonably early filing deadline for candidates not 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 already provided. 

Nor do we see any support in any other Supreme Court 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 other. See Timmons, 520 

U.S. at 1374; Munro, 479 U.S. 

at 198. 

Timmons provides an apt illustration. There, the Supreme Court upheld 

Minnesota's ban on fusion, "the 
electoral 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 without 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 alleviate those difficulties. 

Id. Indeed, states have broad power to 

enact reasonable election codes that"may, in practice, favor the 

traditional two-party system."14 Id. at 

_________________________________________________________________ 

13. Moreover, two circuits have upheld similarfiling deadlines, see, e.g., 

Fishbeck v. Hechler, 85 F.3d 162 

(4th Cir. 1996) (finding primary-eve filing deadline constitutional); 

Hagelin for President Comm. of Kansas 

v. Graves, 25 F.3d 956 (10th Cir. 1994) (same), cert. 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); Rainbow 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 to the present matter 

because it is a voters' rights -- not 

ballot access -- case. The Supreme 1374; see also Munro, 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 the general election 

ballot."). 

Here, any burden imposed does not fall unequally upon 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 her 
political affiliation. Cf. Anderson, 460 U.S. at 790-91 & n.11. To order 

the relief that plaintiffs request 

would tip the scales in their favor and provide them with a relative 

advantage over their political party 

counterparts. We therefore reject the plaintiffs' claim that they are 

constitutionally entitled to file their 

nominating petitions after the major party candidates 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 limited resources and 

small staffs, the statutory requirements 

are substantially more burdensome on them than on their political party 

counterparts and thus hinders their 

ability to achieve "political party" status. Appellees' Br. at 29; see 

also Hooks, 121 F.3d at 880-81. They 

report that "no group other than Democrats and Republicans has qualified 

as `a 

_________________________________________________________________ 

Court, however, has cautioned that "the rights of voters 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 since 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 deadline -- which provided 

alternative political party candidates 

fewer days in which to gather signatures than the amended version-- did 

not prevent scores of alternative 

party and independent candidates from securing spots on the general 

election ballot. Therefore, the plaintiffs' 

theory must be that the alternative parties would fare much better in the 

general election (and might obtain 

10% of the vote) if they could select their candidates 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 discussed above, Munro 

and Timmons make clear that 

the Constitution does not impose an affirmative duty upon the states to 

give minor parties preferential 

treatment. Timmons, 520 U.S. at 1374 (commenting that states may enact 

regulations which, "in practice, 

favor the traditional two-party system"); Munro, 479 U.S. at 198 

(emphasizing that states are not "burdened 
with the constitutional imperative . . . to `handicap' 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 otherwise 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, implicitly recognizing 

that a state's interest in protecting the 

integrity of its electoral process may outweigh a minor party's interest 

in ballot access. Id.; cf. Democratic 

Party v. Wisconsin, 450 U.S. 107, 126 (1974) (finding unconstitutional a 

statute that enhanced minor party 

viability through broader electoral participation in the selection of 

officials). 

Last, the Supreme Court has upheld signature requirements that are 

substantially more onerous. The Court 

has repeatedly recognized that "States may condition access to the general 

election ballot by a minor party 

or independent candidate upon a showing of a modicum 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 approximately 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 from that found 

unconstitutionally burdensome in Anderson , 

and even more reasonable than those upheld in Jenness and American. For 

one thing, the burden of 

gathering signatures falls upon all candidates equally. Alternative 

political party candidates, unlike the political 

party candidates, are given an additional 54 days in which to gather 

signatures. Nominating petitions are due 

in early June, during the height of the primary campaign when voters are 

interested and volunteers are willing 
to participate. Candidates must gather a minimal number of signatures, 

they can be solicited from voters of 

any affiliation, and candidates have an unlimited amount 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 

_________________________________________________________________ 

15. Though we recognize that constitutional infirmity cannot be cured by 

the availability of a write-in 

process, Anderson, 460 U.S. at 799 n.26, we nonetheless believe that 

permitting write-in voting allows 

alternative political party candidates and their supporters 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 clear 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. American 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 (stating that Washington's 

statute imposed an "insubstantial 

obstacle" on minor party candidates because many such candidates had 

qualified for the ballot); see Storer, 

415 U.S. at 742 (stating that the appropriate question 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 elections 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 obtaining the requisite 

number of signatures and filing a 

nominating petition on the filing deadline. Of these 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 -- representing 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 appearing on the general 

election ballot for statewide and 

local office was equally numerous: from 1993 through 1996, 231 alternative 

political party candidates were 

able to satisfy the statutory requirements and secure 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 

_________________________________________________________________ 

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 appeared on the ballot; and 

in 1996, 50 appeared on the 

ballot. obtain a place on the general election ballot. 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 candidates will continue 

to gain access to the general election 

ballot. 

In sum, we conclude that New Jersey's filing deadline does not unfairly 

discriminate against the plaintiffs and 

does not "absolutely" or "directly preclude" them from gaining access to 

the ballot. Rather, the deadline is a 

reasonable, nondiscriminatory regulation that imposes at most a minimal 

burden on plaintiffs' rights. 

VI. 

The next step in our analysis is to identify and evaluate 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. Because the burden is not 

severe, the State need not proffer a 

narrowly- tailored regulation that advances a compelling 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 empirical 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 articulated 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 interests] . . . as a 

predicate to the imposition of reasonable ballot 

access restrictions would invariably lead to endless 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 political 
system sustain some level of damage before the legislature 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 candidates 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 political office, both 

party-affiliated and independent, placing 

them on equal footing before the electorate"). Allowing minor parties to 

file on a later date-- after the major 

party's primary -- would give them a significant advantage, and it is 

entirely reasonable for New Jersey to 

regard any such advantage as unfair. Because the Constitution does not 

impose an affirmative duty upon the 

states to "handicap" alternative political party candidates 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 State has proffered an 

important regulatory interest in 

ensuring a fair electoral process. 

Plaintiffs argue that the primary-day deadline "cannot be justified as 

serving an interest in equal treatment," 

because "alternative political parties are not permitted to hold 

primaries," and "[o]n primary day, major party 

candidates do not file anything." Appellees' Supplemental Br. at 3. 

However, New Jersey's creation of two 

separate procedural mechanisms for gaining access to the ballot does not 

necessarily mean that candidates 

are treated unequally; nor is this scheme inherently 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 necessarily forbid the one 

in preference to the other"); Jenness, 

403 U.S. at 441 (explaining that states may establish alternative paths to 

the ballot, "neither of which can be 

assumed to be inherently more burdensome than the other"). 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 new or small political 

organization on the other. [A State 

is not] guilty of invidious discrimination in recognizing 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 were exactly alike"). 

Therefore, it is entirely reasonable for 

New Jersey to allow alternative political party candidates 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 required major parties to 

participate in primary, while 

allowing minor parties to gain access through petition process); American 

Party, 415 U.S. at 781- 82 

(upholding scheme that required major party to participate in primary and 

minor party candidates to 

participate by way of convention). Indeed, this statutory scheme, if 

anything, places a heavier burden on the 

political party candidates: Not only must they collect the requisite 

number of signatures, but they must also 

participate in -- and win -- the primary election in order to gain a place 

on the general election ballot. 

Alternative political party candidates, on the other hand, can focus their 

resources and time during the April 

to June interval on gathering signatures rather than 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 behalf of [losing primary 

candidates] that it is they who were 

denied equal protection vis-a-vis a candidate who could 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 legitimate 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 interest 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 the 
deadline "guarantees that primary voters, when selecting candidates, have 

at least some knowledge of the 

political terrain they are approaching," Cromer, 917 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 legitimate 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) (explaining that splintered 

parties and unrestrained factionalism 

may do significant damage to a state's political structure). By requiring 

all candidates to demonstrate a 

modicum of support before gaining access to the ballot, 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. 

_________________________________________________________________ 

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 recognized, 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 interest 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 alternative political party 

candidates to file nominating petitions 

before the results of the primary are available, New 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 preventing "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 Ohio's alleged aims. Id. 

at 804-05 & n.31. 

We agree that here, as in Anderson, the State's interest in preventing 

"sore loser" candidacies is not narrowly 

tailored to effectuate a compelling state interest. We also recognize that 

New Jersey has a disaffiliation 
provision that arguably prevents "sore loser" candidacies.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 Elections, Nos. 97-3359, 96-

3677, 1999 WL 171326, at 

*10-11 (3d Cir. Mar. 30, 1999) (en banc) (finding state'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 _________________________________________________________________ 

18. That statute provides, in relevant part: 

No petition for direct nomination, including a petition 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 political party to that 

office in the primary election held in the 

same calendar year and no unsuccessful primary candidate shall sign an 

acceptance of such a petition for 

direct nomination . 

N.J.S.A. § 19:13-8.1 (emphasis added). This provision 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 tofile a nominating 

petition to run as a candidate for an 

alternative political party. justified based on administrative need. 

Contrary to plaintiffs' suggestion, an 

administrative justification is not a sine qua non of the 

constitutionality of election regulations. Where, as 

here, the statute is justified by important and legitimate 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 in a fair electoral 

process, voter education, and political 

stability are sufficient to outweigh the small burden 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 New 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