On September 13, the Third Circuit issued a short order, telling New Jersey’s Secretary of State to list Carl Lewis on the ballot as the Democratic nominee for State Senate, 8th district. He had been kept off the ballot because the state Constitution says no one can run for State Senate who has not lived in New Jersey for four years. The Third Circuit said it will issue a full opinion later. The vote was 2-1.

The order says, “The judgment of the District Court, entered September 7, 2011, is hereby reversed. The District Court incorrectly applied a rational basis standard of review of this as-applied challenge, rather than the stricter compelling state interest standard. See Wellford v Battaglia, 343 F.Supp. 143 (D.Del. 1972), affirmed, 485 F.2d 1151 (3rd Cir. 1973). The State has failed to demonstrate a compelling state interest in the application of this durational residency requirement to this particular candidate. Accordingly, it is hereby ordered that the ballots at issue in this appeal include the name of Appellant. Opinion of the Court to follow.”

Wellford v Battaglia, the precedent the panel depends on, struck down a provision in the city charter of Wilmington, Delaware, which said no one could run for Mayor without having lived in Wilmington for five years. Generally that precedent is considered implicitly overruled by the U.S. Supreme Court’s summary affirmance in Sununu v Stark, in 1975. In Sununu v Stark, the lower 3-judge court had upheld New Hampshire’s 7-year residency requirement in the state to run for State Senate, and the U.S. Supreme Court summarily affirmed it. Also, in 1982, the U.S. Supreme Court, in a full opinion in Clements v Fashing, 457 U.S. 957, said that the right to be a candidate is not fundamental. However, that was a decision with no majority opinion, so it has less influence.

This order is from Judge Thomas Ambro, a Clinton appointee, and Thomas Vanaskie, an Obama appointee. Judge Anthony Scirica, a Reagan appointee, dissented, but did not write anything. Thanks to Rick Hasen for this news.