United States Court of Appeals Third Circuit No. 12-3977 Democratic-Republican Organization of New Jersey, et als., Appellants, vs.

Kimberly Guadagno, et als., Appellees.

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

Oler & Luzzi, L.L.C. 6 Apple Tree Lane Sparta, New Jersey 07871 Telephone: (973) 983-7020 Telefax: (973) 983-7030 By: Richard Luzzi, Esq. Attorney for Appellants Democratic-Republican Organization of New Jersey, Frederick John LaVergne, Leonard P. Marshall, Tracy M. Caprioni, Kimberly Sue Johnson and Donald E. Letton Eugene Martin LaVergne, Appellant Pro Se 543 Cedar Avenue West Long Branch, New Jersey 07764 Telephone: (732) 272-1776

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 the slogan Democratic-Republican associated with their individual name 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 together in the same vertical column on the November 6, 2012 General Election Ballot in Counties where there are multiple DemocraticRepublican candidates on the General Election Ballot; (3) That Appellants and all other candidates shall be afforded an equal opportunity to be placed in the first two columns on the left and at the top of the November 6, 2012 General Election Ballot on the Election Machines and all paper provisional ballots; and (4) That the 21 County Clerk defendants be directed to comply with the preliminary declaratory and injunctive relief granted by this Court when configuring the final form of the General Election Ballot for the machines and paper provisional ballots to be used at the November 6, 2012 General Election and on all sample ballots no later than October 29, 2012. B.) An Order pursuant to Third Circuit L.A.R. 4 (1) expediting the Courts consideration of all of the applications made herein, (2) allowing all briefs filed to below to be considered, (3) with a proposed briefing schedule to supplement arguments as follows:

- All Appellees shall have until 12:00 noon on Tuesday October 23, 2012 (or such other shorter time as the Court may fix) to reply to the moving papers filed by Appellants herein or to otherwise advise the Court that they rely upon the briefs filed below; - Appellants hereby waive the right to respond in writing by reply due to the shortness of time, so that the expedited applications will be before the Court for consideration and disposition 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

Ballot slogan associated with each candidates 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 The Complaint named plaintiffs from various counties and named as defendants each Clerk in all 21 of New Jerseys Counties, the Secretary of State and the State Republican Party and the State Democratic Party. The District Court Clerks Office made an internal decision to transfer the matter from Newark to the Trenton Vicinage where the case was assigned to Judge Wolfson.
1

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

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

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

In New Jersey there are only two ways that a candidate obtains access to appear as a candidate on the General Election Ballot. Candidates seeking to run for public office as a candidate for a political party as defined in N.J.S.A. 19:1-1 must obtain a number of signatures on petitions. For example, a candidate for the office of United States Senate, a statewide office, seeking access to the Party Primary Election Ballot, must obtain the signatures of 1,000 voters. That qualifies the major political party candidate to have access to the Primary Election Ballot held in June. The Primary Election winner then earns the right to appear the following November on the General Election Ballot for the office sought as the political partys candidate. At present, only the Republican Party and Democratic Party qualify as a political party under New Jersey Election Laws. Conversely, all of other candidates, such as Appellants here, obtain access to the General Election Ballot by obtaining the identical number of signatures for the office sought on a nominating petition, which entitles the candidate to have direct access to the General Election Ballot without any Primary Election. But the threshold demonstration of community support for General Election Ballot is substantially similar. For example, Appellant United States Senate Candidate Eugene Martin LaVergne was required to obtain a minimum of 800 signatures from voters to obtain direct access to the General Election Ballot. It is submitted that in a State with millions of people and millions
4

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 States 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 with 800+ signatures and a petition with 1,000+ signatures is statistically negligible if not nonexistent.
7

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.

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

Only one year ago, a different judge in the District of New Jersey applied the rational basis test rather than the Anderson balancing test when evaluating the constitutional claims raised in a Fourteenth Amendment Equal Protection as applied challenge in a candidate ballot access case. See Lewis v. Guadagno, 837 F.Supp.2d 404 (D.N.J. 2011) (Hillman). By Order dated September 13, 2011 a panel of the Third Circuit quickly and summarily reversed the District Court, stating in that Order that the District Court applied the wrong standard of judicial scrutiny in evaluating the constitutional claims. The Circuit Court ruled that the correct level of scrutiny was the intermediate - compelling State interest - level of judicial scrutiny. (See explanation in Argument, infra.) A week later (and while a motion for full en banc review was now pending), and not changing the ruling on the level of judicial scrutiny applicable to candidate ballot access cases, the same Circuit Court panel heard further oral argument on the appeals substance and affirmed in a September 20, 2011 Opinion the District Courts denial of candidate Carl Lewis right to appear on the General Election Ballot on a specific and narrow factual issue. The Circuit Court found, as a matter of fact, that candidate Carl Lewis failed to point to any other candidate on the ballot that was being treated differently than him. Thus, Lewis as applied constitutional claim failed as a matter of fact, not law, irrespective of the scrutiny level applied, because he failed to make the necessary threshold showing in an as applied challenge. See September 13, 2011 Order and September 20 2011 Opinion in Lewis v. Gaudagno, No. 11-3401 (3d Cir. 2011) (Scirica, Ambro and Vanaskie) submitted here as part of the F.R.A.P. 28 Addendum.
5

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 THE WRONG 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

10

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 preliminary injunction and other relief, wherein the moving parties specifically challenge the preferences New Jersey Provides to the two main political parties through placing them in the first two columns of the general election ballots and prohibiting the use of any part of their name by other, 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

11

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

12

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

13

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 Citizens 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

14

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 that would suppress it, whether by design or inadvertence. Laws that burden political speech are subject to strict scrutiny, which requires the

15

Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. (Emphasis added). [Citizens United v. Federal Election Commission, Kennedy, J. (majority slip op at page 23) (quoting Federal Election Commission v. Womens Right to Life, 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

16

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

On the issue of which level of judicial scrutiny to apply to plaintiffs claims, the District Court noted that plaintiffs from the onset and at all times consistently argued that strict judicial scrutiny, the highest and most exacting level, should be applied to an evaluation of their constitutional claims, whereas the State argued below that the so called rational basis scrutiny, the lowest and most deferential level, should be applies when evaluating plaintiffs constitutional claims. The District Court ultimately ruled that ..[n]either partys position is correct. Amended Opinion at page 7. 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 as stated in Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). As noted, Anderson was a candidate ballot access case, and as such Anderson is inapplicable to this case. This case is not a candidate ballot access case: This case is a First and Fourteenth Amendment core political speech and association case. Moreover, even were it proper to evaluated plaintiffs claims here as a candidate ballot access case, the Third Circuit has long established that the standard of judicial scrutiny to apply 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 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.
6

17

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

It is significant to note that the District Court below heavily relied upon 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 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). First, the constitutional claims raised herein were expressly not raised nor addressed by that Court. That Court even noted that such arguments, had they been raised at that time were 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 major political 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 legislative history, logic, and plain text, rendering the statutory scheme conferring preferential ballot placement unconstitutional. The counting method is completely arbitrary and irrational. Such are Appellants specific claims here. If that is the law, then the conferring of preferred position is unconstitutional. This Court may find that the New Jersey Appellate
7

18

The federal offices at stake aris[e] from the Constitution itself. U.S. Term Limits, Inc. v Thorton, 514 U.S., at 805. Because any State authority to regulate election to those offices could not precede their very creation by the Constitution, such power had to be delegated to, rather than reserved by, the States. Id., at 804. Cf. 1 Story sec. 627 (It is no original prerogative of State power to appoint a representative, a senator, or president for the union.). Though the Elections Clause, the Constitution delegated to the States the power to regulate the Times, Places and Manner of holding Elections for Senator and Representatives, subject to a grant of authority to Congress to make or alter such Regulations. Classic, 313 U.S. 299, 315 (1941). No other constitutional provision gives the States authority over congressional elections, and no such authority could be reserved under the Tenth Amendment. By process of elimination, the States may regulate the incidents of such elections, including balloting, only within the exclusive delegation of power under 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

Divisions interpretation of N.J.S.A. 19:5-1 in Farmer, supra. is unconstitutional as applied to these plaintiffs. Bush v. Gore, 531 U.S. 98 (2000). And because there are Federal Candidates, this is a strict scrutiny case. Lastly, the actual remand ruling on the constitutional claims 13 years ago in the New Jersey Conservative Party v. Farmer case on the actual constitutional claims raised at that time, despite never being appealed, were clearly in error and contrary to existing New Jersey Supreme Court precedent regarding the as applied [First Amendment] and Fourteenth claims. See Mochary v. Caputo, 100 N.J. 119, 494 A.2d 1028 (1985).
19

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 OConner, 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

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

20

3. Assuming, arguendo, that the District Court properly characterized and analogized Appellants constitutional claims to a candidate ballot access case, the District Court still applied the 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 incorrect standard of judicial scrutiny to the claim. Anderson did not affect Riddell as 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, the arguments advanced by the State against Appellants right to use the slogan Democratic-Republican a generic argument regarding a State interest in seeking to avoid confusion between major and minor political party candidates with no further explanation or detail, and making it easier for voters 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 DemocraticRepublican as the slogan associated with their name on the November 6, 2012 General Election Ballot as each requested in their Nominating Petition.
21

(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, entered September 7, 2011, is hereby reversed. The District Court, inter alia, incorrectly applied a rational basis standard of review of this as applied challenge, rather than the stricter compelling state interest standard. See Wellford v. Battaglia, 343 F.Supp. 143 (D. Del. 1972), affd, 485 F.2d 1151 (3d Cir. 1973). The State has failed to demonstrate a compelling state interest in the application of this durational residency requirement to this particular candidate. Accordingly, it is hereby ordered that the ballot at issue in this appeal include the name of Appellant. Opinion of the Court to follow. [See Order of September 13, 2011 in Lewis v. Guadagno, No. 11-3401 (3d Cir. 2011) (Scirica, Ambro and Vanaskie)].

22

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

A week later, on September 20, 2011, without changing their position on the appropriate standard of judicial scrutiny, the same Circuit Court panel held further oral argument in the Lewis case and after affirmed the District Courts denial of allowing Carl Lewis on the General Election Ballot as a candidate because it was found as a matter of fact that Lewis he had failed to demonstrate any other person was treated differently than he in what at that point was only a Fourteenth Amendment Equal Protection as applied claim. However, that September 20, 2011 unpublished opinion never mentioned any level of scrutiny, and so did not alter the September 13, 2011 Order. So while the result of Lewiss right to Ballot Access was reversed, the legal position as to the standard of Judicial Scrutiny applicable in the Third Circuit in candidate ballot access cases as articulated in the Courts September 13, 2011 Order was not.
9

23

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 Appellants 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.

24

4. Whether Appellants constitutional claims are evaluated under either a strict judicial scrutiny standard or are evaluated under a compelling state interest judicial scrutiny standard, the State has not presented a sufficient basis to rebut the presumption that the challenged statutory scheme is unconstitutional and invalid and as such Appellants are 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. Womens 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 OConner, 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

25

1041 (2001) (also applying intermediate level scrutiny to equal protection challenge by minor political parties to New Jerseys 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 and at the hearing, several interests supporting its method of regulating ballot placement in a way that might appear to favor political parties. Specifically, the State claims that political party candidates have demonstrated a certain modicum of community support and therefore it is reasonable to place them together on the same side of the ballot to the exclusion of the unaffiliated candidates, who have failed to demonstrate the same amount of support. Cf. Jennes, 403 U.S. at 42. In that connection, the State posits, it is important for voters to easily identify these candidates and parties on the ballot, which is accomplished by ensuring that these candidates for political parties are clearly separated on the ballot

26

from candidates nominated by petition. In sum, the State argues, these regulations serve the interest of maintaining the integrity of the election process. [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 community support (whatever that means, see footnote 4, supra.) (2) so it is therefore (so the State says) reasonable to place all major political party candidates on the same side of the ballot, specifically away from candidates who have obtained access to the ballot through the nomination and petition process; (3) and that it is therefore reasonable to place all major political party candidates together on the same side of the ballot because it is important for voters to easily identify these major party candidates and major parties on the actual ballot. The problem with the entirety of the States 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 Jerseys interests that a Court may take cognizance of in evaluating the constitutionality of the challenged legislative classifications and restrictions.

27

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 or neutral arbiter as it is controlled by the political parties in power, which presumably have an incentive to shape the rules of the electoral game to their own benefit. [Libertarian Party of Ohio v. Blackwell, supra, 465 F.3d. at 587 (quoting from Clingman v. Beaver, 544 U.S. 581 (2005) (OConner, J., concurring)]. In this regard, it is simply not the States 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

28

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 States promoting the stability of

29

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

Plaintiffs argument rests on the conclusory assertion that certain ballot placements are more preferential than others - - in terms of garnering votes or otherwise - - and accordingly I reject it for the same reasons as stated above. What is at issue here is not a conclusory assertion by plaintiffs but rather a fact openly admitted by the State. The State itself here argues that the ballot placement given to the major political parties is a benefit and is a preference and that such placement on the General Election Ballot (the conferred benefit and preference) makes it easier for voters to quickly identify, find on the General Election Ballot, and vote for the major political party candidates. By the States own admission, this is specifically why the State confers this benefit and preference on the major political parties and their candidates. It is respectfully submitted that the District Court below missed the point: This case is not about political candidates arguing over the right to garner excess or windfall votes from careless voters: This case is about the right of all candidates similarly situated as candidates for public office on the General Election Ballot to be treated equally and in conformance with the various constitutional provisions cited. That admittedly is not taking place, and Appellants are entitled to meaningful and timely a remedy in time for the General Election. The Constitution and our collective history commands nothing less if the government is to retain legitimacy.

30

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 Federal Rules of Civil Procedure (F.R.Civ.P. 65). The standards governing an application for injunctive relief in the Third Circuit are well established: To satisfy the injunction standard, the moving party must demonstrate the classic four elements: (1) a reasonable probability of success on the merits; (2) that denial of injunctive relief will result in irreparable harm; (3) that granting injunctive relief will non result in even greater harm to the non-moving party; and (4) that granting injunctive relief will be in the public interest. [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 (3d Cir. 1999)]. In this case, the District Court below assumed that all standards were met except the probability of success on the merits prong. When the proper level of judicial scrutiny Strict Judicial Scrutiny is applied to
31

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 fact demonstrated a probability of success on the merits and are entitled to the declaratory and injunctive relief requested.

32

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 have presented the Court with some type of evidence demonstrating a benefit and/or burden that stems from ballot placement. Without any such evidence, the Court is unable to make a determination that Plaintiffs have suffered any cognizable, constitutional harm in this case. In other words, Plaintiffs have failed to establish a likelihood of success on the merits that would allow 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

33

deference, literally makes no logical sense and is literally contrary to the States own position on the factual issue of positional bias. With the States 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.

34

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 in which voters should be assured of absolute fairness in the choice of ballot positions for candidates of political parties. The controversy is moot because a general election including the candidates has already occurred. Nevertheless, we believe that the issue are recurrent and warrant reconsideration.

35

* * * If the issues had arisen in a way that would have permitted the court to fashion a timely remedy, the results of this suit would undoubtedly have been different. (Emphasis added). [Mochary v. Caputo, 100 N.J. 119 at 120-121 and 123, also at 494 A.2d 1028 (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 Clerks apparent compliance with the statute in this instance, one can not help being struck by the marvel, the otherworldly coincidence, of any party winning the drawing forty out of forty-one times. That the record supports this numerical result is not open to question. Nor is it open to any doubt whatsoever that assuming a fair and random selection of one item out of a possibility of two, the odds of drawing line A forty times out of forty-one draws are about one in fifty billion. Get that? ONE in FIFTY BILLION! It understates the case to suggest that this extraordinary state of affairs should act as a challenge to anyone and everyone concerned with the preservation of voter confidence. The finger does not point to Mr. Caputo, who did not conduct all of the forty-one drawings himself it points at the system. And a system that produces the results

36

noted above has to excite the same skepticism about whether it is on the up-and-up. That kind of symptom of a diseased system, one that should no longer be tolerated. [Mochary v. Caputo, 100 N.J. 119 at 128-129 (Clifford, J., concurring), also at 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-injersey-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,

37

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-Countyballots ; 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-alternateballot-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

38

not essential to reprint verbatim and in its entirety footnote 11 from their initial motion brief filed with the District Court below: The last part of N.J.S.A. 19:14-12, not cited verbatim in this brief, specifies the manner in which the county clerk is required to draw lots. Specifically, slips of paper with the name of each party (since at least 1929 only Republican and Democrat) are put in capsules, and then each capsule put into a box, the box is shaken, and the county clerk then reaches into the box and picks a capsule, and then removes and opens the capsule. The name of the party on the slip of paper removed from the now opened capsule first removed dictates which party receives the first column on the left of the ballot, and the remaining party receives the second column from the left. This so called fair process has fostered a level of guaranteed rigging of the ballot placement for a preferred party by the use of a simple third graders magic trick. This secrete method passed on from Clerk to Clerk in select Counties who retain long time single political party control is oddly, not even a secrete but has in some counties evolved into something recognized as more of a political tradition than a flagrant and blatant violation of the law. For example, Essex County is a Democratic stronghold, and long time Essex County Clerk Nicholas Caputo, an elected Democrat, miraculously pulled the capsule of the Democratic Party first each and every time except once almost 40 years in a row, thereby conferring by statute, the preferred position of the first column on the left to the Democratic Party, for almost 40 years in a row. Math actuaries and statisticians wrote in the media and reported as witnesses in Court cases that this occurrence was literally a statistic impossibility not a statistic improbability, but a statistic impossibility. And yet
11

39

it occurred, without explanation, for 40 years. Point in fact, the explanation is really quite simple. The capsules used by Democratic County Clerk Caputo were always made out of a plastic/gel composite, either of the sort used to hold medicine in pills (a 2 piece plastic pill casing) , or of the sort slightly larger used to hold small toys in vending machines (also 2 pieces) often found outside supermarkets alongside gumball machines. Democratic County Clerk Caputo indeed always took two plastic capsules and put a piece of paper with the name Republican and Democrat in each capsule. This is where the fairness stopped. Caputo would then place the plastic capsules inside the box, and while doing so, he would slightly squeeze and crush the plastic capsule with the word Democrat inside. Caputo would then, as required by the statute, shake the box to mix up the two plastic capsules to give the illusion that the process was arbitrary and left to chance. This was indeed all part of the magic trick show conducted right in front of witnesses. Then, as required by statute, Caputo himself would reach inside the box to pick one plastic capsule, and he could quickly identify by touch the crushed plastic capsule of the Democrats, which would be the plastic capsule he removed. As he was removing the plastic capsule he would simultaneously rip the plastic capsule in half to open it, and in so doing would damage the plastic capsule, which he would automatically throw away as he simultaneously pronounced the winner of the draw as the Democrats. Were one to bother to check the contents of the garbage can, indeed the plastic capsule would evidence damage, but damage thought to have occurred when breaking the plastic capsule open into two pieces. This historically true story of New Jersey election and political folklore is but one of many examples, and metaphors, for the unconstitutionality of the entirety of Title 19: Title 19 provides an election

40

process that provides the citizens of New Jersey with the illusion of fairness, but an election process that in application provides no actual fairness at all and arbitrarily favors not only two political parties, but is arbitrarily rigged to favor these two specific political parties and their candidates to the exclusion of all others, and at times allows even the two political parties to violate the others rights, perhaps still today with the continuing tacit acquiescence of each Major Political Party. [See September 11, 2012 Motion Brief at F.R.A.P. 28 Addendum submitted with 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

41

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 candidates 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 in an election, either primary or general, where a number of candidates or nominees for the same office are before the electorate, those whose name appear at the head of the list have a distinct advantage. (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 Courts 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

42

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.Poly 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 voters 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

43

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,

44

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 womens 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

45

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 Courts 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, affd mem. 34 App.Div.2d 917, 311 N.Y.S.2d 824, affd 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 Experts 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

46

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 candidates 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 THE CONSTITUTIONAL 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

47

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

48

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-Republican Organization of New Jersey, Frederick John LaVergne, Leonard P. Marshall, Tracy M. Caprioni, Kimberly Sue Johnson and Donald E. Letton Dated: October 19, 2012 ____/s/ Eugene Martin LaVergne_______ Eugene Martin LaVergne Appellant Pro Se Dated: October 19, 2012

case, ultimately the Supreme Court dismissed the case finding that the plaintiffs there lacked Article III standing to bring the legal challenge. Thereafter, in a case which was not heard on an expedited basis but where the plaintiffs were found to have Article III standing, the line item veto was declared unconstitutional. See Clinton v. New York, 524 U.S. 417 (1998).
49

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 in good standing and the remainder of the representations in this Combined Certifications 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 the remainder of the representations in this Combined Certifications and Proof of Service are true and accurate. WORD COUNT: The word count exceeds that which is allowed by the Federal Rules of Appellate Procedure and the Third Circuit Local Appellate Rules for motions, but in these various applications Appellants specifically move for an Order Granting Leave to file an over-length motion. VIRUS CHECH: The Motion and papers filed herewith in PDF form have been checked with McAfee and are clear of any virus. SERVICE UPON COUNSEL: All defendants below were served well prior to the return date of the Order to Show cause, and most County Clerk defendants entered an appearance and relied upon the Attorney Generals submissions, while some did not appear or enter any appearance. The defendant Democratic Party entered and appearance and appeared, though the Republican Party, properly served, chose not to enter an appearance or otherwise respond in any way. A copy of Appellants Motion and supporting papers (the F.R.A.P. 28 Addendum) are being served simultaneous to the electronic filing with the Third Circuit Clerk as follows: (1) Upon the following counsel for the Appellees who entered an appearance below electronically through ECMF only as follows: Brendan J. Kavanagh, Esq. at: bbutcher@millvillelaw.net and bkavanagh@millvillelaw.net

50

Donna Kelly, D.A.G. at: Edward Florio, Esq. at: James B. Arsenault, Jr., Esq. at: James Ferguson, Esq. at: John Carbone, Esq. at Michael David Witt, Esq. at: Moshood Muftau, Esq. at: Robert B. Campbell, Esq. at:

donna.kelly@dol.lps.state.nj.us and Ef-director@dol.lps.state.nj.us main@floriokennylaw.com jarsenault@co.cape-may.nj.us and counselpn@co.cape-may.nj.us ferguson_james@aclink.org ussrecount@aol.com and cflaw@optonline.net mwitt@chasenlaw.com mmuftau@ucnj.org and moshood.muftau@gmail.com rcampbell7@verizon.net and mclaw@verizon.net

(2) Upon the following counsel for the Appellee(s) who entered an appearance below as counsel entered an appearance but is not a registered ECMF filer, a hard copy of the moving papers via hand delivery at the following address: Joseph A. Bilal, Esq. Middlesex County Counsel Administrative Building 75 Bayard Street Room 230 New Brunswick, New Jersey 08901 (3) Notwithstanding the fact that the Republican Party was properly and timely served and failed to enter an appearance, failed to oppose the application below, and failed to otherwise respond in any way, a hard copy of the moving papers were also served via hand delivery at the following address: Republican State Committee 150 West State Street Suite 230

51

Trenton, New Jersey 08625 I DECLARE AND CERTIFY UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT. Executed on October 19, 2012. ____/s/ Richard Luzzi_________________ By: Richard Luzzi, Esq. Attorney for Appellants Democratic-Republican Organization of New Jersey, Frederick John LaVergne, Leonard P. Marshall, Tracy M. Caprioni, Kimberly Sue Johnson and Donald E. Letton Dated: October 19, 2012 I DECLARE AND CERTIFY UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT. Executed on October 19, 2012.

____/s/ Eugene Martin LaVergne_______ Eugene Martin LaVergne Appellant Pro Se Dated: October 19, 2012

52

F.R.A.P. 28 Addendum: Exhibit 1 Exhibit 2 - Appellants Verified Complaint with Exhibits - Appellants initial Motion Brief in Support of Application for Accelerated Declaratory and Injunctive Relief - Appellants Reply Brief to States Opposition - Amended Opinion of District Court denying declaratory and injunctive relief - Order of District Court denying declaratory and injunctive relief - Order of Third Circuit (unpublished) in Lewis v. Guadagno dated September 13, 2011 - Opinion of Third Circuit (unpublished) in Lewis v. Guadagno dated September 20, 2011 - Opinion of United States District Court (unpublished) in Green Party of Tennessee v. Hargett

Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8

53