final third circuit motion final
TRANSCRIPT
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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)].
23
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: [email protected] [email protected]
51
Donna Kelly, D.A.G. at: [email protected] [email protected]
Edward Florio, Esq. at: [email protected]
James B. Arsenault, Jr., Esq. at: [email protected] [email protected]
James Ferguson, Esq. at: [email protected]
John Carbone, Esq. at [email protected] [email protected]
Michael David Witt, Esq. at: [email protected]
Moshood Muftau, Esq. at: [email protected] [email protected]
Robert B. Campbell, Esq. at: [email protected] [email protected]
(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