McCormick & Mazo challenge dismissal of ballot rigging lawsuit

Lawyers at the Institute for Free Speech in Washington, DC, have filed an appeal on behalf of Rutgers University Law professor Eugene Mazo and Lisa McCormick in a case challenging New Jersey’s corrupt primary ballot rigging system, which lets some contenders have unfair advantages over other candidates running for the same office.

"Our attorneys filed the opening brief at the United States Court of Appeals for the Third Circuit, which gives the Secretary of State 30 days to answer," said McCormick, one of New Jersey's leading progressive champions.

McCormick explained that New Jersey law allows candidates in primary elections for Congress to include a slogan of up to six words, which is used to rig the ballot by grouping contenders who use the same slogan in a more favorable position.

"While the practice is unwise and unfair, the law includes a clearly unconstitutional prohibition on slogans that name any person or any incorporated entity without their permission," said McCormick, who earned almost 40 percent of the vote in her 2018 primary against incumbent US Senator Bob Menendez, who survived a federal corruption indictment only with a hung jury. "This lawsuit challenges the power to own the rights to names for ballot slogans and exclude others from using them, but its real purpose is to stop powerful political bosses from cheating."

Although the U.S. District Court of New Jersey dismissed their claim on a technicality, it could prove to be an advantage for Mazo and McCormick to have their complaint bumped up to the appellate circuit without all the time and effort that would have been required for a district court trial.

Since the two Democrats allege the content-based speech restrictions for candidate slogans on New Jersey primary election ballots violate the First and Fourteenth Amendments to the Constitution, the higher court may not need a lot of evidence or testimony to see an apparent reason to nullify the law.

"The state statutes control the content of a candidate’s ballot slogan, so they are an unconstitutional restraint on political speech," said McCormick. "Everything built on a shoddy foundation crumbles when that bedrock falls apart, and the corrupt laws that cheat voters out of a fair election should collapse when they come under federal judicial scrutiny."

Walter M. Luers—a prominent New Jersey lawyer who has championed the public's right of access to government records—and Institute for Free Speech trial attorney Ryan Morrison are representing McCormick and Mazo in the litigation.

After the state files a reply brief, lawyers for McCormick and Mazo will get an opportunity to respond in writing and then oral argument in the matter will be scheduled before a three-judge panel.

McCormick said she supports a separate lawsuit making a head-on assertion that New Jersey’s primary election ballots are rigged because they allocate unfair advantages to some candidates to the detriment of anyone else.

Mazo sought the Democratic nomination for the U.S. House of Representatives in New Jersey’s 10th Congressional District. Mazo submitted three slogans, but all were rejected by state officials because each named an incorporated entity. To avoid having no slogan appear on the ballot, Mazo did what other candidates do: he registered corporations named after slogans he wished to use.

“I have studied American democracy as a scholar, a voter, and now as a political candidate. And what I can tell you is that New Jersey’s ballot restrictions are unconstitutional,” said Mazo. “Simply put, they violate the First Amendment. My goal in filing this lawsuit is to create an equal playing field for candidates of diverse political views who believe, as I do, that free speech is sacred. Under our Constitution, New Jersey has no right to regulate what a political candidate can say to his or her voter.”

Lisa McCormick was seeking the Democratic nomination in the 12th Congressional District when state officials denied her choice of slogan – “Not Me. Us.” – because she did not have permission from the incorporated entity organized under that name.

A second slogan naming Bernie Sanders was also rejected because she did not have the Vermont Senator's permission to use his name. Ultimately, McCormick used the slogan, “Democrats United for Progress.”

Despite progressive losses in the past, McCormick said, "A change is inevitable for New Jersey’s corrupt system of primary elections and the powerful party bosses who made it that way."

The United States Court of Appeals for the Third Circuit serves the areas of New Jersey, Pennsylvania, Delaware, and the Virgin Islands.

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