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United States Court of AppealsThird CircuitNo. 12-3977

Democratic-RepublicanOrganization of New Jersey, etals.,

Appellants,

vs.

Kimberly Guadagno, et als.,

Appellees.

Joint Expedited Motion for Preliminary Declaratory and InjunctiveRelief and For Other Forms of Expedited Relief

Oler & Luzzi, L.L.C.6 Apple Tree LaneSparta, New Jersey 07871Telephone: (973) 983-7020Telefax: (973) 983-7030By: Richard Luzzi, Esq.Attorney for Appellants Democratic-RepublicanOrganization of New Jersey, Frederick JohnLaVergne, Leonard P. Marshall, Tracy M.Caprioni, Kimberly Sue Johnson and Donald E.Letton

Eugene Martin LaVergne, Appellant Pro Se543 Cedar AvenueWest Long Branch, New Jersey 07764Telephone: (732) 272-1776

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RELIEF REQUESTED BY EXPEDITED MOTIONS:

Appellants by way of joint appellate motions hereby move, on an

expedited basis, for Orders from the United States Court of Appeals for the

Third Circuit granting the following relief:

A.) An Order entering preliminary declaratory and injunction relief,pending appeal, specifically declaring and directing:

(1) That each individual Appellant shall have the right to use theslogan “Democratic-Republican” associated with their individualname and as an associated political group on the November 6,2012 New Jersey General Election Ballot;

(2) That Appellants shall have the right to be “bracketed” togetherin the same vertical column on the November 6, 2012 GeneralElection Ballot in Counties where there are multiple Democratic-Republican candidates on the General Election Ballot;

(3) That Appellants and all other candidates shall be afforded anequal opportunity to be placed in the first two columns on the leftand at the top of the November 6, 2012 General Election Ballot onthe Election Machines and all paper provisional ballots; and

(4) That the 21 County Clerk defendants be directed to complywith the preliminary declaratory and injunctive relief granted bythis Court when configuring the final form of the General ElectionBallot for the machines and paper provisional ballots to be used atthe November 6, 2012 General Election and on all “sampleballots” no later than October 29, 2012.

B.) An Order pursuant to Third Circuit L.A.R. 4 (1) expediting theCourt’s consideration of all of the applications made herein, (2)allowing all briefs filed to below to be considered, (3) with aproposed briefing schedule to supplement arguments as follows:

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- All Appellees shall have until 12:00 noon on Tuesday October23, 2012 (or such other shorter time as the Court may fix) toreply to the moving papers filed by Appellants herein or tootherwise advise the Court that they rely upon the briefs filedbelow;

- Appellants hereby waive the right to respond in writing byreply due to the shortness of time, so that the expeditedapplications will be before the Court for consideration anddisposition no later than noon on Tuesday October 23, 2012,and

C.) Permission to file an over-length motion.

PROCEDURAL HISTORY

On Monday September 11, 2012 the collective plaintiffs filed a

Verified Complaint with exhibits and an application for an Order to Show

Cause in the United States District Court for the District of New Jersey,

Newark Vicinage. Plaintiff Democratic-Republican Organization of New

Jersey is a minor party political organization (ie. they have not yet qualified

as a “political party” under New Jersey Election Laws, per N.J.S.A. 19:1-1,

and therefore its candidates are not subject to the State run “Primary

Election Process”), and the named individual candidate plaintiffs are all

members of the Democratic-Republican Organization. They are candidates

for various Federal and New Jersey State Elected offices on the November 6,

2012 General Election Ballot. In this lawsuit plaintiffs sought to: (1) use the

name of their organization “Democratic-Republican” as the General Election

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Ballot “slogan” associated with each candidate’s name on all 2012 General

Election Ballots; and, (2) be “bracketed” together in the same vertical

column along under their slogan “Democratic-Republican” in all Counties

where there were multiple Democratic-Republican candidates on the

General Election Ballot; and, (3) an Order giving them an equal opportunity

to be placed in the first two columns on the top left of the Ballots. In the

Order to Show Cause, plaintiffs sought certain accelerated preliminary

declaratory and injunctive relief (the same relief sought in these emergent

motions) to ensure that they could be awarded these three specific forms of

relief in time for the November 6, 2012 General Election.

On September 12 and 14, 2012, the Honorable Freda L. Wolfson,

U.S.D.J., of the District of New Jersey Trenton Vicinage1 held telephone

conferences with certain parties and ultimately issued an Order to Show

Cause, though in a form slightly different from that submitted by plaintiffs.

The Order to Sow Cause, as requested by plaintiffs, fixed an “accelerated”

service and “accelerated” briefing schedule and set October 3, 2012 as the

return date of the Order to Show Cause. Thereafter, service was affected

1 The Complaint named plaintiffs from various counties and named asdefendants each Clerk in all 21 of New Jersey’s Counties, the Secretary ofState and the State Republican Party and the State Democratic Party. TheDistrict Court Clerk’s Office made an internal decision to transfer the matterfrom Newark to the Trenton Vicinage where the case was assigned to JudgeWolfson.

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and briefs were filed by the various defendants objecting and raising certain

legal arguments. All briefs are on the ECMF docket below.

On Thursday October 3, 2012 the Court heard oral argument on

plaintiffs’ Order to Show Cause.2 At the end of oral argument the Court

indicated that it would deny the declaratory and injunctive relief plaintiffs

sought and file an Order and written Opinion to that effect in short order.

A week later, on Thursday October 10, 2012, the Court filed the

written Opinion (Document 33) and an Order (Document 34) denying

plaintiffs’ accelerated request for declaratory and injunctive relief.3 The

next day, October 11, 2012, a month after the initial September 11, 2012

filing, the District Court issued an Amended Opinion (Document 35) which

was identical in all respects to the original Opinion except for the inclusion

2 Just prior to oral argument United States Senate Candidate EugeneMartin LaVergne filed a substitution of attorney form so that he, previouslyrepresented by Richard Luzzi, Esq., could proceed pro se so and be heardseparately. On Appeal Eugene Martin LaVergne remains pro se for thatsame purpose.3 Immediately upon receipt of the original Opinion and Order onOctober 10, 2011 appellant United States Senate Candidate Eugene MartinLaVergne contacted the Court Reporter to inquire about the necessity of atranscript for an emergent appeal as there was detailed written opinion. TheCourt Reporter was advised that the parties intended to seek joint emergentreview in the Third Circuit because the District Court had clearly (soAppellants believe) applied the incorrect standard of “judicial scrutiny”under any scenario and thus incorrectly imposed the legal burdens.

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of footnote 8 that starts on the bottom of page 20 and ends on page 21 of the

Amended Opinion.

On Thursday October 18, Appellants filed a Joint Notice of Appeal

with the Clerk of the District Court. Appellants now file the instant “Joint

Expedited Motion for Preliminary Declaratory and Injunctive Relief and For

Other Forms of Expedited Relief”.

SUMMARY OF ARGUMENT

All Appellants here have already lawfully obtained access to the

General Election Ballot4 and will appear as candidates for the various

4 In New Jersey there are only two ways that a candidate obtains accessto appear as a candidate on the General Election Ballot. Candidates seekingto run for public office as a candidate for a “political party” as defined inN.J.S.A. 19:1-1 must obtain a number of signatures on petitions. Forexample, a candidate for the office of United States Senate, a statewideoffice, seeking access to the Party Primary Election Ballot, must obtain thesignatures of 1,000 voters. That qualifies the major political party candidateto have access to the Primary Election Ballot held in June. The PrimaryElection winner then earns the right to appear the following November onthe General Election Ballot for the office sought as the political party’scandidate. At present, only the Republican Party and Democratic Partyqualify as a “political party” under New Jersey Election Laws. Conversely,all of other candidates, such as Appellants here, obtain access to the GeneralElection Ballot by obtaining the identical number of signatures for the officesought on a nominating petition, which entitles the candidate to have directaccess to the General Election Ballot without any Primary Election. But thethreshold demonstration of “community support” for General Election Ballotis substantially similar. For example, Appellant United States SenateCandidate Eugene Martin LaVergne was required to obtain a minimum of800 signatures from voters to obtain direct access to the General ElectionBallot. It is submitted that in a State with millions of people and millions

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Federal and State elected offices that they seek on the November 6, 2012

General Election Ballot. As such, this is not a so called “candidate ballot

access” case, as all Appellants have already satisfied and met the legal

qualifications as candidates for the elected offices they seek. And all

Appellants have satisfied the State’s legal requirements of demonstrating the

statutorily defined “level of community support” and have otherwise

successfully complied with and satisfied all state required procedures for

earning the legal right to appear as a candidate for the elected offices they

seek on the November 6, 2012 General Election Ballot. Appellants having

overcome these substantial hurdles and earned the right to appear as

candidates on the November 6, 2012 General Election Ballot, state that they

are “similarly situated” to all other candidates appearing on the General

Election Ballot in the eyes of the law.

Once having obtained actual access to the General Election Ballot

like all other candidates, all candidates have equal constitutional rights, none

superior to the others, to political association, political expression and

political communication with the public via the General Election Ballot.

Appellants contend that the special treatment at issue here (ballot position

voters, the indicia of actual “community support” reflected in a petition with800+ signatures and a petition with 1,000+ signatures is statisticallynegligible if not nonexistent.

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preference, exclusive use of certain words as part of a slogan) which the

State admits, by design and plan, it confers upon the “political parties” and

their candidates, to the specific and intended exclusion of all other minor

party candidates, is a preference and benefit that is impermissible and

unconstitutional to confer to the major political party candidates to the

exclusion of the Appellants and other candidates who will be appearing on

the November 6, 2012 General Election Ballot. Clear Supreme Court

precedent supports Appellants’ position in this regard. See infra.

Moreover, any “different” treatment (preferential or otherwise)

afforded by the State on the actual General Election Ballot to major political

parties and not afforded to other candidates is subject to “strict judicial

scrutiny” and is presumed to be unconstitutional. That is the clearly

established law of the United States Supreme Court and in the Third Circuit.

See infra.

Notwithstanding this, the District Court below disregarded this

precedent on this critical issue of the appropriate standard of review. The

District Court instead analogized Appellants’ factual and legal claims to that

of a “candidate ballot access” case (as noted, all Appellants are already on

the General Election Ballot – this is not a “candidate ballot access” case),

and then applied the “balancing test” of Anderson v. Celebrezze, 460 U.S.

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780, 789 (1983) which the District Court argued applied to all “election law”

cases. See Amended Opinion at 7 and 23. With the application of the so

called Anderson “balancing test”, the burden is on the moving party, not the

State, and the standard is similar to the “rational basis test”, the lowest level

of “judicial scrutiny”.5 Even if the District Court below viewed the case

correctly as requiring the same level of scrutiny as a “candidate ballot

access” case, the District Court below still applied the incorrect standard of

5 Only one year ago, a different judge in the District of New Jerseyapplied the “rational basis test” rather than the Anderson “balancing test”when evaluating the constitutional claims raised in a Fourteenth AmendmentEqual Protection “as applied” challenge in a “candidate ballot access” case.See Lewis v. Guadagno, 837 F.Supp.2d 404 (D.N.J. 2011) (Hillman). ByOrder dated September 13, 2011 a panel of the Third Circuit quickly andsummarily reversed the District Court, stating in that Order that the DistrictCourt applied the wrong standard of “judicial scrutiny” in evaluating theconstitutional claims. The Circuit Court ruled that the correct level ofscrutiny was the intermediate - “compelling State interest” - level of judicialscrutiny. (See explanation in Argument, infra.) A week later (and while amotion for full en banc review was now pending), and not changing theruling on the level of “judicial scrutiny” applicable to “candidate ballotaccess” cases, the same Circuit Court panel heard further oral argument onthe appeal’s substance and affirmed in a September 20, 2011 Opinion theDistrict Court’s denial of candidate Carl Lewis’ right to appear on theGeneral Election Ballot on a specific and narrow factual issue. The CircuitCourt found, as a matter of fact, that candidate Carl Lewis failed to point toany other candidate on the ballot that was being treated differently than him.Thus, Lewis’ “as applied” constitutional claim failed as a matter of fact, notlaw, irrespective of the scrutiny level applied, because he failed to make thenecessary threshold showing in an “as applied” challenge. See September13, 2011 Order and September 20 2011 Opinion in Lewis v. Gaudagno, No.11-3401 (3d Cir. 2011) (Scirica, Ambro and Vanaskie) submitted here aspart of the F.R.A.P. 28 Addendum.

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review and “judicial scrutiny” when evaluating Appellants’ constitutional

claims. And in doing so, the District Court improperly placed the burden of

proof on the Appellants, when the burden of proof was properly on the State

to rebut the presumption that the restrictions were unconstitutional. In the

Third Circuit, a “candidate ballot access” constitutional claim must be

evaluated using the intermediate “compelling state interest” level of “judicial

scrutiny”, where the challenged restrictions are presumed unconstitutional.

Even in that instance, the State is required to prove that the regulations are

not unconstitutional.

In short, the District Court below applied the incorrect level of

“judicial scrutiny” and therefore must be reversed. Moreover, due to the

critical time constraints, and due to the serious constitutional issues and

constitutional rights of Appellants, and the millions of New Jersey voters, it

is submitted that this Court must act immediately to ensure that the remedy

can be implemented in time for the November 6, 2012 General Election.

POINT I

THE DISTRICT COURT APPLIED THEWRONG LEVEL OF “JUDICIAL SCRITINY”

IN EVALUATING PLAITNIFFS’CONSTITUTIONAL CLAIMS

The District Court below applied the incorrect level of “judicial

scrutiny” when evaluating plaintiffs’ constitutional claims. When the

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correct level of “judicial scrutiny” is applied to the facts of this case, it is

evident that plaintiffs are entitled to the emergent declaratory and injunctive

relief requested.

This is a simple case. As the District Court below pointed out in the

first sentence of both its the Opinions:

“Before the Court is a motion for a preliminaryinjunction and other relief, wherein the movingparties specifically challenge the ‘preferences’New Jersey Provides to the two main politicalparties through placing them in the first twocolumns of the general election ballots andprohibiting the use of any part of their name byother, unaffiliated candidates.”

[Amended Opinion at page 1]

Appellants are already on the November 6, 2012 as candidates for the

respective Federal and State elective offices that they seek. Having

overcome the various substantial hurdles of obtaining access as a candidate

on that General Election Ballot, Appellants argue that they now have

political speech and associational rights equal to those of all other candidates

on that Ballot, whether such other candidates are “major party” candidates,

“minor party” candidates, or single “unaffiliated” candidates. Appellants

argue that the actual General Election Ballot is the most important medium

for expressing, advancing and communicating their political views as

candidates and their views as a collective political association to the voting

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public. Appellants directly contend, and logically it can not be disputed that,

the content of the actual General Election Ballot is the most relevant and

direct contact and communication with each voter in the State of New

Jersey. This is because the contact and communication is being made

between the candidates and each voter literally during the actual real time

process of each voter identifying and reviewing the candidates listed on the

ballot and deciding for whom to cast their vote.

Appellants argue that once having earned the right to appear as a

candidate for public office, that all candidates are required to be treated

equally as to [First Amendment] political speech and associational rights –

and that no one candidate or class of candidates or no one political

organization or class of political organizations - should be granted special,

preferred, or “different” treatment from the others. There is clear binding

precedent for these principles of law. See Cook v. Gralike, 531 U.S. 510

(2001) and Citizens United v. Federal Election Commission, ___ U.S. ___

(2011) (slip opinion), both explained in further detail, infra.

The District Court below quite simply and clearly applied the

incorrect level of “judicial scrutiny” when evaluating Appellants

constitutional claims. When the correct level of “judicial scrutiny” is

applied to the facts of and legal issues raised in this case, it is clear that

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Appellants’ are entitled to the emergent declaratory and injunctive relief as

requested and without limitation.

A. As a “candidate ballot placement” or “candidate ballot location”case, Appellants’ Constitutional claims must be evaluated under a“strict judicial scrutiny” standard.

Appellants contend that the statutory scheme being challenged

violates and burdens their “core”, fundamental constitutional rights to

freedom of political speech and political association, and that the statutory

scheme denies them (and others similarly situated) equal protection of laws

otherwise guaranteed by the Fourteenth Amendment. Appellants are all

already on the November 6, 2012 General Election Ballot: This is not a

“ballot access” case.

The State of New Jersey, through its election laws and classifications,

is regulating the political speech and political associational rights of

candidates on the General Election Ballot by: (1) limiting language that may

be used in slogans; and, (2) providing what all parties agree is “preferred

ballot position” to the two major political parties.

Moreover, because the Appellant candidates in this case seek elected

office in United States Senate and the United States Hours of

Representatives, this case not only involves the [First Amendment] political

speech and associational issues (facially and as applied) and Fourteenth

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Amendment equal protection issues (facially and as applied) as discussed,

but also directly involves and implicates the additional restrictions on State

regulation of Federal Elections as imposed by the “Elections Clause”,

Article I, sec. 4, cl. 1 of the United States Constitution, and the [Seventeenth

Amendment] of the United States Constitution.

1. The [First Amendment] Issues:

If the recent decision of the United States Supreme Court in Citizens

United v. Federal Election Commission, ___ U.S. ___ (2011) (slip opinion)

stands for any clear legal principle, it is that the government may not

regulate “political speech” or “political association” based upon the identity

of the speaker without infringing on the [First Amendment]. Since Citizen’s

United, there is no longer any reasonable question but that all forms of

political speech regarding political candidates and political elections, even if

engaged in by fictitious corporate or union entities, are all “core” [First

Amendment] rights. This remains so, and is more compelling, where as here

the “core” [First Amendment] political speech and associational rights at

issue are those rights held by actual candidates and actual voters. That being

the case, surely the rights of Appellants here, candidates on the November

2012 General Election Ballot, and their voter supporters, have [First

Amendment] political speech and political associational rights that are at

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least equal to the [First Amendment] political speech and political

associational rights of fictitious corporate and union entities. Just as the

fictitious corporate or union entities have a “core” [First Amendment]

fundamental right to speak for or against Appellants’ candidacies, surely the

living human candidate Appellants and their living human voter supporters

have equal rights to speak for Appellants’ candidacies. Those rights

necessarily include political speech and political association on the General

Election Ballot, the place and time where expression of political views is

indisputably the most critical. And Appellants have the right to engage in

this protected activity in this critical General Election process “free from any

discrimination”. Lewis v. Guadagno, No. 11-3401 (September 20, 2011) (3d

Cir. 2011).

Directly to the point, the Supreme Court has unequivocally reiterated

that the appropriate standard of judicial scrutiny to apply when a legal claim

is brought alleging that a government regulation infringes upon [First

Amendment] political speech and political associational rights is “strict

judicial scrutiny”. As Justice Kennedy clearly stated in the Citizens United

majority opinion:

…political speech must prevail against laws thatwould suppress it, whether by design orinadvertence. Laws that burden political speechare “subject to strict scrutiny,” which requires the

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Government to prove that the restriction“furthers a compelling interest and is narrowlytailored to achieve that interest.” (Emphasisadded).

[Citizens United v. Federal Election Commission, Kennedy, J. (majority slipop at page 23) (quoting Federal Election Commission v. Women’s Right toLife, Inc., 551 U.S. 449, 646 (2007) (opinion of Roberts, C.J.))].

In short, Appellants maintained below, and Appellants maintain here

again on emergent appeal, that this case – whether described as a “candidate

ballot placement” or “candidate ballot location” case, in light of Citizens

United v. Federal Election Commission, the law clearly requires the District

Court and this Circuit Court apply “strict judicial scrutiny” when evaluating

Appellants constitutional claims. The independent expression of a political

party or organizations views is “core” [First Amendment] activity, which

“core” activity includes the right to create and advance political ideas and

new political parties which in turn includes the “core” constitutional rights

of like-minded candidates and voters to gather and work together to pursue

common political ends. Id.; see also Colorado Republican Federal

Campaign Committee v. Federal Election Commission, 518 U.S. 604, 616

(1996); Norman v. Reed, 502 U.S. ___ (_____); and Council on Alternative

Political Parties v. New Jersey, 344 N.J. 225, 781 A.2d 1041 (App. Div.

2001). It is undisputed that the District Court did not do so, and rather, the

District Court below applied what it referred to as Anderson “balancing test”

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scrutiny (very similar to the so called “rational basis test”, the lowest level of

scrutiny) as articulated in the “candidate ballot access” case of Anderson v.

Celebrezze, 460 U.S. 780, 789 (1983).6 When the statutory scheme at issue

in this case and Appellants’ constitutional claims are evaluated using “strict

judicial scrutiny”, the State can not possibly provide sufficient and

satisfactory facts to rebut the strong presumption of unconstitutionality and

invalidity. As such, this Court should independently evaluate Appellants’

6 On the issue of which level of judicial “scrutiny” to apply toplaintiffs’ claims, the District Court noted that plaintiffs from the onset andat all times consistently argued that “strict judicial scrutiny”, the highest andmost exacting level, should be applied to an evaluation of their constitutionalclaims, whereas the State argued below that the so called “rational basisscrutiny”, the lowest and most deferential level, should be applies whenevaluating plaintiffs’ constitutional claims. The District Court ultimatelyruled that “..[n]either party’s position is correct.” Amended Opinion at page7. Rather, the Court ruled that the appropriate level of judicial scrutiny for -what the District Court referred to generically as cases that involve an“election law challenge” - is the “balancing test” level of judicial scrutiny asstated in Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). As noted,Anderson was a “candidate ballot access” case, and as such Anderson isinapplicable to this case. This case is not a “candidate ballot access” case:This case is a First and Fourteenth Amendment “core” political speech andassociation case. Moreover, even were it proper to evaluated plaintiffs’claims here as a “candidate ballot access” case, the Third Circuit has longestablished that the standard of judicial scrutiny to apply is the “compellingstate interest standard of judicial scrutiny” (an intermediate level of review,where the statute is still presumed to be unconstitutional). See Wellford v.Battaglia, 485 F.2d 1151 (3d Cir. 1973) (Van Dusen, Gibbons and Hunter)and and Allegheney County v. Allegheney County Department of Elections,174 F.3d 305 (3d Cir. 1999) (en banc, Becker, C.J., and Sloviter, Stapleton,Mansmann, Greenberg, Scricia, Nygaard, Alito, Roth, Lewis, McKee,Rendell and Rosen). See also argument, infra.

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claims using the “strict judicial scrutiny” standard and grant the declaratory

and injunctive relief requested.

2. The “Elections Clause” of Article I

Because plaintiffs here seek offices in United States Senate and the

United States Hours of Representatives, this case not only involves [First

Amendment] political speech and associational issues (facially and as

applied) and Fourteenth Amendment equal protection issues (facially and as

applied) but also additional restrictions on State regulation of Federal

Elections as imposed by the “Elections Clause”, Article I, sec. 4, cl. 1 of the

United States Constitution, and the [Seventeenth Amendment] of the United

States Constitution.7

7 It is significant to note that the District Court below heavily reliedupon the reasoning of the New Jersey Superior Court, Chancery Division(trial level court) on remand in the case of New Jersey Conservative Party v.Farmer, 324 N.J.Super. 451, 735 A.2d 1189 (App. Div. 1999), leave toappeal denied ___ N.J. ___ (1999), on remand to the trial court at 332N.J.Super. 278, 753 A.2d 192 (Ch. Div. 1999). First, the constitutionalclaims raised herein were expressly not raised nor addressed by that Court.That Court even noted that such arguments, had they been raised at that timewere “certainly colorable”. See 332 N.J.Super. 278, 753 A.2d 192 (Ch. Div.1999) at footnote 5. The Appellate Division in that case – to save the majorpolitical parties the right to preferred placement – literally “interpreted”State Law (N.J.S.A. 19:5-1) in a matter that was contrary to the legislativehistory, logic, and plain text, rendering the statutory scheme conferringpreferential ballot placement unconstitutional. The “counting” method iscompletely arbitrary and irrational. Such are Appellants’ specific claimshere. If that is the law, then the conferring of preferred position isunconstitutional. This Court may find that the New Jersey Appellate

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The federal offices at stake “aris[e] from theConstitution itself.” U.S. Term Limits, Inc. vThorton, 514 U.S., at 805. Because any Stateauthority to regulate election to those offices couldnot precede their very creation by the Constitution,such power “had to be delegated to, rather thanreserved by, the States.” Id., at 804. Cf. 1 Storysec. 627 (“It is no original prerogative of Statepower to appoint a representative, a senator, orpresident for the union.”). Though the ElectionsClause, the Constitution delegated to the States thepower to regulate the “Times, Places and Mannerof holding Elections for Senator andRepresentatives,” subject to a grant of authority toCongress to “make or alter such Regulations.”Classic, 313 U.S. 299, 315 (1941). No otherconstitutional provision gives the States authorityover congressional elections, and no such authoritycould be reserved under the Tenth Amendment.By process of elimination, the States may regulatethe incidents of such elections, including balloting,only within the exclusive delegation of powerunder the Elections Clause.

[Cook v. Gralike, 531 U.S. 510, ___ (2001)].

As stated, “… States may regulate the incidents of such elections,

including balloting, only within the exclusive delegation of power under the

Division’s interpretation of N.J.S.A. 19:5-1 in Farmer, supra. isunconstitutional as applied to these plaintiffs. Bush v. Gore, 531 U.S. 98(2000). And because there are Federal Candidates, this is a “strict scrutinycase”. Lastly, the actual remand ruling on the constitutional claims 13 yearsago in the New Jersey Conservative Party v. Farmer case on the actualconstitutional claims raised at that time, despite never being appealed, wereclearly in error and contrary to existing New Jersey Supreme Courtprecedent regarding the “as applied” [First Amendment] and Fourteenthclaims. See Mochary v. Caputo, 100 N.J. 119, 494 A.2d 1028 (1985).

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Elections Clause.” (emphasis added), Id. Moreover, the United States

Supreme Court in Cook v. Gralike, supra, in a unanimous opinion,

specifically ruled that when a Court is called upon to evaluate a claim by a

candidate for the Federal office and who has already obtained access to the

General Election Ballot (such as in this case), where the Federal Candidate

claims that a State regulation or regulations governing the configuration and

content of the Ballot discriminates or otherwise infringes on the [First],

Fourteenth and [Seventeenth] Amendments and the “Elections Clause”,

Article I, sec. 4, cl. 1 of the United States Constitution (such as here), the

applicable standard of judicial scrutiny is “strict judicial scrutiny.” Cook v.

Gralike, 531 U.S. 510, ___ (2001) (Stevens, J) and (Rhenquist, C.J. and

O’Conner, J, concurring).

When the statutory scheme at issue in this case and Appellants’

constitutional claims are evaluated using “strict judicial scrutiny”, the State

can not possibly provide sufficient and satisfactory facts to rebut the strong

presumption of unconstitutionality and invalidity. As such, this Court

should independently evaluate Appellants’ claims using the “strict judicial

scrutiny” standard and grant the declaratory and injunctive relief requested.8

8 On the slogan issue, Appellants reassert that Riddell v. NationalDemocratic Party, 508 F.2d 770 (5th Cir. 1975) is directly on point, andapplicable, and compels a ruling in Appellants’ favor. The District Court

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3. Assuming, arguendo, that the District Court properlycharacterized and analogized Appellants’ constitutional claims toa “candidate ballot access” case, the District Court still appliedthe incorrect standard of review.

Assuming, arguendo, even if Appellants’ constitutional claims are

properly viewed and evaluated as in a “candidate ballot access” case, and

thus reviewed under that level of judicial scrutiny, the District Court below

still applied the incorrect standard of review. The Third Circuit has long and

unequivocally held that the appropriate standard of review in a “candidate

ballot access” case is the “compelling state interest standard of judicial

scrutiny” (an intermediate level of review, where the statute is still presumed

to be unconstitutional). See Wellford v. Battaglia, 485 F.2d 1151 (3d Cir.

1973) (Van Dusen, Gibbons and Hunter) and Allegheney County v.

Allegheney County Department of Elections, 174 F.3d 305 (3d Cir. 1999)

attempted to distinguish this case and in so doing, again applied the incorrectstandard of “judicial scrutiny” to the claim. Anderson did not affect Riddellas Riddell was not a ballot access case. See also Freedom Socialists v.Bradburry, 182 Ore.App. 217, 48 P.3d 199 (Oregon 2002); Norman v. Reed,502 U.S. 279 (1992). When the correct level is “scrutiny” is applied, thearguments advanced by the State against Appellants’ right to use the slogan“Democratic-Republican” – a generic argument regarding a “State” interestin “seeking to avoid confusion between major and minor political partycandidates” with no further explanation or detail, and making it easier forvoters to find the major party candidates on the General Election Ballot –simply does not overcome the presumption of unconstitutionality. As such,Appellants must be allowed to use their organizations name “Democratic-Republican” as the slogan associated with their name on the November 6,2012 General Election Ballot as each requested in their Nominating Petition.

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(en banc, Becker, C.J., and Sloviter, Stapleton, Mansmann, Greenberg,

Scricia, Nygaard, Alito, Roth, Lewis, McKee, Rendell and Rosen).

Moreover, only one year ago Wellford v. Battaglia was specifically

cited as controlling authority by a panel of this Court (Scirica, Ambro and

Vanaskie) as to the standard of scrutiny to apply when evaluating a

“candidate ballot access” case. Specifically, the referenced Third Circuit

panel in an Order dated September 13, 2011 wrote:

The judgment of the District Court, enteredSeptember 7, 2011, is hereby reversed. TheDistrict Court, inter alia, incorrectly applied arational basis standard of review of this as appliedchallenge, rather than the stricter compelling stateinterest standard. See Wellford v. Battaglia, 343F.Supp. 143 (D. Del. 1972), aff’d, 485 F.2d 1151(3d Cir. 1973). The State has failed to demonstratea compelling state interest in the application of thisdurational residency requirement to this particularcandidate. Accordingly, it is hereby ordered thatthe ballot at issue in this appeal include the nameof Appellant. Opinion of the Court to follow.

[See Order of September 13, 2011 in Lewis v. Guadagno, No. 11-3401 (3dCir. 2011) (Scirica, Ambro and Vanaskie)].

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Wellford v. Battaglia has not been overruled9, nor has the full Third

Circuit en banc decision in Allegheney County v. Allegheney County

Department of Elections, 174 F.3d 305 (3d Cir. 1999) been overruled, and as

such both are still controlling precedent in this Circuit, and still govern the

standard of judicial scrutiny that the District Court below should have

applied to plaintiffs’ constitutional claims. Clearly, even if this is case is

properly analyzed as a “candidate ballot access” case, as the District Court

believed, neither the Anderson balancing test, nor the “rational basis test” is

the proper level of judicial scrutiny to apply here.

If the plaintiffs’ constitutional claims here are indeed subject to “strict

judicial scrutiny” as plaintiffs contend, then the statutory scheme is

presumed unconstitutional and invalid, and the burden is on the State to

demonstrate otherwise. Conversely, even if the District Court was correct in

9 A week later, on September 20, 2011, without changing their positionon the appropriate standard of judicial scrutiny, the same Circuit Court panelheld further oral argument in the Lewis case and after affirmed the DistrictCourt’s denial of allowing Carl Lewis on the General Election Ballot as acandidate because it was found as a matter of fact that Lewis he had failed todemonstrate any other person was treated differently than he in what at thatpoint was only a Fourteenth Amendment Equal Protection “as applied”claim. However, that September 20, 2011 unpublished opinion nevermentioned any level of scrutiny, and so did not alter the September 13, 2011Order. So while the result of Lewis’s right to Ballot Access was reversed,the legal position as to the standard of Judicial Scrutiny applicable in theThird Circuit in “candidate ballot access cases” as articulated in the Court’sSeptember 13, 2011 Order was not.

24

analogizing this case – a case where all Appellants are all already on the

actual General Election Ballot – to the line of so called “candidate ballot

access” cases, the proper standard of review in the Third Circuit is still the

“compelling state interest standard of scrutiny” test, an intermediate level of

review, and the statutory scheme is still presumed to be unconstitutional and

invalid until the State proves otherwise. Wellford v. Battaglia, 485 F.2d

1151 (3d Cir. 1973); Allegheney County v. Allegheney County Department

of Elections, 174 F.3d 305 (3d Cir. 1999) (en banc). In short, under any

possible scenario, and no matter how this case is properly viewed, it is clear

that the District Court below applied the incorrect standard of “judicial

scrutiny” when evaluating Appellant’s constitutional claims. Under either

scenario, the statutory scheme challenged is presumptively unconstitutional

and invalid, and remains so unless and until the State demonstrates

otherwise. That all being said, the thin and unexplained claimed

“justifications” for this presumptively unconstitutional and invalid statutory

scheme advanced by the State can not possibly satisfy either of the noted

judicial scrutiny tests.

25

4. Whether Appellants’ constitutional claims are evaluated undereither a “strict judicial scrutiny standard” or are evaluated under a“compelling state interest judicial scrutiny standard”, the State has notpresented a sufficient basis to rebut the presumption that the challengedstatutory scheme is unconstitutional and invalid and as such Appellantsare entitled to the requested declaratory and injunctive relief.

The “strict judicial scrutiny test” which Appellants’ contend applies to

an evaluation of the constitutional claims made in this case requires the State

to come forward and demonstrate “… that the restriction ‘furthers a

compelling interest and is narrowly tailored to achieve that interest.’”

Citizens United v. Federal Election Commission, __ U.S. ___ (2011)

Kennedy, J. (majority slip op at page 23) (quoting Federal Election

Commission v. Women’s Right to Life, Inc., 551 U.S. 449, 646 (2007)

(opinion of Roberts, C.J.)); See also Cook v. Gralike, 531 U.S. 510, ___

(2001) (Stevens, J) and (Rhenquist, C.J. and O’Conner, J, concurring).

Conversely, viewing plaintiffs’ claims as a “candidate ballot access”

case, as did the District Court, still requires application of the so called

“compelling state interest standard of judicial scrutiny”. That test requires

the State to demonstrate a compelling State interest in the application of the

discriminatory statutory scheme challenged. Wellford v. Battaglia, 485 F.2d

1151 (3d Cir. 1973); Allegheney County v. Allegheney County Department

of Elections, 174 F.3d 305 (3d Cir. 1999) (en banc); see also Council of

Alternative Political Parties v. New Jersey, 344 N.J.Super. 225, 781 A.2d

26

1041 (2001) (also applying intermediate level scrutiny to equal protection

challenge by minor political parties to New Jersey’s political party

registration laws when declaring such laws unconstitutional). In either

event, the challenged statutory scheme is presumed unconstitutional and

invalid. Thus, the District Court improperly placed the proof burden on

plaintiffs, when it should have been placed on the State

And had it been properly placed on the State by the Court below, the

question would be, what are the “justifications” advanced by the State for

the different and preferable treatment that the statutory scheme admittedly

gives to major political parties and their candidates? As to the Ballot

placement, the District Court recited the explanation at pages 16-17 of the

Amended Opinion:

…I note that the State has offered, in its papers andat the hearing, several interests supporting itsmethod of regulating ballot placement in a waythat might appear to favor political parties.Specifically, the State claims that political partycandidates have demonstrated a certain “modicumof community support” and therefore it isreasonable to place them together on the same sideof the ballot to the exclusion of the unaffiliatedcandidates, who have failed to demonstrate thesame amount of support. Cf. Jennes, 403 U.S. at42. In that connection, the State posits, it isimportant for voters to easily identify thesecandidates and parties on the ballot, which isaccomplished by ensuring that these candidates forpolitical parties are clearly separated on the ballot

27

from candidates nominated by petition. In sum,the State argues, these regulations serve theinterest of maintaining the integrity of the electionprocess.

[Amended Opinion at 16-17].

Directly to the point, the only justification that the State has advanced

whatsoever for this different treatment is that:

(1) major political parties have demonstrated a “modicum of communitysupport” (whatever that means, see footnote 4, supra.)

(2) so it is therefore (so the State says) “reasonable” to place all majorpolitical party candidates on the same side of the ballot, specifically“away from” candidates who have obtained access to the ballotthrough the nomination and petition process;

(3) and that it is therefore “reasonable” to place all major political partycandidates together on the same side of the ballot because it is“important” for voters to “easily identify” these major partycandidates and major parties on the actual ballot.

The problem with the entirety of the State’s argument is that the

“interests” they articulate are not legitimate and recognized State interests.

The reasons advanced may operate to address and protect the “interests” of

the two established major political parties and their candidates. But the

interests of established major political parties and their candidates most

certainly do not equate as a matter of law with the State of New Jersey’s

“interests” that a Court may take cognizance of in evaluating the

constitutionality of the challenged legislative classifications and restrictions.

28

As the Sixth Circuit said in Libertarian Party of Ohio v. Blackwell,

465 F.3d. 579, 587 (6th Cir. 2006):

“[T]he State may not be a wholly independent orneutral arbiter as it is controlled by the politicalparties in power, which presumably have anincentive to shape the rules of the electoral gameto their own benefit.”

[Libertarian Party of Ohio v. Blackwell, supra, 465 F.3d. at 587 (quotingfrom Clingman v. Beaver, 544 U.S. 581 (2005) (O’Conner, J., concurring)].

In this regard, it is simply not the State’s place to “take sides” by

enacting election laws that favor one party over another, or one candidate

over another, or that inherently favor established political parties and their

candidates over new political parties and their candidates. “[W]hile states

enjoy a wide latitude in regulating elections and in controlling ballot content

and ballot access, they must exercise this power in a reasonable,

nondiscriminatory, politically neutral fashion.” (Emphasis added). Texas

Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006).

Despite this fact and the law, there is not even so much as a pretense

of an argument from the State that the classifications and preferences that

Appellants challenge here are in any way politically neutral. In fact, the

State quite clearly argues the contrary, literally arguing that the State has the

right to overtly favor the major political parties and their candidates over

minor political parties and their candidates when configuring the General

29

Election Ballot without violating the [First] and Fourteenth Amendments!

The State amazingly argues that it is both “reasonable” and “important” for

voters to “easily identify and find” the major political parties and their

candidates on the General Election Ballot. This is “reasonable” and

“important” because - the State says - political parties have demonstrated a

“modicum of support”. See footnote 1, supra. How making it easier for

voters to identify and find the major party candidates on the General

Election Ballot - and admittedly making it more difficult, or not as “easy”

for voters to find minor political party candidates on Ballot – is a State

interest is not explained. Moreover, how such admitted State discrimination

in a General Election can possibly equate with a recognizable State interest

in regulating the General Election is neither explained by the District Court

nor understood by plaintiffs. Nor can such favorable treatment ever equate

with any legitimate, valid and recognizable State interest for constitutional

analysis.

In Williams v. Rhodes, 393 U.S. 23, 31-32 (1968) the Supreme Court

specifically and clearly ruled that State election laws that favor the two

major political parties and their candidates over minor political parties and

their candidates under the pretext of the State’s promoting the stability of

30

two parties is an impermissible State interest that the First Amendment

simply does not recognize.10

As the only reason articulated by the State is not a “State interest” that

may even be recognized by any Court in the face of the constitutional claims

at issue here, there certainly is no “compelling State interest”, nor

10 At footnote 8 on page 14 of the Amended Opinion the District Courtacknowledges that at oral argument Eugene LaVergne argued that Williamsv. Rhodes, 393 U.S. 23 (1968) supported the legal position“… that preferential ballot placement for a candidate or political partyviolates the Constitution.” The Court then stated that:

… Plaintiffs’ argument rests on the conclusoryassertion that certain ballot placements are morepreferential than others - - in terms of garneringvotes or otherwise - - and accordingly I reject it forthe same reasons as stated above.

What is at issue here is not a “conclusory assertion” by plaintiffs but rather afact openly admitted by the State. The State itself here argues that the ballotplacement given to the major political parties is a benefit and is a preference– and that such placement on the General Election Ballot (the conferredbenefit and preference) makes it “easier” for voters to quickly identify, findon the General Election Ballot, and vote for the major political partycandidates. By the State’s own admission, this is specifically why the Stateconfers this benefit and preference on the major political parties and theircandidates. It is respectfully submitted that the District Court below missedthe point: This case is not about political candidates arguing over the “right”to garner excess or windfall votes from careless voters: This case is aboutthe right of all candidates similarly situated as candidates for public officeon the General Election Ballot to be treated equally and in conformance withthe various constitutional provisions cited. That admittedly is not takingplace, and Appellants are entitled to meaningful and timely a remedy in timefor the General Election. The Constitution and our collective historycommands nothing less if the government is to retain legitimacy.

31

nonetheless one that is “narrowly tailored to achieve that compelling State

interest.” See Citizens United v. Federal Elections Commission, supra.,

Cook v. Gralike, supra, Wellford v. Battaglia, supra., Allegheney County v.

Allegheney County Department of Elections, supra. To rebut the

presumption that the discriminatory statutory scheme is unconstitutional and

invalid the State must articulate a valid and recognized State interest. They

have not done so, nor can they. As such, plaintiffs have demonstrated a

clear probability of success on the merits and as such this Court should enter

the declaratory and injunctive relief requested.11

11 Applications for injunctive relief are governed by Rule 65 of the FederalRules of Civil Procedure (F.R.Civ.P. 65). The standards governing anapplication for injunctive relief in the Third Circuit are well established:

To satisfy the injunction standard, the movingparty must demonstrate the classic four elements:(1) a reasonable probability of success on themerits; (2) that denial of injunctive relief willresult in irreparable harm; (3) that grantinginjunctive relief will non result in even greaterharm to the non-moving party; and (4) thatgranting injunctive relief will be in the publicinterest.

[Saudi Basic Industry, Corp. v. Exxon Corp., 364 F.3d 106, 112 (3d Cir.2004), citing Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3dCir. 1999)].

In this case, the District Court below assumed that all standards weremet except the “probability of success on the merits” prong. When theproper level of “judicial scrutiny” – “Strict Judicial Scrutiny” – is applied to

32

POINT II

THE CIRCUIT COURT SHOULD, IF NECESSARY,TAKE JUDICIAL NOTICE OF THE FACT

THAT BALLOT LOCATION HAS AN EFFECT ON ELECTIONS

The State openly concedes that placement of the major political

parties and their candidates in the first two columns on the left and at the top

of the General Election ballot is a “preference” and a “benefit”. Moreover,

not only is this fact conceded, but the State argues that it is expressly

because this placement confers a “preference” and “benefit” that the State

has a “State interest” in conferring this benefit and preference on the major

political parties, and their candidates, to the specific exclusion of all minor

political parties and their candidates. See Point I, supra.

Despite this, the District Court still found that at this preliminary stage

of the proceedings plaintiffs had not demonstrated a “likelihood of success

on the merits”. This “finding” was yet made because the Court took the

position that there was “no evidence yet” before the Court that demonstrated

the disputed adjudicative fact that any benefit, or burden to plaintiffs’ rights,

existed by the placement of the major political parties in the first two

Appellants’ actual claims, it is submitted that Appellants have in factdemonstrated a probability of success on the merits and are entitled to thedeclaratory and injunctive relief requested.

33

columns on the left and top of the General Election Ballot. This position was

taken by the District Court was taken despite the fact that the State conceded

the “adjudicative fact” that of ballot positional bias exists. Why Appellants

were short in meeting their burden on an issue of “probability of success on

the merits” only because there was a claimed disputed issue of “adjudicative

fact” of positional bias when the State openly conceded the issue of

“adjudicative fact” of positional bias is not explained. The District Court

merely wrote:

Thus, Plaintiffs, at the very least, should havepresented the Court with some type of evidencedemonstrating a benefit and/or burden that stemsfrom ballot placement. Without any suchevidence, the Court is unable to make adetermination that Plaintiffs have suffered anycognizable, constitutional harm in this case. Inother words, Plaintiffs have failed to establish alikelihood of success on the merits that wouldallow a preliminary injunction to issue.

[Amended Opinion at page 16].

Under the facts of this case Appellants do not – or should not - need to

present any further evidence, even at this early stage of the litigation, on an

issue of fact that the State openly concedes is true. Therefore, in the actual

context of this case, the District Courts position that “…[w]ithout any such

evidence, the Court is unable to make a determination that Plaintiffs have

suffered any cognizable, constitutional harm in this case ...”, Id., with all due

34

deference, literally makes no logical sense and is literally contrary to the

State’s own position on the factual issue of positional bias.

With the State’s concessions on this point, there simply is no disputed

issue or question of “adjudicative fact” on the issue of positional bias on the

General Election Ballot: The State concedes the issue of adjudicative fact.

14 years ago in New Jersey Conservative Party v. Farmer, 324 N.J.Super.

451, 735 A.2d 1189 (App. Div. 1999), leave to appeal denied ___ N.J. ___

(1999), on remand to the trial court at 332 N.J.Super. 278, 753 A.2d 192 (Ch.

Div. 1999), the State of New Jersey there and then in that case took the

literal contrary position, arguing in that case at the preliminary stages of the

proceedings that there was “no evidence” that had been presented yet in that

case that demonstrated that there was any bias or preference created

whatsoever by ballot position or in the ballot position allocation and

assignment process as contained in the statutory regulations. While the trial

court there agreed with the State at that point, did not grant a preliminary

injunction (after the first preliminary injunction had granted and then

vacated on appeal), the election proceeded, and there was no appeal of that

decision at that time (due to the passing of the election), the fact remains that

even that State trial court decision there on remand was contrary to clearly

established precedent.

35

In an election for United States Senate in 1984, it was recognized that

somehow the Democratic Party had managed to “draw” the first column at

the top of the ballot under the process in N.J.S.A. 19:14-12 (literally the

exact same statute at issue here) 40 out of 41 years in a row over the

Republican Party in Essex County, New Jersey. Essex County was and is a

predominantly “Democratic” County, and the elected County Clerk is a was

and is a Democrat. A lawsuit was brought by the Republican Party bringing

an “as applied” [First Amendment] and Fourteenth Amendment Equal

Protection challenge, where it was argued that simple math advised that for

such an occurrence to be natural in nature and not the result of some

tampering or fraud would have to overcome statistical odds based upon

simple math of in excess of 50 Billion to 1. While there no relief was

granted in time for the United States Senate election and ballot placement in

1984, the New Jersey Supreme Court in a per curium opinion still addressed

the merits of the claim months after the election was over. In so doing the

Court stated in relevant part as follows:

The issue in this appeal concerns the manner inwhich voters should be assured of absolute fairnessin the choice of ballot positions for candidates ofpolitical parties. The controversy is moot becausea general election including the candidates hasalready occurred. Nevertheless, we believe thatthe issue are recurrent and warrant reconsideration.

36

* * * If the issues had arisen in a way thatwould have permitted the court to fashion atimely remedy, the results of this suit wouldundoubtedly have been different. (Emphasisadded).

[Mochary v. Caputo, 100 N.J. 119 at 120-121 and 123, also at 494 A.2d1028 (1985)].

In the Mochary v. Caputo case, State Supreme Court Justice Robert

Clifford was not so impassive to what had actually occurred over a 41 year

period of time in fixing position of candidates on the General Election Ballot

in Essex County, New Jersey as were the other members who made up the

pre curium opinion. Justice Clifford wrote a separate concurrence noting the

following:

* * * But despite the County Clerk’s apparentcompliance with the statute in this instance, onecan not help being struck by the marvel, theotherworldly coincidence, of any party “winning”the drawing forty out of forty-one times. That therecord supports this numerical result is not open toquestion. Nor is it open to any doubt whatsoeverthat assuming a fair and random selection of oneitem out of a possibility of two, the odds ofdrawing line A forty times out of forty-one drawsare about one in fifty billion. Get that? ONE inFIFTY BILLION!

It understates the case to suggest that thisextraordinary state of affairs should act as achallenge to anyone and everyone concerned withthe preservation of voter confidence. The fingerdoes not point to Mr. Caputo, who did not conductall of the forty-one drawings himself – it points atthe system. And a system that produces the results

37

noted above has to excite the same skepticismabout whether it is on the “up-and-up”. That kindof symptom of a diseased system, one that shouldno longer be tolerated.

[Mochary v. Caputo, 100 N.J. 119 at 128-129 (Clifford, J., concurring), alsoat 494 A.2d 1028 (1985)].

The after the fact opinion by the New Jersey Supreme Court in the

Mochary v. Caputo case was hailed – almost 30 years ago - as perhaps the

beginning of the end of discriminatory ballot placement of candidates on the

General Election Ballot in New Jersey. See “Court in New Jersey Upholds

Equal Odds for All”, by Joseph Sullivan (July 23, 1985) in New York Times

Newspaper, abstract at www.nytimes.com/1985/07/23/nyregion/court-in-

jersey-upholds-equal-odds-for-all.html . Yet, almost 30 years later, literally

nothing has changed, and it may even be worse. It has been revealed during

the pendency of this case that Monmouth County, New Jersey, a

traditionally “Republican” County where the County Clerk (a party

defendant in this case who is being accused in THIS CASE of “as applied”

discrimination) who oversees the ballot position drawing has been an elected

Republican for well over 30 years, that by another “extraordinary

coincidence”, the Republican Party who “won” the drawing for the preferred

first column for the November 6, 2012 General Election Ballot this year

once again and been granted the preferred ballot placement in “Column A”,

38

that this makes 30 out of the last 33 years, a mathematical statistic that to be

legitimate and to occur in nature without some form of tampering or fraud,

would require overcoming odds of 1 in 1.5 million. See “Are Monmouth

County Republicans Cheating?”, by Kathleen Hopkins (October 7, 2012) in

the Asbury Park Press Newspaper, abstract at

www.app.com/article/20121007/NJNEWS/310070041/Monmouth-County-

ballots ; see also Editorial Board Opinion, “Just Alternate Ballot Position”

(October 8, 2012) in the Asbury Park Press Newspaper, abstract at

www.app.com/article/20121009/NJOPINION01/310090008/Just-alternate-

ballot-position . Unlike the New Jersey Supreme Court in the 1984 United

States Senate Election at issue in the Mochary v. Caputo, there is time here

in this United States Senate Election for the Court to act in a meaningful

timeframe and provide a remedy. Here the prima facie evidence of

discrimination has arisen in a way and at a time that will permit this Circuit

Court of Appeals to “fashion a timely remedy”, so that in this United States

Senate Election the results of this suit … [should] undoubtedly… [be]

different”, Mochary v. Caputo, 100 N.J. 119 at 120-121 and 123, also at 494

A.2d 1028 (1985), from the justice delayed to 1984 United States Senate

Candidate Mary Mochary. In this regard, Appellants believe it appropriate if

39

not essential to reprint verbatim and in its entirety “footnote 11” from their

initial motion brief filed with the District Court below:

11 The last part of N.J.S.A. 19:14-12, not citedverbatim in this brief, specifies the manner inwhich the county clerk is required to “draw lots”.Specifically, slips of paper with the name of eachparty (since at least 1929 only Republican andDemocrat) are put in “capsules”, and then eachcapsule put into a box, the box is shaken, and thecounty clerk then reaches into the box and picks acapsule, and then removes and opens the capsule.The name of the party on the slip of paper removedfrom the now opened capsule first removeddictates which party receives the first column onthe left of the ballot, and the remaining partyreceives the second column from the left. This socalled fair process has fostered a level ofguaranteed rigging of the ballot placement for apreferred party by the use of a simple thirdgrader’s “magic trick”. This “secrete” methodpassed on from Clerk to Clerk in select Countieswho retain long time single political party controlis oddly, not even a “secrete” but has in somecounties evolved into something recognized asmore of a political tradition than a flagrant andblatant violation of the law. For example, EssexCounty is a Democratic stronghold, and long timeEssex County Clerk Nicholas Caputo, an electedDemocrat, miraculously pulled the capsule of theDemocratic Party first each and every time exceptonce almost 40 years in a row, thereby conferringby statute, the preferred position of the firstcolumn on the left to the Democratic Party, foralmost 40 years in a row. Math actuaries andstatisticians wrote in the media and reported aswitnesses in Court cases that this occurrence wasliterally a statistic impossibility – not a statisticimprobability, but a statistic impossibility. And yet

40

it occurred, without explanation, for 40 years.Point in fact, the explanation is really quite simple.The capsules used by Democratic County ClerkCaputo were always made out of a plastic/gelcomposite, either of the sort used to hold medicinein pills (a 2 piece plastic pill casing) , or of the sortslightly larger used to hold small toys in vendingmachines (also 2 pieces) often found outsidesupermarkets alongside gumball machines.Democratic County Clerk Caputo indeed alwaystook two plastic capsules and put a piece of paperwith the name Republican and Democrat in eachcapsule. This is where the fairness stopped.Caputo would then place the plastic capsulesinside the box, and while doing so, he wouldslightly squeeze and crush the plastic capsule withthe word Democrat inside. Caputo would then, asrequired by the statute, shake the box to mix up thetwo plastic capsules to give the illusion that theprocess was arbitrary and left to chance. This wasindeed all part of the magic trick show conductedright in front of witnesses. Then, as required bystatute, Caputo himself would reach inside the boxto pick one plastic capsule, and he could quicklyidentify by touch the crushed plastic capsule of theDemocrats, which would be the plastic capsule heremoved. As he was removing the plastic capsulehe would simultaneously rip the plastic capsule inhalf to open it, and in so doing would damage theplastic capsule, which he would automaticallythrow away as he simultaneously pronounced the“winner” of the draw as the Democrats. Were oneto bother to check the contents of the garbage can,indeed the plastic capsule would evidence damage,but damage thought to have occurred whenbreaking the plastic capsule open into two pieces.This historically true story of New Jersey electionand political folklore is but one of many examples,and metaphors, for the unconstitutionality of theentirety of Title 19: Title 19 provides an election

41

process that provides the citizens of New Jerseywith the illusion of fairness, but an electionprocess that in application provides no actualfairness at all and arbitrarily favors not only twopolitical parties, but is arbitrarily rigged to favorthese two specific political parties and theircandidates to the exclusion of all others, and attimes allows even the two political parties toviolate the others rights, perhaps still today withthe continuing tacit acquiescence of each MajorPolitical Party.

[See September 11, 2012 Motion Brief at F.R.A.P. 28 Addendum submittedwith this motion.]

Moreover, on the facts here and in the context of plaintiffs’ actual

constitutional claims, as a threshold matter plaintiffs are not required to

prove positional bias on the General Election Ballot but rather, as a threshold

matter, are only required to demonstrate different treatment from others

similarly situated, which plaintiffs have undisputedly done. Once plaintiffs

have demonstrated different treatment by the State of some candidates on the

General Election Ballot from other candidates on the General Election

Ballot, the burden then shifts to the State to show that there is not positional

bias of a constitutional magnitude. See Citizens United, supra. and Wellford

v. Battaglia, supra. Whether this case is properly evaluated under a “strict

scrutiny” or “compelling state interest” standard, Id., the burden is on the

State to demonstrate that the different treatment of candidates on the General

42

Election Ballot does not create a positional bias. The District Court applied

the incorrect standard of judicial scrutiny, and in do doing, improperly stated

the burden of proof as if plaintiffs had to demonstrate bias. This is incorrect,

as under either of the two possible correct standards of review, the burden is

on the State to demonstrate that there is not positional bias, whereas the

District Court (in applying the incorrect standard of Judicial Scrutiny)

incorrectly ruled that the burden was on plaintiff to demonstrate that there is

positional bias.

For more than 70 years, courts at various times and under various

circumstances have acknowledged the fact that a candidate’s placement at

the preferred locations on the General Election Ballot (top of ballot, to the

left of the ballot) provide a substantial benefit.

It is a commonly known and accepted fact that inan election, either primary or general, where anumber of candidates or nominees for the sameoffice are before the electorate, those whose nameappear at the head of the list have a distinctadvantage. (emphasis added).

[Elliott v. Secretary of State, 295 Mich. 245, 294 N.W. 171, 173 (Mich.1940).]

Today, in year 2012, 72 years after the Michigan State Court’s

statement that positional bias on the General Election Ballot is a “commonly

known and accepted fact”, there is no longer any reasonable dispute that all

43

empirical evidence and data support the conclusion that the first two

columns on the left and the top locations of a General Election Ballot confer

a benefit and preference for any candidate in that location because it is easier

for voters to identify and find a candidate. While studies may differ as to

degree of effect, there is no reasonable question now in year 2012 that there

is a significant effect. See eg. “The Impact of Candidate Name Order on

Election Outcomes”, by Joanne M. Miller & Jon A. Krosnick, 62

Pub.OpinionQ, Vol.62, No. 3, 291, 293-294, 308-308 (1998); “Election by

Lottery: Ballot Order, Equal Protection, and the Irrational Voter”, by Laura

Miller, 13 N.Y.U.J.Legis.&Pub.Pol’y 373, 405 (2010) (collecting empirical

social science studies); “Equity in Politics: Name Placement on Ballots”,

American Bar Foundation Research Journal 4.1 (1979): 141-178 (“All

studies find that ballot position accounts for part of voter’s choices”.); “A

Low Information Theory of Ballot Position Effect”, by David Brockington,

in Political Behavior, 25.1 (2003) 1-27 (Preferred Ballot placement is found

to account for a bias of between 0.07% and 5.2& depending upon election

and other factors.); “Randomization Inference With Natural Experiments:

An Analysis of Ballot Effects in 2003 California Recall Election”, by David

E. Ho and Imani Kosuke in Journal of the American Statistical Association

(2006); “The Effects of ballot Placement on Election Outcomes”, by

44

Jonathan G.S. Koppell and Jennifer A. Steen, in The Journal of Politics 66.1

(2004): 267-281; “On the Causes and Consequences of Ballot Order –

Effects”, by Marc Meredith and Yuval Salant, MIT Working Paper; “Is It

Better to Be First or Last? The Ballot Order Effect”, by Betty Sinclair

(2005), Cal.Tech. Working Paper; “The Effect of Ballot Position on

Electoral Success”, by Delbert A. Taebel, in American Journal of Political

Science, 19:3 (1975): 519-526; “Ballot Order Effect”, University of

Vermont, Vermont Legislative Research Shop, at www.uvm.edu/-

vlrs.PoliticalProcess/ballotordereffects.pdf . All that having been said,

Appellants also hereby formally request that this Circuit Court take “judicial

notice” under F.R.Evid. 201 of the “adjudicatory fact” that providing the two

left columns at the top of the General Election Ballot to the major political

parties to the exclusion of other political parties creates a positional bias of

varying degrees which positional bias is significant enough to affect the

outcome of an election. This motion is made to the extent that this

“adjudicative fact”, which the State concedes to be true, can be rendered no

longer reasonably subject to dispute, so that there can be no question that

Appellants have satisfied the element of “probability of success on the

merits”, so that meaningful and timely declaratory and injunctive relief may

be granted. See Brown v. Board of Education of Topeka, 347 U.S. 483,

45

494, note 11 (1954) (Warren, C.J., taking judicial notice of overwhelming

social statistics and scholarly publications on the detrimental effects of

segregated schools on minority children.); see also Muller v. Oregon, 208

U.S. 412 (1908), overruling Lochner v. New York, 198 U.S. 45 (1905), and

in so doing, relying upon the so called “Brandeis Brief”, a compilation of

scholarly studies and social statistics (never presented to the trial Court)

demonstrating the clear and undisputable “fact” of danger to women’s health

and safety in manual labor jobs after 10 hours of straight manual labor.)

Further, countless Federal and State Courts have acknowledged and

struck down as unconstitutional statutes that grant ballot placement

preferences to the major political parties and their candidates, all finding as

fact that position on the ballot makes a difference. See e.g. McLain v. Meier,

637 F.2d 1159, 1167 (8th Cir. 1980) (“Such favoritism burdens the

fundamental right to vote possessed by supporters of the last-listed

candidates, in violation of the fourteenth amendment.”); Emmons v. Hooper,

CIV-78-404 (D.N.M. July 6, 1979) (“[C]itizens voting for an unfavorably

positioned candidate would lose their power of their vote to a group of equal

strength whose candidate appears in top positions.”); Graves v. McElderry,

946 F.Supp. 1569 (W.D.Okla. 1996) (Striking Democratic-first statute.);

Rosen v. Brown, 970 F.2d 169 (6th Cir. 1992); Weisberg v. Powell, 417 F.2d

46

388, 392-393 (7th Cir. 1969) (Policy of granting priority ballot placement to

candidates of major parties held to be unconstitutional.); Cullition v. Board

of Election Commissioners of the County of DuPage, 419 F.Supp. 126 (N.D.

Ill. 1976) (holding that Republican-first provision violated equal protection

clause.); Sangmeister v. Woodard, 565 F.2d 460, 465-467 (7th Cir. 1977)

(Affirming District Court’s finding that ballot positioning practices favoring

certain parties are unconstitutional.); Atkins v. New Hampshire Secretary of

State, 154 N.H. 67, 904 A.2d 702 (N.H. 2006) (Listing candidates from the

party that receive the most votes in the previous election and alphabetizing

the names of the remaining candidates held unconstitutional.); Holtzman v.

Power, 313 N.Y.S.2d 904, 62 Misc.2d 1020, aff’d mem. 34 App.Div.2d 917,

311 N.Y.S.2d 824, aff’d mem. 27 N.Y.2d 628, 313 N.Y.S.2d 760, 261 N.E.2d

666 (1970) (Statute requiring name of incumbent to appear first on the ballot

held to be unconstitutional.) To continue to pretend that positional bias on

the General Election Ballot is somehow a “question of fact”, to deny timely

and meaningful relief because Appellants, in this case that is 1 month old

have not yet filed an “Expert’s Report”, does violence to the basis rights at

issue in this case.

Indeed, most recently, on February 3, 2012, in Green Party of

Tennessee v. Hargett, Case No. 3:11-00692 (Mid.D.Tenn. 2012) (Document

47

45) the Honorable William J. Haynes of the Middle District of Tennessee

took judicial notice of social statistics that confirm ballot position bias by

including in his opinion social science studies not relied upon by either party

when concluding the “adjudicative fact” of positional bias. Plaintiffs ask

this Court, to the extent even necessary, to do the same.

Notwithstanding the fact that the State concedes that there is

positional bias, a preference, and a benefit derived from being located to the

top and left of the general election ballot, plaintiffs ask this Court to the

extent that may be necessary to take Judicial Notice under F.R.Evid. 201 of

the well known and commonly accepted “fact” that a candidate’s placement

at the preferred Ballot locations (top of ballot, and to the left of the ballot)

provide a substantial benefit. As such, plaintiffs submit that they have

demonstrated a probability of success on the merits.

POINT III

EXPEDITED REVIEW IS APPROPRIATE TO PROTECT THECONSTITUTIONAL RIGHTS OF APPELLANTS AND OF ALL

VOTERS IN THE ENTIRE STATE OF NEW JERSEY

There is more than ample precedent for an Article III Court to Order

expedited review in election matters when constitutional rights are at stake

and the constitutional validity of a State Election Statute is called into

question in a Federal election. Under such circumstances expedited review

48

may be granted on the application of a party or even Ordered sua sponte.

See Norman v. Reed, 502 U.S. 279, 287 (1992) (Expediting review and

Supreme Court Ordering Election Ballots to be changed to comply with

Constitution less than 2 weeks before the Election); Bush v. Gore, 531 U.S.

98 (2000) and Bush v. Palm Beach County Canvassing Board, 531 U.S. 70

(2000) (expedited review of Constitutionality of Florida State Election Laws

in context of a Federal Election). Article III Courts have not hesitated to

conduct expedited review and enter appropriate preliminary injunctive relief

when the Constitutionality of a law, or the actions of a government official,

are at issue. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

(1952) (expedited review of constitutionality of actions of Article II

President in the so called “steel seizure cases”); United States v. Nixon, 418

U.S. 683 (1983) (expedited review in the “Nixon Tapes Case”); New York

Times Co. v. United States, 403 U.S. 713 (1971) (expedited review in the

“Pentagon Papers Case”); Bowsher v. Synar, 478 U.S. 714 (1986)

(expedited review of the constitutionality of the “Gram-Rudman Act”);

Dames & Moore v. Regan, 453 U.S. 654 (1981) (expedited review on the

constitutionality of seizure of Iranian Assets); Raines v. Byrd, 521 U.S. 811

(1997) (expedited review of the constitutionality of the “line item veto”).12

12 Although the Article III Courts heard Raines v. Byrd in an expedited

49

CONCLUSION

For the foregoing reasons and authorities cited in support thereof, it is

respectfully requested that Appellants Motions be GRANTED.

____/s/ Richard Luzzi_________________By: Richard Luzzi, Esq.Attorney for Appellants Democratic-RepublicanOrganization of New Jersey, Frederick JohnLaVergne, Leonard P. Marshall, Tracy M.Caprioni, Kimberly Sue Johnson and Donald E.LettonDated: October 19, 2012

____/s/ Eugene Martin LaVergne_______Eugene Martin LaVergneAppellant Pro SeDated: October 19, 2012

case, ultimately the Supreme Court dismissed the case finding that theplaintiffs there lacked Article III standing to bring the legal challenge.Thereafter, in a case which was not heard on an expedited basis but wherethe plaintiffs were found to have Article III standing, the line item veto wasdeclared unconstitutional. See Clinton v. New York, 524 U.S. 417 (1998).

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COMBINED CERTIFICATIONS AND PROOF OF SERVICE:

RICHARD LUZZI, ESQ. hereby certifies as follows:

1. I am a member of the Bar of the Third Circuit Court of Appeals ingood standing and the remainder of the representations in this “CombinedCertifications and Proof of Service” are true and accurate.

EUGENE MARTIN LaVERGNE hereby certifies as follows:

1. I am a party and Appellant appearing Pro Se in this appeal and theremainder of the representations in this “Combined Certifications and Proofof Service” are true and accurate.

WORD COUNT: The word count exceeds that which is allowed by theFederal Rules of Appellate Procedure and the Third Circuit Local AppellateRules for motions, but in these various applications Appellants specificallymove for an Order Granting Leave to file an over-length motion.

VIRUS CHECH: The Motion and papers filed herewith in PDF form havebeen checked with McAfee® and are clear of any virus.

SERVICE UPON COUNSEL: All defendants below were served wellprior to the return date of the Order to Show cause, and most County Clerkdefendants entered an appearance and relied upon the Attorney General’ssubmissions, while some did not appear or enter any appearance. Thedefendant Democratic Party entered and appearance and appeared, thoughthe Republican Party, properly served, chose not to enter an appearance orotherwise respond in any way.

A copy of Appellants’ Motion and supporting papers (the F.R.A.P. 28Addendum) are being served simultaneous to the electronic filing with theThird Circuit Clerk as follows:

(1) Upon the following counsel for the Appellees who entered an appearancebelow electronically through ECMF only as follows:

Brendan J. Kavanagh, Esq. at: bbutcher@millvillelaw.net andbkavanagh@millvillelaw.net

51

Donna Kelly, D.A.G. at: donna.kelly@dol.lps.state.nj.us andEf-director@dol.lps.state.nj.us

Edward Florio, Esq. at: main@floriokennylaw.com

James B. Arsenault, Jr., Esq. at: jarsenault@co.cape-may.nj.us andcounselpn@co.cape-may.nj.us

James Ferguson, Esq. at: ferguson_james@aclink.org

John Carbone, Esq. at ussrecount@aol.com andcflaw@optonline.net

Michael David Witt, Esq. at: mwitt@chasenlaw.com

Moshood Muftau, Esq. at: mmuftau@ucnj.org andmoshood.muftau@gmail.com

Robert B. Campbell, Esq. at: rcampbell7@verizon.net andmclaw@verizon.net

(2) Upon the following counsel for the Appellee(s) who entered anappearance below as counsel entered an appearance but is not a registeredECMF filer, a hard copy of the moving papers via hand delivery at thefollowing address:

Joseph A. Bilal, Esq.Middlesex County CounselAdministrative Building75 Bayard Street – Room 230New Brunswick, New Jersey 08901

(3) Notwithstanding the fact that the Republican Party was properly andtimely served and failed to enter an appearance, failed to oppose theapplication below, and failed to otherwise respond in any way, a hard copyof the moving papers were also served via hand delivery at the followingaddress:

Republican State Committee150 West State Street – Suite 230

52

Trenton, New Jersey 08625

I DECLARE AND CERTIFY UNDER PENALTY OF PERJURYTHAT THE FOREGOING IS TRUE AND CORRECT.Executed on October 19, 2012.

____/s/ Richard Luzzi_________________By: Richard Luzzi, Esq.Attorney for Appellants Democratic-RepublicanOrganization of New Jersey, Frederick JohnLaVergne, Leonard P. Marshall, Tracy M.Caprioni, Kimberly Sue Johnson and Donald E.LettonDated: October 19, 2012

I DECLARE AND CERTIFY UNDER PENALTY OF PERJURYTHAT THE FOREGOING IS TRUE AND CORRECT.Executed on October 19, 2012.

____/s/ Eugene Martin LaVergne_______Eugene Martin LaVergneAppellant Pro SeDated: October 19, 2012

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F.R.A.P. 28 Addendum:

“Exhibit 1” - Appellants Verified Complaint with Exhibits

“Exhibit 2” - Appellants initial Motion Brief in Support ofApplication for Accelerated Declaratory andInjunctive Relief

“Exhibit 3” - Appellants Reply Brief to State’s Opposition

“Exhibit 4” - Amended Opinion of District Court denyingdeclaratory and injunctive relief

“Exhibit 5” - Order of District Court denying declaratory andinjunctive relief

“Exhibit 6” - Order of Third Circuit (unpublished) in Lewis v.Guadagno dated September 13, 2011

“Exhibit 7” - Opinion of Third Circuit (unpublished) in Lewis v.Guadagno dated September 20, 2011

“Exhibit 8” - Opinion of United States District Court(unpublished) in Green Party of Tennessee v. Hargett