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April 5, 2002


The opinion of the court was delivered by: Stephen M. Orlofsky, United States District Judge.



Although the combined rights of voters and candidates to be free of durational residency restrictions have been the subject of other recent litigation in this Court, see Robertson v. Bartels, 150 F. Supp.2d 691 (D.N.J. 2001), the standard of review for violations of those rights is uncertain. However, New Jersey's durational residency requirement may also affect the Plaintiff candidate's right to intrastate travel, a right recognized in this Circuit. See Lutz v. City of York, 899 F.2d 255, 256 (3d Cir. 1990). Indeed, the Third Circuit has held that state enactments burdening the right to intrastate travel are subject to intermediate scrutiny. Id. at 269.
Thus, rather than explore the uncertain boundaries of the collective right of candidates and voters to be free of ballot restrictions, I consider simply whether the State of New Jersey can justify with a narrowly tailored and significant interest the burdens it has imposed on the right to intrastate travel. I conclude that, based on the facts and circumstances of this case, it cannot do so. In particular, where the Plaintiff candidate has worked for almost twenty years in the very ward where he seeks election, has moved a distance of approximately thirteen city blocks from his prior residence, and has lived in the City he seeks to represent on the city council for his entire life, I find little State interest in excluding him from the ballot. I need not, and therefore do not, consider whether New Jersey's durational residence requirement for candidates seeking local office might be constitutional as applied to other candidates in other factual settings.

Thus, for the reasons set forth in more detail below, I conclude that New Jersey's durational residency requirement is unconstitutional as applied to the Plaintiff candidate, and shall order Defendants to place his name on the primary ballot.


The material facts giving rise to this dispute are uncontested and have been stipulated to by the parties. Craig Callaway is a lifelong resident of Atlantic City. Until January of this year, he resided at 500 Wabash Avenue in Atlantic City. On January 31, 2002, he moved approximately thirteen blocks, to 725 North Ohio Avenue. He has since relocated twice more, both times apparently a relatively short distance.
Callaway's ambitions were stymied, however, by a ruling of the City of Atlantic City's Solicitor's Office that he was not eligible to run for the Third Ward seat, notwithstanding his move. According to the City Solicitor, New Jersey law requires that a candidate for local office have resided in the "local unit" for which he seeks office for "at least one year prior to the date upon which the election for the office is to be held." See N.J. Stat. Ann. § 40A:9-1.13 (West 1993) ("the residency requirement"). "[W]henever an office is required to be filled by election from a district, ward or other subdivision," the term "local unit" means "the district, ward or subdivision to which the office pertains." Id. § 40A:9-1.11. In other words, it is not enough that Callaway has lived in Atlantic City for over forty years; he must have lived in the particular ward for which he seeks election for at least one year before he can be elected to represent it.
Callaway responded to the City Solicitor's Letter Opinion by filing this Complaint, pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment, in which he requests that this Court declare the durational residency requirement unconstitutional, and issue an injunction, directing the City Clerk of Atlantic City to enter Callaway's name as a candidate eligible for election to the city council from the Third Ward. Callaway's Complaint named not only the City of Atlantic City, and its City Clerk and City Solicitor, but also the Attorney General of New Jersey, David Samson. As the parties agreed that the statutory deadline for the City Clerk to act is April 8, 2002, I directed the parties to brief the issues presented on an expedited schedule. On April 3, 2002, I held a hearing and heard oral argument on Callaway's Motion for a Temporary Restraining Order. The parties agreed at the hearing that no material fact was in dispute, and upon my suggestion, further agreed that, pursuant to Fed.R.Civ.P. 65(a)(2), the pending Motion for a Temporary Restraining Order could be converted to a Motion for Permanent Injunctive Relief.


The first task in addressing any constitutional challenge is, necessarily, to identify the constitutional rights at issue. That determination, in turn, will likely reveal what level of scrutiny the court should apply to the challenged statutory provisions. As the array of plaintiffs in this case suggests, state restrictions limiting a candidate's access to the ballot may implicate a variety of different interests. The Supreme Court has attempted to simplify matters by lumping together the rights of candidates, voters and, at times, political parties, and comparing the composite whole against the putative interests of the State in its regulation. See, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997); Munro v. Socialist Workers Party, 479 U.S. 189 (1986); Anderson v. Celebrezze, 460 U.S. 780 (1983); Bullock v. Carter, 405 U.S. 134 (1972).
Unfortunately, even after consolidating many of the Plaintiffs' possible rights at issue, the level of scrutiny that this Court should apply is not particularly clear. The Attorney General contends that, under Timmons, I should conduct a straightforward balancing of the interests on either side, such that the residency requirement in question here can be sustained as an "important" and "reasonable, nondiscriminatory" restriction that outweighs the relatively modest combined interests of Callaway in running for local elective office and of affected voters in selecting him as their candidate of choice. Timmons, 520 U.S. at 358. The Third Circuit, when it last considered the question of durational residency requirements for candidates for local office, read the Supreme Court's ballot restriction line of cases as mandating strict scrutiny of those requirements. See Wellford v. Battaglia, 485 F.2d 1151, 1152 (3d Cir. 1973) (per curiam). In other cases challenging different ballot access restrictions, however, the Third Circuit has adopted a more liberal balancing test. See Council of Alternative Political Parties v. Hooks, 179 F.3d 64, 70-71 (3d Cir. 1999). Some members of the Supreme Court itself were, as of 1986, of the view that the Court applied strict scrutiny to at least some ballot access cases. See Munro, 479 U.S. at 201 (Marshall, J., dissenting). While there is a plausible argument that Timmons demonstrates that both the Wellford court ...

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