                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 11-3401
                                   _____________

                          FREDERICK CARLTON LEWIS,
                                              Appellant

                                           v.

               KIM GUADAGNO, SECRETARY OF STATE;
                   PAULA DOW, ATTORNEY GENERAL;
                JOSEPH RIPA, CAMDEN COUNTY CLERK;
            TIMOTHY TYLER, BURLINGTON COUNTY CLERK;
          EDWARD P. MCGETTIGAN, ATLANTIC COUNTY CLERK;
      JOHN DOES I-X, (fictitious names), jointly, severally and in the alternative

              WILLIAM LAYTON; TED COSTA (Intervenors in D.C.)
                            _____________

                   On Appeal from the United States District Court
                           for the District of New Jersey
                          (D.C. Civil No. 1-11-cv-02381
                       District Judge: Hon. Noel L. Hillman
                                  _____________

                          Argued September 13 and 20, 2011

            Before: SCIRICA, AMBRO and VANASKIE, Circuit Judges

                             (Filed: September 22, 2011)

William M. Tambussi, Esq. (Argued)
Michael J. Miles, Esq.
Brown & Connery, LLP
360 Haddon Ave.
Westmont, NJ 08108
             Counsel for Appellant
Donna Kelly, Esq. (Argued)
Robert Lougy, Esq.
Office of Attorney General of New Jersey
Richard J. Hughes Justice Complex
Trenton, NJ 08625
              Counsel for Appellees Kim Guadagno, Secretary of State and
              Paula Dow, Attorney General

James T. Dugan, Esq.
Atlantic County Department of Law
133 Atlantic Ave., 8th Floor
Atlantic City, NJ 08401
              Counsel for Appellee Edward P. McGettigan, Atlantic County Clerk

Peter H. Nelson, I, Esq.
Office of Solicitor of Burlington County
49 Rancocas Road, Room 225
Mt. Holly, NJ 08060
              Counsel for Timothy Tyler, Burlington County Clerk

Mark D. Sheridan, Esq. (Argued)
Drinker, Biddle & Reath
500 Campus Drive, 4th Floor
Florham Park, NJ 07932
             Counsel for Intervenor-Appellees William Layton and Ted Costa
                                   _____________

                                       OPINION
                                     _____________

PER CURIAM

       Frederick Carlton “Carl” Lewis appeals from the District Court‟s order granting

summary judgment against him in his as-applied equal protection challenge to the New

Jersey Constitution‟s four-year state residency requirement for the office of State Senator.

For the reasons set forth below, we will affirm the District Court‟s judgment.




                                             2
                                               I.

       On April 11, 2011, Lewis filed his nomination petition with the New Jersey

Division of Elections to have his name placed on the ballot for the June 7, 2011

Democratic primary election as a candidate for State Senator in New Jersey‟s 8th

Legislative District. William Layton and Ted Costa1 contested Lewis‟s eligibility,

arguing that Lewis could not meet the New Jersey Constitution‟s requirement that a State

Senator be a citizen and resident of the State for at least four years prior to the date of his

or her election.2 The matter was referred to the Office of Administrative Law and,

following a hearing on April 19, the Administrative Law Judge (ALJ) determined that

Layton and Costa had failed to demonstrate that Lewis had not been a citizen and resident

of New Jersey for the four-year period prior to November 8, 2011, the date of the general

election.3

       On April 26, New Jersey‟s Secretary of State rejected the ALJ‟s decision,

determining that Lewis could not meet the four-year residency requirement and that he




       1
      William Layton is the Chairman of the Burlington County Republican
Committee and Ted Costa is the Chairman of Hainesport Township Republican
Committee.
       2
        The provision, in relevant part, states: “No person shall be a member of the
Senate who shall not . . . have been a citizen and resident of the State for four years . . .
next before his election.” N.J.S.A. Const. Art. IV, § I, ¶ 2.
       3
        The ALJ noted that he was not finding that Lewis met the durational residency
requirement, only that Layton and Costa had failed to show that Lewis did not meet the
requirement where the “severely limited time constraints in hearing and deciding [the]
matter [did] not permit[] a fully developed record.”

                                               3
was therefore ineligible to run in this year‟s election.4 On appeal, the Superior Court of

New Jersey, Appellate Division, affirmed the Secretary‟s decision, “conclud[ing] that the

Secretary‟s decision was supported by adequate evidence in the record that [Lewis] was

not domiciled in New Jersey for the past four years.” Layton v. Lewis, 2011 WL

1632039 (N.J. Super. Ct. App. Div. May 2, 2011). The New Jersey Supreme Court

denied certification. Layton v. Lewis, 23 A.3d 912 (N.J. 2011).

       In addition to the state court appeal, Lewis filed this action in the United States

District Court for the District of New Jersey against the Secretary and the Attorney

General of New Jersey (hereinafter Defendants), among others, alleging that the

Secretary‟s order to remove Lewis‟s name from the ballot violated the U.S.

Constitution‟s Equal Protection Clause and the New Jersey Civil Rights Act. Lewis

moved for a temporary restraining order to enjoin the printing of primary election ballots

in the 8th Legislative District and for an order to show cause why a preliminary

injunction should not be entered. On April 28, 2011, the District Court denied Lewis‟s

motion, holding that Lewis had failed to demonstrate a likelihood of success on the




       4
         The Secretary determined that, notwithstanding Lewis‟s purchase of two
condominiums in New Jersey in 2005 and the fact that he closed on his current New
Jersey residence on November 16, 2007, as of November 8, 2007, the so-called
“constitutional cut-off” date, Lewis was not a resident of New Jersey. In her
determination, the Secretary relied heavily on evidence that Lewis was domiciled in
California within the relevant four-year period, including that he voted in California in
2008 and 2009 and filed a state income tax return in California for the 2008 tax year.

                                              4
merits of his facial challenge to the four-year residency requirement.5 Lewis appealed,

and on May 5 this Court granted Lewis‟s motion for preliminary injunctive relief,

ordering that the primary ballots include Lewis‟s name, and remanded the case to the

District Court for a determination on the merits of Lewis‟s as-applied challenge, which

the District Court had not addressed.

       On remand, the Defendants and Layton and Costa, who both intervened in the

action (hereinafter Intervenors), moved for summary judgment, and Lewis cross-moved

for summary judgment. On September 6, the District Court entered an order and opinion

granting the Defendants‟ and Intervenors‟ motions for summary judgment and denying

Lewis‟s cross-motion for summary judgment. The District Court rejected Lewis‟s

argument that the durational residency requirement must be subjected to strict scrutiny

and, applying rational basis review, held that the durational residency requirement as

applied to Lewis did not violate the Equal Protection Clause. Lewis has appealed.

                                            II.

       The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. We

have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court‟s grant of

summary judgment is plenary. Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011).




       5
        Significantly, a facial challenge to a seven-year residency requirement for State
Senator in the New Hampshire Constitution was rejected in Sununu v. Stark, 383 F. Supp.
1287 (D.N.H. 1974) (three-judge panel), aff’d, 420 U.S. 958 (1975).
                                            5
                                             III.

       Durational residency laws implicate equal protection concerns.6 See Dunn v.

Blumstein, 405 U.S. 330, 334-35 (1972). That is, a durational residence law divides

“residents in two classes, old residents and new residents, and discriminate[s] against the

latter to the extent of totally denying them” some benefit or right. Id. In this case, Lewis

is denied the opportunity to run for the office of State Senator.

       Where, as here, a litigant presents an “as-applied” equal protection challenge to

state action, the constitutionality of the state constitutional provision on which New

Jersey relied is not at issue. See United States v. Marcavage, 609 F.3d 264, 273 (3d Cir.

2010). Instead, the dispositive question is whether application of the constitutional

provision “to a particular person under particular circumstances deprived that person of a

constitutional right.” Id. In this case, therefore, the issue is whether application of New

Jersey‟s four-year residency requirement to Lewis deprived him of a constitutional right

under the particular circumstances of this case.

       Those particular circumstances include the following uncontested matters:



       6
          The Equal Protection Clause of the Fourteenth Amendment provides that no
State shall “deny to any person within its jurisdiction the equal protection of the laws.”
U.S. Const. amend. XIV, § 1. “This „does not forbid all classifications‟ but „simply
keeps governmental decisionmakers from treating differently persons who are in all
relevant respects alike.‟” Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d
89, 109 (3d Cir. 2011) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). “[U]nless a
classification warrants some form of heightened review because it jeopardizes exercise of
a fundamental right or categorizes on the basis of an inherently suspect characteristic, the
Equal Protection Clause requires only that the classification rationally further a legitimate
state interest.” Nordlinger, 505 U.S. at 10. Here, there is no contention that Lewis is in a
suspect class.
                                              6
             Under New Jersey law, the term “resident” is equated to
             “domicile.” N.J. Stat. Ann. § 40A:9.11(d). Thus, to be a
             “citizen and resident” of New Jersey for purposes of the four-
             year State Senator eligibility requirement, a person must be
             domiciled in New Jersey. See Twp. of Willingboro v.
             Redding, 2007 WL 250379, at *2 (N.J. Super. Ct. App. Div.
             Jan. 31, 2007).

             A person can be domiciled in one state only. See Messick v.
             S. Pennsylvania Bus. Co., 59 F. Supp. 799, 800 (E.D. Pa.
             1945).

             Lewis maintained multiple residences in California and New
             Jersey between 2005 and 2009.

             On November 16, 2007, less than four years before the
             upcoming November 8, 2011 election for State Senate, Lewis
             closed on a home in Medford, New Jersey, and began
             transferring his belongings to the Medford property.

             Lewis voted in California elections in 2008 and May of 2009.

             In order to vote in California, a person must be domiciled in
             that State. Cal. Const. Art. 2, § 2; Cal. Elec. Code § 349.

             Lewis did not register to vote in New Jersey until April of
             2011.

      Lewis cannot point to a similarly situated person who, having voted as a citizen of

another state less than three years before a general election in New Jersey, was deemed

eligible to run for statewide office. The case upon which Lewis relies – King v. Lopez,

2010 WL 4940051 (N.J. Super. Ct. App. Div. Dec. 7, 2010) – concerned the election of a

councilperson, not a State Senator. Moreover, the candidate, Nidia R. Lopez, had

registered to vote in New Jersey eight years before running in 2009 for councilperson in

Jersey City‟s Ward C and had regularly voted in New Jersey elections from 2001 to 2009.

Although Lopez had maintained her registration to vote in Florida during this same time

                                            7
frame, and may have voted by absentee ballot in Florida after moving back to New Jersey

in 2001, the court found that the evidence was insufficient to show that Lopez had not

intended to make her residence on Corbin Avenue, Jersey City, New Jersey, more than

one year before the election in question.

         Here, by way of contrast, Lewis did not register to vote in New Jersey until April

of 2011, he continued to affirm his domicile in California through the Spring of 2009 by

voting in California elections, and is a candidate for a New Jersey statewide office that is

subject to a constitutional durational residency requirement. Under these circumstances,

he cannot show that the New Jersey constitutional provision has been applied unevenly as

to him. As he was treated no differently than others who are in other respects alike, there

is not even a prima facie showing of an equal protection violation.

         What Lewis is left with is a claim that the residency requirement infringes on

fundamental rights – the right of the voters to elect a candidate of their choosing, the right

of an individual to run for office unencumbered by discrimination, and the right to travel.

This comes across as more of a facial as opposed to an as-applied equal protection

challenge to New Jersey‟s durational residency requirement. That issue is not before us

today.

         Turning back to the as-applied challenge, Lewis “proceeds from the erroneous

assumption that a law that imposes any burden upon the right to vote must be subject to

strict scrutiny.” Burdick v. Takushi, 504 U.S. 428, 432 (1992). On the contrary, courts

must “examine in a realistic light the extent and nature of [the residency requirement‟s]

impact on voters.” Bullock v. Carter, 405 U.S. 134, 143 (1972). Lewis argues the

                                              8
requirement prohibits citizens from voting for him. However, “[e]lection laws will

invariably impose some burdens upon individual voters.” Burdick, 504 U.S. at 433. A

period of waiting simply delays votes for him should he choose to run at a later time

meeting New Jersey‟s requirement of residency.

       Lewis‟s contention that he has a right to run “unencumbered by discrimination” is

correct. But he fails to articulate what discrimination the residency requirement imposes.

Rather, he appears to argue that he has a fundamental right to run for office, but the

Supreme Court has rejected the argument that an individual has a fundamental right to

candidacy. See Clements v. Fashing, 457 U.S. 957, 963 (1982); Bullock, 405 U.S. at 142-

43.

       Lewis also claims the constitutional residency requirement imposes an “extreme

burden” on his right to travel. He does not demonstrate, however, how the requirement

forces him to choose between travel and another fundamental right. See Dunn, 405 U.S.

at 342 (holding that a durational residency requirement cannot force a person to choose

between travel and the basic right to vote).

       Lewis has invited us to relitigate the New Jersey court‟s finding of his failure to

meet the four-year residency requirement. We decline to revisit this state law issue that

was fully litigated in state court. Moreover, the New Jersey court‟s reference to, and

even reliance upon, Lewis‟s voting in California in 2008 and 2009 as an “implicit

declaration of not only residence but domicile,” Layton, 2011 WL 1632039, at *6, affords

no basis for our re-examination of the state court‟s factual finding. While the

presumption of domicile arising from the act of voting in California may be rebuttable,

                                               9
there is no issue of constitutional dimension arising from the state court‟s treatment of

this fact. Indeed, even Lewis‟s counsel acknowledged the significance of the California

voting record by conceding that he would not be in court on this issue but for the fact that

Lewis continued to vote in California within four years of the New Jersey election date.

       In short, Lewis has failed to show that, as applied to him, the four-year state

residency requirement for the office of State Senator in New Jersey has treated him

unequally. Accordingly, we will affirm the judgment of the District Court.7




        7
        In light of our affirmance of the District Court, the printing of ballots without
Lewis‟s name may proceed.
                                             10
