ANDY KIM, in his personal capacity as a candidate for U.S. Senate v. Christine Giordano Hanlon

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 24-1594
_______________
ANDY KIM, in his personal capacity as a candidate
for U.S. Senate;
ANDY KIM FOR NEW JERSEY;
SARAH SCHOENGOOD;
SARAH FOR NEW JERSEY; CAROLYN RUSH;
CAROLYN RUSH FOR CONGRESS
v.
CHRISTINE GIORDANO HANLON, in her official capacity
as Monmouth County Clerk;
SCOTT M. COLABELLA, in his official capacity as Ocean
County Clerk;
PAULA SOLLAMI COVELLO, in her official capacity as
Mercer County Clerk;
MARY H. MELFI, in her capacity as Hunterdon County
Clerk;
STEVE PETER, in his official capacity as Somerset County
Clerk;
HOLLY MACKEY, in her official capacity as Warren
County Clerk;
NANCY J. PINKIN, in her official capacity as Middlesex
County Clerk;

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JOSEPH J. GIRALO, in his official capacity as Atlantic
County Clerk;
JOHN S. HOGAN, in his official capacity as Bergen County
Clerk;
JOANNE SCHWARTZ, in her official capacity as Burlington
County Clerk;
JOSEPH RIPA, in his official capacity as Camden County
Clerk;
RITA ROTHBERG, in her official capacity as Cape May
County Clerk;
CELESTE M. RILEY, in her official capacity as Cumberland
County Clerk;
CHRISTOPHER J. DURKIN, in his official capacity as
Essex County Clerk;
JAMES N. HOGAN, in his official capacity as Gloucester
County Clerk;
E. JUNIOR MALDONADO, in his official capacity as
Hudson County Clerk;
ANN GROSSI, in her official capacity as Morris County
Clerk;
DANIELLE IRELAND-IMHOF, in her official capacity as
Passaic County Clerk;
JOANNE RAJOPPI, in her official capacity as Union County
Clerk;
DALE CROSS, in his official capacity as Salem County
Clerk;
JEFF PARROTT, in his official capacity as Sussex County
Clerk;
NEW JERSEY SECRETARY OF STATE;
CAMDEN COUNTY DEMOCRATIC COMMITTEE
Camden County Democratic Committee,
Appellant

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_______________
On Appeal from the United States District Court
For the District of New Jersey
(D.N.J. No. 3-24-cv-01098)
District Judge: Honorable Zahid N. Quraishi
_______________
Argued
April 12, 2024
Before: JORDAN, KRAUSE, and FREEMAN, Circuit
Judges
(Filed: April 17, 2024)
_______________
Alyssa Lott
William M. Tambussi [ARGUED]
Brown & Connery
360 N. Haddon Avenue
P.O. Box 539
Westmont, NJ 08108
Counsel for Camden County Democratic Committee
Yael Bromberg
Bromberg Law
43 W. 43rd Street – Suite 32
New York, NY 10036

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Flavio L. Komuves
Bret M. Pugach [ARGUED]
Weissman & Mintz
220 Davidson Avenue – Suite 410
Somerset, NJ 08873
Counsel for Andy Kim, Andy Kim for New Jersey,
Sarah Schoengood, Sarah For New Jersey,
Carolyn Rush, and Carolyn Rush For Congress
Matthew Tavares
Rainone Coughlin Minchello
555 U.S. Highway One South
Suite 440
Iselin, NJ 08830
Counsel for Paula Sollami Covello
Jennifer Borek
Daniel A. Lebersfeld
Genova Burns
494 Broad Street
Newark, NJ 07102
Counsel for Christopher J. Durkin, and Joanne Rajoppi
Neal K. Katyal
Sean M. Marotta [ARGUED]
Eric S. Roytman
Hogan Lovells US
555 Thirteenth Street NW
Columbia Square
Washington, DC 20004
Counsel for Amicus Curiae, Middlesex County
Democratic Organization

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Matthew C. Moench [ARGUED]
King Moench & Collins
51 Gibralter Drive
Suite 2F
Morris Plains, NJ 07950
Oliver D. Roberts
Jason B. Torchinsky
Holtzman Vogel Baran Torchinsky & Josefiak
2300 N Street NW – Suite 643-A
Washington, DC 20037
Counsel for Amicus Curiae, Laura Ali,
New Jersey Republican Chairs Association,
Morris County Republican Committee, and
Jose Arango
Scott D. Salmon
Jardim Meisner & Susser
30B Vreeland Road – Suite 100
Florham Park, NJ 07932
Counsel for Amicus Fulop for Governor
Ronald K. Chen
Rutgers University
Constitutional Litigation Clinic
123 Washington Street
Newark, NJ 07102
Counsel for Amicus Election Law Clinic
At Harvard Law School

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Nuzhat J. Chowdhury
Ryan P. Haygood [ARGUED]
Henal Patel
New Jersey Institute for Social Justice
60 Park Place – Suite 511
Newark, NJ 07102
Micauri Vargas
Apartment 4
108 Pine Street
Montclair, NJ 07042
Counsel for Amici League of Women
Voters of New Jersey, Salvation and Social
Justice, New Jersey Alliance for Immigrant
Justice, New Jersey Policy Perspective,
AAPI New Jersey, Asian American Legal
Defense and Education Fund, Asian American
Advancing Justice AAJC
Angelo A. Stio, III
Troutman Pepper
301 Carnegie Center – Suite 400
Princeton, NJ 08543
Counsel for Amici Joe Cohn, Staci Berger,
James Solomon, Valerie Vainerihuttle

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Jeanne LoCicero
Liza F. Weisberg
American Civil Liberties Union of New Jersey
P.O. Box 32159
Newark, NJ 07102
Counsel for Amicus American Civil
Liberties Union of New Jersey
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
This is an appeal from a preliminary injunction directed
at county clerks in New Jersey, the people responsible for
choosing the form of election ballots in that state. Securing a
local political party’s endorsement is important in every
primary election, but it is nowhere more important than in New
Jersey, where endorsements and ballot placement on the so-
called “county line” have significant electoral value. Voters
must navigate complex and sometimes contradictory ballots in
order to vote for candidates who are left off the county
line. This structure of preferential treatment – with candidates
chosen by local party leaders eligible for prime ballot
placement by county clerks – favors the Democratic and
Republican political parties and their leaders, which suggests
why this appeal continues even after the county-clerk
defendants have all withdrawn. The sole remaining appellant,
the intervenor-defendant Camden County Democratic
Committee (the “CCDC” or the “Committee”), is fighting to
maintain the county-line-style ballots, but we are persuaded
that the District Court’s thorough and carefully reasoned

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opinion reflects no abuse of discretion, so we will affirm the
preliminary injunction.
I. BACKGROUND
New Jersey’s primary election ballots are unique.
Every state in the Union, except for New Jersey, uses what is
called an “office-block” design for their ballots. That design
groups candidates by the offices for which they are running.
But New Jersey, in nineteen of its twenty-one counties,1 groups
candidates together in columns (or rows) based on the “slogan”
they choose. Candidates who choose the same slogan, and thus
opt to be “bracketed” together, will appear in the same column
(or row). N.J. Stat. Ann. §§ 19:23-6, 19:49-2. Certain slogans
are reserved and require approval to adopt – as relevant here,
the slogan of the county party. Id. § 19:23-17. In practice, the
county party allows only those candidates it has endorsed to
adopt its slogan. Once candidates have chosen their slogans,
they are placed in columns (or rows) from left to right (or top
to bottom) alongside those in their bracket. Preferential
column (or row) placement is given to bracket groups
containing “pivot candidates,” those candidates who are
running for a specific office.2 Those candidates who have
adopted the county party’s slogan typically appear in a full (or
almost-full) slate of candidates known as the “county line,” and
because that bracket group usually contains a pivot candidate,
1 Salem County and Sussex County currently use the
office-block design for their primary election ballots.
2 In 2024, pivot candidates are those running for a U.S.
Senate seat. See N.J. Stat. Ann. § 19:23-26.1.

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it is almost always eligible for a coveted position on the left (or
top) of the ballot.
Even apart from its placement, the county line itself
carries weight, as it visually signals to voters the candidates
whom the county’s political leadership favors and typically
includes “incumbents, other highly-recognizable names, and
‘party elites[.]’” (App. at 68.) Non-pivot candidates who do
not obtain a spot on the county line and choose not to be
bracketed with a pivot candidate are often placed in more
obscure parts of the ballot to the right (or bottom) of the county
line, colloquially referred to as “Ballot Siberia.” (App. at 41.)
Those unfavored candidates may also be stacked with their
opponents or with other candidates with whom they do not
wish to be associated, which to a voter would be
indistinguishable from bracketing.
The following are examples of, first, a county-line
ballot (D.I. 1-1 at 64), and, second, an office-block ballot (D.I.
1-1 at 61):

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Primary elections will be held in New Jersey on June 4,
2024. Congressman Andy Kim, who is running for a seat in
the U.S. Senate, and Sarah Schoengood and Carolyn Rush,
who are both running to represent their respective districts in
the U.S. House of Representatives (collectively, the
“Plaintiffs”) – all three of whom are Democrats – filed a
verified complaint in the District Court against clerks whose
counties use the county-line format for ballots. They allege
that the design is unconstitutional under the First Amendment.
Specifically, they allege that the county-line ballot design
infringes their Right to Vote, Right to Equal Protection, and
Freedom of Association. They also allege that the design
violates the Elections Clause of the Constitution. Their
allegations implicate several New Jersey statutes, in particular
N.J. Stat. Ann. §§ 19:23-18 (permitting candidates to be
grouped, or bracketed, together on primary election ballots),
19:23-24 (authorizing county clerks to conduct a drawing to
determine the order of office positions on the ballot), 19:23-
26.1 (requiring that U.S. Senatorial and gubernatorial races
receive the first and second ballot positions, when applicable),
and 19:49-2 (requiring grouped candidates to be drawn for
ballot position as a unit).
On the same day that they filed this suit, February 26,
2024, the Plaintiffs also filed a motion for a preliminary
injunction forbidding the county clerks from using county-line
ballots and instead requiring them to use ballots with an office-
block format. The Plaintiffs served their verified complaint
and motion for preliminary injunction on all New Jersey
county clerks, the New Jersey Secretary of State, the New
Jersey Attorney General, the New Jersey Democratic and
Republican State Committees, and several Democratic and
Republican county political parties, including the CCDC. The

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CCDC filed a motion to intervene, which the District Court
granted.
Three days after the Plaintiffs filed their verified
complaint, the District Court conducted a case management
teleconference, established a briefing schedule, and set an
evidentiary hearing for March 18, 2024. The day before the
evidentiary hearing, New Jersey’s Attorney General advised
the District Court in a letter with detailed legal analysis that he
would not seek to intervene in the case because he had
“concluded that the challenged statutes are unconstitutional[.]”
(D.I. 149 at 1.)
The next day, as scheduled, the District Court
conducted a nearly nine-hour “marathon” evidentiary hearing,
during which seven witnesses testified. (App. at 26.) Eleven
days later, the Court granted the Plaintiffs’ motion for a
preliminary injunction, accompanying its order with a 49-page
opinion, meticulously citing the testimony and other evidence
that had been adduced. Summing up what was at issue, the
Court said, “[The] Plaintiffs assert that their right to associate
(and not associate) with other candidates is burdened by the
bracketing system” because they may not want to associate
with certain other candidates due to “differences in policy, …
personal views, line-mates who are supporting a competing
candidate, and not even knowing the other line members.”
(App. at 34.) The Court also emphasized the Plaintiffs’
assertions that the bracketing structure gave an unfair and
unconstitutional advantage to candidates favored by party
leaders.
The District Court explained that the Plaintiffs had
“support[ed] their application with a substantive factual record,

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including expert reports and credible expert and factual
testimony.” (App. at 38.) Specifically, the Court pointed to
reports from Dr. Josh Pasek and Dr. Julia Sass Rubin.
Dr. Pasek “review[ed] and summarize[d] more than four dozen
studies” to conclude that “there is a pervasive primacy effect
that favors candidates in elections that appear in an early
position on a ballot.” (App. at 35.) His report also described
the effect on voting that the county-line ballot format
generates, an effect he called the “weight of the line.” (App. at
35.) The Court explained that Dr. Pasek opined that voters
select U.S. House and Senate candidates “11.6% more
frequently when the endorsed candidates appeared together on
a county line than if they appeared separately in office-block
format[,]” and that Dr. Rubin similarly concluded that there
was a 12% mean benefit for candidates who were placed on the
county line, compared to those who were off the line. (App. at
35-36.)
According to the District Court, the expert reports and
testimony were “well-reasoned” and showed that ballot
placement on the county line provided a substantial benefit that
went beyond mere local party endorsement. (App. at 36.) In
addition, the Court found that “candidates placed in an early
position on a ballot receive a distinct advantage.” (App. at 35.)
For those reasons, the Court concluded that the Plaintiffs had
shown a severe burden on their First Amendment rights.
It also concluded that the county clerks’ expression of
the State’s interests – namely preserving a candidate’s right to
associate, to communicate those associations to voters, to
provide an understandable ballot, and to prevent voter
confusion – was “not especially compelling.” (App. at 37.) In
the Court’s view, the record evidence did not support the idea

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that those interests were threatened by an injunction, nor did
those interests outweigh the burdens imposed by the county-
line format. In fact, the Court explained, county-line ballots
can confuse voters. It cited the example of a county ballot that
caused almost one-third of voters in a 2020 Democratic
primary election to have their votes invalidated because they
voted for more than one candidate for the same elected
position.3
The District Court also decided that, in the absence of
an injunction, the Plaintiffs’ First Amendment harms would be
irreparable. If the Plaintiffs exercise their constitutional right
to not associate with other candidates on the county line, “they
will be punished for doing so by being excluded from the
preferential ballot draw and risk getting relegated to obscure
portions of the ballot in Ballot Siberia[.]” (App. at 40 (internal
quotation marks omitted).) “Alternatively, Plaintiffs are
‘forced’ to associate with candidates with whom they may not
want to associate and whose policies they may disagree with.”
(App. at 40 (internal quotation marks omitted).) Even with
3 At oral argument, the CCDC responded that the 2020
Democratic primary election was an anomaly because voters
were forced to use paper ballots that year instead of machines
that would not have allowed them to vote for multiple
candidates running for the same office. But that only
underscores the District Court’s point. In the only year when
voters could have mistakenly voted for multiple candidates for
the same office (because voting machines were not used and,
accordingly, overvoting was not prevented), nearly one-third
of one county’s voters did so. That strongly suggests that the
bracketing system is confusing to voters.

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respect to Senate-candidate Kim, who will be on the county
line in most counties, the Court explained that, without an
injunction, there will be a forced association with other
candidates on the county line who do not support him.
Balancing the harms, the District Court determined that
the Plaintiffs’ irreparable harm would exceed any burden on
the State. The county clerks argued that changing the ballot
design this soon before an upcoming primary election could
not be done and that it would cause “chaos[.]” (App. at 47.)
Considering all of the evidence, the Court disagreed and found
instead that voting machines used in New Jersey can readily
accommodate office-block ballots and that changing a ballot’s
layout would take a day at most. One of the defendants’ own
witnesses, a vendor who prints ballots, testified at the hearing
that if the clerks asked him to change the ballots to the office-
block style for the upcoming primary election, he would “[o]ne
hundred percent” find a way to get it done. (App. at 49.) The
Court also determined that the public interest favored
protecting the Plaintiffs’ constitutional rights.
Having thus determined that the required elements for
immediate equitable relief were satisfied, the Court granted the
preliminary injunction.4 That same day, the county clerks and
4 In addition, the District Court concluded that the
Elections Clause was an independent basis to grant the
injunction, reasoning that the county-line ballot structure
exceeds a state’s right to regulate the time, place, and manner
of an election. We discuss this point further herein. (Infra at
§ II.B.1.b).) The Court also resolved seven motions in limine
and the county clerks’ arguments that the case should be
dismissed for Plaintiffs’ lack of standing and for failure to join

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the CCDC filed an emergency motion to stay the injunction
and a notice of interlocutory appeal. The Morris County
Republican Committee (the “MCRC”) requested confirmation
that the District Court’s Order applies only to the Democratic
primary and not the Republican primary. In response, the
Court clarified that the injunction does not apply to the
Republican primary. The motion to stay was denied on
April 1, 2024.
The county clerks and the CCDC then immediately filed
a motion to stay in our Court. We too denied a stay.
Subsequently, the county clerks moved to withdraw from the
appeal, pursuant to Federal Rule of Appellate Procedure 42(b).
The Plaintiffs consented, and we dismissed the clerks’ appeals
with prejudice. Accordingly, the CCDC is the only remaining
appellant.5
required parties, all in favor of Plaintiffs. The CCDC does not
raise those issues on appeal.
5 The Middlesex County Democratic Organization filed
an amicus brief in favor of the CCDC, as did the MCRC, et al.
The following appeared as amici in support of the Plaintiffs:
Steven Fulop’s gubernatorial campaign, Fulop for Governor;
the Election Law Clinic at Harvard Law School; the League of
Women Voters of New Jersey, Salvation and Social Justice,
New Jersey Alliance for Immigrant Justice, New Jersey Policy
Perspective, AAPI New Jersey, Asian American Legal
Defense and Education Fund, Asian Americans Advancing
Justice | AAJC; the ACLU of New Jersey; and New Jersey
Democratic candidates Joe Cohn, Staci Berger, James
Solomon, Valerie Vainieri Huttle.

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II. DISCUSSION6
The mandatory injunction entered by the District Court
compels New Jersey county clerks to use an office-block
design for Democratic ballots in the June 4, 2024, primary
election. The CCDC, not the clerks, now challenges that
injunction, arguing it violates the Committee’s First
Amendment associational rights. Before reviewing the merits
of the injunction, we first consider whether the issues are
justiciable and whether the CCDC has standing to assert
interests belonging to the State of New Jersey.
A. Justiciability
1. The Political Question Doctrine Is
Inapplicable.
No party here or below raised the issue of justiciability
of these claims and whether the political question doctrine
precludes them. One of the amici, however, the MCRC, argues
that the Plaintiffs are asking us to “use [our] own political
judgment to alter well-established New Jersey balloting
processes[,]” which it says is foreclosed by the political
question doctrine. (MCRC Amicus Br. at 12.) “Although an
6 The District Court had subject matter jurisdiction
under 28 U.S.C. §§ 1331 and 1343. We have jurisdiction
pursuant to 28 U.S.C. § 1292(a)(1). “We employ a tripartite
standard of review for … preliminary injunctions. We review
the District Court’s findings of fact for clear error. Legal
conclusions are assessed de novo. The ultimate decision to
grant or deny the injunction is reviewed for abuse of
discretion.” Ramsay v. Nat’l Bd. of Med. Examiners, 968 F.3d
251, 256 n.5 (3d Cir. 2020).

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amicus brief can be helpful in elaborating issues properly
presented by the parties, it is normally not a method for
injecting new issues into an appeal,” and, if only raised by
amici, such issues are normally not considered on appeal. N.J.
Retail Merchs. Ass’n v. Sidamon-Eristoff, 669 F.3d 374, 383
n.2 (3d Cir. 2012). This political question argument, however,
implicates our subject matter jurisdiction and so cannot be
waived or forfeited. Gonzalez v. Thaler, 565 U.S. 134, 141
(2012). We therefore address it.
In Rucho v. Common Cause, the Supreme Court
instructed that “[f]ederal courts can address only questions
‘historically viewed as capable of resolution through the
judicial process.’” 139 S. Ct. 2484, 2493-94 (2019) (quoting
Flast v. Cohen, 392 U.S. 83, 95 (1968)). That means
“[s]ometimes, … ‘the judicial department has no business
entertaining the claim of unlawfulness – because the question
is entrusted to one of the political branches or involves no
judicially enforceable rights.’ In such a case the claim is said
to present a ‘political question’ and to be nonjusticiable[.]” Id.
at 2494 (first quoting Vieth v. Jubelirer, 541 U.S. 267, 277
(2004) (plurality opinion); and then quoting Baker v. Carr, 369
U.S. 186, 217 (1962)). The test is whether the claim is “of [a]
legal right, resolvable according to legal principles, or [a]
political question[] that must find [its] resolution elsewhere.”
Id. at 2494, 2496 (emphasis in original) (holding that questions
of partisan gerrymandering are entrusted to the political
branches, not courts, and that such claims lack “judicially
discoverable and manageable standards” for court resolution).
In this case, the constitutional questions can be resolved by
resorting to settled First Amendment legal principles.

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Courts often decide ballot-design cases, almost
universally agreeing that such cases pose judicial questions
that can be resolved through application of judicially
manageable standards, such as the standards laid out in
Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v.
Takushi, 504 U.S. 428 (1992) (hereinafter, the “Anderson-
Burdick framework”).7 The political question doctrine is
therefore inapplicable here and the issues presented are
justiciable.
7 See, e.g., Pavek v. Simon, 967 F.3d 905, 907 (8th Cir.
2020) (rejecting justiciability concerns and concluding, “We
have adjudicated the merits of such claims before and have
comfortably employed judicially manageable standards in
doing so”); Nelson v. Warner, 12 F.4th 376, 386-87 (4th Cir.
2021) (“[T]he political question doctrine does not bar [the
court] from considering the plaintiffs’ ballot-order challenges.
… Nor does Rucho [v. Common Cause, 139 S. Ct. 2484
(2021),] call into question use of
the Anderson/Burdick framework[,]” as it applies only to
partisan gerrymandering); Mecinas v. Hobbs, 30 F.4th 890,
901-02 (9th Cir. 2022) (same and collecting cases); but cf.
Jacobson v. Fla. Sec’y of State, 974 F.3d 1236, 1260 (11th Cir.
2020) (holding that complaints of partisan advantage from
ballot order presents a nonjusticiable question following
Rucho). The Supreme Court has also summarily affirmed a
three-judge district court panel enjoining use of an incumbent-
weighted ballot, despite there being an objection based on the
political question doctrine. Powell v. Mann, 398 U.S. 955
(1970), aff’g, 314 F. Supp. 677 (N.D. Ill. 1969).

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2. The CCDC is Not Asserting the State’s
Interests as Its Own, But Vindicating Its
Own Rights.
The Plaintiffs argue that the CCDC, as an intervenor,
“cannot stand in the shoes of state actors, to assert state and
government interests.” (Reply Br. at 48.) A party “generally
must assert [its] own legal rights and interests, and cannot rest
[its] claim to relief on the legal rights or interests of third
parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975); see also
Kowalski v. Tesmer, 543 U.S. 125, 130 (2004) (limiting third-
party standing to parties with a “close” relationship and when
there is a “hindrance” to the right-possessor’s “ability to
protect his own interests”). But in bringing this appeal, the
CCDC does not simply rely on harms to New Jersey; it frankly
asserts that it has “different interests” than the county clerks.
(Reply Br. at 24.)
The CCDC instead is appealing to address alleged
infringements of its own constitutional rights that result from
the District Court’s injunction, including what it claims are
“the right to not only endorse and identify candidates that share
[political parties’] ideologies and preferences, but [also] to
group the candidates in a manner that informs voters of the
individuals who constitute the association to advance their
shared interests[.]” (Opening Br. at 19.) Accordingly, the
CCDC is not simply relying on the State’s interests to gain
relief.8
8 The CCDC’s appeal is thus distinguishable from cases
like Hollingsworth v. Perry, where the Supreme Court
declined to uphold “the standing of a private party [without an
independent injury] to defend the constitutionality of a state

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Because all of the county clerks are no longer involved
in this appeal,9 the CCDC necessarily stands alone to defend
the constitutionality of the county-line ballot practice in New
Jersey, and it does so in order to vindicate its own rights.
Therefore, as the parties all agree, because the question
presented concerns state election law, we are obligated to apply
the Anderson-Burdick analytical framework, as directed by the
Supreme Court.
B. The Preliminary Injunction Standard Is Met
“[A] mandatory injunction is an extraordinary remedy
that is only granted sparingly by the courts.” Trinity Indus.,
statute when state officials [had] chosen not to.” 570 U.S. 693,
707-09, 715 (2013). In contrast to Hollingsworth, the CCDC
has alleged its own injury, and “an intervenor … ha[s] standing
to appeal an adverse judgment, even if the state declines to
appeal it, if the intervenor can independently demonstrate that
he fulfills the requirements of Article III.” Cherry Hill
Vineyards, LLC v. Lilly, 553 F.3d 423, 430 (6th Cir. 2008); see
Associated Builders & Contractors v. Perry, 16 F.3d 688, 694
(6th Cir. 1994) (Merritt, C.J., concurring in the result) (citing a
number of “famous cases [to] demonstrate that two private
parties are fully entitled to litigate the constitutionality or other
validity of state statutes”).
9 New Jersey’s interests were initially voiced by the
county clerks – all nineteen of which have withdrawn their
appeal. Additionally, as noted earlier, the New Jersey Attorney
General has refused to defend the ballot-ordering statutes, as
indicated in his letter declining to intervene before the District
Court.

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Inc. v. Chi. Bridge & Iron Co., 735 F.3d 131, 139 (3d Cir.
2013). To obtain any preliminary injunction, a plaintiff must
show (1) he will likely succeed on the merits; (2) he will likely
suffer irreparable injury; (3) the balance of equities favors him;
and (4) the injunction serves the public interest. Schrader v.
Dist. Att’y of York Cnty., 74 F.4th 120, 126 (3d Cir. 2023). The
first two prongs are “gateway factors,” and we typically only
consider “the remaining two” if “these gateway factors are
met[.]” Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d
Cir. 2017). And over and above the showing required to
maintain the status quo, to obtain the mandatory injunctive
relief sought here, a plaintiff must “show a substantial
likelihood of success on the merits and that [one’s] right to
relief is indisputably clear[.]” Hope v. Warden York Cnty.
Prison, 972 F.3d 310, 320 (3d Cir. 2020) (cleaned up).
1. The Plaintiffs Have Demonstrated a
Substantial Likelihood of Success on the
Merits.
a) First Amendment
The Plaintiffs have a substantial likelihood of success
on the merits of their First Amendment claims. Because state
election laws inevitably burden some fundamental rights, the
Supreme Court has, in the Anderson-Burdick framework,
“crafted a unique test for ‘constitutional challenges to specific
provisions of a State’s election laws.’” Mazo, 54 F.4th at 137
(cleaned up) (quoting Anderson, 460 U.S. at 789). The test
called for in that framework weighs the burden placed upon a
plaintiff’s rights against the state’s interest in regulating
elections. Id. at 145. If the burden on the plaintiff’s rights is
“severe,” we apply strict scrutiny. Id. (quoting Crawford v.

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Marion Cnty. Election Bd., 553 U.S. 181, 205 (2008) (Scalia,
J., concurring)). If, however, the state’s regulations just
impose “reasonable, nondiscriminatory restrictions” we need
only determine whether the state’s “legitimate interests ... are
sufficient to outweigh the limited burden[.]” Id. at 137
(quoting Anderson, 460 U.S. at 788 and then Burdick, 504 U.S.
at 440). “Evidence is key to the balancing of interests at the
heart of the Anderson-Burdick framework.” Id. at 152. A
plaintiff must substantiate his or her alleged harm, because we
will not find a state regulation unconstitutional based upon
“‘hypothetical’ or ‘imaginary’ cases.” Id. (quoting Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 450
(2008)).
The District Court found that the Plaintiffs here suffer
two forms of harm. First, candidates who are running for a
pivot point office but do not wish to associate with a county
line, such as Senate-candidate Kim on the Camden County
ballot, suffer a distinct electoral disadvantage as a result of that
choice. As alluded to earlier (see supra at § I), Dr. Pasek’s
expert report, which the District Court credited as “well-
reasoned,” explained that “voters selected candidates endorsed
by a county 11.6% more frequently when the endorsed
candidates appeared together on a county line than if they
appeared separately in office-block format.” (App. at
35.) And Dr. Rubin’s report, which the Court similarly
credited, added that “in 35 of the 37 primary contests that took
place in New Jersey between 2012 and 2022, candidates
received a larger share of the vote when they were on the
county line than when they were endorsed but there was no
county line. The difference in the candidate’s performance
ranged from -7 to 45 percentage points, with a mean of 12%
points and a median of 11 percentage points.” (App. at 36

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(internal quotation marks omitted).) Thus, candidates like Kim
are forced to choose between either associating with candidates
they may not wish to associate with or suffering material
disadvantages in the election.
Candidates who are running for other offices, such as
congressional candidates Schoengood and Rush, face a
different type of harm. To have any chance of being placed in
the first column or row of the ballot, they must accept being
bracketed with a candidate running for a pivot point office. If
they are unable to do that, or choose not to, they may be
relegated to Ballot Siberia and perhaps even stacked in the
same column as their opponents. This too puts them at a
distinct electoral disadvantage. As Dr. Pasek explained,
“primacy biases in New Jersey elections will always negatively
impact candidates who do not bracket with a candidate for the
pivot-point position, as these candidates are guaranteed to be
placed in positions further to the right of (or below) colleagues
who are bracketed with someone in the pivot-point
position.” (App. at 42 (cleaned up).) Such placement matters
because, according to Dr. Pasek, “all candidates on party-
column ballots performed better when listed in the leftmost
available position, with these benefits ranging from
3.9 percentage points to 27.8 percentage points across
candidates.” (App. at 42.) The District Court found that
evidence to be credible, and we discern no clear error in its
findings.10
10 At oral argument, the CCDC asserted that the District
Court clearly erred in its factual findings because it did not
provide the CCDC with enough time to rebut the Plaintiffs’
expert findings, producing an inherently unreliable record. We
disagree. At its core, the CCDC’s argument is that the record

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The question then becomes the severity of the burden
upon the Plaintiffs’ rights. A burden is “severe” and “will be
‘especially difficult for the State to justify’” where the
challenged regulation “limit[s] political participation by an
identifiable political group whose members share a particular
viewpoint, associational preference, or economic
status[.]” Mazo, 54 F.4th at 146 (quoting Anderson, 460 U.S.
at 793). Discrimination may thus be based on viewpoint,11 or
so strongly favors the Plaintiffs because the CCDC had
insufficient time to prepare, because the District Court did not
grant its motion to intervene until shortly before the evidentiary
hearing and then limited the preliminary injunction hearing to
nine hours on a single day. But the CCDC was served notice
20 days before the hearing, which provided it with ample time
to retain its own experts or at least develop a record showing it
had tried. And the District Court’s decision to limit the
evidentiary hearing to nine hours is a discretionary matter (as
even the CCDC acknowledged at argument), and, on review,
we perceive no abuse of discretion. We note the irony that the
CCDC argues that it should have been given more time while
simultaneously arguing under Purcell v. Gonzalez, 549 U.S. 1
(2006) (per curiam), that there was no time to lose in ruling on
the Plaintiffs’ application for an injunction.
11 Discriminatory election laws can take different forms.
Because Plaintiffs claim that New Jersey’s ballot display
violates their First Amendment right of free association, we
focus on that right here. We note, however, that amicus, the
American Civil Liberties Union of New Jersey, argues that
“[c]ounty clerks in New Jersey, through non-neutral primary
ballot design procedures, unconstitutionally engage in
viewpoint-based discrimination.” (ACLU Amicus Br. at 12.)

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on “restrictions [that] operate as a mechanism to exclude
certain classes of candidates from the electoral process.” Id. In
the latter case, the key “inquiry is whether the challenged
restriction unfairly or unnecessarily burdens ‘the availability of
political opportunity.’” Id. (quoting Anderson, 460 U.S. at
793). “[B]urdens that apply to all voters, parties, or candidates
are less likely to be severe[,]” id. at 146, and “burdens are not
severe if they are ordinary and widespread[,]” id. at 152
(internal quotation marks and citations omitted). Severe
burdens are lessened if the state “provide[s] alternative
methods for the exercise of burdened rights.” Id. at 151.
The county-line system discriminates based upon the
candidates’ associational choices and policy positions. Again,
according to factual findings by the District Court, that system
forces candidates to choose between associating with
candidates with whom they may not wish to associate or facing
“Ballot Siberia.” It favors candidates whose views most align
with the party bosses’. See id. at 147 n.39 (a ballot practice is
severe if it “favor[s] certain candidates or outcomes”). That,
coupled with record evidence that bracketing and primacy
significantly impact election results, makes the burden on
plaintiffs’ rights severe.12 While candidates are not completely
Viewed in that light, the bracketing and ballot placement
system would also clearly be constitutionally problematic.
12 Some New Jersey state cases have upheld the county-
line ballot system. See Schundler v. Donovan, 872 A.2d 1092,
1100 (N.J. App. Div.) (generally upholding the
constitutionality of the bracketing system), aff’d, 874 A.2d 506
(N.J. 2005); Quaremba v. Allan, 334 A.2d 321, 330 (N.J. 1975)
(upholding New Jersey laws underlying the county line

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excluded from the ballot and so can garner votes, the
discriminatory nature of the county-line system requires that
the state legislation satisfy heightened scrutiny.
To be sure, a ballot-placement scheme that utilizes a
lottery or applies to all parties equally will likely not, by itself,
place a severe burden upon candidates. See, e.g., Libertarian
Party of Va. v. Alcorn, 826 F.3d 708, 717 (4th Cir. 2016)
(upholding ballot law that was “facially neutral and
nondiscriminatory”); Democratic-Republican Org. of New
Jersey v. Guadagno, 900 F. Supp. 2d 447, 456 (D.N.J.), aff’d,
system). But we owe no deference to a state court’s
interpretation of the United States Constitution. United States
v. Bedford, 519 F.2d 650, 654 n.3 (3d Cir. 1975) (“It is a
recognized principle that a federal court is not bound by a state
court’s interpretation of federal laws or of a state statute under
misapprehension of federal law.”). And it is not insignificant
that the New Jersey Attorney General has opted in this case to
forego any defense of the statutes allowing the county-line
ballots. Indeed, his letter to the District Court constitutes a
ringing condemnation of those statutes, given the factual
record presented here. (See D.I. 149 at 1 (declining to
intervene in the case because “[i]n light of the evidentiary
record, … the challenged statutes are unconstitutional[.]”); id.
at 2 (explaining that he “has not identified reliable empirical
evidence countering this [case’s] record evidence” and that he
lacks “a basis for intervening to defend [the statutes’]
constitutionality”); id. at 4 (“This is an exceptional case,
justifying the Attorney General’s exceptionally rare decision
not to defend the constitutionality of the challenged
statutes.”).)

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700 F.3d 130 (3d Cir. 2012) (upholding an election law that
“imposes only a minimal nondiscriminatory burden on minor
parties”). But the record before us supports the District Court’s
ruling. It shows that the county-line system is discriminatory
– it picks winners and punishes those who are not endorsed or,
because of their political views, want to disassociate from
certain endorsed candidates. Those disfavored candidates are
put in undesirable ballot positions and, by random coupling,
can end up paired with potentially objectionable candidates.
Those outcomes amount to a severe burden on the Plaintiffs’
rights.
The CCDC argues that a regulation that is merely about
ballot placement, rather than ballot access, does not impose a
severe burden. But we don’t just ask whether a candidate’s
name physically appears on the ballot. “The inquiry is whether
the challenged restriction unfairly or unnecessarily burdens
‘the availability of political opportunity.’” Mazo, 54 F.4th at
146 (quoting Anderson, 460 U.S. at 793).
The CCDC contends that the “primacy” effect is a wash
because first position on the ballot is randomly assigned, and
pivot-point candidates may obtain the coveted first spot even
if they do not obtain the county-line endorsement. (Opening
Br. at 26.) That, however, is only true of candidates for the
U.S. Senate or for Governor. It ignores Schoengood and Rush,
running for U.S. Congress, who are excluded from the first
position unless they appear on the county line or bracket with
an unendorsed Senate candidate.
The state, no doubt, has protectable interests in
regulating elections, and, before the District Court, the county
clerks suggested four. They asserted as facts that the current

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system (1) preserves candidates’ political parties’ rights to
associate; (2) communicates candidates’ associations to voters;
(3) provides a manageable and understandable ballot; and (4)
prevents voter confusion. The CCDC argues for the
constitutionality of the county-line ballot framework,
advancing essentially the same state interests articulated earlier
by the county clerks. Even if those factual assertions were true,
however,13 the record does not demonstrate that the county line
system is “narrowly tailored [to] advance [those] compelling
state interest[s].” Timmons v. Twin Cities Area New Party, 520
U.S. 351, 358 (1997). As outlined by the District Court, parties
and candidates have plenty of other ways to express their
associations, and forty-nine other states have managed to
provide manageable, understandable, and unconfusing ballots,
as have two counties in New Jersey. See Eu v. S.F. Cnty.
Democratic Cent. Comm., 489 U.S. 214, 226 (1989) (rejecting
a compelling interest when the state “is virtually the only State
that has determined” to conduct its elections a certain way).
The CCDC also asserts that its own First Amendment
associational rights are harmed by the injunction. It argues that
political organizations have “the right to not only endorse and
identify candidates that share their ideologies and preferences,
but to group the candidates in a manner that informs voters of
the individuals who constitute the association to advance their
shared interests[.]” (Opening Br. at 19.) In Timmons,
13 There is ample reason to believe the assertions are not
entirely true. For example, the District Court took evidence
and concluded that the county-line ballots are not
understandable and that they can cause rather than prevent
voter confusion. Those findings are not clearly erroneous.

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however, the Supreme Court rejected the idea that parties have
a constitutional right “to use the ballot itself to send a
particularized message, to its candidate and to the voters, about
the nature of its support for the candidate.” 520 U.S. at 363.
Here, nothing in the preliminary injunction prohibits the
CCDC from including county parties’ slogans on the ballot,
endorsing candidates, communicating those endorsements, or
associating by any other constitutional means. The injunction
simply means that the CCDC does not get to bracket its
preferred candidates together on the ballot. “[T]he First
Amendment does not give political parties a right to have their
nominees designated as such on the ballot.” Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 453
n.7 (2008). As the CCDC’s First Amendment rights are not
meaningfully harmed by the injunction, the burdens on the
Plaintiffs’ competing First Amendment rights outweigh any of
them. Like the state law in Timmons, the preliminary
injunction “do[es] not restrict the ability of the [CCDC] and its
members to endorse, support, or vote for anyone they
like.” 520 U.S. at 363.
Based on the record developed in the District Court,
there is a very substantial likelihood that the Plaintiffs will
succeed on the merits of their First Amendment claims under
the Anderson-Burdick framework. Even if that were a closer
call, however, we would uphold the District Court’s order. See
Ashcroft v. ACLU, 542 U.S. 656, 664-65 (2004) (holding that
if a constitutional question underlying a preliminary injunction
“is close … we should uphold the injunction and remand for
trial on the merits”).

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b) Elections Clause
We would also uphold the order because New Jersey’s
county-line ballots, as the District Court held, are invalid under
the Elections Clause, U.S. Const. art. I, § 4, cl. 1. When a state
election law exceeds the state’s authority to regulate “[t]he
Times, Places, and Manner of holding Elections” for United
States Senator and House Representative, id., it is
unconstitutional, regardless of the burden it places upon the
parties’ rights. See Mazo v. N.J. Sec’y of State, 54 F.4th 124,
140 n.14 (3d Cir. 2022) (“Because such laws fall outside of
State’s constitutional authority, they do not enjoy the deference
afforded by the Anderson-Burdick balancing test.”). A state
election law exceeds the state’s authority to regulate the
“Times, Places, and Manner” boundaries when it “dictate[s]
electoral outcomes,” or “favor[s] or disfavor[s] a class of
candidates,” especially when the “adverse [ballot practice]
handicap[s] candidates ‘at the most crucial stage in the election
process – the instant before the vote is cast.’” Cook v. Gralike,
531 U.S. 510, 523, 525 (2001) (quoting Anderson v. Martin,
375 U.S. 399, 402 (1964)).
The District Court found that the county-line form of
ballot appears to do just that. As it explained, it does not
merely regulate “the numerous requirements … ensuring that
elections are fair and honest, and that some sort of order, rather
than chaos, is to accompany the democratic process”; it puts a
thumb on the scale for preferred candidates, impacting
elections outcomes “before the vote is cast.” Id. at 524-25
(internal quotation marks omitted). Thus, it is likely
unconstitutional. At oral argument, counsel for the CCDC
acknowledged that “if we conclude that the District Court’s
findings are not clearly erroneous … we then have a violation

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of the Elections Clause per se.” (Oral Arg. 46:43-56.) That is
fatal to the CCDC’s appeal because, as we have explained, the
District Court’s factual findings are not clearly
erroneous. Based on those factual findings, the Court
reasonably concluded that New Jersey’s bracketing and ballot
placement system disfavors a class of candidates.
2. The Plaintiffs Will Suffer Irreparable
Harm Without an Injunction.
“The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes
irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
More so here, as the status quo deprives the Plaintiffs –
especially Schoengood and Rush – of a fair chance to win the
election, a harm “where monetary damages” are “inadequate.”
Hohe v. Casey, 868 F.2d 69, 73 (3d Cir. 1989). Finally, the
Plaintiffs’ rights not to associate with objectionable candidates,
see Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000),
are burdened when they must choose between that and an
unwelcome ballot position.
3. The Balance of Harms and The Public
Interest Also Favor Plaintiffs.
The third and fourth injunction factors favor the
Plaintiffs as well. As discussed earlier, any harm to the state’s
or the CCDC’s interests is outweighed by the burdens on the
Plaintiffs’ associational rights. And any logistical burden the
county clerks face in changing the ballots appears to be entirely
manageable, as evidenced by the District Court’s findings and
the fact that all of the clerks have abandoned this appeal.
Looking at the final factor of the traditional preliminary

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injunction test, the answer is clear: remedying an
unconstitutional practice is always in the public interest.
Schrader, 74 F.4th at 128.
C. The Purcell Doctrine Does Not Compel a
Contrary Result
On appeal, the CCDC adopts the county clerks’
argument that the District Court erred under Purcell v.
Gonzalez because it imposed an injunction too close to an
election. “[F]ederal courts should ordinarily not alter the
election rules on the eve of an election.” Republican Nat’l
Comm. v. Democratic Nat’l Comm., 589 U.S. 423, 424 (2020)
(per curiam) (citing Purcell v. Gonzalez, 549 U.S. 1 (2006) (per
curiam), Frank v. Walker, 574 U.S. 929 (2014), and Veasey v.
Perry, 574 U.S. 951 (2014)). But Purcell is a consideration,
not a prohibition, see, e.g., Democratic Nat’l Comm. v. Wis.
State Legislature, 141 S. Ct. 28, 31 (2020) (Kavanaugh, J.,
concurring in denial of application to vacate stay), and it is just
one among other “considerations specific to election cases”
that we must weigh for injunctive relief. The Supreme Court
has said that we must weigh “considerations specific to
election cases[,]” in addition to the traditional considerations
for injunctive relief. Purcell, 549 U.S. at 4. That caution is
certainly sound because “[c]ourt orders affecting elections,
especially conflicting orders, can themselves result in voter
confusion and consequent incentive to remain away from the
polls[,]” and “[a]s an election draws closer, that risk will
increase.” Id. at 4-5. The focus of the Purcell principle, then,
is on avoiding election issues that could lead to voter confusion
shortly before an election.

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In this case, however, the District Court’s order would
reduce, if not eliminate voter confusion and, for the reasons
previously explained, the arguments made by the CCDC and
its amicus, the MCRC, appear contrary to the record and based
on nothing but speculation. The MCRC argues the change
“will generate extensive voter confusion” because it will
“deprive[] voters of expected information on their ballots.”
(MCRC Amicus Br. at 10.) No support is offered for that
claim. Based on the District Court’s factual findings – and
unlike other cases in which Purcell is typically applied –
implementing office-block style ballots does not impact voters’
ability or plans for voting and would actually alleviate some
ballot confusion. Further, as every one of the county clerks has
abandoned this appeal, MCRC’s other argument, that “[t]here
is simply not enough time to properly implement such a
significant change[,]” does not hold water.14 (MCRC Amicus
Br. at 11.)
14 In addition, the Plaintiffs point out that the county
clerks “are well underway in designing office-block ballots”
and “have apparently received confirmation from their voting
system vendors … that they can in fact design office-block
ballots with minimal disruption.” (Answering Br. at 47.)
Besides, we do not view this as a last-minute election case. The
Plaintiffs moved with the appropriate alacrity, bringing this
suit over 100 days before the primary election and over a
month before the ballot-printing deadline. And as the Plaintiffs
correctly surmised, an earlier filing (perhaps before the
announcement of official endorsements) would have raised the
specter of the defendants raising a ripeness challenge.

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Here again, the District Court’s factual findings
undermine the MCRC’s assertions. The Court said that the
county clerks could implement the necessary changes given the
time available, and that finding is entitled to deference.
III. CONCLUSION
In sum, we will affirm the District Court’s order
granting the preliminary injunction because its findings of fact
are substantiated, its conclusions of law are sound, and its
“ultimate decision” granting the injunction presents no abuse
of discretion. Lara v. Comm’r Pa. State Police, 91 F.4th 122,
128 n.5 (3d Cir. 2024).

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