2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-8-2015

Mark Balsam v. Secretary of the State of NJ

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-3882

_____________

MARK BALSAM; CHARLES DONAHUE; HANS HENKES; 

REBECCA FELDMAN; JAIME MARTINEZ; WILLIAM CONGER; 

TIA WILLIAMS; INDEPENDENT VOTER PROJECT; 

COMMITTEE FOR A UNIFIED INDEPENDENT PARTY INC, 

doing business as INDEPENDENT VOTING.ORG,

 Appellants

v.

SECRETARY OF THE STATE OF NEW JERSEY 

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-14-cv-01388)

District Judge: Hon. Stanley R. Chesler

_______________

Argued

March 17, 2015

Before: SMITH, JORDAN, and VAN ANTWERPEN, Circuit Judges.

(Filed: April 8, 2015)

_______________

Samuel Gregory, Esq. [ARGUED]

Suite 2008

16 Court Street

Brooklyn, NY 11241

Harry Kresky, Esq.

Suite 419

505 W. 54th Street
2

New York, NY 10019

S. Chad Peace, Esq. [ARGUED]

Peace Crowell

3625 Fifth Avenue

San Diego, CA 92103

 Counsel for Appellants

Donna Kelly, Esq. [ARGUED]

Eric S. Pasternack, Esq.

Office of Attorney General of New Jersey

Department of Law & Public Safety

Division of Law

25 Market Street

P.O. Box 112

Trenton, NJ 08625

 Counsel for Appellee

Dave Frohnmayer, Esq.

Harrang Long Gary Rudnick

360 E. 10th Avenue 

Suite 300

Eugene, OR 97401

 Counsel for Amicus Equal Vote Coalition

Stephen A. Loney, Jr., Esq.

Hogan Lovells US

1835 Market Street

29th Floor

Philadelphia, PA 19103

 Counsel for Amicus Fair Vote

Richard T. Robol, Esq. 

433 W. Sixth Avenue

Columbus, OH 43201

 Counsel for Amici Independent Ohio,

 Independent Pennsylvanians, Massachusetts

 Coalition of Independent Voters, North

 Carolina Independents, Utah League of

 Independent Voters, and Virginia

 Independent Voters Association

_______________
3

OPINION

_______________

JORDAN, Circuit Judge.

The Appellants challenge an order of the United States District Court for the 

District of New Jersey dismissing their complaint. We will affirm. 

I. Background

A. New Jersey’s Closed Primary Election System

New Jersey has created a comprehensive statutory scheme to govern elections in 

the state. See N.J. Stat. Ann. §§ 19:1-1 to 19:63-28. A “general” election is held on the 

first Tuesday after the first Monday in November, at which time voters “elect persons to 

fill public office.” Id. at § 19:1-1. There are two ways in which a candidate can secure a 

place on the ballot for a general election. The first is to be nominated by a political party 

in a primary election; the second is to submit a petition with the requisite number of 

signatures. 

Under the first option, “members of a political party ... nominate candidates” in 

the month of June “to be voted for at general elections.” Id. at §§ 19:1-1 and 19:2-1. 

New Jersey law defines a “political party” as any party that garners at least ten percent of 

the votes cast in the last general election for the office of a member of the General 

Assembly. Id. at § 19:1-1. To appear on a primary election ballot, a candidate must file a 

nominating petition accompanied by the requisite number of signatures at least sixty-four 

days before the primary election. Id. at §§ 19:23-8 and 19:23-14. To be eligible to vote 

 

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,

does not constitute binding precedent.
4

in a political party’s primary election, a voter must be deemed a member of that party at 

least fifty-five days before the election, unless the voter is newly registered or the voter 

has not previously voted in a primary election. Id. at § 19:23-45. The state bears the cost 

of conducting primary elections. Id. at § 19:45-1. 

Under the second option, candidates unaffiliated with a political party may 

“bypass the primary election and proceed directly to the general election” upon 

submission of a petition bearing the necessary number of signatures. Council of Alt. 

Political Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999); see also N.J. Stat. Ann. 

§§ 19:13-3 to 19:13-13. 

B. The Appellants’ Complaint

Appellants Mark Balsam, Charles Donahue, Hans Henkes, and Rebecca Feldman 

are registered as unaffiliated voters, which means that they were not permitted to vote in 

New Jersey’s 2013 primary election because they “exercis[ed] their right not to affiliate 

with either the Democratic or Republican parties.” (Opening Br. at 10.) Appellant Jaime 

Martinez is a registered Democrat, and Appellants William Conger and Tia Williams are 

registered Republicans; each of whom was, as the Appellants put it, “required to forfeit 

their right of non-association in order to exercise their right to vote in the 2013 Primary 

Election.” (Opening Br. at 11.) Appellants Independent Voter Project and Committee 

for a Unified Independent Party, Inc., “seek to protect the rights of all voters to cast a 

meaningful vote.” (Opening Br. at 11.) 

Appellants filed this lawsuit against Kim Guadagno in her official capacity as New 

Jersey’s Secretary of State, alleging violations of (1) 42 U.S.C. § 1983; (2) the New 
5

Jersey Civil Rights Act, N.J. Stat. Ann. § 10:6-2(c); (3) the First and Fourteenth 

Amendments of the United States Constitution; and (4) Article II, Section I and Article 

VIII, Section III of the New Jersey Constitution. In their complaint, the Appellants 

sought three forms of relief: (1) an order declaring the state’s primary election scheme 

unconstitutional on its face and as applied; (2) an injunction restraining the state from 

funding and administering its current primary election scheme; and (3) an order directing 

the state legislature or Secretary of State to implement a different primary election 

scheme, in keeping with the Appellants’ views of the United States Constitution. 

C. Procedural History

Guadagno filed a motion to dismiss, which the District Court granted. The Court 

held that “[a]ny attempt to use the Constitution to pry open a state-sanctioned closed 

primary system is precluded by current Supreme Court doctrine.” (App. at 6.) In 

addition, the Court reasoned that the Appellants’ state law claims had to be dismissed as 

being barred by the Eleventh Amendment. This timely appeal followed. 

II. Discussion1

As acknowledged by the Appellants at oral argument, their main argument boils 

down to the following syllogism: (1) all voters in New Jersey, regardless of party 

affiliation, have a constitutional right to participate at each stage of the electoral process 

 

1 The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. 

We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of the 

District Court’s order granting the motion to dismiss for lack of subject matter 

jurisdiction and for failure to state a claim. United States ex rel. Schumann v. 

AstraZeneca Pharms. L.P., 769 F.3d 837, 845 (3d Cir. 2014); Rea v. Federated Investors, 

627 F.3d 937, 940 (3d Cir. 2010). 
6

that materially impacts the outcome of non-presidential elections in the state; (2) New 

Jersey’s closed primary elections materially impact the outcome of non-presidential 

elections in the state; therefore, (3) all voters in New Jersey, regardless of party 

affiliation, have a constitutional right to participate in New Jersey’s closed primary 

elections – i.e., the primaries may not be closed. But it appears that the Appellants are 

aware that controlling precedents preclude us from ordering New Jersey to force political 

parties to open their primary elections to non-party members. Therefore, the Appellants 

argue instead that, in order to protect their fundamental right to meaningfully participate 

at all stages of an election, we force New Jersey to abolish the closed primary election 

scheme altogether. 

A. Federal Claims

The Appellants rely on First Amendment and Fourteenth Amendment theories to 

support their federal claims. They contend that New Jersey’s primary election system

violates the First Amendment because it burdens their associational rights by “requir[ing] 

that a voter ‘qualify’ for the right to vote in the Primary Election by joining a political 

party.” (Opening Br. at 36.) They further argue that it violates their Fourteenth 

Amendment right to equal protection of the law because it is inconsistent with the “one 

person, one vote” standard articulated in Reynolds v. Sims, 377 U.S. 533 (1964). See id. 

at 566 (“[T]he Equal Protection Clause guarantees the opportunity for equal participation 

by all voters in the election of state legislators.”). According to the Appellants, the state’s

system creates two classes of voters: “(1) major party members who enjoy full 

participation in both the Primary Election and the general election; and[] (2) voters who, 
7

by reason of choosing not to associate with one of the dominant political parties, are 

allowed only limited participation in the general election.” (Opening Br. at 35.) As a 

result, they say, the latter class’s Fourteenth Amendment rights are violated because,

“[w]ithout equality of the right to vote within all integral stages of the process, there is 

essential[ly] no meaningful right to vote at all.” (Opening Br. at 34-35.) Their position, 

however, is untenable. 

States possess a “‘broad power to prescribe the “Times, Places and Manner of 

holding Elections for Senators and Representatives,” [U.S. Const.] Art. I, § 4, cl. 1, which 

power is matched by state control over the election process for state offices.’” Clingman 

v. Beaver, 544 U.S. 581, 586 (2005) (quoting Tashjian v. Republican Party of Conn., 479 

U.S. 208, 217 (1986)). That power is not absolute, but is “subject to the limitation that 

[it] may not be exercised in a way that violates ... specific provisions of the 

Constitution.” Williams v. Rhodes, 393 U.S. 23, 29 (1968). In particular, New Jersey has 

a “‘responsibility to observe the limits established by the First Amendment rights of [its]

citizens,’” including the freedom of political association or, in this case, non-association. 

Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 222 (1989) (quoting Tashjian, 

479 U.S. at 217). Election regulations that impose a severe burden on associational rights

are subject to strict scrutiny and may be upheld only if they are “narrowly tailored to 

serve a compelling state interest.” Clingman, 544 U.S. at 586. If a statute imposes only 

modest burdens, however, then “the state’s important regulatory interests are generally 

sufficient to justify reasonable, nondiscriminatory restrictions” on election procedures. 

Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). Accordingly, the Supreme Court has 
8

“repeatedly upheld reasonable, politically neutral regulations that have the effect of 

channeling expressive activity at the polls.” Burdick v. Takushi, 504 U.S. 428, 438 

(1992). 

While “a citizen has a constitutionally protected right to participate in elections on 

an equal basis with other citizens in the jurisdiction,” Dunn v. Blumstein, 405 U.S. 330, 

336 (1972), no court has ever held that that right guarantees participation in primary 

elections. The Appellants nevertheless rely on United States v. Classic, 313 U.S. 299 

(1941), as authority for their argument that voters have a constitutional right to participate 

in primary elections. Their reliance is misplaced. In Classic, the federal government 

prosecuted certain Louisiana state elections commissioners for allegedly falsifying ballots 

in a Democratic primary election for the House of Representatives. The Supreme Court

held that the Constitution gives Congress the power to regulate intraparty primaries 

through the criminal code and secures the right to have one’s “vote counted in both the 

general election and in the primary election, where the latter is a part of the election 

machinery.” Id. at 322. 

In answering the question presented to it, the Court in Classic presupposed that the 

right it recognized only applied to voters who were “qualified” to cast votes in 

Louisiana’s Democratic primary. Id. at 307 (stating that one of the “questions for 

decision [is] whether the right of qualified voters to vote in the Louisiana primary and to 

have their ballots counted is a right ‘secured ... by the Constitution’ within the meaning 

of ... the Criminal Code” (second alteration in original)). But Classic did not expound on 

who was “qualified,” and instead left that distinction up to Louisiana law. See id. at 311 
9

(“Pursuant to the authority given by [§] 2 of Article I of the Constitution ... the states are 

given, and in fact exercise a wide discretion in the formulation of a system for the choice 

by the people of representatives in Congress.”). Fairly read, Classic speaks to the 

constitutional protections that inure to qualified primary voters, but it is completely silent 

as to who is qualified. It is, therefore, of no help to the Appellants’ argument. 

The Appellants also quote Friedland v. State, 374 A.2d 60, 63 (N.J. Super. Ct. 

Law Div. 1977), for the proposition that “courts have held that the right to vote in the

Primary Election is ‘as protected as voting in a general election.’” (Opening Br. at 20.) 

As noted by the District Court, however, the Appellants’ citation to Friedland is 

“puzzling.” (App. at 10.) Friedland rejected an attack on New Jersey’s primary election 

system that is similar to the one mounted by the Appellants in this case. See Friedland, 

374 A.2d at 63-67 (dismissing complaint that contended New Jersey’s primary election

law violates the First and Fourteenth Amendments, “in that it deprives [plaintiffs] of their 

right to vote and to affiliate with political parties of their own choice and denies them 

equal protection”). When read in context, the language that the Appellants have lifted 

from Friedland does not advance their argument. 

The Appellants identify no other precedent even arguably suggesting that voters 

have a constitutional right to unqualified participation in primary elections. There is, 

however, relevant precedent that cogently rebuts their position. In Nader v. Schaffer, the 

Supreme Court summarily affirmed a decision upholding Connecticut’s closed primary 

election system, a system which, in broad strokes, looks like New Jersey’s. 417 F. Supp. 

837 (D. Conn.) (three-judge panel), aff’d, 429 U.S. 989 (1976) (mem.). The Nader
10

plaintiffs were registered voters who refused to enroll in a political party. Id. at 840. As 

a result of that choice, they were prohibited from voting in Connecticut’s closed primary 

elections. Id. They argued that Connecticut’s closed primary election system violated 

their constitutional rights in the following ways: (1) it violated their Fourteenth 

Amendment right to equal protection by denying them the right to participate in primary 

elections while extending that right to enrolled party members; (2) it violated their First 

Amendment associational rights by compelling them to either enroll in a political party or 

forgo the right to vote in a primary; and (3) it violated their right to vote, as guaranteed 

by Article I, Section 2, cl. 1 and the Fourteenth and Seventeenth Amendments, by 

preventing them from participating in an “‘integral part’” – namely the primary elections 

– “‘of the process by which their United States Senators and Representatives are 

chosen.’” Id. The Nader plaintiffs argued that participation in a primary election was an 

exercise of their constitutionally protected rights to vote and associate (or not associate)

with others in support of a candidate. Id. at 842. They further asserted that they wished 

to exercise both of those rights but that Connecticut’s closed primary election scheme 

limited them to one or the other; that is, in order to vote in a party’s primary election, 

they were wrongly forced to enroll in a party. Id. 

Nader rejected those arguments and struck a balance of competing First 

Amendment associational rights and Fourteenth Amendment rights that undermines the 

Appellants’ position here. The court in Nader concluded that, in order to safeguard the 

constitutional rights of party members, Connecticut could “legislat[e] to protect the party 

from intrusion by those with adverse political principles,” during the candidate selection 
11

process. Id. at 845 (internal quotation marks omitted). Nader also reasoned that “a state 

has a more general, but equally legitimate, interest in protecting the overall integrity of 

[primary elections],” which “includes preserving parties as viable and identifiable interest 

groups[, and] insuring that the results of primary elections ... accurately reflect the voting 

of party members.” Id. Thus, “in order to protect party members from intrusion by those 

with adverse political principles, and to preserve the integrity of the electoral process, a 

state legitimately may condition one’s participation in a party’s nominating process on 

some showing of loyalty to that party,” including party membership. Id. at 847 (internal 

quotation marks omitted). 

The reasoning of Nader is directly applicable here. The Appellants claim that 

Nader recognized political parties’ associational rights without considering the 

countervailing rights of individuals who are not members of a political party to not have 

their vote unconstitutionally diluted. (Opening Br. at 39, 42.) But that is simply

incorrect. The court in Nader did consider the countervailing rights of individuals who 

were not members of a political party, and it found that the associational rights of party 

members and the regulatory interests of the state outweighed those rights. See 417 F. 

Supp. at 844, 845 (“Because the political party is formed for the purpose of engaging in 

political activities, constitutionally protected associational rights of its members are 

vitally essential to the candidate selection process. ... The rights of party members may 

to some extent offset the importance of claimed conflicting rights asserted by persons 

challenging some aspect of the candidate selection process.”). 
12

We conclude, in keeping with Nader, that the burden, if any, imposed on the 

Appellants’ First Amendment and Fourteenth Amendment rights is outweighed and 

constitutionally justified by the interests identified by New Jersey in this case. See

Answering Br. at 15 (“[T]he State has a legitimate interest in protecting the overall 

integrity of the ... electoral process as well as the associational rights of political 

associations, maintaining ballot integrity, avoiding voter confusion, and ensuring 

electoral fairness.”). 

B. State Law Claims

Under the Eleventh Amendment, state officials acting in their official capacity 

cannot be sued unless Congress specifically abrogates the state’s immunity or the state 

waives its own immunity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66, 70-71 

(1989). The Appellants assert that, because their state law claims are premised on

violations of the federal Constitution and seek prospective injunctive relief, the principles 

of Ex Parte Young, 209 U.S. 123 (1908), are implicated and the action against Guadagno 

strips her of her official or representative character and subjects her to the consequences 

of her individual conduct. Thus, the Appellants argue, this suit is “not really a suit 

against the state itself” and Eleventh Amendment immunity does not apply. (Opening 

Br. at 44-45.) 

We disagree. Although Ex Parte Young held that the Eleventh Amendment does 

not bar a party from bringing suit for prospective injunctive relief on the basis of federal 

law, the Supreme Court held in Pennhurst State School & Hospital v. Halderman, 465 

U.S. 89 (1984), that state officials are immune from suits in federal court based on 
13

violations of state law, including suits for prospective injunctive relief under state law, 

unless the state waives sovereign immunity. Id. at 106 (“We conclude that Young ... [is] 

inapplicable in a suit against state officials on the basis of state law.”). Moreover, the 

supplemental jurisdiction statute, 28 U.S.C. § 1367, does not authorize district courts to 

exercise jurisdiction over claims against non-consenting States. See Raygor v. Regents of 

the Univ. of Minnesota, 534 U.S. 533, 541-42 (2002) (“[W]e hold that § 1367(a)’s grant 

of jurisdiction does not extend to claims against nonconsenting state defendants.”). 

The Appellants’ attempt to tie their state law claims into their federal claims is 

unpersuasive. Even assuming that they are correct that violation of the federal 

Constitution could be used to establish a violation of the state law on which they rely, it is 

state law that provides the cause of action, if any, and the attendant relief they seek. 

Therefore, Ex Parte Young’s exception to Eleventh Amendment immunity does not 

apply. In short, because Congress has not abrogated and New Jersey has not waived its 

sovereign immunity, the Appellants cannot invoke federal jurisdiction over their state law 

challenge to New Jersey’s closed primary election system. 

III. Conclusion

For the foregoing reasons, we will affirm the District Court’s dismissal of the 

Appellants’ federal and state law claims.