DR 2014 Memorandum FINAL (Brief)

8/11/2019 DR 2014 Memorandum FINAL (Brief)

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-----------------------------------------------------X Superior Court of New Jersey

Democratic-Republican Organization of : Law Diision ! Ciil "art

New Jersey# an unincorporated association, : $ercer Countyet als., :

: Doc%et No& ''''''''''''''''

Plaintiffs# :

:

vs. :

:

(imberly )ua*agno#N.J. Lt. Governor / :

Sec. of State, et als., : Civil Action

:

Defendants, :

:

and :

:

+an% Sc,roe*er, candidate for U.S. Senate, :

et als., :

:

Interested Parties. :

:

-----------------------------------------------------X

"laintiffs Joint $emoran*um of Law in Support of .pplication for /0pe*ite* an

.ccelerate* 1inal Declaratory an* 1inal "ermanent 2n3unctie Relief an* .n

.ssociate* Relief Necessary to "rotect t,e Legal 2nterests of t,e "arties

'''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''

2ntro*uction:

Plaintiffs, candidates for public elective office and non-candidate

voter plaintiffs, bring the instant action before this Court as a Verified

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Complaint seeking expedited and accelerated declaratory and permanent

injunctive relief by way of an ction in !ieu of Prerogative "rits # Writ of

Mandamus$% See N.J.S.A. &'1(-)1 et seq. #*ew +ersey eclaratory

+udgments ct$,R. ')&-1 et seq. #.njunctions$,R. '(/-1 et seq. #ctions in

!ieu of Prerogative "rits$% 0he collective Plaintiffs specifically seek

permission from this Court to proceed with the entirety of this case in a

summary manner, and seek to do so on an accelerated and expedited basis

with a final ruling from this Court, and a inal 2rder from this Court on or

before August 22, 2014. See R. '(3-b$ #4ummary 5anner$ andR. 1'1-&

#6elaxation of Court 6ules$7see also Save our Sore !istrict v. Ne" Jerse#

Redistrictin$ %ommission, 181 N.J. )/ #1//&$ #Courts will act an

accelerated and expedited basis when considering time sensitive claims that

involve matters of substantial public importance and election matters$ and

Mocar# v. %aputo, 199N.J. 11/ #1/:)$ #same$% Plaintiffs argue that this is

the appropriate procedure to follow under the circumstances so that there

will be ade;uate time for any possible appeals process brought to be

completed before election officials must cause the ballots to be printed%

0he collective named defendants are the 4tate and County public

officials charged with a specific legal duty pursuant to the Ne" Jerse#

%onstitution #1/3$, as amended, with applying and enforcing the


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!aws in *ew +ersey=s 0itle 1/ that govern all public general elections #both

6egular >eneral eneral eneral eneral eneral eneral


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4,e "laintiffs Claims:

0his case involves serious ;uestions regarding the legality of the 4tate

of *ew +ersey=s administration of the upcoming *ovember , &91 ?6egular

>eneral


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ESee ugust :, &91 certification at ?uadagno was issued contrary to law, and that the actual

undisputed fact of history is that neither the 6epublican Party nor the

emocratic Party ?D polled at least &'(,)*' votes at te June &, (+)

primar# election 1@ within the meaning of the *ew +ersey


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Legal .rgument:

"oint 2:

4,e 5allot "reference Statute# N.J.S.A. 67:68-9# *oes not apply to t,e

Noember 8# 968 Regular )eneral /lection 5ecause neit,er of t,e

;statutory political parties< ,ae satisfie* t,e 6= 4,res,ol* in

N.J.S.A. 67:>-6# an* as suc, *efen*ant )ua*agnos .ugust ?# 968

;Certification< is inali* an* illegal an* any *rawing con*ucte* by t,e

*efen*ant Cler%s is oi* ab initio:

4,e 5allot Location "reference Statutory Sc,eme 4o*ay:

.n *ew +ersey ballot location of a candidate=s name is governed by

N.J.S.A. 1/'1-1&, which provides in relevant part as follows'

0he county clerk shall draw lots in his

county to determine which columns the political

parties which made nominations at the next

preceding primary election shall occupy on the

ballot in the county% 0he name of the party first

drawn shall occupy in the first column at the left of

the ballot, and the name of the party next drawn

shall occupy the second column, and so forth%

0he position which the names of candidates,

and bracketed groups of names of candidates

nominated by petitions for all offices, shall have

upon the general election ballot, shall be

determined by the county clerks in the respective

counties% I I I

EN.J.S.A. 1/'1-1&F%


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G as long as the statutory political party has met the 19J threshold of

N.J.S.A. 1/')-1 at the Primary eneral eneral


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EN.J.S.A. 1/')-1F%

.t is presumed that the parties will be able to agree and stipulate that

the base 19J caveat threshold ?number@ at issue inN.J.S.A. 1/')-1 is the

?number@ as certified to by defendant >uadagno on ecember 8, &918 in her

?Certification of Political Parties@, which number is ?83&,1/3@%

s long as each statutory political party did not ?Dfail to !ollat an#

primar# election for a $eneral election at least ten per centum -)+ of te

votes cast in te State for %e%bers of t"e )eneral Asse%bl#at te ne2t

precedin$ $eneral election D@ #emphasis added$, or in this case at least

?83&,1/3@, at their respective +une 8, &91 6egular Primary


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cast in te State for mem0ers of te General Assem0l# at te ne2t precedin$

$eneral electionD@ forN.J.S.A. 1/')-1 purposesK *o$does one count, and

$"at does one count, to determine whether a statutory political party has

met the N.J.S.A. 1/')-1 19J threshold of ?83&,1/3@K 0his is where the

parties part company on their interpretation of the statutory scheme% 0his is

because of the ?peculiar@ G and what plaintiffs, contend is the ?actually not

precedential@ and otherwise invalid - ppellate ivision opinion in Ne"

Jerse# %onservative 3art# v. 4armer, 8&N.J.Super. )1 #pp% iv% 1///$,

which has unnecessarily muddied the waters, so to speak, for 1) years%

4,e /arlier Cases an* t,e "rece*ent t,at t,is Court $ust 1ollow:

0here have been three cases brought since 1///, all in most respects by the

same litigants though under somewhat different circumstances each time, yet

each on the applicability and interpretation ofN.J.S.A. 1/')-1%


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C% +acobson, %+%4%C% #who issued her oral opinion on 2ctober 8, &918$ who

have actually reviewed and considered the substance of the ;uestion, and of

the two *ew +ersey ppellate +udges, specifically the two +udge


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met theN.J.S.A. 1/')-1 threshold actually directly conflicts with language in

the *ew +ersey 4upreme Court=s holding inRicardson v. %aputo, (N.J. 8

#1/()$ where the 4upreme Court noted that only votes cast at the Primary

eneral ssembly are to be counted when

calculating the 19J threshold, which must be carefully read in context to be

understood% 0he holding inRicardson v. %aputo, (N.J. 8, 19 #1/()$, is a

decision of the 4tate=s highest Court, superior to the ppellate ivision=s

?peculiar@ holding in Ne" Jerse# %onservative 3art# v. 4armer, 8&

N.J.Super. )1 #pp% iv% 1///$, and is therefore binding on this Court to

the exclusion of the referenced incorrect ppellate ivision case% 0his

remains true even if the language in Ricardson v. %aputo, ( N.J. 8, 19

#1/()$ is viewed as dictum. See State v. 5reit"eiser, 838N.J.Super. &31,

&:&-&:8 #pp% iv% &99$, certif. denied 1:&N.J. (&: #&99)$7Nardello v.

6o"nsip of 7orees, 833N.J.Super. &:, 8) #pp% iv% &99)$ #?Carefully

considered@ dictum of the *ew +ersey 4upreme Court is binding on lower

courts%$% !astly, and perhaps in the greatest irony of all, +udges Araithwaite

and Lleiner actually cited verbatim to the very language #albeit improperly

and completely out of context$ in Ricardson v. %aputo in their written

published opinion #which was issued three days after their


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summarily reversing +udge isher=s ugust &8, 1/// decision$ that confirms

that they were wrong and that +udge isher was rightM

0he true and accurate legislative history of the statutory scheme

generally, andN.J.S.A. 1/')-1 specifically, when considered in consort with

*ew +ersey 4tate Constitutional and political history, when considered in

consort with the 4upreme Court=s holding in Ricardson v. %aputo, and

when considered in consort with the statements of the *ew +ersey

!egislature themselves in 1/3: as to what votes were to be calculated when

determining the 19J caveat condition threshold inN.J.S.A. 1/')-1, confirms

that the +udge isher was indeed right on ugust &8, 1///, and that by

application today' +"e onl# votes cast at t"e June , 2014 Pri%ar#

-lections t"at %a# la$full# be counted to$ard t"e N.J.S.A. 1/1 10'

caveat condition t"res"old are votes cast at t"e June , 2014 Pri%ar#

-lections t"at $ere cast for candidates seeing t"e rig"t to run for t"e

office of Ne$ Jerse# )eneral Asse%bl# for t"eir !olitical !art# at t"e

ensuing, or in t"is case, Nove%ber 4, 2014, 3egular )eneral -lection

2bviously problematic for the defendants from a legal standpoint, and

more so for the two presently existing statutory political parties from a

political standpoint, is the undisputable fact that there were no votes cast

$"atsoeverfor any candidates for >eneral ssembly at the +une 8, &91

1&


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Primary eneral eneral eneral

ssembly from 1 year to & years% Ay so doing, the new 4tate Constitution

changed what was to that point an annual process into a biannual process,

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and in so doing unwittingly made the statutory scheme regarding the

opportunity for ballot location preference only operational every other

calendar year, in odd numbered years, when 5embers of the *ew +ersey

>eneral eneral ssembly at the nextpreceding general election shall be entitled to have a party column on

the official ballot at the general election for which the primary electionhad been held, but that the names of the candidates so nominated at the

primary election shall be printed in the column or columns designated?*omination by Petition@ on the official ballot under the respective

titles of office for which the nominations have been made, followed by

the designation of the political party of which the candidates are

members%

EL. 1/89, Chapter 1:3, Paragraph , 4ection 1F%

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in the 4tate Constitutional form of government in 1/3 and again in the

1/(9s, has nevertheless remained essentially unchanged% "hile the form of

Constitutional government and term of office of 5ember of the >eneral

ssembly was changed in 1/3 from 1 to & years, the statutory law then

long in effect and as enacted and specifically intended to apply annuall# to

determine statutory political party status, and intended to apply annuall# to

determine ballot location preference if the 19J caveat condition inN.J.S.A.

1/')-1 was met, all remained the same, and therefore, by their collective

own terms, since 1/3 could only have been legally operative in odd

numbered calendar years, all because of the Constitutional change in the

term of office of >eneral ssembly%

.n 1/89, the 4tate of *ew +ersey was then operating under the Ne"

Jerse# State %onstitution #1:$% See $enerall# 6orpe8s %onstitutions,

Volume V at pages &)// to &(1 #hereinafter 96orpe@$%8 Bnder theNe"

Jerse# State %onstitution #1:$ the !egislative Aranch of *ew +ersey 4tate

Constitutional >overnment #like today$ consisted of a 4tate 4enate and a

>eneral ssembly% 0he overnment,

8 Citation in this 5emorandum of !aw to the *ew +ersey Constitution #1:$ is to the official text

as found in 6e 4ederal and State %onstitutions: %olonial %ar$ers, and ;ter ;r$anic La"s of teStates, 6erritories, and %olonies, No" or overnment Printing 2ffice, "ashington' #1/9/$, Volume V at pages &)// to &(1% 0his citation is usedbecause this official and accurate government version is readily available in the public domain online for

free at www%hathitrust%org%

1)
http://www.hathitrust.org/http://www.hathitrust.org/


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consisted of a single >overnor #today there is a >overnor and a !t%

>overnor$% owever, there were many significant differences between the

form of 4tate Constitutional government under the Ne" Jerse# State

%onstitution #1:$ and the form of 4tate Constitutional government

presently in effect under the Ne" Jerse# State %onstitution #1/3$, as

amended%

or example, the single executive >overnor=s term was for a term of

three years,see Ne" Jerse# State %onstitution #1:$, rticle V, paragraph

8, in 6orpe at page &(9(, whereas today the term of office for the dual

executive >overnor and !t% >overnor is years% 0he !egislative Aranch

similarly consisted of a 4tate 4enate and a >eneral ssembly, with the term

of office for 4tate 4enate and for >eneral ssembly both being one year,

meaning that there were annual 6egular Primary eneral eneral ssembly% See Ne" Jerse# State

%onstitution #1:$, rticle .V, 4ection ., paragraphs 1 8, in 6orpe at

page &(91-&(9&% 0oday, under the Ne" Jerse# State %onstitution #1/3$, as

amended, the term of office for 4tate 4enate was increased a term that was

more than one year #and today is on a & year, year, year tern in a 19 year

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period$ and the term of office for member of the >eneral ssembly was

increased to a two year term, where it remains today%

0he siHe of the 4tate 4enate under theNe" Jerse# State %onstitution

#1:$ was determined by affording one 4tate 4enator to each County

irrespective of population, meaning that representation in the 4tate 4enate

was apportioned regionally by the artificial geographic political boundary of

a County=s dividing lines, and was not determined in any way by reference

to population% See Ne" Jerse# State %onstitution #1:$, rticle .V, 4ection

.., paragraph 1, in 6orpe at page &(9&% 0he >eneral ssembly was to

consist of an unspecified number of members ?D and te "ole num0er of

mem0ers sall never e2ceed si2t#%@ See Ne" Jerse# State %onstitution

#1:$, rticle .V, 4ection ..., paragraph 1, in 6orpe at page &(9&%

owever, the members of the >eneral ssembly, while actually apportioned

to Counties, were nevertheless to be ?D apportioned amon$ te said

counties as nearl# as ma# 0e accordin$ to te num0er of teir ina0itants %@

See =d. 0his process was similar to the ederal Constitutional system, with

the Counties by analogy being treated somewhat similar to how the ederal

Constitution treats 4tates, and with each County being afforded 1 4tate

4enator irrespective of population #under the ederal Constitution it is two

4enators per 4tate$ and, in the !egislative body that was representative of

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the People themselves, the number of members in the >eneral ssembly to

be apportioned to each County was determined based specifically upon

population #similar to apportionment of the B%4% ouse of 6epresentatives

among the 4tates under the ederal Constitution$% s has evolved with

many amendments since 1/3, today in &91 the Ne" Jerse# State

%onstitution #1/3$ has divided the 4tate up into 9 ?!egislative istricts@,

with each istrict allowed 1 4tate 4enator #on a & year term, year term,

year term 19 year cycle$ and & 5embers of the >eneral ssembly #for & year

terms$% 0he foregoing was explained in detail here because sometimes

historical details matter, and this is one of those case% .nexplicably, the ppellate ivision in the emergently decided case of Ne" Jerse# %onservative

3art# v. 4armer,8&N.J.Super. )1 #pp% iv% 1///$, while advised in painstaking detail of this very same

political history, inexplicably chose, apparently for no other reason than pure politics, to completely ignoreand never even so much as mention the significant, and plaintiffs contend determinative, 4tate

Constitutional and political history and the associated effect on the 19J statutory scheme% 0he fact that

when the statutory scheme at issue was first enacted in 1/89 that the term of office of the *ew +ersey

ssembly was one year7 the fact that when the statutory scheme was enacted in 1/89 that there wereannual 6egular >eneral eneral ssembly every year each *ovember,

and that there were annual Political Primary eneral ssembly every year each +une7 the fact that after the %onstitutional change to the term of office

for 5ember of the >eneral ssembly from 1 year to & years was effected in 1/3 there never was anystatutor# !egislative efforts to address the radical change to the uniform 19J scheme caused by the

%onstitutional change, these all were presented to the ppellate ivision% Net, against this background, all

that the ppellate ivision had to say on the issue was the following'

.f the plaintiffs= interpretation of the statute is correct, then in the

years in which there are no primary elections for the >eneral

ssembly, such as the even numbered years, there would be nomethod to determine whether a given political party was entitled to a

party column on the official ballot for the general election%Plaintiff=s argue that N.J.S.A. 1/')-1 only applies every other year,

when there are primary elections for the >eneral ssembly% DAecause in the even-numbered years such as 1//: when there are

generally no primary elections for the >eneral ssembly, the other

primary elections must be considered to determine party status for a

party column on the official ballot%

E=d. at (9-(1F%

1:


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"ith this knowledge, it should now be understood that in 1/89,

5embers of the >eneral ssembly were elected on an annual basis with

each 5ember serving a 1 year term, and that the 5embers of the >eneral

ssembly were the only 4tate Constitutional elected officials whose office

was in any way related to, and apportioned in direct actual relation to, the

population and the people% 0he >overnor was only elected every 8 years, so

this election while indeed statewide, was not suited to be linked by law to a

!egislative scheme reliant upon an annual election process% "hile 4tate

4enators were indeed elected every year, they represented political

boundaries, not people, so udson County=s 4tate 4enator might in practical

fact be elected by and represent more than 1 million people, while

Cumberland County=s 4tate 4enator might in practical fact be elected and

represent by less than )9,999 people% 0herefore, the !egislature decided in

1/89 that the best barometer of legitimate statewide support of a political

organiHation, both initial and sustaining over time, was by looking at the

number of votes that were cast for 5embers of the >eneral ssembly, and

the !egislature chose, for whatever reason, 19J of the votes cast for the

office of 5ember of the >eneral ssembly statewide as the legislative

benchmark in the legislative scheme% "hether or not one views the 1/89

!egislature=s linking the


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>eneral ssembly vote was a ?good idea@ or ?bad idea@ is irrelevant' 0he

!egislature is free to enact and pass stupid laws, they just are not free to pass

unconstitutional laws%

.mmediately after the passage of the 1/89 !egislation #L. 1/89,

Chapter 1:3$ the new legislative system was enacted, which system invoked

a uniform 19J standard as a barometer of public support for determining

?statutory political party@ status annually in the first instance, and the

continuing necessary showing of public support and viability to be entitled

to certain statutory preferences that excluded candidates who were not

members of a ?statutory political party@ in the second instance% 0he related

components of the statutory system, with a few modest and irrelevant

amendments over time, still remain in essentially the same form in which

they were originally enacted in 1/89, and, as are relevant to this case, are

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the +une 6egular Primary eneral ssembly had to

receive combined a number the votes that was e;ual to or greater than the

same 19J number to receive the ballot placement preference treatment in

N.J.S.A. 1/'1-1&% nd each of these two events occurred annually' irst at

the *ovember 6egular >eneral eneral

ssembly on every Primary


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since no votes were cast for such office at all, there simply is no way either

?statutory political party@ can meet the 19J threshold%

Ju*ge 1is,er was Rig,t:

2n ugust &8, 1/// in the unpublished trial court opinion of Ne"

Jerse# %onservative 3art# et als. v. Jon J. 4armer, Attorne# General of

Ne" Jerse#, et als., ocket *o% 52*-C-&88-// #See opinion attached at

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confirms that +udge isher was ?right@ and that that +udges Araithwaite and

Lleiner were ?wrong@% .nRicardson v. %aputo, (N.J. 8 #1/()$ the *ew

+ersey 4upreme Court briefly discussed the statutory scheme in *ew +ersey

statutes 0itle 1/ that grants to a ?statutory political party@ the ballot

preference afforded in N.J.S.A. 1/'1-1& and the 19J condition caveat in

N.J.S.A.1/')-1, stating in relevant part as follows'

?Political party@ is defined to mean ?a party which,

at the election held for all of the members of the

>eneral ssembly next preceding the holding ofany primary election D !olled for %e%bers of

t"e )eneral Asse%bl# at least ten !er centu%

&10'( of t"e total vote cast in t"is State.@

N.J.S.A. 1/'1-1% party which attains that status is

entitled to a primary election,N.J.S.A. 1/'&-1, and

such a political party is accorded a party column

on the ballot for the general election unless t"e

!art# s"all "ave failed at its !ri%ar# election to

!oll t"e !ercentage $e "ave 7ust %entioned, in

which event that party=s nominees selected at the

primary shall appear on the general election ballot

in ?the column or columns designated Q*omination

by Petition%=@ N.J.S.A. 1/')-1%

ERicardson v. %aputo, (N.J. 8, 19 #1/()$F%

0he 4upreme Court=s statement must be read carefully and slowly

and, most importantly, in context% 0he 4upreme Court specifically referred

to ?D unless te part# sall ave failed to poll t"e !ercentage $e "ave 7ust

%entionedD@ #


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?polled@ that was ?D >ust mentioned D@, in the immediately preceding

sentence, was where it was specifically discussed that the standard was 10'

of t"e )eneral Asse%bl# votes, not merely an unspecified 19J of some

unspecified collection of votes, but rather 10' of t"e )eneral Asse%bl#

votes% 0hough not a model of clarity, that is what the 4upreme Court stated%

nd that 4upreme Court holding is binding on this Court% See State v.

5reit"eiser, 838N.J.Super. &31, &:&-&:8 #pp% iv% &99$, certif. denied

1:&N.J. (&: #&99)$7Nardello v. 6o"nsip of 7orees, 833N.J.Super. &:,

8) #pp% iv% &99)$ #?Carefully considered@ dictum of the *ew +ersey

4upreme Court is binding on lower courts%$% 0his means that this Court must

disregard the ?peculiar@ and incorrect ppellate ivision opinion of Ne"

Jerse# %onservative 3art# v. 4armer, 8&N.J.Super. )1 #pp% iv% 1///$%

"hile the opinion is ?out there@ so to speak, and while it is true that the

published ppellate ivision opinion has not as yet been expressly

overruled, it is e;ually true that a higher Court decision on the exact issue

exists G predated no less G where the 4upreme Court interprets the law

differently, that being Ricardson v. %aputo, ( N.J. 8, 19 #1/()$% Aut it

does not end there%

!east the Court be concerned that the language in Ricardson v.

%aputo is somewhat ambiguous #plaintiffs contend that read in context it

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certainly is not$, !egislative history has been found that directly confirms

the interpretation of +udge isher and the 4upreme Court inRicardson v.

%aputo that only votes cast for members of the >eneral ssembly at the

Primary


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!ivision of Le$islative =nformation and Researc, Novem0er (), )*'?

#original on file at the *ew +ersey 4tate !ibrary under call number' /3%/9,


29/44

can not be reconciled with the !egislature=s own interpretation of what they

say their own law says% 0he new +ersey !egislature=s own interpretation of

their own long existing law, specifically N.J.S.A. 1/')-1, is most certainly

not in any way ambiguous or e;uivocal% 0he *ew +ersey !egislature ;uite

clearly stated that it was and is the total votes cast at the +une 6egular

Primary eneral ssembly onl##to

the exclusion of all other offices that may appear on the Primary Aallot$ that

are counted and calculated when determining whether the N.J.S.A. 1/')-1

19J caveat condition threshold has been met by either of the two statutory

political parties%

0his trial court G indeed no trial court G has any legal authority to

radically re-write the text and meaning of a law validly enacted by the *ew

+ersey 4tate !egislature when the meaning is clear, when there is binding

controlling 4upreme Court precedent interpreting the statute, and when there

is clear legislative history that confirms the legislature=s interpretation of

their own law%

.n this regard, it must also be restated here that the true fact if history

is that when theN.J.%.3.brought the first court challenge in 1///, the *ew

+ersey 4tate election officials had to that point simply completely ignored

and completely disregarded the 19J re;uirement in N.J.S.A. 1/')-1 for at

&/


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least the previous )9 years, and the election officials, without thought,

;uestion, or challenge, simply year after year conferred the preferred ballot

position to the 6epublican and emocratic parties without any consideration

as to whether such action was appropriate or legal%/ 0he further fact of

history is that in light of Ricardson v. %aputo and the 1/3: !egislative

history as now known and understood, +udge isher was ?right@, and the

ppellate ivision opinion in Ne" Jerse# %onservative 3art# v. 4armer is

both demonstrably ?wrong@, but more importantly, under the circumstances

/ .t is important to note here that in Ne" Jerse# %onservative 3art# v. 4armer, 8&N.J.Super. )1

#pp% iv% 1///$, the ppellate ivision, in their 4eptember 8, 1/// written opinion issued subse;uent totheir ugust &3, 1///


31/44

has no precedential value whatsoever in this case before this Court% 0he

precedent that this Court must follow is the correct legal and historical truth,

that being that the only votes that are counted when determining whether a

statutory political party has met the 19J caveat condition threshold in

N.J.S.A. 1/')-1 are the votes cast at the +une 8, &91 Political Primary

eneral

ssembly% nd as there were no such votes #and certainly not 83&,1/3 such

votes as re;uired to satisfyN.J.S.A. 1/')-1$ forN.J.S.A. 1/'1-1& to apply to

the &91 6egular >eneral uadagno=s ugust :, &91 ?Certification@ is

invalid and illegal and any drawing conducted by the defendant Clerks is

void a0 initio%

"oint 22:

.ssuming# arguendo# t,at t,e emergent 9 3u*ge ,ol*ing of t,e .ppellate

Diision in Ne$ Jerse# Conservative Part# v. 8ar%er, A98N.J.Su!er. 8>6

B.pp& Di& 6777 is bin*ing on t,is trial court# t,en t,e ballot locationstatutory sc,eme# as applie* to t,e 968 Regular )eneral /lection# as

interprete* to be applie* by t,e .ppellate Diision# iolates arious

proisions of t,e 9nited States Constitution# as amen*e*# an* is t,erefore

unconstitutional an* inali*&

81


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.t is plaintiffs= contend for the reasons stated in Point .,supra., that the

emergent & judge ppellate ivision published opinion in Ne" Jerse#

%onservative 3art# v. 4armer, 8&N.J.Super. )1 #pp% iv% 1///$ is not

binding precedent on this Court in the circumstances of this case and in the

context of the specific legal claims as framed and advanced% ssuming,

ar$uendo, that this Court disagrees and finds that the ppellate ivision=s

statutory interpretation of the statutory scheme generally, and the

interpretation ofN.J.S.A. 1/')-1 specifically, is binding on this Court in this

case, then as applied, the statutory interpretation of the ppellate ivision

renders the statutory scheme generally, and N.J.S.A. 1/')-1 specifically,

unconstitutional and invalid%

4,e .ppellate Diisions /mergent 2nterpretation of t,e Statutory

Sc,eme an*N.J.S.A.

67:>-6:

2n ugust &3, 1///, a & judge panel of the ppellate ivision inNe"

Jerse# %onservative 3art# v. 4armer, supra., issued the following


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official ballot is the primary election for the

general assembly% :e conclude t"at t"e language

of N.J.S.A. 67:>-6 t,at says ;at any primary

election for a general election< means t,at all

primary elections are consi*ere* in *eci*ing

w,et,er a group is a political party for party

column purposes on t,e official ballot&

"e reserve the right to submit a full opinion

on this issue%

Plaintiff=s #sic$ re;uest for a stay is denied

and plaintiff=s #sic$ subse;uent re;uest for a

temporary stay until 0uesday, ugust 81, 1/// is

also denied% #


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general election must be considered and not just

those for the >eneral ssembly% I I I Aecause in

the even-numbered years such as 1//: when there

are generally no primary elections for the >eneral

ssembly, the other primary elections must be

considered to determine party status for a party

column on the official ballot%

ENe" Jerse# %onservative 3art# v. 4armer,

supra., 8&N.J.Super. at ):, )/ and (1F%

.f the reader has actually read the first 88 pages of the 5emorandum

of !aw it can ;uickly be seen what utter nonsense this emergent ppellate

ivision holding was% See footnotes and /,supra. *evertheless, if this

holding is binding on this Court as precedent, then indeed this Court is then

re;uired to ?drink the kool- aid@, so to speak, and to apply the ?& R & S &&@

logic of the ppellate ivision unless there is some other law which allow

this Court to disregard the legal fiction created by the ppellate ivision%

0here is% 0hat law is called the United States %onstitution, as amended%

4,e $an*ate of t,e nite* States Constitutions 1ourteent,

.men*ments /Eual "rotection Clause 4,at a State $ust Count t,e

@eig,t of /ac, Fote t,e Same in .ll State /lectoral Sc,emes inoling

/lections for 1e*eral Office:

2ne year after the ppellate ivisions holding in Ne" Jerse#

%onservative 3art# v. 4armer, supra., the Bnited 4tates 4upreme Court

une;uivocally held that it is a clear violation of the


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administered election where ederal 2ffices are on the ballot, for the 4tate to

count one voter=s vote differently thn an another voter=s vote in the same

election% See 5us v. Gore, )81 U.S. /: #&999$75us v. 3alm 5eac %ount#

%anvassin$ 5oard, )81 U.S. &9 #&999$% 0herefore, ifN.J.S.A. 1/')-1 indeed

means and operates in the way as stated by the ppellate ivision in Ne"

Jerse# %onservative 3art# v. 4armer, supra., then the statutory scheme is

unconstitutional and invalid%

4,e .ppropriate Leel of Ju*icial Scrutiny for t,is Court to .pplyw,en /aluating "laintiffs Constitutional Claims t,e Summary

Ju*gment ",ase is ;Strict Constitutional Scrutiny


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speech are Qsubject to strict scrutiny,= which

re;uires the >overnment to prove that the

restriction Qfurthers a compelling interest and is

narrowly tailored to achieve that interest%=@

%itiens United v. 4ederal @lections %ommission,

)): U.S. 819, 89 #&919$ #citing4ederal @lections

%ommission v. Wisconsin Ri$t to Life, =nc., ))1

U.S. /, ( #&993$$% 0hus, ?political speech

must prevail against laws that would suppress it,

whether by design or inadvertence%@ =0id.7 see

$enerall# %ouncil on Alternative 3olitical 3arties

v. !ivision of @lections, 88 N.J.Super. &&), &8:

#pp% iv% &991$% 0he proper analysis was set

forth in 6immons v. 6"in %ities Area Ne" 3art#,

)&9 U.S. 8)1, 8): #1//3$'

"hen deciding whether a state

election law violated irst and

ourteenth mendment associational

rights, we weigh the character and

magnitude of the burden the 4tate=s

rule imposes on those rights against

the interests the 4tate contends justify

that burden, and consider the extent to

which the 4tate=s concerns make the

burden necessary% 6egulations

imposing severe burdens on plaintiffs=

rights must be narrowly tailored and

advance a compelling 4tate interest%

!esser burdens, however, trigger less

exacting review, and a 4tate=s

important regulatory interest will

usually be enough to justify

reasonable, nondiscriminatoryrestrictions%

E=0id. #citations omitted$F%

8(


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E@mpo"er our Nei$0oroods v. Guada$no, 5ercer County ocket *o%

5


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89) #8d Cir% 1///$ #en 0anc, Aecker, C%+%, and 4loviter, 4tapleton,

5ansmann, >reenberg, 4cricia, *ygaard, lito, 6oth, !ewis, 5cLee,

6endell and 6osen$, the 0hird Circuit, sitting en 0anc, unanimously held

that the correct level of judicial scrutiny for a Court to apply when

evaluating a candidate litigant=s ederal Constitutional ourteenth

mendment ibbons and unter$ also

unanimously held that the correct level of judicial scrutiny for a Court to

apply when evaluating a candidate litigant=s ederal Constitutional

ourteenth mendment


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#4cirica, mbro and Vanaskie$ specifically ruled that the correct level of

judicial scrutiny for a Court to apply when evaluating a candidate litigant=s

ederal Constitutional claims at the summary judgment phase in a

?candidate ballot access case@ is the ?compelling state interest level of

judicial scrutiny@, otherwise known as ?strict scrutiny@, and in so doing

specifically cited with approval the existing 0hird Circuit Precedent of

Wellford v. 5atta$lia, supra.

4,e ;/lections Clause an* t,e Seenteent, .men*ment:

s this case and election involves an


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of such elections, including balloting, only within

the exclusive delegation of power under the


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v. !ivision of @lections, supra.7 and @mpo"er our Nei$0oroods v.

Guada$no, supra.

nd against the ?strict scrutiny@ standard, there is no ;uestion that the

statutory ballot location preference scheme generally, andN.J.S.A. 1/')-1 as

applied and interpreted by the ppellate ivision in Ne" Jerse#

%onservative 3art# v. 4armer, supra., specifically, can not be justified by the

4tate, and that such 4tate statutory scheme operates to violate Plaintiffs=

rights as guaranteed and secured by the irst, ourteenth mendments and

4eventeenth mendments to the Bnited 4tates Constitution and the

?


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Certain *ew +ersey


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in relevant part that ?D3rimar# elections for special elections sall 0e eld

not earlier tan &+ nor later tan (+ da#s prior to te special elections%@ =d.

0he stated time table in the ebruary 1:, &91 ?>overnor=s "rit of


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or the foregoing reasons, it is re;uested that the accelerated and

expedited summary injunctive relief re;uested be )R.N4/D&

Respectfully submitte*# Respectfully submitte*#

Ric,ar* Luzzi# /sE& /ugene $artin LaFergne#Pro Se

.ttorney for "laintiffs Democratic-Republican for &S& Senate

Date*: .ugust 6A# 968 Date*: .ugust 6A# 968

DR 2014 Memorandum FINAL (Brief)

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Transcript of DR 2014 Memorandum FINAL (Brief)