NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 17-1925
                                    _____________

                   SHAWN WILMOTH; TRENTON POOL;
           SIGNATURE MASTERS INC.; BENEZET CONSULTING LLC, 1
                                         Appellants

                                           v.

                  SECRETARY OF THE STATE OF NEW JERSEY;
                   LIEUTENANT GOVERNOR OF NEW JERSEY
                              _____________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                            (D.C. Civil No. 3-16-cv-01854)
                     District Judge: Honorable Peter G. Sheridan
                                    ______________

                                Argued January 23, 2018
                                   ______________

          Before: HARDIMAN, VANASKIE, and SHWARTZ, Circuit Judges.

                                 (Filed: April 19, 2018)

Paul A. Rossi, Esq. [Argued]
IMPG Advocates Inc.
316 Hill Street
Mountville, PA 17554




      1
       This caption reflects the proper spelling for Benezet even though the caption of
the complaint contains a typographical error, spelling it as “Benzet.”
Lawrence M. Otter, Esq.
P.O. Box 575
Doylestown, PA 18901
      Counsel for Appellants

George N. Cohen, Esq. [Argued]
Office of Attorney General of New Jersey
Division of Law, Hughes Justice Complex
25 Market Street
P.O. Box 112
Trenton, NJ 08625
       Counsel for Appellee

                                   ________________

                                       OPINION *
                                   ________________

VANASKIE, Circuit Judge.

       At issue in this case is a New Jersey law requiring that persons circulating

petitions on behalf of candidates for national office be residents of New Jersey.

Appellants Shawn Wilmoth and Trenton Pool argue that the law in question, N.J. Stat.

Ann. § 19:23-11, imposes an impermissible burden on their First Amendment right to

engage in core political speech. The District Court dismissed their complaint for failure

to plead a plausible claim for relief. We, however, conclude that Appellants have

pleaded facts sufficient to survive dismissal and proceed to discovery. We therefore will

vacate the District Court’s order and remand for further proceedings consistent with this

opinion.



       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

                                             2
                                              I.

       New Jersey holds a closed primary election during each presidential election

cycle. To vote in New Jersey’s closed primary, an individual must be (1) registered to

vote in New Jersey and (2) a registered member of a political party that appears on the

primary election ballot. N.J. Stat. Ann. § 19:23-45. Under New Jersey law, a “political

party” is defined as any party that garners at least 10 percent of the votes cast in the last

primary election for the office of a member of the General Assembly. 

As it

stands today, New Jersey recognizes only two political parties: Democratic and

Republican.

       To be listed on New Jersey’s primary election ballot, a prospective presidential

candidate must submit a nomination petition to the Secretary of State within sixty-four

days of the primary election. 

This mandatory petition must contain, inter

alia, 1,000 signatures of individuals who are both residents of New Jersey and registered

members of the same political party as the candidate seeking election. 2 

       2
       In addition to the 1,000-signature requirement, New Jersey law mandates that a
nomination petition contain the following elements:

              Each such petition shall set forth that the signers thereof are
              qualified voters of the State, congressional district, county, or
              county election district, municipality, ward or election district,
              as the case may be, in which they reside and for which they
              desire to nominate candidates; that they are members of a
              political party (naming the same), and that they intend to
              affiliate with that political party at the ensuing election; that
              they indorse the person or persons named in their petition as
              candidate or candidates for nomination for the office or offices
              therein named, and that they request that the name of the person
              or persons therein mentioned be printed upon the official
                                               3
       A person who obtains signatures on nomination petitions for a prospective

candidate is known as a “circulator.” New Jersey law requires that a circulator “be a

registered voter in this State whose party affiliation is of the same political party named

in the petition.” 

(emphasis added). Because the statute restricts

circulators to “registered voter[s] in [New Jersey],” it follows that out-of-staters––or, by

the same token, in-state residents who are not registered to vote––may only gather

signatures on behalf of a prospective candidate if they are accompanied at all times by an

in-state witness, i.e., a New Jersey resident who is a registered voter of the same political

party as the candidate named in the petition. 

that circulators and/or

witnesses are indeed citizens of, and registered to vote in, New Jersey, the Secretary of

State retains the right to cross-check nomination petitions with New Jersey’s “Statewide

voter registration system” (“SVRS”), which serves as the State’s official repository for

voter registration information. 

       Appellants Wilmoth and Pool are self-described “professional circulators of

election petitions.” (Appellants’ Br. 6.) Wilmoth, a registered Democrat residing in

Michigan, currently serves as the chief relations officer of Signature Masters, Inc.




              primary ballots of their political party as the candidate or
              candidates for such nomination. The petition shall further state
              the residence and post-office address of each person so
              indorsed, and shall certify that the person or persons so
              indorsed is or are legally qualified under the laws of this State
              to be nominated, and is or are a member or members of the
              political party named in the petition.

N.J. Stat. Ann. § 19:23-7.
                                              4
(“SMI”), “a Michigan corporation that specializes in petition management solutions on a

national level.” (App. 161, 165.) Pool, for his part, is a registered Republican residing in

Texas. He currently serves as president of Benezet Consulting (“Benezet”), a Texas-

based LLC “engaged in the business of circulating nomination petitions for Republican

and Democratic candidates, including candidates for President of the United States.” 3

(Id. at 163.)

       In the months leading up to the 2016 presidential primaries, Wilmoth and SMI

were hired by Democratic Presidential candidate Roque (“Rocky”) De La Fuente to

conduct “petition drives” in New Jersey. (Id. at 161–62.) As for Pool, Appellants do not

describe the extent of his political work; instead, they note only that Pool sought to

circulate petitions in New Jersey, but was unable to do so “because he does not know

and/or could not locate any in-state registered voter willing to serve as a witness of the

nomination petitions that he wanted to circulate in 2016.” (Id. at 162.)

       On April 4, 2016, Wilmoth and Pool commenced suit under 42 U.S.C. § 1983 in

the United States District Court for the District of New Jersey against Appellee New

Jersey Lieutenant Governor and Secretary of State Kimberly Guadagno, in her capacity

as the State’s chief election official. 4 Wilmoth and Pool specifically sought a declaration

that N.J. Stat. Ann. § 19:23-11 is unconstitutional under the First and Fourteenth



       3
         SMI and Benezet are also named parties to this dispute. During oral argument,
however, Appellants’ counsel conceded that the entities’ respective interests are not at
stake. Therefore, on remand, the District Court need only focus on the First Amendment
rights of Wilmoth and Pool.
       4
         For sake of simplicity, we will refer to the Appellee as “New Jersey.”
                                              5
Amendments insofar as it prevents out-of-staters like themselves from circulating

nomination petitions in New Jersey unless they are accompanied by an in-state, registered

voter. Such a requirement, Wilmoth and Pool argued, “place[d] a severe burden” on

“core political speech” because it restricted their ability to engage in a number of political

activities, including their rights to:

               (a) disseminate their political views unimpeded; (b) choose the
               most effective mode of conveying their message; (c) associate
               with the voters of New Jersey in a meaningful way to elicit
               political change; and (d) . . . secure ballot access for the
               candidates of their choice in the most effective, efficient and
               cost-effective manner possible. . . .

(App. 168.)

       On March 24, 2017, the District Court issued an oral opinion from the bench

granting New Jersey’s Rule 12(b)(6) motion to dismiss. Applying strict scrutiny review,

the District Court determined that N.J. Stat. Ann. § 19:23-11 was constitutional because,

in its view, New Jersey’s “goal [of] ensur[ing] the integrity of [its] election [system]

through the use of the SVRS . . . clearly outweigh[ed] the adverse effect[s] on Wilmoth

and Pool.” (App. 31.) This timely appeal followed.

                                             II.

       The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate

jurisdiction pursuant to 28 U.S.C. § 1291.

       We exercise plenary review over a decision to grant a motion to dismiss.

Delaware Nation v. Pennsylvania, 

, 415 (3d Cir. 2006) (citation omitted).

“[I]n deciding a motion to dismiss, all well-pleaded allegations of the complaint must be


                                              6
taken as true and interpreted in the light most favorable to the plaintiffs, and all

inferences must be drawn in favor of them.” McTernan v. City of York, 

,

526 (3d Cir. 2009) (citation omitted). To withstand a Rule 12(b)(6) motion to dismiss, a

complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 

, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 

, 570 (2007)). 5

                                              III.

                                              A.

        It is well established that states have “broad power” to regulate their respective

electoral processes. Timmons v. Twin Cities Area New Party, 

, 358 (1997)

(citing U.S. Const. art. I, § 4, cl. 1). Indeed, “as a practical matter, there must be a

substantial regulation of elections if they are to be fair and honest and if some sort of

order, rather than chaos, is to accompany the democratic process.” Burdick v. Takushi,

, 433 (1992) (quoting Storer v. Brown, 

, 730 (1974)). The fact

that states are afforded broad power to regulate their elections, however, does not mean

that their authority to do so is unrestricted. To the contrary, election-related legislation


       5
         Although Wilmoth and Pool indicate in their brief that they “seek declaratory
and injunctive relief, both facially and as-applied[,]” (Appellants’ Br. 3), Appellants’
counsel clarified during oral argument that their claim is in fact an as-applied challenge,
not a facial challenge. The distinction is important. A facial challenge “seeks to
vindicate not only [the plaintiffs’] rights, but those of others who may also be adversely
impacted by the statute in question.” City of Chicago v. Morales, 

, 55 n.22
(1999). An as-applied challenge, by contrast, “does not contend that a law is
unconstitutional as written but that its application to a particular person under particular
circumstances deprived that person of a constitutional right.” United States v.
Marcavage, 

, 273 (3d Cir. 2010).
                                               7
must conform to the limits imposed by the Constitution. Williams v. Rhodes, 

, 29 (1968).

       In reviewing a First Amendment challenge to a state’s election law, the Supreme

Court has emphasized that “[n]o bright line separates permissible election-related

regulation from unconstitutional infringements on First Amendment freedoms.”

(citing 

). Instead, under what has come

to be known as the Anderson-Burdick balancing test, “the rigorousness of our inquiry into

the propriety of a state election law depends upon the extent to which a challenged

regulation burdens” the plaintiff’s First Amendment rights. 

.

Evaluating these alleged burdens, in turn, requires a “weighing” of several factors,

including: (1) the “character and magnitude” of the alleged constitutional injury; (2) “the

precise interests put forward by the State as justifications for the burden imposed by its

rule[;]” and (3) “the extent to which those interests make it necessary to burden the

plaintiff’s rights.” Anderson v. Celebrezze, 

, 789 (1983). If, after reviewing

these factors, we determine that the challenged regulation imposes “‘severe’ restrictions”

on the plaintiff’s First Amendment rights, then the law may be upheld as constitutional

only if it is “narrowly drawn to advance a state interest of compelling importance.”

(quoting Norman v. Reed, 

, 289 (1992)). In other

words, strict scrutiny applies. However, if we find that the challenged “provision

imposes only ‘reasonable, nondiscriminatory restrictions’” upon the plaintiff’s rights, 

(quoting 

), then “the State need not establish a

compelling interest to tip the constitutional scales in its direction.” 

Rather, the

                                              8
State need only show that its “legitimate interests” in upholding the law “sufficient[ly] . .

. outweigh” the burden imposed on the plaintiff. 

6

          Our Anderson-Burdick inquiry in the instant case is quite straightforward. Since

the turn of the century, “a consensus has emerged” that laws imposing residency

restrictions upon circulators of nomination petitions “are subject to strict scrutiny

analysis.” Libertarian Party of Virginia v. Judd, 

, 316–17 (4th Cir. 2013)

(citing Yes on Term Limits, Inc. v. Savage, 

, 1030–31 (10th Cir. 2008)

(overturning, under strict scrutiny review, Oklahoma’s prohibition on nonresident

circulators of initiative petitions); Nader v. Blackwell, 

, 475–76 (6th Cir.

2008) (finding Ohio’s ban on nonresident circulators of nomination petitions

unconstitutional under strict scrutiny review); Nader v. Brewer, 

, 1038 (9th

Cir. 2008) (declaring unconstitutional, under strict scrutiny review, Arizona law requiring

circulators of nomination petitions to be in-state residents)); see also Initiative &

Referendum Inst. v. Jaeger, 

, 616–17 (8th Cir. 2001) (applying strict

scrutiny review to North Dakota’s proscription against nonresident initiative-petition

circulators, but concluding that the State had satisfied its burden of proving that the law

was narrowly tailored to advance North Dakota’s compelling interest in preventing

fraud).


          6
         It is important to note that the Anderson-Burdick balancing test concerns only
the appropriate level of judicial scrutiny of an election-related regulation, and not
whether the interest articulated by the State is compelling. See Biener v. Calio, 

, 214 (3d Cir. 2004) (explaining that “we follow[] the flexible standard set forth in
Anderson v. Celebrezze for determining the appropriate level of scrutiny in ballot access
cases”) (citing Belitskus v. Pizzingrilli, 

, 643 (3d Cir. 2003)).
                                               9
       Our sister courts’ collective agreement on this issue has its genesis in Meyer v.

Grant, where a unanimous Supreme Court held that Colorado’s criminalization of paid

petition circulators amounted to an unconstitutional restriction on “core political speech.”

, 422 (1998). In so holding, the Court emphasized that “the circulation of a

petition involves the type of interactive communication concerning political change” for

which First Amendment protection “is at its zenith.” 

425 (citations and

quotation marks omitted). Cf. Buckley v. Am. Constitutional Law Found., Inc., 

, 192 (1999) (declaring unconstitutional Colorado’s initiative petition laws because

they “significantly inhibit[ed] communication with voters about proposed political

change, and [were] not warranted by the state interests . . . alleged to justify those

restrictions”).

       The plain language of N.J. Stat. Ann. § 19:23-11 makes clear that one’s residency

is the sine qua non for determining whether he or she may lawfully circulate nomination

petitions in New Jersey. Specifically, the relevant portion of the statute states that “[t]he

person who circulates the petition shall be a registered voter in this State whose party

affiliation is of the same political party named in the petition.” N.J. Stat. Ann. § 19:23-11

(emphasis added). New Jersey seeks to inoculate the “in this State” language by arguing

that the statute, as a whole, should be more appropriately regarded as imposing a “party

affiliation” restriction, not a residency restriction. See, e.g., (Appellee’s Br. 21) (“[T]his

Court should . . . uphold the party affiliation requirement in N.J. Stat. Ann. § 19:23-11 as

justified by ‘important regulatory interests.’”) (quoting 

). This

argument, however, is unavailing. Wilmoth and Pool are dues-paying members of the

                                              10
Democratic and Republican Parties, respectively, yet remain barred under N.J. Stat. Ann.

§ 19:23-11 from circulating nomination petitions in New Jersey. Their party affiliations,

in other words, are immaterial; instead, it is the fact that they reside out of state that

prevents them from circulating petitions. Because New Jersey’s residency requirement

for circulators restricts “core political speech,” strict scrutiny review is warranted.

                                               B.

       Having determined that strict scrutiny applies, the burden now shifts to New

Jersey to prove (1) that its stated interests in upholding the constitutionality of N.J. Stat.

Ann. § 19:23-11 are compelling and (2) that the statute is narrowly tailored to advance

those interests. See 

; see also Republican Party of Minnesota v.

White, 

, 774–75 (2002).

       Here, New Jersey argues that N.J. Stat. Ann. § 19:23-11 serves two compelling

interests, namely: it “protect[s] political parties from the raiding of their closed primaries

and . . . preserv[es] the associational rights of New Jersey political parties.” (Appellee’s

Br. 23) (internal citation omitted). The Supreme Court has held that, as a general

proposition, each interest is indeed compelling. See Rosario v. Rockefeller, 

,

761–62 (1973) (accepting New York’s compelling interest in safeguarding its elections

from “party raiding”); see also Tashjian v. Republican Party of Connecticut, 

, 214 (1986) (“The freedom of association protected by the First and Fourteenth

Amendments includes partisan political organization[s].”).

       Our inquiry, however, does not end with a determination that “the Government’s

asserted interests are important in the abstract.” Turner Broad. Sys., Inc. v. FCC, 512

                                               

, 646 (1994). Instead, “[w]hen the Government defends a regulation on speech

as a means to redress past harms or prevent anticipated harms, it must . . . demonstrate

that the recited harms are real, not merely conjectural, and that the regulation will in fact

alleviate these harms in a direct and material way.” 

omitted). Yet

here, our ability to assess whether New Jersey’s asserted interests are compelling is

constrained by the fact that, at this stage of litigation, we “have before us only the

allegations . . . in the complaint, orders issued in the action, and other matters of public

record.” Free Speech Coal., Inc. v. Att’y Gen., 

, 536 (3d Cir. 2012) (citation

omitted). In other words, because the District Court granted New Jersey’s motion to

dismiss prior to discovery taking place, the parties were not afforded an opportunity to

develop an evidentiary record, and thus we have no basis upon which to gauge the

validity of the competing interests at stake.

       To illustrate why the absence of such a record is ultimately dispositive, consider

the Eighth Circuit’s decision in Initiative & Referendum Institute. There, North Dakota

argued that the residency requirement at issue “allow[ed] North Dakota’s Secretary of

State to protect the petition process from fraud and abuse by ensuring that circulators

answer to the Secretary’s subpoena 

. As support for its position,

the State “point[ed] to a 1994 incident” involving “[t]wo Utah residents” who fled the

State after playing a role in “petition irregularities” that resulted in some 17,000

signatures being invalidated, a “matter that was never fully resolved.” 

this evidence, the court accepted North Dakota’s contention that the State indeed had “a

compelling interest in preventing fraud . . . .” 

contrast, New Jersey has not

                                                12
been afforded an opportunity to present evidence showing that the State’s goals of

preventing party raiding and preserving the associational rights of New Jersey political

parties are sufficiently compelling reasons to uphold the constitutionality of N.J. Stat.

Ann. § 19:23-11. See also Krislov v. Rednour, 

, 866 n.7 (7th Cir. 2000)

(“[I]f the use of non-citizens were shown to correlate with a high incidence of fraud, a

State might have a compelling interest in further regulating noncitizen circulators.”).

       Similarly, we also have no basis upon which to determine whether the New Jersey

law prohibiting registered, out-of-state voters from circulating nomination petitions is

narrowly tailored to protect the State’s interests. For example, to help ensure the integrity

of New Jersey’s election system, Wilmoth and Pool each “have agreed to submit to the

jurisdiction of [New Jersey] for purposes of any investigation and/or prosecution of

petition fraud . . . .” (Appellants’ Br. 13.) Submitting to a state’s jurisdiction for purposes

of subpoena enforcement, in turn, has been accepted as a less restrictive means of

achieving the same goal. See, e.g., Chandler v. City of Arvada, 

, 1244

(10th Cir. 2002) (holding that Appellee failed to prove narrow tailoring because it could

achieve its “compelling interest in policing its petition process” by requiring “the

prospective circulator [to] agree to submit to [its] jurisdiction . . . for the purpose of

subpoena enforcement”); Libertarian Party of 

(“[R]equiring

non-residents to sign agreements providing their contact information and swearing to

return in the event of a protest is a more narrowly tailored option.”) (quoting Yes on Term

). Thus, to survive strict scrutiny, New Jersey must “show[] that

[Appellants’] proposed less restrictive alternatives are less effective than” N.J. Stat. Ann.

                                               13
§ 19:23-11 in achieving the State’s asserted interests. Reilly v. City of Harrisburg, 

, 180 (3d Cir. 2017), as amended (June 26, 2017) (quoting Ashcroft v. ACLU,

, 666 (2004)). Because satisfying this burden necessarily requires recourse

to an evidentiary record, we have no choice but to remand for further proceedings.

                                             IV.

       The complaint in this action presents a plausible claim that the New Jersey law

infringes out-of-state circulators’ First Amendment rights. Accordingly, we will vacate

the order dismissing this action and remand to allow the parties to develop an appropriate

factual record for the purposes of determining whether the New Jersey law does in fact

violate the Appellants’ constitutional rights.




                                             14