The opinion of the court was delivered by: Wolfson, United States District Judge
Before the Court is a motion for a preliminary injunction and other relief, wherein the moving parties specifically challenge the "preferences" New Jersey provides to the two main political parties through placing them in the first two columns of the general election ballots and prohibiting the use of any part of their name by other, unaffiliated candidates. In their complaint, Plaintiffs Democratic-Republican Organization of New Jersey, Eugene Martin LaVergne, Frederick John LaVergne, Leonard P. Marshall, Tracy M. Caprioni, Kimberly Sue Johnson, and Donald E. Letton (collectively, "Plaintiffs") allege, with regard to the upcoming New Jersey November 6, 2012 general election, that they have been denied placement together and on the left side of the ballot, as well the use of the slogan "Democratic-Republican." As a result, Plaintiffs filed a Verified Complaint in this Court on September 11, 2012, seeking a preliminary injunction that declares unconstitutional New Jersey state statutes N.J.S.A. 19:1-1, N.J.S.A. 19:5-1, N.J.S.A. 19:12-1, N.J.S.A. 19:14-2, and N.J.S.A. 19:13-4. Plaintiffs further seek an Order directing Defendants Lt. Governor Kimberly Guadagno (hereinafter "Guadagno" or "the State"), Edward P. McGettigan, Timothy D. Tyler, Joseph Ripa, Rita Marie Fulginiti, Gloria Noti, Christopher J. Durkin, James Hogan, Barbara A. Netchert, Mary H. Melfi, Paula Sollami-Covello, M. Claire French, Elaine Flynn, Joan Bramhall, Scott M. Colabella, Kristin M. Corado, Gilda T. Gill, Brett Radi, Jeff Parrott, and Joan Rajoppi (hereinafter, "County Clerk Defendants"), New Jersey Republican Party, and New Jersey Democratic Party (collectively, "Defendants") to reconfigure the general election ballots to allow Plaintiffs to appear bracketed together in the first and second columns of the ballot and to use their political organization's name of "Democratic-Republican" as a slogan. "Alternatively, [P]laintiffs seek an Order directing that they have the right to use the slogan . . . , and appear to the right of all other independent candidates, to the exclusion of any other unaffiliated candidates in th[e] column." See Ver. Compl. ¶ 1. Each of Plaintiffs' claims is brought pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, as well as 42 U.S.C. § 1983.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In the present case, Plaintiffs are candidates for various elected
public office positions at the national and county levels*fn1
who have satisfied all requirements to be placed on the
November 2012 general election ballots, as candidates nominated by
petition.*fn2 See Ver. Compl.
¶ 1; Pl. Memo at 11-12. Plaintiffs, however, are unsatisfied with
their expected placement on the ballots, and have requested from the
appropriate State or county officials a configuration of the ballot
that would allow Plaintiffs the opportunity to be placed of the
leftmost side of the ballot and/or would "bracket" Plaintiffs together
on any ballot on which more than one of them appears. Pl. Memo at
11-13. Plaintiffs also requested on their nominating petitions that
the "slogan" "Democratic-Republican" be placed on the ballot next to
their names. Id. None of Plaintiffs' requests were approved by any
State or county official, which led to the instant litigation. Id.
The present litigation has loose ties to a similar challenge to New Jersey election laws brought previously in state court. Years prior to bringing the instant suit, Leonard P. Marshall, one of the plaintiffs in this action, brought a suit in state court against then-Attorney General, John J. Farmer, and a host of other defendants that included the New Jersey State Republican Committee, the New Jersey State Democratic Committee, and each of the New Jersey county clerks. In that action, the plaintiffs argued that the "political parties"*fn3 -- i.e., the Republican and Democratic Parties -- should not have been awarded the exclusive right to appear in the first two ballot columns for the 1999 general election. See New Jersey Conservative Party v. Farmer, 324 N.J. Super. 451, 456-57 (App. Div. 1999), While the plaintiffs prevailed at the trial level, they lost on appeal in the Appellate Division. Id., 457, 462. Plaintiff Marshall litigated that case as a member of the New Jersey Conservative Party. See Pl. Memo. at 9-10.
On remand in Farmer, the plaintiffs "[c]hang[ed] course" and argued that they were unconstitutionally excluded from the lottery process that determines which parties are entitled to ballot positions pursuant to N.J.S.A. 19:14-12. New Jersey Conservative Party v. Farmer, 332 N.J. Super. 278, 281-82 (Ch. Div. 1999). Importantly, the Chancery Division noted in footnote 5 of its opinion that, while there existed a "colorable argument" that the Appellate Division's interpretation of N.J.S.A. 19:5-1 was unconstitutional because it created an "arbitrary or irrational way of determining whether a political party has made a sufficient showing at a primary to retain political party status," id. at 284 n.5, the plaintiffs did not "urge the unconstitutionality of N.J.S.A. 19:5-1" on remand. Additionally, the Chancery court held that N.J.S.A. 19:14-12 was not unconstitutional, reasoning that New Jersey's decision to grant political parties the right to be placed in the leftmost columns does not impinge upon the other party's constitutional rights under the First or Fourteenth Amendments. The Chancery court decision was never appealed.
In the present matter, Plaintiffs raise similar challenges to N.J.S.A. 19:5-1. In addition to injunctive relief, Plaintiffs filed a request for an Order to Show Cause ("OTSC") along with their Verified Complaint. The OTSC primarily seeks a declaration that the 10% statutory standards for creating, certifying, and conferring special benefits on statutorily recognized 'political parties' (i.e. Major Political Parties) in N.J.S.A. 19:1-1, N.J.S.A. 19:5-1, N.J.S.A. 19:12-1, N.J.S.A. 19:13-4 and N.J.S.A. 19:14-2, as interpreted by the New Jersey Appellate Court in New Jersey Conservative Party v. Farmer, 324 N.J. Super. 451 . . . (App. Div. 1999) . . . , is completely irrational and arbitrary and invidiously discriminates against plaintiffs and is therefore unconstitutional facially and as applied to plaintiffs as violating the [First Amendment] and Fourteenth Amendment . . . , and also operates to violate the rights of Federal candidate plaintiffs as guaranteed and secured by Article I, Section 4, clause 1 (as modified by the [Seventeenth Amendment] and the [Twenty Sixth Amendment])
Proposed OTSC at 2. Hereinafter, I refer to this claim as the "10%" claim.
Plaintiffs, additionally, seek (i) a judgment declaring N.J.S.A. 19:13-4 unconstitutional, (ii) an injunction permanently enjoining Defendants from enforcing each of the challenged election laws, (iii) an order directing Defendants to permit Plaintiffs to be bracketed "together in the same column" on the election ballot and an "equal opportunity to appear in the first and second columns on the left of the General Election Ballot," (iv) a judgment declaring that all "Democratic-Republican" candidates be bracketed separately from unaffiliated candidates; (v) attorney fees and costs. Proposed OTSC at 2-4.
On September 14, 2012, the Court issued an Order to Show Cause denying any request for emergent relief, but expediting consideration of the issues by directing Defendants to file opposition papers by September 24, 2012, and Plaintiffs to file their reply by September 27, 2012. While Guadagno and several of the County Clerk Defendants filed opposition papers, several County Clerk Defendants filed letters noting that they were not timely served with the Order to Show Cause. Plaintiffs filed their reply on September 28, 2012. Plaintiffs' reply limited Plaintiffs' claims to two issues: First, whether N.J.S.A. 19:5-1, both facially and as applied to Plaintiffs, violates the Equal Protection Clause of the Fourteenth Amendment and the First Amendment. See Pl. Reply at 2. Second, whether N.J.S.A. 19:13-4, both facially and as applied to Plaintiffs, violates the Fourteenth Amendment and the First Amendment's guarantees of freedom of association and speech. See id.
On October 3, 2012, the Court held a hearing on Plaintiffs' requests for injunctive relief. On the morning of the hearing, but prior to its commencement, counsel for Plaintiffs, Richard T. Luzzi, Esq., filed with the Court a substitution of attorney form, reflecting that Plaintiff Eugene LaVergne was appearing pro se. Appearances were also made on behalf of the State and a number of the County Clerk Defendants.
During the hearing, counsel for Plaintiffs and the State, as well as Mr. LaVergne, made several representations and concessions to the Court, which I will address in this opinion where relevant. On the record, I also disposed of several arguments and defenses raised by the State and Defendant Hudson County Clerk Netchert -- concerning res judicata, joinder, and timely service -- and I therefore do not address those arguments here. I also dismissed, pursuant to the Eleventh Amendment, Plaintiffs' claim against Guadagno for monetary damages.
A. PRELIMINARY INJUNCTION
"When deciding whether to issue a preliminary injunction, a district court must consider:
(1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest." McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009) (internal quotation marks omitted).
For the purposes of this motion, the Court assumes that Plaintiffs have satisfied the irreparable harm prong if they can demonstrate a constitutional injury. See Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673 (1976) ("[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury"). Indeed, should a general election go forward, any infringement on Plaintiffs' constitutional rights would be irreparable. See Koppell v. New York State Bd. of Elections, 8 F. Supp. 2d 382, 384 (S.D.N.Y. 1998) aff'd, 153 F.3d 95 (2d Cir. 1998). Accordingly, in deciding Plaintiffs' motion for preliminary injunctive relief, the Court will focus on the probability of Plaintiffs' success on the merits. See id.
Plaintiffs and the State differ on the standard of review applicable to Plaintiffs' constitutional claims. Plaintiffs argue that their claims implicate "core First Amendment rights," see Pl. Memo. at 28, and thus are subject to "strict scrutiny" review. See Pl. Reply at 3-4. The State responds that rational basis review is appropriate. See State Opp. at 23. Neither party's position is correct.
Rather, Anderson v. Celebrezze, 460 U.S. 780, 789 (1983), sets forth the appropriate standard of review for election law challenges that allege constitutional violations. "[T]he strict scrutiny, intermediate scrutiny, and rational basis categories represent a convenient and familiar linguistic device by which courts . . . have characterized their review . . . . Anderson [however] promulgated a less categorical system of classification. . . . Put another way, ballot access cases should not be pegged into the three aforementioned categories. Rather, following Anderson, [the ...