NOT FOR PUBLICATION WITHOUT APPROVAL BY THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION
MERCER COUNTY

CIVIL ACTION

































Decided: March 31, 2014
EMPOWER OUR
NEIGHBORHOODS, an
unincorporated association, on behalf
of itself and its members and all others
similarly situated,
Plaintiff,

v.

KIMBERLY GUADAGNO,
individually and as Secretary of State
and Chief State Election Official of the
State of New Jersey; ELAINE FLYNN,
individually and as Middlesex County
Clerk; DANIEL TORRISI, individually
and as Clerk of the City of New
Brunswick; RICHARD JANNARONE,
individually and as Board Secretary of
the New Brunswick Board of
Education; and THE STATE OF NEW
JERSEY,

Defendants,

NEW JERSEY DEMOCRATIC
STATE PARTY COMMITTEE; NEW
JERSEY REPUBLICAN STATE
PARTY COMMITTEE,

Additional
Defendants.






DOCKET NO. L-3148-11












DECISION ON PLAINTIFFS
MOTION FOR SUMMARY
JUDGMENT AND THE CROSS-
MOTIONS FOR SUMMARY
JUDGMENT OF THE STATE, THE
NEW JERSEY DEMOCRATIC STATE
PARTY COMMITTEE, AND THE
NEW JERSEY REPUBLICAN STATE
PARTY COMMITTEE

2

Flavio L. Komuves (Zazzali, Fagella, Nowak, Kleinbaum & Friedman) argued the cause for
plaintiff.

George Cohen, Deputy Attorney General, argued the cause for the State (John J. Hoffman,
Acting Attorney General of New Jersey).

Lisa Chapland (Hill Wallack, LLP) argued the cause for defendant Daniel Torrisi.

W. Timothy Howes argued the cause for defendant New Jersey Republican State Party
Committee.

Albert J. Alvarez (Hoagland, Longo, Moran, Dunst, & Doukas, LLP) argued the cause for
defendant New Jersey Democratic State Party Committee.

Patricia M. Love (Hendricks & Hendricks) argued the cause for defendant Richard Jannarone
(George F. Hendricks on the brief).

Lawrence Bullard, Deputy County Counsel (Office of Middlesex County Counsel) argued the
cause for defendant Elaine Flynn.


Jacobson, A.J.S.C.

INTRODUCTION

This matter comes before the court by way of the motion for summary judgment filed by
plaintiff, Empower Our Neighborhood (EON), as well as the cross-motions for summary
judgment filed by defendants. EON seeks an order declaring unenforceable various statutory
provisions contained in New Jerseys election laws that place restrictions on who may
circulate certain petitions. According to EON, these restrictions on ballot access petition
circulators are unconstitutional infringements of freedom of expression rights that are guaranteed
by both the United States and New Jersey Constitutions.
The State of New Jersey (the State), through defendant Kimberly Guadagno, opposed
aspects of plaintiffs motion, and cross-moved for summary judgment seeking an injunction
requiring those who serve as petition circulators under the challenged statutes to be voter-eligible
New Jersey residents. The Republican and Democratic State Party Committees also cross-
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moved for summary judgment, defending the statutory provision regulating petition circulators in
partisan primary elections. Defendants Daniel Torrisi (joined by defendant Elaine Flynn) and
Richard Jannarone filed cross-motions for summary judgment, arguing that they as individuals
and their public employers are immune from liability under federal and state law. Oral argument
on these motions was heard on February 20, 2014.
This opinion and the accompanying order address EONs motion for summary judgment
and the cross-motions filed by the State and the two State Party Committees, which all deal with
the underlying constitutional issues. Decision on the cross-motions of defendants Daniel Torrisi,
Elaine Flynn and Richard Jannarone, which relate to those defendants alleged immunity from
liability, including any liability for counsel fees, has been reserved for consideration after a
certification of services has been submitted by EONs counsel in support of plaintiffs
application for attorneys fees and any additional objections to the award sought have been
raised, as detailed in the order memorializing the courts rulings on the motions for summary
judgment.
FACTS
I. The Statutory Scheme.
At issue in this action are a number of statutory provisions that regulate the circulation of
ballot access petitions. There are three categories of election laws at issue. The first category
covers the nomination of independent candidates for general elections by petition. Under these
statutes, such a petition must be certified and at least one of the signers (or the candidate) must
sign an oath that the petition is made in good faith, that the affiant saw all the signatures made
thereto and verily believes that the signers are duly qualified voters. N.J.S.A. 19:13-7. In other
words, the circulator must sign the petition and make the requisite oath. Under another
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provision, all of the signers must be legally qualified voters residing within the district or other
political subdivision coextensive with the office for which ballot access is sought. N.J.S.A.
19:13-5. The Supreme Court of New Jersey has held that in order to be legally qualified to
vote under the States election laws, one must be a registered voter. Lesniak v. Budzash, 133
N.J. 1, 12 (1993) (Voters must be registered in order to be considered qualified.). Therefore,
these statutes require that circulators of petitions for independent candidates for general elections
must also be registered voters residing in the political subdivision that the candidates seek to
represent. These same requirements also apply to board of education elections, by way of cross-
reference, under N.J.S.A. 19:60-7.
The second category of election laws involves the nomination of candidates to run in
partisan primary elections by petition. N.J.S.A. 19:23-11 contains a verification requirement for
such elections that requires petitions to be verified by the oath or affirmation of one or more of
the signers thereof, including a candidate who signs or circulates, or both signs and circulates.
The affiant must swear that the petition was signed by each signer in his or her handwriting, that
the signers are to the best of the affiants knowledge residents of the applicable political
subdivision that the candidate is seeking to represent, and that the signers are members of the
political party for which the primary is being held. A separate provision expressly requires that
the signers be registered voters and residents of the relevant political subdivision. N.J.S.A.
19:23-7. Thus, the petition circulators for partisan primary elections must be legal voters, must
reside in the district in which the candidate is running for office, and must be a member of the
applicable political party.
Finally, N.J.S.A. 19:27A-8(h) and N.J.S.A. 19:27A-9(a) govern recall elections. These
provisions expressly require that every circulator of a recall petition sign the petition, and that
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any person serving as a circulator must be a registered voter in the relevant political subdivision
where the recall effort is being pursued.
Nominating petition forms for local and county elections are available to the public from
defendant Elaine Flynn, the Middlesex County Clerk, and defendant Daniel Torrisi, Clerk of the
City of New Brunswick. Nomination petition forms for Board of Education elections are issued
to the public by defendant Richard Jannarone, the Board Secretary of the New Brunswick Board
of Education. Nominating petition forms for Governor, State Senate, and General Assembly are
available on the New Jersey Department of States website.
II. The Parties.
EON identifies itself as a grassroots unincorporated association with approximately
thirty-five current members based in and around the New Brunswick area. EON claims to be an
educational and advocacy group that relies on volunteer, unpaid personal services, and focuses
on issues that affect residents in New Brunswick such as public corruption, tenants rights, and
rent control. Also of concern to its members are town-gown relations, which refers to areas of
concern and possible conflict between individuals who are associated with Rutgers, The State
University of New Jersey, and New Brunswick residents who are not associated with Rutgers.
EON has supported political campaigns, and many of its members have run for political office.
Defendants include Kimberly Guadagno, who is the Secretary of State and Chief State
Election Official of the State of New Jersey (the State). Plaintiffs also named as defendants
Daniel Torrisi, Clerk of the City of New Brunswick, and Elaine Flynn, Middlesex County Clerk.
Richard D. Jannarone, another defendant, is Board Secretary of the New Brunswick Board of
Education. The Democratic and Republican State Committees (respectively, NJDSC and
NJGOP) have also participated in the case as defendants pursuant to court order.
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The record shows that EON members have been personally affected by laws restricting
petition-circulators. For instance, a number of EON members ran for Democratic County
Committee, a local political office, in 2009, and EONs members participated in a campaign that
involved signature-gathering efforts. Plaintiff has submitted the certification of Sean Monahan, a
campaign organizer who also ran in that election, who estimates that approximately 50 EON
members or EON supporters participated in the signature-gathering efforts, including 15 who
were candidates. Mr. Monahan was among those members winning a seat, but he was only able
to circulate petitions for candidates running in his own district, and not for EON members
running in other districts in New Brunswick. Mr. Monahan further states that if people from
outside the jurisdiction could have assisted with petition-gathering in that election, at least 10
more EON supporters would have been involved. In a supplemental certification, Mr. Monahan
specifically named 10 such EON supporters who would have been able to assist as circulators
but were ineligible under state law to participate in that activity. Mr. Monahan named another
nine individuals who were excluded from circulating petitions for a candidate for mayor in a
partisan election in June 2010.
EON also introduced evidence that Adriel Bernal, an EON member, wanted to support
three candidates running for local office as independents in the 2012 elections, but could not
circulate petitions on their behalves because of state law. Mr. Bernal had moved outside of
Middlesex Countyto Elizabeth, New Jerseyand therefore could not circulate petitions for
EON candidates. Similarly, Charles Kratovil, a candidate for Democratic Committee in June,
2013, was removed from the ballot because his petition circulator, Sam Clark, who is a Rutgers
University student affiliated with EON, was registered to vote in a different town.

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III. Green Party Case.
In Green Party of New Jersey v. New Jersey, No. MER-C-125-06 (Ch. Div. October 17,
2007), the State entered into a consent order with the plaintiffs in that litigation. In the consent
order, the State agreed that, with respect to nomination petitions for federal and state-wide
elective offices, the provisions in N.J.S.A. 19:13-5 and 19:13-7 which, when read together,
require a person certifying the signatures on a direct nominating petition to be a legally qualified
voter residing within the district in which the nominee is seeking office is hereby declared to be
void and unenforceable. The consent order cited Buckley v. American Constitutional Law
Foundation, 525 U.S. 182 (1999), as the legal basis for the agreement. The consent order further
provided that, [a] person certifying a direct nomination petition must still make oath that the
petition is made in good faith, that the affiant saw all of the signatures made thereto, and that the
affiant believes the signers are duly qualified voters. It went on to require, however, that the
person certifying the petition must be a resident of the State of New Jersey and must provide his
or her address on the petition. The Statethrough its Division of Electionspledged to print
and make available new direct nomination petition forms reflecting this change by December 31,
2007.
IV. Procedural History.
It is against this backdrop that plaintiff filed its complaint on December 19, 2011,
essentially seeking to extend the consent order in Green Party to nominations of candidates in
local elections, board of education elections, recall elections, and partisan primary elections. The
Democratic and Republican State Committees were made defendant parties to the action by court
order on April 25, 2012. On October 3, 2012, the court granted plaintiffs application for a
preliminary injunction by enjoining enforcement of N.J.S.A. 19:13-7, N.J.S.A. 19:27-9(a), and
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N.J.S.A. 19:27A-8(h). The order did not, however, enjoin enforcement of these provisions
insofar as they require petition circulators to be New Jersey residents. The order was
accompanied by a written decision. The court thereafter allowed the parties time for settlement
discussions and mediation. On February 15, 2013, plaintiff filed another application for a
preliminary injunction, this time to enjoin enforcement of N.J.S.A. 19:23-11, which relates to
petition circulators in partisan primary elections. That application was denied on March 22,
2013. On May 8, 2013, the court allowed the parties to submit supplemental certifications into
the record. Only plaintiff filed a certification. Defendant Richard Jannarone was added as a
party on May 31, 2013.
The second amended complaint, filed on May 31, 2013, asserts seven causes of action,
seeking declaratory and injunctive relief pertaining to a number of statutory provisions that
plaintiff alleges are unconstitutional both facially and as-applied. Plaintiff also seeks attorneys
fees and costs under 42 U.S.C. 1983/1988 and the New Jersey Civil Rights Act. The first count
challenges the constitutionality of N.J.S.A. 19:13-7 and N.J.S.A. 19:60-7 under the First and
Fourteenth Amendments of the Federal Constitution, insofar as they require petition circulators
for independent candidates in general elections and candidates for board of education elections to
be registered voters residing in the political subdivision or district in which ballot access is
sought. The third count raises the same claim under the State Constitution. The second count
challenges N.J.S.A. 19:23-11, governing verification of petitions for partisan primary candidates,
insofar as it contains similar restrictions on circulators, under the Federal Constitution. The
fourth count raises the same claim under the State Constitution. Under the fifth count, plaintiff
challenges N.J.S.A. 19:27A-8 and -9, insofar as they contain the same restrictions for recall
petitions, under the Federal Constitution. Count six alleges the same claim under the State
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Constitution. Finally, count seven of the complaint alleges a violation of the New Jersey Civil
Rights Act.
The court authorized the filing of this summary judgment motion by way of a case
management order issued on July 26, 2013, which also established a briefing schedule. Pursuant
to that order, plaintiff moved for summary judgment on October 11, 2013. Thereafter, the State,
Mr. Torrisi, Mr. Jannarone, NJDSC, and NJGOP each filed oppositions and cross-motions for
summary judgment. Defendant Flynn joined in the opposition and motion of defendant Torrisi.
The matter has been fully briefed by the parties and oral argument has been heard.
DISCUSSION
Plaintiff challenges the statutory requirements for circulators cited above as facially
unconstitutional. Each of plaintiffs arguments seeks to expand the number of people who may
serve as circulators. Plaintiff begins by arguing that sub-state geographical restrictions are
unconstitutional. EON then argues that limiting circulators to registered voters is also
unconstitutional. Plaintiff also contends that barring older youths who are ineligible to vote by
age from acting as circulators, preventing noncitizens from circulating, preventing out-of-state
residents from circulating, and restricting circulators to partisans in primary elections are all
unconstitutional. Each of these arguments seeks to further expand the categories of persons who
may circulate ballot access petitions.
The court will analyze the constitutionality of each of the statutory provisions in turn.
But first, a review of the applicable standards of review is necessary to provide the proper
analytical framework to use in reviewing each challenged statute.


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I. Plaintiffs Motion for Summary JudgmentFacial Challenges to the Statutory
Regulations of Petition Circulators.

a. Standard of Review.

A motion for summary judgment may be granted when the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact challenged and that the moving party is entitled
to a judgment or order as a matter of law. Brill v. Guardian Life Ins. Co. of America, 142 N.J.
520, 52829 (1995) (citing R. 4:46-2). In this case, plaintiff has raised facial challenges to a
number of statutes, every party has filed cross-motions for summary judgment, and there are no
controverted material facts. Thus, the issues before the court raise matters of law, and are
appropriate for summary judgment. Id. at 537 (If a case involves no material factual disputes,
the court disposes of it as a matter of law by rendering judgment in favor of the moving or non-
moving party.). In the First Amendment context, courts recognize a plaintiffs right to initiate
a facial challenge to a statute, in which the statute will be invalidated as overbroad if a
substantial number of its applications are unconstitutional, judged in relation to the statute's
plainly legitimate sweep. United States v. Stevens, 559 U.S. 460, 473 (2010) (citations
omitted)). Such challenges are permitted because the statute's very existence may cause others
not before the court to refrain from constitutionally protected speech or expression. Hardwick
ex rel. Hardwick v. Heyward, 711 F.3d 426, 441 (2013) (quoting Broadrick v. Okla., 413 U.S.
601, 612 (1973)). Procedurally, facial challenges are typically adjudicated through motions for
summary judgment. See, e.g. Nadelson v. Twp. of Millburn, 297 N.J. Super. 549 (Law Div.
1996) (denying plaintiffs summary judgment motion challenging the facial constitutionality of
an ordinance provision and granting defendants cross-motion for summary judgment).
11

Most validly enacted state statutes are presumed constitutional, but this presumption is
not available for statutes challenged on First Amendment grounds. N.J. State Chamber of
Commerce v. N.J. Election Law Enforcement Commn, 82 N.J. 57, 70 (1980) (Where a statute
is challenged on First Amendment grounds, the traditional presumption in favor of constitutional
validity is not available.). Nonetheless, courts shall not declare void legislation unless its
repugnancy to the Constitution is clear beyond a reasonable doubt. In re Matter of P.L. 2001,
186 N.J. 368, 392 (2006) (internal citations omitted). The burden falls on the party challenging
the legislation to demonstrate clearly that it violates a constitutional provision. Lewis v.
Harris, 188 N.J. 415, 459 (2006). The Legislature has broad discretion in determining the
perimeters of a classification. Brown v. N.J. Dept of Treasury, 356 N.J. Super. 71, 80 (App.
Div. 2002) (citing Harvey v. Essex Cnty. Bd. of Freeholders, 30 N.J. 381, 390 (1959)). It is not
the courts task to weigh the efficacy or wisdom of the challenged legislation. Ibid. (citing
State Farm Mut. Auto. Ins. Co. v. State, 124 N.J. 32, 45 (1991)). The burden to demonstrate the
unconstitutionality of the circulation requirements challenged in this case thus rests on EON.
b. Level of Scrutiny.

The success or failure of constitutional claims often depends upon the standard of review
selected to apply to challenged government action. First Amendment jurisprudence is a
labyrinthine area of law. Depending on the context in which such claims arise, very different
analytical frameworks and standards of review apply. For this reason, in addition to examining
broad constitutional principles, the court will carefully analyze the case law dealing with
regulation of petition circulators to determine the most appropriate framework for analyzing the
challenges to the statutes in this case.
12

The First Amendment of the United States Constitution is applied to the states through
operation of the Fourteenth Amendment. Besler v. Bd. of Educ. of West Windsor-Plainsboro
Regional School Dist., 201 N.J. 544, 568 n. 8 (2010). Although in some circumstances the New
Jersey Constitutions guarantee of freedom of expression is even more protective than that of the
First Amendment, New Jersey courts frequently look to First Amendment case law for guidance
when interpreting the New Jersey Constitutions equivalent. Sojourner A. v. N.J. Dep't of
Human Servs., 177 N.J. 318, 329 (2003) ([W]hen cognate provisions of the Federal
Constitution are implicated, we have turned to case law relating to those provisions for
guidance.); Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 264 (1998) ([W]e ordinarily
interpret our State Constitution's free speech clause to be no more restrictive than the federal free
speech clause.); State v. Schmid, 84 N.J. 535, 549 (1980) (discussing free speech protections in
New Jersey within federal First Amendment framework).
Generally, courts view First Amendment cases differently depending on whether the
government is regulating the content of speech, the time, place or manner of speech, or if the
government is suppressing political speech. The general rule is that, [l]aws that burden political
speech are subject to strict scrutiny, which requires the Government to prove that the restriction
furthers a compelling interest and is narrowly tailored to achieve that interest. Citizens United
v. FEC, 558 U.S. 310, 340 (2010) (citing FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 464
(2007)). Thus, political speech must prevail against laws that would suppress it, whether by
design or inadvertence. Ibid.; see generally Council of Alternative Political Parties v. Div. of
Elections, 344 N.J. Super. 225, 238 (App. Div. 2001). The proper analysis was set forth in
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997):

13

When deciding whether a state election law violates First and
Fourteenth Amendment associational rights, we weigh the
character and magnitude of the burden the State's rule imposes on
those rights against the interests the State contends justify that
burden, and consider the extent to which the State's concerns make
the burden necessary. Regulations imposing severe burdens on
plaintiffs' rights must be narrowly tailored and advance a
compelling state interest. Lesser burdens, however, trigger less
exacting review, and a State's important regulatory interests will
usually be enough to justify reasonable, nondiscriminatory
restrictions.

[Ibid. (citations omitted)].

Although the Timmons standard was articulated in reference to the First Amendments guarantee
of freedom of association, federal courts have repeatedly applied this standard to challenges
brought against regulation of petition circulators that allege unjustifiable limitations on freedom
of speech. See Krislov v. Rednour, 226 F.3d 851, 859 (7th Cir. 2000); Libertarian Party v. Judd,
881 F. Supp. 2d 719, 724 (E.D. Va. 2012), affd 718 F.3d 308 (4th Cir. 2013); Bogaert v. Land,
572 F. Supp. 2d 883, 90001 (W.D. Mich. 2008), appeal dismissed 543 F.3d 862 (6th Cir. 2008).
Under this standard, if the laws at issue here are a severe burden on political speech, they
must satisfy strict scrutiny review in order to survive. As a threshold matter, then, the court must
determine whether the act of circulating a petition is political speech.
That question was answered definitively in Meyer v. Grant, 486 U.S. 414 (1988). There,
the Supreme Court of the United States struck down a Colorado law that prohibited paid
circulators from distributing ballot-initiative petitions. The Court reasoned that the circulation of
a petition necessarily involves both the expression of a desire for political change and a
discussion of the merits of the proposed change. Id. at 421. Circulation of a petition is
essentially an attempt by the circulator to persuade [the public] that the matter is one deserving
of the public scrutiny and debate that would attend its consideration by the whole electorate.
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Ibid. Therefore, the Court described petition circulation as core political speech, because it
involves interactive communication concerning political change. Id. at 422. As a result, the
Court applied an exacting scrutiny level of review.
The challenged law in Meyer was a burden on political speech for two reasons. First,
by prohibiting the use of paid circulators, the law limit[ed] the number of voices who will
convey appellees message and the hours they can speak and, therefore, limits the size of the
audience they can reach. Ibid. And second, it made it less likely that appellees will garner the
number of signatures necessary to place the matter on the ballot, thus limiting their ability to
make the matter the focus of statewide discussion. Id. at 423. The Court explained that this
speech is protected by the First Amendment even though the circulators had other avenues of
disseminating their ideas. Id. at 424. The Court held the Colorado law unconstitutional because
it impose[d] a burden on political expression that the State . . . failed to justify by any
proffered interest. Id. at 428.
The Court also ruled upon a law regulating petition circulators in Buckley v. American
Constitutional Law Foundation, supra, 525 U.S. 182. There the Court reviewed conditions
imposed by Colorado ballot-initiative statutes and a state constitutional amendment, including:
(1) [T]he requirement that initiative-petition circulators be
registered voters . . . (2) the requirement that they wear an
identification badge bearing the circulators name . . . and (3) the
requirement that proponents of an initiative report the names and
addresses of all paid circulators and the amount paid to each
circulator.

[Id. at 186].

The Court held that, the requirement that circulators be not merely voter eligible, but registered
voters . . . decreases the pool of potential circulators as certainly as that pool is decreased by the
prohibition of payment to circulators. Id. at 194. Because both provisions limited the number of
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voices who could convey the initiative proponents message, the provisions cut down the size of
the audience the initiative proponents could reach. Id. at 195 (citing Meyer v. Grant, supra, 486
U.S. at 423). Therefore, the Court determined that the restrictions were invalid because they
significantly inhibited communication with voters about proposed political change, and [were]
not warranted by the state interests (administrative efficiency, fraud detection, informing voters)
alleged to justify those restrictions. Id. at 192.
i. Level of Scrutiny for the Challenged Nomination Petition Regulations.
Most of the challenged statutory provisions in this case regulate petitions for nominating
candidates. The provisions regulate nominating independent candidates for general elections and
school board elections, and nominating candidates for partisan primary elections. Although the
election law provisions at issue in Meyer and Buckley regulated ballot-initiative circulators,
subsequent decisions by federal Courts of Appeals have found that the circulation of candidate
nomination petitions also constitutes political speech. For instance, in Nader v. Blackwell, 545
F.3d 459, 475 (6th Cir. 2008), the Sixth Circuit struck down a law that required circulators of
candidate nomination petitions to be registered to vote and reside in Ohio. The court
acknowledged that the distinction between legitimate ballot access regulations and improper
restrictions on interactive political speech is not subject to a litmus-paper test. Id. at 475
(internal quotations omitted). Instead, a particularized assessment of the restriction and the
burden it imposes is required. Ibid. In striking down Ohios law, the court saw little reason to
limit Buckleys holding to initiative-petition circulators, concluding that:
Indeed, common sense suggests, that in the course of convincing
voters to sign their petitions, candidate-petition circulators engage in
at least as much interactive political speechif not more such
speechthan initiative-petition circulators.

[Ibid.]
16

And in Krislov v. Rednour, supra, 226 F.3d 851, the Seventh Circuit determined that an
Illinois statute requiring petition circulators in primary elections to be registered to vote in the
political subdivision for which the candidate was seeking office unconstitutionally burdened the
candidates First Amendment rights. This restriction, the court held, prevented political
candidates in party primaries from fully associating with potential circulators not registered to
vote in the relevant political subdivisions. Ibid. The statute greatly minimized the candidates
ability to disseminate political speech through these individuals. Ibid. Further, the court noted
that the statute substantially burdened the candidates First Amendment rights, making it harder
for the candidates to disseminate their political views, to choose the most effective means of
conveying their message, to associate in a meaningful way with the prospective solicitors for the
purposes of eliciting political change, to gain access to the ballot, and to utilize the endorsement
of their candidacies . . . . Id. at 862. The Seventh Circuit expressly rejected the argument that
Meyer and Buckley were distinguishable because they dealt with ballot access petitions for
initiatives and not nominating candidates, and applied strict scrutiny to the challenged statute.
Id. at 861.
The Second Circuit reached a similar conclusion in Lerman v. Board of Elections in the
City of New York, 232 F.3d 135 (2d Cir. 2000). There, the court addressed New Yorks
requirement that, witnesses to ballot access designating petitions be residents of the political
subdivision in which the office or position is to be voted for. Id. at 138 (internal quotations
omitted). The court reasoned that, [t]he petition circulation activity at issue . . . clearly
constituted core political speech subject to exacting scrutiny. Id. at 146. According to the
court, petition circulation bears an intimate relationship to the right to political or expressive
association. The right to political association also is at the core of the First Amendment, and
17

even practices that only potentially threaten political association are highly suspect. Id. at 146
47 (citing Krislov, supra, 226 F.3d at 860).
After reviewing these persuasive precedents, the court concludes that the Supreme
Courts holding that the circulation of ballot-initiative petitions constitutes protected political
speech applies with equal force to petitions for nominating candidates to appear on ballots, either
in the context of a partisan primary election or a general election. As noted by other courts, the
political speech involved when a citizen is expressing support for a candidate is not any less
significant than his or her expression in support of a particular ballot measure. Therefore, it is
evident that a similar exacting or strict scrutiny must be applied to laws that burden political
expression by restricting the people who may circulate nomination petitions as well.
ii. Level of Scrutiny for the Challenged Recall Petition Regulations.
It is equally as clear that circulating recall petitions also constitutes core political
speech. By soliciting signatures, the circulator is expressing support and approval for the recall
effort. Thus, the circulator of a recall petition is engaging in political expression that is as
deserving of protection as the circulator of a ballot initiative petition or a candidate nomination
petition. Again, federal courts have agreed with this conclusion. One persuasive example is
Bogaert v. Land, supra, 572 F. Supp. 2d 883. In that case, a federal district court in Michigan
granted a preliminary injunction to enjoin enforcement of a state election law requiring petition
circulators to be registered voters in the district for which the official subject to that recall held
office. The court rejected the defendants argument that circulating recall petitions is not core
political speech, reasoning that, [r]ecall petitions involve speech against a candidate instead of
on behalf of a candidate, but this change in viewpoint cannot lessen First Amendment
protection. Id. at 899900. A similar conclusion was reached by the Tenth Circuit Court of
18

Appeals in Chandler v. City of Arvada, 292 F.3d 1236, 1243 (10th Cir. 2002). There, the court
struck down a Colorado ordinance that had required ballot initiative, referendum, and recall
petition circulators to be city residents. The court recognized that petition circulation is core
political speech, and applied strict scrutiny to the ordinance because it severely burdened
political speech. Id. at 124142.
Consequently, each of the statutory provisions challenged in this case, which impose
requirements upon circulators of petitions in general elections, partisan primary elections, and
recall elections, regulates core political speech as defined by the United States Supreme Court.
Under Timmons, supra, 520 U.S. at 358, this court must first analyze whether the burdens placed
on political speech by the challenged statutes are severe. But see Buckley, supra, 525 U.S. at
208 (Thomas, J., concurring) (I suspect that when regulations of core political speech are at
issue it makes little difference whether we determine burden first because restrictions on core
political speech so plainly impose a severe burden.). If so, each regulatory provision must be
justified under strict scrutiny to be declared constitutionalan exceedingly difficult standard for
the regulations to satisfy. See Dunn v. Blumstein, 405 U.S. 330, 343 (1972) (describing the
governments effort to satisfy strict scrutiny as a heavy burden of justification). If the burden
is not severe, the laws may be justified by a balancing test showing that the regulations serve the
States important regulatory interests. Timmons, supra, 520 U.S. 351 at 358.
c. Whether the Circulator Restrictions Set Forth in the Statutes Constitute a
Severe Burden on Political Speech

i. The Geographic and Voter Registration Restrictions for Circulators in
General Elections, School Board Elections, and Recall Initiatives.

As noted above, N.J.S.A. 19:13-7, 19:60-7, 19:27-9(a), and 19:27-8(h) state that petition
circulators must be registered voters and must reside in the applicable political subdivision for
19

which ballot access is sought in order to circulate nomination petitions for general elections or
school board elections, or to circulate recall initiative petitions. These requirements have
severely burdened the First Amendment rights of EON members. For instance, one EON
member, Adriel Bernal, stated that he was prevented from circulating petitions on behalf of
candidates he supported running for office in Middlesex County simply because he had moved to
Elizabeth, New Jersey. Another example of the burden on political expression arose in the
context of an attempt to recall Tony Mack, the former mayor of Trenton. David Ponton, who
chaired a committee established in 2011 to recall Tony Mack, certified that as a result of state
circulator requirements, he could not accept any petition circulated by someone who was not a
registered voter in Trenton. Mr. Ponton further certified that he knew between twenty and
twenty-five Trenton business owners who were willing to have a recall petition kept at their
place of business, but could not circulate the petitions themselves because they resided outside of
the City. Mr. Ponton also stated that between fifty-five and sixty other individuals volunteered
to circulate petitions, but could not do so because they resided outside of Trenton. The recall
petition failed to gather the requisite number of signatures (twenty-five percent of registered
voters in Trenton). According to Mr. Ponton, his recall committee was only able to use the
services of between thirty and forty petition circulators as a result of the restrictions. Mr. Ponton
attributes the inability of the recall campaign to utilize these non-resident petition circulators as a
substantial factor in the failure of the recall effort.
These examples demonstrate the types of burdens these statutes impose on those who
wish to be petition circulators. In addition to the severe burdens placed on petition circulators,
these laws substantially curtail the ability of organizations such as EON to spread their messages
by significantly reducing the overall number of people who can circulate petitions. The impact
20

of the restriction here is similar to what the Court found in Buckley, supra, 525 U.S. at 192. It is
undisputed that the petition-circulator restrictions exclude a substantially large percentage of
registered voters from participating in such activities in any given jurisdiction in New Jersey.
For example, the record reflects that as of February 26, 2013, there were 23,646 registered voters
in New Brunswick. Thus, there are over five million other registered voters in the State of New
Jersey who are barred from circulating petitions in New Brunswick for the kinds of elections
affected by the statutory provisions challenged here. These restrictions also exclude eligible
voters who have not registered to vote, raising the percentage of excluded persons to an even
higher number. According to evidence produced by plaintiff, about another 400,000 people who
are eligible to vote but not registered are prevented from circulating petitions in municipalities
such as New Brunswick for the categories of elections affected by this litigation. With respect to
county-wide elections, plaintiff has introduced evidence showing that over 90% of all registered
and eligible voters in the State are prevented from circulating petitions in any given county. In
light of these facts, it is clear that the ability of candidates and their supporters to politically
express themselves through the circulation of petitions is severely hampered by these
restrictions. The sheer number of persons excluded by these statutes from acting as circulators is
proof of the considerable and substantial burden on the ability of New Jersey residents to express
themselves politically as a result of restrictions imposed on circulators by New Jerseys election
laws.
The defendants have not introduced any countervailing considerations that render the
effect of these burdens less than severe. Moreover, courts across the country have found that
laws restricting circulators on the basis of registration status or geographical location within a
given state severely burden political expression. See Lerman, supra, 232 F.3d 135, 146
21

(subjecting a statutory witness residence requirement for primary elections to exacting scrutiny
because it severely burdened speech); Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023 (10
th

Cir. 2008) (holding that state residency requirement for ballot initiative petition circulators failed
strict scrutiny); Nader, supra, 545 F.3d 459 (election official violated candidates First
Amendment rights by enforcing statutory registration and residency requirements for petition
witnesses, which failed strict scrutiny review); Morrill v. Weaver, 224 F. Supp. 2d 822 (E.D. Pa.
2002) (applying strict scrutiny review and striking down registration and in-district residency
requirements for circulators of nomination petitions); Libertarian Party of Va. v. Judd, 718 F.3d
308, 31719 (4
th
Cir.), cert. denied 134 S. Ct. 681 (2013) (holding that Virginias in-state
residency requirement for circulators failed strict scrutiny because requiring circulators to
voluntarily submit to state jurisdiction was a less restrictive way to achieve the States interest in
protecting the integrity of the petition process); Frami v. Ponto, 255 F. Supp. 2d 962 (W.D. Wis.
2003) (residency requirement for nomination petition circulators found unconstitutional under
exacting scrutiny).
In accordance with these well-reasoned decisions, as well as the courts analysis of the
evidence submitted by plaintiff in support of its motion, the court finds that the geographic
residency and voter registration restrictions established by N.J.S.A. 19:13-7, N.J.S.A. 19:60-7,
and N.J.S.A. 19:27-9(a) and N.J.S.A. 19:27A-8(h) constitute severe burdens on political
expression, and are therefore subject to strict scrutiny. In other words, the burden now shifts to
defendants to set forth a sufficiently compelling government interest to justify the restrictions,
and the defendants must also show that the laws are narrowly tailored to further that interest.


22

ii. The Geographic and Voter Registration Restrictions on Circulators
Contained in the Statutes Governing Partisan Primary Elections.

N.J.S.A. 19:23-11 governs petition circulation in partisan primary elections. As with the
previously-discussed statutes, this provision contains a geographic residency requirement as well
as a voter registration requirement. Unlike those other statutes, however, a distinction must be
made between the residency requirement and the registration requirement contained in N.J.S.A.
19:23-11. This distinction is critical because, unlike the statutory provisions discussed above,
which plainly burden political speech, the voter registration requirement of N.J.S.A. 19:23-11 is
designed to vindicate the constitutional right of members of political parties to associate with
like-minded candidates. The provision accomplishes this goal by requiring a circulator of a
petition in a partisan primary election to be a member of the applicable political party. The
geographic residency requirement does not further that purpose, and will be analyzed separately.
First, the court will address the voter registration requirement of N.J.S.A. 19:23-11. In
partisan primary elections, the political parties have their own countervailing freedom of
expression rights. In particular, it is well established that political parties have the right to
choose the individuals and candidates with whom they will associate. See Democratic Party v.
Wis. ex rel. La Follette, 450 U.S. 107, 122 (1980) (political party associations enjoy First
Amendment protection, which necessarily presupposes the freedom to identify the people who
constitute the association, and to limit the association to those people only.). Closed primary
systems and the right of political parties to exclude people from membership have repeatedly
been held constitutional in cases throughout the country. See, e.g. Tashjian v. Republican Party
of Conn., 479 U.S. 208, 215 n. 6 (1986) ([A] nonmember's desire to participate in the party's
affairs is overborne by the countervailing and legitimate right of the party to determine its own
membership qualifications.); Maslow v. Bd. of Elections in N.Y.C., 658 F.3d 291, 296 (2d Cir.
23

2011) (Because political parties have a strong associational right to exclude non-members from
their candidate nomination process, Plaintiffs have no constitutional right pursuant to which such
participation may be effected.); see also Duke v. Cleland, 954 F.2d 1526 (11
th
Cir. 1992)
(holding that the Republican Party of Georgia could ask the Secretary of State to deny a
candidate access to the ballot); Smith v. Penta, 81 N.J. 65 (1979) (noting that New Jerseys
closed primary system is designed to prevent certain types of individuals from voting in
primaries, including voters looking to support a weak candidate in a rival party).
These cases recognize that the rights of political parties to freely associate trump the
rights of voters to participate in a primary election. Indeed, in New Jersey a non-party member
has no constitutional right to participate in a closed primary. Smith, supra, 81 N.J. at 73-74 (In
this state, the right to participate in a political party's primary election is a statutory one.). Nor
is there a First Amendment right to run as a candidate of any particular party. Duke v. Cleland,
supra, 954 F.2d 1526; Duke v. Massey, 87 F.3d 1226 (11
th
Cir. 1996) (holding that the
Republican Party had a First Amendment right to freedom of association and could identify those
persons who constitute the party on the basis of political belief). Moreover, the interests of non-
partisans in politically expressing themselves in closed primaries is lessened by the fact that they
may still express themselves in the general election. See Maslow, supra, 658 F.3d at 298
(upholding registration requirement for petition circulators in primary elections, partly because
[t]he candidate plaintiffs in this case have ample access to the ballot both in the primary and
general elections.).
In this case, plaintiff argues that the voter registration requirement of N.J.S.A. 19:23-11
should be voided, while maintaining the requirement that circulators must be adherents of the
party for whom they are circulating. Plaintiff argues that party membership should be
24

determined by each partys own bylaws. However, the election laws govern partisan primaries,
and the voter registration requirement of N.J.S.A. 19:23-11 is necessary under current law to
preserve the associational rights of the parties because that is how party membership is identified
under the complex statutory scheme governing elections. Under N.J.S.A. 19:23-45, which is not
challenged by plaintiff in this case, [n]o voter shall be allowed to vote at the primary election
unless his name appears in the signature copy register. Voter registration indicates what party
the voter belongs tothe voter can either fill out and submit a party affiliation form, or can be
deemed a registered party member by being an unaffiliated voter who casts a vote in a primary
election. This statutory mechanism provides an established, verifiable method by which party
membership is identified for the purposes of participation in partisan primaries. By requiring
petition circulators to be registered voters, then, N.J.S.A. 19:23-11 ensures that election officials
and the political parties can enforce New Jerseys closed primary rules, which exclude non-
partisans from the election. Therefore, more than merely burdening speech, as is done by the
other challenged statutory provisions, N.J.S.A. 19:23-11 protects the constitutionally-guaranteed
association rights of the political parties.
As a result, the voter registration requirement of N.J.S.A. 19:23-11 is not a severe
burden on First Amendment freedoms. Plaintiff candidly acknowledged, in its opposition brief
to the cross-motions, that a contrary ruling would break new ground. The court was not
directed to any precedent throughout the country that subjected voter registration requirements
for petition circulators in partisan primary elections to strict scrutiny. Indeed, the Second Circuit
applied less exacting scrutiny to such a restriction in Maslow v. Board of Elections, supra, 658
F.3d at 296. In that case, the court held that the party witness rule for circulators in primary
elections is not subject to strict scrutiny because non-partisans have no constitutional right to
25

participate in partisan primaries. This court agrees with that holding. Because the voter
registration requirement of N.J.S.A. 19:23-11 also affirmatively protects the rights of political
parties to associate freely, the court will not apply the traditionaland almost insurmountable
strict scrutiny standard to that provision. Instead, the court will ask whether the voter
registration requirement in N.J.S.A. 19:23-11 is justified by important regulatory interests.
Timmons, supra, 520 U.S. at 358.
With respect to the residency requirement contained in N.J.S.A. 19:23-11, its
associational purpose is simply not served by that provision. In addition, plaintiff has introduced
evidence showing that a significant number of Republicans or Democrats are excluded from
acting as circulators as a result of the requirement that circulators in partisan primary elections
reside in the political subdivision for which the petition is being circulated. Plaintiff used figures
from the City of New Brunswick as an example. As of February 26, 2013, there were 8,750
registered Democrats and 981 registered Republicans in New Brunswick. Statewide, as of
September 24, 2013, there were 1,825,751 registered Democrats and 1,093,836 registered
Republicans. Thus, it can be estimated that about 99% of the membership of each party is
excluded from participating in New Brunswicks primary elections solely as a result of the
geographical restriction of N.J.S.A. 19:23-11. This limitation constitutes a severe burden on
political expression for the same reasons discussed abovethe restriction limits the expression
rights of those individuals excluded from participation, and limits the rights of candidates to
utilize their out-of-district supporters to spread their political messages. Other courts have
reached a similar conclusion with respect to geographic restrictions in partisan primaries. See,
e.g., Lerman, supra, 232 F.3d at 14953 (applying strict scrutiny to witness residency
requirement for primary nomination petition); Krislov, supra, 226 F.3d at 863 (applying strict
26

scrutiny to Illinois law that required primary candidates for House of Representative seats to use
only registered voters from that House district as circulators). Political parties do have the right
to associate with like-minded individuals, but the geographic restriction improperly affects like-
minded party members living in different districts. The geographic residency restriction is thus
overbroad and severely burdens expression rights without serving any countervailing
associational interests. As a result, this provision must survive strict scrutiny review to be
constitutional.
At oral argument, counsel for the NJGOP suggested that the political parties within each
political subdivision are completely separate entities from the statewide Republican Party
Committee and should not be forced to associate with Republicans from other jurisdictions
within New Jersey. Every county has its own local Republican and Democratic committees, and
according to counsel for NJGOP, each is its own political party with its own associational rights.
This argument appears to be premised upon a convoluted understanding of the organization of
the parties under the election statutes and the party bylaws. However, the argument is
undermined by the practical reality that voters and candidates do not register as members of the
local partisan committees, but rather as members of the larger political party. For example, the
sample ballots for the New Brunswick elections that took place on November 5, 2013, available
on the website of the Middlesex County Clerk, list the local candidates as well as the state-wide
candidates under the Democratic or Republican labels.
1
No political party distinction is
made between the state-wide candidates and the local candidates. The fact that both parties are
organized by county and municipal level committees is not, in itself, proof that each local
committee is its own separate party.

1
This sample ballot was not submitted to the court by the parties. However, the court takes judicial notice of the
sample ballot for New Brunswick under N.J.R.E. 201(a), as it is a determination of a governmental subdivision.
27

Moreover, the State Committees are inextricably linked with the local committees in
terms of funding, campaign strategy, and ideologyindeed, NJGOPs assertion of the rights of
the local Republican committees is a testament to NJGOPs close bond with those committees.
And under N.J.S.A. 19:23-16, the candidates in partisan primaries must reside in the applicable
political subdivision to run in the elections. The fact that a Mercer County Republican could
circulate a petition in Middlesex County for a Middlesex County Republican primary candidate
does not impermissibly burden Middlesex County Republicans associational rights. Whatever
burden is placed upon Middlesex County Republicans as a result of this circumstance is far
smaller than the burden that would be placed upon them if, for instance, Democrats were
permitted to circulate petitions in Republican primaries. In addition, partisan primaries may
include candidates not associated with any local party committee. The associational rights of
such party candidates would surely be significantly burdened if out-of-county party supporters
were prevented from circulating petitions to help place the candidates on the partisan ballot.
Relatedly, counsel for the political parties have argued that under the N.J. Court Rules,
the court should not decide the validity of N.J.S.A. 19:23-11 without giving the local parties the
opportunity to participate in the litigation. According to counsel for the political parties, each
county and municipal party committee is a distinct entity from the state-wide party committee,
and the local committees are indispensable parties because they each have an associational
interest affected by this litigation. This argument must be rejected for a number of reasons.
First, as previously discussed, the rights of local party committees are only minimally affected by
the residential restriction on petition circulators. Under Rule 4:28-1, a party with an interest in
the subject of the action must be joined if its ability to protect that interest is impeded by that
partys absence. But here, the interests of the local committees have been adequately advanced
28

by the state party committees, which were strong advocates to uphold N.J.S.A. 19:23-11 in its
entirety. Moreover, courts have made election law rulings in the past with state and not local
party participation, even where those rulings affected local elections. For example, in Council of
Alternative Political Parties v. Division of Elections, supra, 344 N.J. Super. 225, the Appellate
Division held that an election law that benefitted the established Democratic and Republican
parties at the expense of smaller political parties was unconstitutional. The regulatory scheme
allowed county officials to recognize a voters party affiliation for only those parties that met the
definition of political party under the statute by obtaining 10% of the total vote in the previous
election for General Assembly. The Democrats and Republicans were made parties to the action
by a court order allowing intervention, joining the State at both the trial and appellate levels in
defending the statutory scheme. Id. at 230231. At no point in the opinion did the Appellate
Division ever address or even raise the concern that the parties were not adequately represented
by the failure to join the county and municipal committees, even though various election laws
benefitting Republicans and Democrats at all levels in New Jersey were struck down by the
court.
Second, the failure to join a party that has an interest in the litigation is only fatal to the
litigation if that party is considered indispensable. R. 4:28-1(b). Whether a party is
indispensable depends on the circumstances of the case. Courts weigh the following factors:
[F]irst, the extent to which a judgment rendered in the person's
absence might be prejudicial to that person or those already parties;
second, the extent to which, by protective provisions in the
judgment, by the shaping of relief, or other measures, the prejudice
can be lessened or avoided; third, whether a judgment rendered in
the person's absence will be adequate; fourth, whether the plaintiff
will have an adequate remedy if the action is dismissed for
nonjoinder.

[R. 4:28-1(b)].
29


The only one of these factors that weighs in favor of finding the local party committees
indispensable is the first. However, the only prejudice suffered by not participating in this
action is the ability to raise legal arguments in defense of the constitutionality of N.J.S.A. 19:23-
11. As previously noted, any prejudice as a result of the local committees absence is lessened
and perhaps totally obviated by the State Committees strenuous legal defense of N.J.S.A. 19:23-
11. On balance, it is difficult to see how the local party committees are indispensable to the
resolution of these summary judgment motions.
Finally, courts have allowed cases to proceed even in the absence of a necessary or
indispensable party. In Application of Mallon, 232 N.J. Super. 249, 25354 (App. Div. 1989), a
candidate challenged municipal election results in Ocean County, but failed to name the Ocean
County Clerk as a party. On appeal, the County Clerk intervened and argued that his absence
from the trial court proceeding was reversible error. The Appellate Division agreed that the
Clerk was a necessary party, but concluded that there was no prejudice in the omission of the
Clerk from the notice list because the clerk had ample knowledge of the suit. Id. at 254. In
this case each State Committee is given supervisory roles over the functions of the municipal and
county committees. For example, under Article XI of the NJDSC bylaws, adopted June 13,
2013, the State Committee is required to cooperate fully with all county and municipal
[Democratic] Party organizations. The bylaws state that, [a]ll activities carried on by any of
the [Democratic State Committee] Party officials which have a direct effect in a particular local
area shall be done with the full knowledge and cooperation of county and local Party officials.
And under the Preamble of the NJGOP constitution, NJGOP shares with Republican county and
municipal committees the common authority to receive and disburse moneys for the purpose of
maintaining Party organization, for publicizing the policies and candidates of the Republican
30

Party nominated at the primary election. Although the record before the court is silent as to
whether the local committees are aware of this litigation, the interrelatedness of the local parties
with the State Committees is a factor that weighs strongly against finding the local parties
indispensable. Moreover, while raised at oral argument, the political party defendants gave short
shrift to the argument concerning indispensable parties in the briefs. The point was only raised
by NJDSC, and less than two pages of argument were devoted to the issue in its moving brief.
Though addressed by plaintiffs opposition brief, NJDSC failed to mention the issue at all in
reply.
In sum, NJGOPs argument on this point is an elevation of form over substance. As
discussed in more detail below, the main regulatory interest in closed partisan primary elections
is to ensure that raiding does not occur by members of an opposing political party. Any
associational right that Middlesex County Republicans have to avoid associating with
Republicans from other counties in New Jersey is de minimus and not sufficient to outweigh the
burden imposed upon the First Amendment rights of candidates and supporters by the residency
restriction. In light of that severe burden, the court will apply strict scrutiny to the residency
requirement of N.J.S.A. 19:23-11.
d. Whether the General Election and Board of Education Circulation
Requirements (N.J.S.A. 19:13-7 and N.J.S.A. 19:60-7) and the Recall
Circulation Requirements (N.J.S.A. 19:27A-8(h) and N.J.S.A. 19:27A-9(a))
Survive Strict Scrutiny.

Under N.J.S.A. 19:13-7, 19:60-7, 19:27A-8(h), and 19:27A-9(a), circulators of petitions
nominating independent candidates for general elections, nominating board of election
candidates, and seeking to recall elected officials must be registered voters residing within the
political subdivision in which the election is taking place. To survive strict scrutiny, these
regulations must advance a compelling government interest or purpose. As discussed above, the
31

Chancery Division in Mercer County entered a consent order in Green Party of New Jersey v.
New Jersey, supra, MER-C-125-06, in which the State agreed to lift these same restrictions for
federal and state general elections. If a circulator in such an election does not need to be a
registered voter to circulate petitions, what purpose does maintaining the same restriction for
local elections serve? The answer is obvious. Furthermore, neither circulators in nonpartisan
municipal elections nor circulators in Faulkner Act municipalities are bound by these
requirements. See N.J.S.A. 40:45-5 to -21 and N.J.S.A. 40:45-8(b) (containing no qualifications
for circulators of nominating petitions in Faulkner Act towns). Thus, it is difficult to imagine
how the State has a compelling interest in imposing these requirements on circulators for
candidates seeking ballot access in the types of elections at issue in this case, when those same
requirements are simply not applied to other elections in New Jersey.
Indeed, the State has not even attempted to put forth compelling justifications for
requiring petition circulators to be registered voters residing in the relevant political subdivision
in the context of this case. In the absence of any compelling justification, there is no need for the
court to reach the second step of the strict scrutiny analysis, which asks whether the States
measures are narrowly tailored to achieve a compelling interest. Since the court finds no
compelling governmental interest as none has been proffered, the residency-within-the-district
and voter registration requirements of N.J.S.A. 19:13-7, N.J.S.A. 19:60-7, N.J.S.A. 19:27A-8(h),
and N.J.S.A. 19:27A-9(a) fail strict scrutiny and therefore constitute unconstitutional burdens on
protected freedom of speech and expression rights, in violation of the free speech guarantees of
the United States and New Jersey Constitutions.
The court holds that the portions of those provisions establishing residency and
registration requirements are unenforceable as applied to petition circulators. Those provisions,
32

however, remain enforceable as to signers of petitions. Indeed, EON has limited its challenges
to petition circulators and does not attack the election law requirements governing who may sign
the ballot access petitions. In practical terms, therefore, the courts holding removes the
requirement from the election laws that circulators of recall petitions and nomination petitions
for independent candidates in general elections and candidates in school board elections also be
signers of the petitions, although a circulator must still meet the other statutory requirements not
at issue in this litigation, such as the requirement under N.J.S.A. 19:13-7 that the circulator make
an oath that the petition was made in good faith, that he or she witnessed all of the signatures,
and that he or she believes that all the signers are duly qualified voters.
e. Whether the Residency and Registration Requirements Contained in N.J.S.A.
19:23-11 Survive Strict Scrutiny.

N.J.S.A. 19:23-11 governs nominating petitions for candidates in partisan primary
elections. As with the statutory provisions that have already been analyzed, this statute requires
that circulators be residents of the relevant political subdivision as well as registered voters. As
noted above, the strict scrutiny standard applies to the geographic residency requirement, which
fails strict scrutiny for the same reasons that the residency requirements in the other statutory
provisions discussed above also fail that standard. Thus, insofar as N.J.S.A. 19:23-11 contains a
geographical restriction on circulators for candidates running in local partisan primary elections,
it cannot be enforced.
The analysis differs with respect to the voter registration requirement of N.J.S.A. 19:23-
11, however. N.J.S.A. 19:23-11 requires circulators to be members of the requisite political
party which, as discussed above, is a reasonable guarantee of the political parties rights to freely
associate. Under the statutes, a person must be a registered voter to be a member of a political
party. Therefore, the voter registration provision of N.J.S.A. 19:23-11 protects the First
33

Amendment rights of political party members to freely associate and govern their own
nominating processes. As a result, a less exacting form of scrutiny applies to that provision,
which requires that the regulation be justified by an important regulatory interest. Timmons,
supra, 520 U.S. 351 at 358; see Maslow, supra, 658 F.3d at 296.
The States interests in allowing political parties to restrict access to the primary process
are well-established. The New Jersey Supreme Court explained these interests in detail in Smith
v. Penta, supra, 81 N.J. 65. Before the Court in that case was a statutory provision requiring
party affiliation to be declared 50 days before a primary election. In upholding the statute, the
Supreme Court explained that a closed primary system necessarily includes a party affiliation
requirement. The Court found that the right to vote guaranteed by the New Jersey Constitution
does not subsume an unfettered right to be involved in a party's internal decision-making
process, which is all that a primary election is. Id. at 73. The Court then detailed two important
interests furthered by the closed primary system. First, political parties should be permitted to
exclude persons from participation in their internal affairs in order to avoid an erosion in the
cohesive partisanship that is basic to the party's strength. Id. at 77. A political primary affords
an opportunity to adherents of some political philosophy to advance their goals, proselytize their
beliefs and seek to acquire or perpetuate their power. Ibid. The Court also recognized that the
state has a strong public interest in maintaining the integrity of the electoral process, by
preventing the phenomenon known as raiding, in which members of one party vote in the
primary election of the other party with the intention of nominating a weak candidate who could
probably be defeated by the candidate of their true party in the general election. Id. at 71, 77.
The Court concluded that these important interests sufficiently outweighed any interest the
plaintiffs had in participating in closed primaries. Id. at 78.
34

Federal courts have also recognized the states interests in restricting participation in
closed primaries to party members. In Rosario v. Rockefeller, 410 U.S. 752 (1973), the United
States Supreme Court recognized a states strong interest in protecting political parties from the
raiding of their closed primaries. The cases are legion in which the Supreme Court has
recognized and reaffirmed the rights of political parties to govern their own internal affairs. See,
e.g., Cal. Democratic Party v. Jones, 530 U.S. 567, 574-75 (2000); Timmons, supra, 520 U.S. at
357-58; Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 224 (1989);
Tashjian, supra, 479 U.S. at 216 n.6; La Follette, supra, 450 U.S. at 122. Moreover, as noted
above, courts have repeatedly affirmed the right of political parties to exclude non-members
from the primary process. See, e.g. Duke v. Cleland, supra, 954 F.2d at 1532 ( citation omitted)
([T]he inclusion of persons unaffiliated with a political party may seriously distort its collective
decisionsthus impairing the party's essential functionsand that political parties may
accordingly protect themselves from intrusions by those with adverse political principles.).
These underlying interests apply with equal force to petition circulators. Since political
parties clearly have the constitutional right to govern their own internal processes, which
includes the right to exclude people from participating in the primary process, it is reasonable to
exclude non-partisans from circulating nomination petitions in partisan primaries. As noted by
the New Jersey Supreme Court, parties have the right to proselytize their beliefs. Smith v.
Penta, supra, 81 N.J. at 77. The potential for a non-partisan to interfere with a primary election
by working to nominate a weak candidate, for example, would undermine that interest of the
parties. Also applicable to petition circulators is the States interest in preventing raiding. As
the New Jersey Supreme Court recognized, the participation in a partisan primary by a
nonpartisan opens the door to deleterious interference. By promoting the candidacy of a weak
35

candidate, the non-partisan circulator could influence the primary election in a way that
improperly interferes with a partys right to determine its own philosophical views and to
promote its own political power. Moreover, it undermines the integrity of the primary process.
See Smith v. Penta, supra, 81 N.J. at 71 ([A] candidacy determined by the votes of nonparty
members . . . . is, in practical effect, a fraudulent candidacy.) (citing Rosario v. Rockefeller, 458
F. 2d 649, 652 (2d Cir. 1972), aff'd 410 U.S. 752 (1973)). Indeed, the Second Circuit recently
echoed these concerns about raiding in the context of petition circulators. Maslow, supra, 658
F.3d at 294 (upholding a law that required petition circulators in partisan primary elections to be
enrolled voters of the same political party, while recognizing that the laws underlying purpose is
to prevent incidents of party raiding.).
Balanced against the States important regulatory interest in protecting the primary
processes of political parties by excluding circulators who are not members of the applicable
party is a decidedly weak interest those non-members have in participating in primaries. It is
clear that voters have no right to vote in the primary of any particular political party unless they
are members of that political party as reasonably defined by the Legislature. Stevenson v.
Gilfert, 13 N.J. 496, 500 (1953). Moreover, a person interested in circulating a petition for a
favored candidate may still do so in the subsequent general elections if that candidate obtains
access to the ballot. EON argues that although the voter registration requirement of N.J.S.A.
19:23-11 should be voided, the court should still require circulators in partisan primaries to be
party adherents as defined by the parties bylaws. However, EONs argument ignores that
under New Jerseys complex election law scheme, partisan primaries are governed by statute,
and the method by which the statutes identify party membership is through voter registration
under N.J.S.A. 19:23-45. This approach reasonably furthers the States important regulatory
36

interest of protecting closed partisan primaries from interference by non-party members by
providing a reliable and verifiable way for the parties and election officials to identify party
membership. On balance, the States important regulatory interests are sufficient to sustain the
voter registration requirement of N.J.S.A. 19:23-11 under the United States and New Jersey
Constitutions. See Tashjian, supra, 479 U.S. at 216 n.6 ([T]he nonmember's desire to
participate in the party's affairs is overborne by the countervailing and legitimate right of the
party to determine its own membership qualifications.).
The court will thus partially grant plaintiffs motion for summary judgment. In addition
to the relief discussed above in the context of the statutory provisions set forth at N.J.S.A. 19:13-
7, 19:60-7, 19:27A-8(h), and 19:27A-9(a), the provisions set forth at N.J.S.A. 19:23-11 shall not
be enforced to the extent that they require a circulator of a nomination petition in a local partisan
primary election to reside within the district in which the candidate is seeking office. However,
the court also partially grants the cross-motions for summary judgment submitted by the State,
NJDSC, and NJGOP. The requirement of N.J.S.A. 19:23-11 that a circulator of a nomination
petition in a local partisan primary election be a qualified voter with the appropriate party
affiliation will remain enforceable.
f. Plaintiffs Request for Further Relief, and the State Defendants Cross-Motion
for Summary Judgment.

In their motions, both plaintiff and the State defendants ask the court for broad injunctive
relief that calls for new requirements for petition circulators that are not explicitly contained in
any of the challenged statutory provisions. On the one hand, plaintiff asks for injunctive relief to
specifically expand the scope of permissible petition circulators in New Jersey to include older
youths under voting age, individuals residing within other states, and noncitizens. According to
plaintiff, since the challenged laws currently limit circulators to people registered to vote in New
37

Jersey, the statutes by necessity prevent these other classes of people from circulating petitions in
the State. Plaintiff argues that under the free speech guarantees of the Federal and State
Constitutions, these individuals must be allowed to circulate petitions in New Jersey. Plaintiff
also argues that there is no rational basis for not allowing older youth to circulate petitions for
the elections governed by these statutes, when they may freely circulate petitions under different
statutes and when they may participate in the balloting and election process through canvassing
and other means.
The court denies plaintiffs age, state residency, and citizenship based arguments with
respect to N.J.S.A. 19:23-11, governing partisan primary elections. The court is upholding that
provisions voter registration requirement because there is an important government interest in
protecting the political parties freedom of association rights. As discussed above, the statute
ensures that only partisans circulate nomination petitions by requiring those circulators to be
registered voters of the applicable political party. Young people under the age of eighteen,
nonresidents, and non-citizens are permissibly excluded from this process for the same reasons
that eligible but not-registered voters are excludedto protect the associational rights of the
parties. Under New Jersey law, voter registration is the primary method by which party
affiliation is determined. Since young people under the age of eighteen, non-citizens, and people
who live outside of New Jersey cannot register to vote in this State, it is reasonable to exclude
them from circulating petitions in partisan primary elections. Again, there has been no precedent
cited by plaintiff where a court has found a voter registration requirement to circulate nomination
petitions for partisan primaries unconstitutional.
The remaining statutes at issue in this case affect young people, non-New Jersey
residents, and noncitizens insofar as they require that a circulator be registered to votea voter
38

must be a resident of the State who is at least eighteen years old and a citizen to be entitled to the
franchise under the New Jersey Constitution and to be entitled to register to vote under N.J.S.A.
19:4-1, 19:31-1, and 19:31-5. Plaintiff asks the court for a declaratory judgment and injunctive
relief preventing the State from regulating petition circulators by age, state residency, or
citizenship.
2
But if the court were to strike the voter registration requirement from the statutes
effective immediately, as plaintiff requests, there would be a resulting lack of regulation in
regard to the minimum age, residency and citizenship of circulators. The case law on limiting
circulators based on these categories is slim or non-existent.
3

Moreover, defendants have raised questions as to plaintiffs standing to challenge the
implicit requirements in the challenged circulation statutes as they pertain to youths under the
age of eighteen, out-of-state residents, and noncitizens. EON failed to allege facts in the second
amended complaint sufficient to establish its standing with respect to these categories of people
who are implicitly excluded from circulating ballot access and recall petitions under the
challenged statutes. Although EON has submitted a certification identifying two non-citizens
who were precluded from circulating petitions and one individual who was precluded as a youth
under the age of eighteen, the certification is silent with respect to any out-of-state residents who
were harmed by these statutes. And, as noted above, there are few precedents establishing First
Amendment rights to circulate ballot access and recall petitions for individuals who are not

2
This claim was not raised by plaintiff in the second amended complaint, which only seeks declaratory relief
adjudging the challenged statutes as unconstitutional and requests injunctive relief to prevent enforcement of those
statutes. The argument is addressed here because in the course of the briefing and argument on plaintiffs motion
for summary judgment, plaintiff has requested this further injunctive relief relating to youths, non-residents, and
noncitizens.
3
Perhaps as a result of its recognition of the lack of First Amendment case law relating to excluding these categories
of people as circulators of ballot access petitions, plaintiff has also raised equal protection arguments against the age,
residency, and citizenship requirements implicit in these statutes. However, the statutes, as written, do not
specifically exclude youth under the age of eighteen and nonresidents from circulating petitions. Thus, by striking
the voter registration requirement from the statutes, there will be a resulting lack of regulation regarding the other
categories. The basis for plaintiffs equal protection claims would be undermined by the unenforceability of the
statutory provisions found unconstitutional by this court.
39

eligible to vote, andrelatedlyfew precedents as to the level of scrutiny to apply to such novel
challenges. In light of these concerns, coupled with the courts determination to provide the
Legislature with the opportunity to address these limitations, as discussed infra, the court will not
reach plaintiffs argument challenging the age, State residency, and citizenship requirements
implicit within the challenged statutes at this time. Depending upon the future action or inaction
of the Legislature, there may be no reason for the court to review these implicit statutory
requirements. See Comm. to Recall Robert Menendez From the Office of U.S. Senator v. Wells,
204 N.J. 79, 95 (2010) (Courts strive to avoid reaching constitutional questions unless required
to do so.); Randolph Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80 (2006) (Courts
should not reach a constitutional question unless its resolution is imperative to the disposition of
litigation.).
On the other hand, the State asks the court for permanent injunctive relief mandating that
petition circulators in general elections, school board elections, and recall initiatives be voter-
eligible (as distinct from registered-to-vote) residents of New Jersey. The State casts its motion
as a request to make permanent the October 3, 2012 preliminary injunction, which suspended
enforcement of the challenged statutes but required, pending further court order, that petition
circulators be New Jersey residents. As noted, the statutes at issue here implicitly require
petition circulators to be at least eighteen-year old New Jersey residents who are United States
citizens. The States motion essentially requests that the court save those implicit
requirements of the statute. When determining whether to excise only part of a statutory
provision and save the rest, the primary inquiry is into legislative intent. Town of Secaucus v.
Hudson Cnty. Bd. of Taxation, 133 N.J. 482, 501 (1993) ([S]everance of the population
requirement of N.J.S.A. 18A:54-37 would be justified only if the legislative intent [of the
40

statute] will be more nearly realized by exscinding this provision than by declaring the entire
statute unconstitutional.) (quoting Vreeland v. Byrne, 72 N.J. 292, 301 (1977)); N.J. State
Chamber of Commerce, supra, 82 N.J. at 75 ([T]he question that should properly be answered
where a statute apparently contains a fatal constitutional defect [is]: Would the Legislature want
the statute to survive?). When construing a statute, the court should not write additional
qualifications omitted by the Legislature. St. James v. Dept of Envtl. Prot. and Energy, 275
N.J. Super. 342, 350 (App. Div. 1994).
Invalidating the voter registration requirement of these provisions would create a gap in
the election laws because the restrictions on circulators would be completely removed. The
practical effect of the invalidation would be to allow people to circulate and authenticate
petitions without also signing those petitions, because no party is challenging the requirement
that the signers of petitions meet the registration and residency requirements.
4
This predicament
would allow anyone to verify the signatures on petitions as a witness. It is not clear to the court
that the Legislature would condone this absence of regulation for the circulation statutes
challenged in this case. Consequently, the Legislature should be provided the opportunity to fill
this statutory gap. It is true that in other districts in New Jersey governed by different statutory
provisions, there are no age, residency, or citizenship requirements for circulators. See N.J.S.A.
40:45-8(b) (Uniform Nonpartisan Elections Law) (containing no requirements for circulators of
nomination petitions in these districts, instead requiring only that the candidate and campaign
manager make an oath certifying the petition and permitting candidates to circulate petitions

4
Even with respect to partisan primary petitions, the courts holdings mean that circulators do not necessarily have
to sign those petitions. Since the voter registration requirement for these petitions remains valid, it is up to the
election officials to determine how to implement the courts ruling. For instance, the election officials could simply
require the affiant/circulator to submit proof of his or her voter registration, which could then be checked by the
responsible election official to confirm that the circulator has registered as a voter of the same political party as the
candidate for whom the voter is circulating petitions in a partisan primary election.
41

themselves if they so choose); N.J.S.A. 40:69A-186 (a circulator need not sign a recall or
initiative petition in a Faulkner Act district, and mustwith no age, residency, or citizenship
limitationsprovide an affidavit authenticating the signatures of the petition). But the voter
registration requirements in the particular statutes challenged in this case constitute evidence of
the general legislative intent to ensure the reliability of witnesses who certify to the signatures of
the petitions in the applicable districts. Although, as discussed in more detail below, the methods
by which that goal should be attained in the absence of the voter registration requirement are
open to question, the general intent to protect the integrity of the nomination and recall petition
process through regulating circulators is clearly discernible from the text of the statutes.
That general legislative intent is consistent with the States important interests in
furthering the integrity and stability of the petition process. See Timmons, supra, 520 U.S. at
366 (States . . . have a strong interest in the stability of their political systems.). Defendants
cite that interest as well as the States interest in ensuring the confidence of its citizens in the
petition process, and argue that circulators are the individuals entrusted with the responsibility
to protect against petition irregularities and are the first line of defense against potential
election fraud. See generally Sadloch v. Allan, 25 N.J. 118, 129 (1957) (The Election Law
should be construed liberally to accomplish its salutary purposes . . . . One of these purposes is
to purify the politics of the State by preventing fraud and wrongdoing in the nominating
procedure.). Specifically, petition circulators are important because they certify to the validity
of the signatures on the petitions as a witness to those signatures. Indeed, courts have repeatedly
recognized the importance of the signature verification requirement to the nomination by petition
process. State v. Toland, 123 N.J. Super. 286, 289 (App. Div. 1973) (affirming defendants
conviction for falsely making a nomination petition by knowingly notarizing a nomination
42

petition that was fraudulently certified by the purported circulators); In re Chirico, 87 N.J. Super.
587, 594 (App. Div. 1965) ([W]e are satisfied that the verification is an essential part of the
petition.); McCaskey v. Kirchoff, 56 N.J. Super. 178 (App. Div. 1959) (holding petition invalid
because of forged signatures, false witness testimony, and the failure of all affiants to actually
witness all the signatures). Thus, the court will maintain the status quo as to these requirements
temporarily in order to afford the Legislature an opportunity to address the gap created by the
courts decision in this case. To achieve this goal, the court will issue a temporary injunction
requiring petition circulators regulated by the challenged statutes to be voter-eligible for a
limited time. See N.J. State Chamber of Commerce, supra, 82 N.J. at 81 (narrowly interpreting
campaign regulation to render it constitutional, and acknowledging intervention in the legislative
domain to salvage the Legislatures own product consistent with Legislative intent); Camarco
v. Orange, 61 N.J. 463, 466 (1972) (explaining that in narrowly construing an ordinance to save
it under the Constitution, lower court recognized traditional judicial principles which have been
geared to the fair assumption that the wishes of the legislative body would be furthered by
upholding its proscriptive goals to the extent constitutionally permissible.).
Such an approach acknowledges that while the courts deletion of the voter registration
requirement from the challenged statutes to further important constitutional principles leaves a
gap in regulation, the exact parameters of the regulation to protect the integrity of the petition
process should be left to the Legislature. While the State asks the court to substitute its judgment
for that of the Legislature, the task at hand is one of drawing lines, which is a quintessential
legislative responsibility. See State ex rel. J.P.F., 368 N.J. Super. 24, 42 (App. Div. 2004) (The
line drawing urged by [cross-appellant] is a legislative, not judicial, function.); Commercial
Realty and Res. Corp. v. First Atlantic Properties Co., 235 N.J. Super. 577, 592 (App. Div. 1989)
43

([T]he primary responsibility for line-drawing . . . is vested in the legislature.) (quoting
Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408 (1989)).
Perhaps the Legislature will decide upon further review following this decision that seventeen-
year olds should be allowed to circulate these petitions, or sixteen or fifteen-year olds. Or
perhaps the Legislature will conclude that petition circulators must be voter eligible, New Jersey
residents, as urged by the State. The Legislature may even decide to allow any person without
limitation to sign an affidavit authenticating the signatures on the petitions, as it currently allows
in Faulkner Act districts. N.J.S.A. 40:69A-186. This court is not prepared to permanently
impose additional requirements on petition circulators without any legislative guidance on the
issue. See Serrano v. Serrano, 183 N.J. 508, 518 (2005) (There is a fine line between
interpreting statutory language and engrafting a judicial standard over that language.). Indeed,
the court views the parties application to the court to take such a step as an invitation to act that
goes beyond appropriate judicial consideration.
There is certainly no constitutional imperative that petition circulators be permanently
limited to voter-eligible State residents. Cf. S. Burlington County NAACP v. Mt. Laurel, 92 N.J.
158, 201, 205, 271 (1983) (Mt. Laurel II), (explaining that a judicially crafted remedy was
necessary to protect constitutional rights as a result of problems implementing the holdings of a
prior Court decision that were aimed at securing constitutional rights). The State cites the New
Jersey Constitution and statutory requirements for voter eligibility and asserts, in conclusory
fashion, that it is necessary to extend those same requirements to ballot access petition
circulators. However, the State offers no support for its assertion, and the existence of voter
eligibility requirements in the Constitution and State election statutes does not mandate that the
court impose those same requirements on petition circulators. As noted above, for example, the
44

restrictions imposed on circulators in New Jerseys election laws are not uniform. Indeed,
circulating petitions is primarily a freedom of speech issue and does not necessarily implicate the
right to vote as guaranteed by the New Jersey Constitution. While the court agrees with the
defendants regarding the importance of protecting the integrity of the petition process by
ensuring the reliability of petition circulators, the policy choice by which to attain that critically
important goal belongs to the Legislature. Notably, the record before the court does not explain
how the restrictions advanced by the State would achieve the goals it has articulated, or whether
they are the only restrictions that would accomplish those goals.
As discussed above, the courts struggle with the parties requests for relief in regard to
the gap in regulation caused by the partial invalidity of the challenged statutes is caused by the
difficulty in ascertaining the Legislatures intent as to how it would fill that gap, if at all. This
difficulty is exacerbated by the way in which the New Jersey election laws regarding circulation
were written. In contrast, laws that overtly separate each requirement to act as a circulator do not
present this problem. For instance, in Buckley, supra, 525 U.S. at 189 n. 2, Colorado law stated
that a ballot-initiative circulator must be a registered elector and at least eighteen years of age at
the time the [petition] is circulated. Because the statute separated the two requirements, the
Court of Appeals was able to sustain the age-restriction provision while striking the registered
elector provision. There, it was evident that the Colorado Legislature intended that circulators
be at least eighteen years old, in addition to the requirement that they be registered voters. But in
this case, it is not as easy to discern legislative intent because any age restriction for petition
circulators in the challenged New Jersey election laws is only implicit, and the Legislature has
not clearly expressed its intent as to whether it would enforce an age, State residency, or
citizenship requirement in the absence of the voter registration requirement. Notably, the policy
45

reasons for requiring registered voters to circulate petitions may not be the same as the policy
justifications for requiring adults to circulate petitions. The Legislature clearly intended through
enacting these laws to prevent non-registered voters, including youths under eighteen,
nonresidents, and noncitizens from circulating nominating and recall petitions for these types of
elections, but it is not clear that the Legislature would still make the same policy choice to
exclude these groups now that it may not prevent non-registered voters from circulating
petitions. And that policy choice is properly within the powers of the Legislature. N.J. State
Chamber of Commerce, supra, 82 N.J. at 99 (Scheiber, J., dissenting) (Courts should exercise
the utmost restraint in re-writing legislation to accord with their concepts of what is fair and
equitable. If there is any area in which this principle should be applied, it is rewriting legislation
intruding upon free speech which occurs as a part of the political process.).
Thus, the court is in the difficult position of acknowledging a clear gap in the regulation
of circulators that will be created by the implementation of its rulings in this case, while not
being able to discern from the text of the statutes the means by which the Legislature would
permanently address the issue. As a result, the gaps in the election law circulator statutes will be
temporarily filled by this court, which will require that petition circulators meet the implicit
condition of voter eligibility for a limited time after this decision is issued. See N.J. State
Chamber of Commerce, supra, 82 N.J. at 86 (holding that order invalidating regulation will not
be effective for 90 days, to provide the agency time to adopt appropriate regulation); State v. De
Santis, 65 N.J. 462, 473 (1974) (grafting new standard onto obscenity law to make it
constitutional [p]ending further legislative action). This approach will allow sufficient time
for the Legislature to fill the gaps in the statute that would result from complete invalidation of
the voter registration requirements, if it chooses to do so. Cf. Lewis v. Harris, 188 N.J. 415, 463
46

(2006) (providing the Legislature 180 days to implement the Courts holding that the New Jersey
Constitution requires that same-sex couples be provided access to the same benefits as opposite-
sex married couples, by either amending the marriage statutes or enacting a new statutory
structure); Mt. Laurel II, supra, 92 N.J. at 278 (directing trial courts finding zoning ordinances
unconstitutional to provide municipalities sufficient time to revise the ordinances before ordering
judicial remedies).
The court will consequently enter a temporary injunction requiring circulators under the
challenged statutes to be voter-eligible until December 31, 2014. This time period will provide
the Legislature with ample time to consider and implement new legislation regarding circulators
if it decides to fill the gap created by this courts rulings and will ensure that the officials
planning for the November 2014 elections will be able to prepare the nomination and recall
petition procedures in accordance with this courts decision and the accompanying order. If the
Legislature fails to act before December 31, 2014, such inaction will demonstrate its intent that
age, state residency, and citizenship-based restrictions on petition circulators are unnecessary, at
least until further legislative action on the subject. See NYT Cable TV v. Homestead at
Mansfield, 111 N.J. 21, 32 (1988) ([W]hen a court decides a case that forces the legislature to
respond, it not only galvanizes the legislature into action when it would, reasonably, prefer not to
take action, but reorders legislative priorities.). If the Legislature chooses to implement new
restrictions on petition circulators, be they age, residency, or citizenship-based, the legality of
those regulations may be decided by the courts only after the Legislature imposes such
limitations and a plaintiff with standing challenges them in court. In addition, the Legislature
47

may develop an alternative method of assuring the reliability of petition witnesses that does not
depend on the individual characteristics of the circulators.
5

Therefore, the court will order that under the challenged statutes in this case, petition
circulators must remain voter-eligible until December 31, 2014, or until the Legislature imposes
new requirements, whichever comes earlier. This temporary injunction is designed to provide
the Legislature with the opportunity to make the policy choices necessary to impose any
permanent restrictions on circulators in these districts without removing the voter-eligibility
requirement for petition circulators until the Legislature is afforded time to act. After the
injunction is lifted, any further restrictions on circulators will be determined by the action or
inaction taken by the Legislature.
CONCLUSION
For the reasons discussed above, plaintiffs motion for summary judgment is granted in
part and denied in part. The residency and registration requirements for petition circulators
contained in N.J.S.A. 19:13-7, 19:60-7, 19:27-9(a), and 19:27-8(h) are unconstitutional
infringements on the freedom of speech and freedom of association rights guaranteed by the
United States and New Jersey Constitutions, and are therefore unenforceable. In addition, the
residency requirement contained in N.J.S.A. 19:23-11 is unconstitutional and unenforceable.
However, the voter registration requirement of N.J.S.A. 19:23-11 is lawful and shall remain

5
For example, the Legislature may follow the approach that was described by the Fourth Circuit in Libertarian Party
of Va., supra, 718 F.3d at 318. There, the court noted that Virginia could ensure that its courts have jurisdiction over
out-of-state petition circulators by requiring the circulators to voluntarily submit to the jurisdiction of Virginia courts
when filing a petition. Ibid. ([F]ederal courts have generally looked with favor on requiring petition circulators to
agree to submit to jurisdiction for purposes of subpoena enforcement, and the courts have viewed such a system to
be a more narrowly tailored means than a residency requirement to achieve the same result.) (citation omitted).
The Legislature may also choose to require petition circulators in these elections to submit affidavits authenticating
the petitions with no additional restrictions on who may make those affidavits, as it currently allows in Faulkner Act
districts. N.J.S.A. 40:69A-186.

48

enforceable. Therefore, the cross-motions filed by the State, NJGOP, and NJDSC are granted in
part, and denied in part.
Plaintiffs request for further relief guaranteeing the right of older youths, noncitizens,
and non-New Jersey residents to circulate petitions in New Jersey is denied, because there is no
need for the court to reach that constitutional issue at this time. Similarly, the court denies the
States request to permanently limit the permissible realm of petition circulators to voter-eligible
New Jersey residents. Although the States requested holding may or may not constitute sound
policy, there has been no explicit legislative expression of an intent to impose the voter-
eligibility requirement, and the imposition of further permanent regulations on petition
circulators requires line-drawing and policy-making, which are both outside the purview of this
court. Nonetheless, temporary injunctive relief is granted to provide the Legislature sufficient
time to address the statutory gap engendered by the unconstitutionality and unenforceability of
aspects of N.J.S.A. 19:13-7, 19:60-7, 19:27-9(a), 19:27-8(h), and N.J.S.A. 19:23-11.