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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.
Appellants Joint Supplemental Written Argument Requesting
Expedited Sua Sponte Final Summary Declaratory Relief and Expedited
Sua Sponte Summary Permanent Injunctive 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, Scott Neuman,
Tracy M. Caprioni, Kimberly Sue Johnson andDonald E. Letton
Eugene Martin LaVergne, Appellant Pro Se
543 Cedar Avenue
West Long Branch, New Jersey 07764
Telephone: (732) 272-1776
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Introduction:
Appellants hereby submit the following Joint Supplemental Written
Argument as permitted by the Courts Order of October 25, 2012. In the
referenced October 25, 2012 Order the Circuit Court has provided the
required notice and opportunity to be heard to all litigants required by 3d
Cir. I.O.P. 10.6 before the Court may sua sponte consider and take final
summary action.
Appellants, in furtherance of their pending and yet to be addressed
request that this Circuit Court, to the extent that may even be necessary, take
judicial notice under F.R.Evid. 201 of certain facts to the extent that may
be necessary to meaningfully and timely address Appellants claims1, now
hereby formally request that this Circuit Court sua sponte grant and enter
expedited final summary declaratory relief and sua sponte grant and enter
expedited summary permanent injunctive relief in their favor.2 There is no
1 The standard of review to be applied by the Circuit Court to determine
whether the District Court below erred in failing to issue a preliminaryinjunction requires deference to the factual findings of the District Court and
is limited to the record. The standards for summary disposition are not so
limited.2 Specifically, Appellants request that this Circuit Court (1) summarily
declare the challenged specific statutes and overall statutory scheme
unconstitutional both facially and as applied, (2) summarily enter final
permanent injunctive relief with specific directions that all 21 County Clerks
prepare the November 6, 2012 General Election Ballots giving all candidates
an equal opportunity to appear in the first column on the November 6, 2012
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question that this Circuit Court has such powers to act, and to do so
summarily. See 28 U.S.C. sec. 2106, 3d Cir. I.O.P. 10.6, F.R.A.P. 2, 3d. Cir.
I.O.P. A (2012) (Objectives), 3d. Cir. I.O.P. B (2012) (Implementation);
Barnes v. United States, 678 F.2d 10 (3d Cir. 1982) (Gibbons, Sloviter and
Becker); Groendyke Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir.
1969), cert. denied394 U.S. 1012 (1969).
I. THE CIRCUIT COURT HAS AUTHORITY TO SUMMARILY
ENTER EXPEDITED FINAL DECLARATORY AND
EXPEDITED FINAL PERMENANT INJUNCTIVE RELIEF IN
FAVOR OR APPELLANTS IN THIS APPEAL AND SHOULD
DO SO:
A. Initial Appellate Jurisdiction under 28 U.S.C. sec.
1291(a)(1):
In the Notice of Appeal Appellants asserted as a threshold matter that
this Third Circuit Court now has subject matter jurisdiction pursuant to 28
U.S.C. sec. 1292(a)(1), which provides as follows:
General Election Ballot, and in so doing to use uniform and identical
standards in all 21 Counties throughout New Jersey when configuring theNovember 6, 2012 General Election Ballot; (3) that the slogan Democratic-
Republican shall appear associated with each Appellants name on the
General Election Ballot, and (4) that in all Counties where Appellants have
multiple candidates that all Appellants appear in the same column to the
exclusion of any candidates unaffiliated with Appellants. The foregoing is
all reasonable and necessary under the facts of this case to adequately ensure
that the Federal Constitutional rights of Appellants and of all other minor
party candidates and the Federal Constitutional rights of voters in New
Jersey are adequately.
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3
(a) Except as provided in subsections (c) and (d) of
this section, the courts of appeals shall have
jurisdiction of appeals from:(1) Interlocutory orders of the district courts
of the United States, the United States District
Court for the District of the Canal Zone, the
District Court of Guam, and the District Court of
the Virgin Islands, or of the judges thereof,
granting, continuing, modifying, refusing or
dissolving injunctions, or refusing to dissolve or
modify injunctions, except where a direct review
may be had in the Supreme Court.
* * *[28 U.S.C. sec. 1292(a)(1)].
Neither subsections (c) or (d) apply to this case3, nor is this case of a
type where direct review may be had in the Supreme Court. Therefore there
is no question that this Court, as a threshold matter, properly has subject
matter jurisdiction pursuant to 28 U.S.C. sec. 1292(a)(1). Indeed, the State
itself expressly concedes that this Third Circuit Court now has subject matter
jurisdiction pursuant to 28 U.S.C. sec. 1292(a)(1) as they openly conceded
this point in their Motion Opposition brief.
B. Appellate authority under 28 U.S.C. sec. 2106:
3 Subsection (c) applies to certain cases where the exclusive jurisdiction
for appeal is placed with the Court of Appeals for the Federal Circuit, and
subsection (d) applies to appeals of decisions of the Court of International
Trade and the Court of Federal Claims, and to transfer requests from certain
other Courts. None of these situations apply to this case.
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A Circuit Court of Appeals, once vested with subject matter
jurisdiction to hear a case (here, pursuant to 28 U.S.C. sec. 1292(a)(1)) is
also then vested with complete authority over the entire case. The issues
that the Circuit Court may address once jurisdiction exists, and the equitable
action that may be taken if found reasonable and necessary to timely address
an Appellants deserving claim, are not limited or in any way restricted or
confined. A specific and far reaching almost limitless grant of authority by
Congress to the Circuit Courts to confirm this authority is found in 28
U.S.C. sec. 2106, which provides as follows:
The Supreme Court or any other court of appellate
jurisdiction may affirm, modify, vacate, set aside
or reverse any judgment, decree, or order of a
court lawfully brought before it for review, andmay remand the cause and direct the entry of such
appropriate judgment, decree, or order, or require
such further proceedings to be had as may be just
under the circumstances.
[28 U.S.C. sec. 2106].
The Third Circuit has expressly adopted specific procedures to be
followed when a Circuit Court before acting to adjudicate an appeal in a
summary manner. Specifically, 3d Cir. I.O.P. 10.6 states as follows:
The court, sua sponte or upon motion by a party,
may take summary action affirming, reversing,
vacating, modifying, setting aside, or remanding
the judgment, decree, or order appealed from;
granting or denying petition for review; or granting
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or refusing enforcement of the order of an
administrative agency if it clearly appears that no
substantial question is presented or that subsequentprecedent or a change in circumstances warrants
such action. Before taking summary action, the
court will afford the parties an opportunity to
submit argument in support of or in opposition to
such disposition if briefs on the merits have not
already been filed. Summary action may only be
taken by unanimous vote of the panel. If a motion
panel determines that summary action is not
appropriate at that time, it may, in lieu of denial,
refer the matter to the merits panel withoutdecision and without prejudice.
[3d Cir. I.O.P. 10.6].
Taken together, 28 U.S.C. sec. 2106, as implemented by 3d Cir. I.O.P.
10.6, operate to confirm that once the Third Circuit Court is vested with
initial general subject matter jurisdiction, that the Third Circuit Court has all
additional authority necessary to enter any orders and equitable relief that
may be appropriate and required based upon the unique circumstances and
exigencies of a given case. This additional authority specifically includes
the clear right of a Third Circuit Court to act and dispose of a case
summarily, whether by summary reversal or summary affirmance. This
allows the Third Circuit Court to take whatever action appropriate
(summary, expedited, or otherwise) and in doing so to actually reach and
address and adjudicate in final the entirety of the substantive merits of the
claims at issue in a given case, and to then enter any appropriate final Orders
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granting final declaratory and permanent injunctive relief. 28 U.S.C. sec.
2106; 3d Cir. I.O.P. 10.6; see also F.R.A.P. 24
; 3d. Cir. I.O.P. A (2012)
(Objectives) and 3d. Cir. I.O.P. B (2012) (Implementation). In short,
once the Third Circuit Court has appellate subject matter jurisdiction as it
does here, the Third Circuit Court has clear authority to summarily dispose
of all of the claims in the case and to enter any appropriate final and
permanent orders if appropriate. In Barnes v. United States, 678 F.2d 10 (3d
Cir. 1982) (Gibbons, Sloviter and Becker) the Third Circuit noted as
follows:
Summary disposition by appellate courts, while
not routine, is certainly not uncommon.
Unquestionably we could act summarily on the
whole appeal. Eg. While v. Sullivan, 474 F.2d 16(5
thCir. 1973); Groendyke Transport, Inc. v.
Davis, 406 F.2d 1158 (5th
Cir. 1969), cert. denied
394 U.S. 1012 (1969).
[Barnes v. United States, supra at 678 F.2d at 12].
4 F.R.A.P. 2 provides as follows:
On its own or a partys motion, a court of appealsmay to expedite its decision or for other good
cause suspend any provision of these rules in a
particular case and order proceedings as it directs,
except as otherwise provided in Rule 26(b).
F.R.Civ.P. 26(b) (Rule 26(b)) prevents a Circuit Court from extending the
time for a party to file a Notice of Appeal. That prohibition the only
prohibition in Rule 2 - is not at issue in this case.
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In Groendyke Transport, Inc. v. Davis, supra, specifically cited with
approval by the Third Circuit in Barnes v. United States, supra, the 5th
Circuit observed as follows:
We can think of at least two circumstances under
which summary disposition is necessary and
proper. Both of them appear in this case. The first
comprises those cases where time is truly of the
essence. This includes situations where important
public policy issues are involved and those whererights delayed are rights denied. Second, are those
in which the position of one of the parties is clearly
right as a matter of law so that there can be no
substantial question as to the outcome of the case,
or where, as is more frequently the case, the appeal
is frivolous. Without canvassing all other possible
or likely situations, we hold that where either of
these circumstances is found, summary disposition
is proper. (Emphasis added).
[Groendyke Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir. 1969),
cert. denied394 U.S. 1012 (1969)].5
In this case, Appellants assert that they have adequately demonstrated
with the facts properly presented before the District Court for review6, and
now before this Circuit Court, their right to immediate and timely relief now.
5 This principle is consistent with and somewhat parallel to a District
Courts power to grant partial summary judgment on an issue of liability and
/ or damages, and allow other claims to remain and proceed in due course.
6 In this case Appellants filed a detailed Verified Complaint, wherein
each Appellant specifically verified the facts as true. In opposition not a
single relevant fact was ever disputed by any party below or herein.
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Appellants maintain that this is a simple case, and that when the correct level
of judicial scrutiny is applied to the actual claims, it can not reasonably be
disputed that Appellants are entitled to judgment in their favor as a matter of
law on their Constitutional claims. Appellants filed this action in good faith
on September 11, 2012 and in what they submit is a timely manner based
upon the attendant circumstances of the case. Now, 6 weeks later, with an
General Election including one for the office of United States Senate an
election that takes place only once every 6 years and the issues not yet
resolved, the need for a decision from the Circuit Court is truly of the
essence as this case has now become one where rights delayed will be
rights denied. Id. and Ibid. Appellants submit that notwithstanding the
thin protestations of the Attorney General7
and the various County Clerks
who have responded Appellants position is clearly right as a matter of
law so that there can be no substantial question as to the outcome of the
case, and as such, it is submitted that summary disposition in Appellants
favor is proper. Id.
II. THERE IS NO LEGITIMATE ISSUE AS TO WHETHER
BALLOT LOCATION MAKES A DIFFERENCE:
7 In their opposition the State did not so much as attempt to distinguish,
and indeed completely ignores and never even cites to Citizens United, the
case Appellants argue defines the standard of applicable scrutiny on the
[First Amendment] political associational and speech claims.
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The exact statutory scheme at issue in this case has long been held to
confer a preference, even among political parties who have long fought for
the first column over the second, arguing that the first column is much more
preferred to the second because ballot location even between the first two
columns - can affect the outcome of an election. See Axtex v. Caputo, 85
N.J.Super. 80, 204 A.2d 7 (App. Div. 1964); Richardson v. Caputo, 46 N.J.
3, 214 A.2d 385 (1965); Mochary v. Caputo, 100 N.J. 119, 494 A.2d 1028
(1985). The Printing and reading of the text of words in the English
language is of course from top to bottom, left to right, with all eyes naturally
gravitating to the top left of a page of text first. All legitimate scholarly
studies confirm that ballot location matters and can affect the outcome of
elections. The State does not cite to any studies that posit otherwise,
because there are none. Courts faced with the question all but uniformly
confirm and find positional bias. Indeed, it is because it matters and is a
benefit that the State argues (amazingly) that believe that they can
Constitutionally confer the preference on the two political parties to the
exclusion of Appellants. Against this background, it is simply not
understood how there is any question of this issue. The Appellants again ask
this Court to take judicial notice to the extent necessary to recognize that
ballot location matters.
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III. THE TIMING AND COST ISSUES:
Appellants anticipate certain arguments in light of the recent
certification of Appellee Hudson County Clerk Barbara A. Nechert. It is
expected that there will be non substantive argument to the effect that even if
Appellants are right and are entitled to the relief they request, that it is
simply too late in the election process to do anything about re-drawing for
position and re-printing the Ballots (General Election and Provisional).
And it may cost additional money to the taxpayers. Neither argument is the
slightest bit compelling under the circumstances when weighed against the
clearly established Federal Constitutional and serious rights that have been
violated. Moreover, such argument, advanced for nothing more than
undeserved sympathy, is in fact rebutted by actual historical precedent and
past practices. See infra.
A. Time and the Ballot Placement Drawing:
On the issue of the timing of the litigation and the relief and remedy
available at this point, the District Court noted the following in the Amended
Opinion only:
[while the late date would not be an]
impediment to relief if plaintiffs had demonstrated
a clear constitutional violation, see Hooks, 121
F.3d at 883-884 ([i]n the absence of legitimate
countervailing concerns, the public interest clearly
favors the protection of constitutional rights.), the
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public interest in an orderly election certainly
favors denying injunctive relief where plaintiffs
cannot establish constitutional harm.
[Amended Opinion at page 20-21, footnote 8].
It is submitted that such principles apply equally here, except now
with the proper standard of judicial scrutiny applied to the Appellants
claims and the undisputed facts, Appellants indeed have clearly established
Federal Constitutional harm to themselves and others, and therefore the right
to relief. Therefore, the time issue should not be any impediment
whatsoever to the Circuit Court immediately redressing this clear
Constitutional harm with meaningful and timely equitable judicial relief in
time for the November 6, 2012 General Election. For practical context, this
submission is being completed on a computer and filed on a Sunday
evening when the Court Clerks Office is not even technically open. The
papers (actually, electrons) will be filed automatically and electronically
only with the Clerk of the Circuit Court through the internet and the ECMF
filing system. This entire Circuit Court motion process is digital and
electronic. Such technology routinely used and readily and inexpensively
available today in 2012, would be beyond the wildest fantasies of a New
Jersey County Clerk preparing a General Election Ballot or, for that matter a
voter (ie. men only, older than age 21) in the year 1898. These technologies
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common today certainly were not available in the year 1898. Indeed,
Appellee Nechert, a woman, was neither eligible to hold office as Hudson
County Clerk nor eligible to vote in a General Election in 1898: Women
could not vote or hold office in New Jersey until 1920, the year that the
[Nineteenth Amendment] was acknowledged as ratified. There were no
elections for United States Senate in 1898, as the [Seventh Amendment]
which amended the Federal Constitution to henceforth provide for the direct
election of United States Senators, was not acknowledged as ratified until 15
years later in 1913. It is assumed that as Circuit Judges the Court is of
course well aware of this history. The point to make here, however, is that
in 1898 in New Jersey, the 21 male County Clerks were not required by law
to finalize and print the General Election Ballots until 5 days before the
actual General Election, and the General Election Ballots once printed were
not to be actually distributed to the various Municipal Clerks in each town
until 3 days before the General Election. In 1898 all ballots were printed on
paper (to be filled out at the polls in lead pencil) and were produced by an
arduous process of hand typesetting and hand printing in ink to then be
distributed by horse delivery to the various Municipal Clerks. See Laws of
1898, CHAPTER 139, an Act to regulate elections (Revision of 1898)
(F.R.A.P. 28 Addendum, Exhibit 9). Today, instead of having to actually
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reprint millions of paper ballots as the Clerks imply, the actual task of the
21 County Clerks is not nearly so daunting or complicated: All that need be
done is, after a fair draw for position8, to then (1) reconfigure and print the
paper inserts for the face of each voting machine, and then reprogram the
machines, and (2) to print with ink on paper a sufficient number of
Provisional Ballots for each district. If the entire Ballot drawing, design,
printing and distribution process was routinely accomplished over 100 years
ago by all 21 County Clerks from the start to finish within only 5 days of the
General Election, surely the same can be accomplished today with the
advanced modern technology and transportation options available. A desire
by the 21 partisan County Clerks not to perform what are really simple and
uncomplicated ministerial tasks is not the same thing as a practical inability
to actually perform such uncomplicated ministerial tasks.
B. The County Clerks Drawing for Column Position and
the Need for Uniform State Standards for Candidate
Placement:
The County Clerk drawing for the preferred ballot position between
the political parties in Columns 1 and 2 (or A and B) on the top and
left of the Ballot is nothing new and in fact goes back to 1898 also. Initially
8 All 21 Clerks could easily be Ordered to appear at one location say
the Federal Court House in Trenton or Philadelphia and that all drawings
be conducted and the final form of all ballots settled before leaving the Court
Room.
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the process was conducted by the County Clerks using paper stock cards
with names written on them, placed into a box and shaken up, (identical to
how jury selection is conducted to this day) drawing among political
parties9
for the first two columns on the left. All other candidates
(Nomination and Petition candidates) were placed at various other locations
way on the extreme right of the ballot. Where such a candidate was placed
was determined solely based upon the subjective (and overtly partisan) and
complete discretion of each of the 21 County Clerks, which discretion was
guided by no legislative standards whatsoever. This is the process -
absolute and undirected discretion in all 21 Counties - which remains in
9 A political party was initially defined in 1898 as a political group
whose candidate polled for members of the general assembly at leasttwo per centum of the total votes cast in the State, county, or other division
or district in and for which the nomination is made . See Laws of 1898,
CHAPTER 139, Par. 44, Sec. 1 (F.R.A.P. 28 Addendum, Exhibit ___).
Then the General Assembly elections were then held every year as per the
New Jersey State Constitution (1845). A political association or group had
an opportunity each year to become a political party, and even so within a
single town or County, by meeting the 2% threshold. The significance of
this was that once achieving political party status, a local, regional or
Statewide political partys candidates could be chosen at convention,with the candidates certified and placed directly on the General Election
Ballot without further action. Access to the General Election Ballot for
candidates of other groups who had not yet met political party status on a
local, county or State basis was still available through use of the Nomination
and Petition Process which was virtually identical to that still in use today.
In 1930, the Law was changed so that now (and still today) a political
party had to meet a new higher 10% threshold showing to attain political
party status, and could only attain such status statewide.
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place today as to Nomination and Petition candidates.10 See Laws of 1898,
CHAPTER 139, Par. 144, Sec. 11 and Sec. 14 (F.R.A.P. 28 Addendum,
Exhibit 9). In 1930, the Law was changed. Now a political party had to
meet a new higher 10% threshold showing to attain political party status.
For no specific reason stated, in 1968 the drawing process was suddenly
changed from cards to the plastic capsule process used today, which was
then to be conducted 50 days before the election. See Laws of 1948,
CHAPTER 438, Section 4 (F.R.A.P. 28 Addendum, Exhibit 12). In 1977,
for reasons not stated, the plastic capsule drawing was moved back 30 days
earlier to 85 days before the election. See Laws of 1977, CHAPTER 431
(F.R.A.P. 28 Addendum, Exhibit 13). Despite dramatic increases in
technology, today the process for the drawing for column 1 and 2 between
the 2 major political parties and the process for configuration of placement
of candidates on the General Election Ballot starts 85 days before the
General Election, a time that is a 80 days earlier than was deemed necessary
than the 5 days County Clerks were given in 1898. As technology has
increased, Clerks have been given more time. Time is really a non issue.
10 This process alone, government action by the 21 County Clerks with
no standards, logically results in different standards in all 21 Counties,
which itself standing alone, facially violates the Equal Protection Clause of
the Fourteenth Amendment as to Appellant United States Senate Candidate
Eugene Martin LaVergne whose name will appear in the ballot somewhere
in all 21 counties. See Bush v. Gore, 531 U.S. 98 (2000).
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C. The 10% Threshold in N.J.S.A. 19:5-1:
Another new regulation in 1930 was that a political partys
candidates now had to be chosen at a State Regulated Party Primary Election
rather than at an unregulated Convention.11
If the same 10% number of
voters showed up and participated in the primary as were necessary to
achieve political party status, the political party would thereby earn the
additional right to participate in the drawing for the preferred ballot positions
in the drawing. Failure of a sufficient number of voters to participate in the
primary election would result in the partys candidates being denied a party
line and rather being placed on the Ballot on the same location as the
candidates who achieved access to the Ballot through the Nomination and
11 Again, while not directly relevant to the disposition of the claims in
this case, this the appropriate time to dispel a historical misconception. The
statutory requirement that a political party chose candidates at a State
regulated Primary Election instituted in 1930 was not enacted to favor the
political parties per se over all other candidates, but rather (and with 82
years hindsight, ironically) was enacted as an effort to combat the corruptive
effects of political party bosses on the selection of political party candidates
during what to that point had been unregulated conventions such as tookplace in 1920 in Chicago with the unilateral selection by political party
bosses of Warren Harding as the Republican Candidate. The irony today
and in this case is that the process being used against Appellants here was
initially enacted as a vehicle to try to ensure the greatest and fairest
participation of the people in the selection of candidates for public office!
Worse, today, and contrary to the actual history, the State argues that they
have a State interest in favoring the two established political parties to the
specific exclusion of all others. While that may be the effect, it was not the
original intent.
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Petition Process. See Laws of 1930, CHAPTER 187, Par. 44, Sec. 1
(F.R.A.P. 29 Addendum Exhibit 10), slightly and non-substantively
modified by Laws of 1948, CHAPTER 438, Section 4 ((F.R.A.P. 29
Addendum Exhibit 11), now codified at N.J.S.A. 19:5-1. The simple
statutory scheme was explained by the New Jersey Supreme Court as
follows:
Political party is defined to mean a party whichat the election held for all members of the General
Assembly next preceding the holding of any
primary election * * * polled for members of the
General Assembly at least ten per centum (10%) of
the total vote cast in this State. N.J.S.A. 19:1-1.
A party which attains that status is entitled to a
primary election. N.J.S.A. 19:2-1, and such a
political party is accorded a party column on the
ballot for the general election unless the party shallhave failed at its primary election to poll the
percentage we have just mentioned12
, in which
12 As noted, in 1999, after the trial division of the Superior Court applied
the plain and correct meaning of N.J.S.A. 19:5-1 to the facts and ruled that
neither political party had met the threshold for entitlement to a column,
on emergent appeal the Appellate Division of Superior Court interpreted
the manner of calculating the 10% requirement of N.J.S.A. 19:5-1
completely contrary to the actual language of the statute, contrary to thelegislative history, contrary to common sense, and contrary to the existing
New Jersey Supreme Courts own and otherwise controlling interpretation in
Richardson v. Caputo, supra. See 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). With the proper application
of N.J.S.A. 19:5-1 to the facts of extant here, even if the entire statutory
scheme is somehow found to be Constitutional, the Republican Party failed
by @50,000 votes to at the June 2012 Primary Election to earn the right to a
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event the partys nominees selected at the primary
shall appear on the general election ballot in the
column or columns designated Nomination byPetition. N.J.S.A. 19:5-1. (As applied to a voting
machine ballot, the word column equals the
horizontal row or line described at the outset of the
opinion.)
The provisions for the draw for position on
the general election ballot appear in N.J.S.A. 19:4-
12. (Emphasis added).
[Richardson v. Caputo, 46 N.J. 3, 214 A.2d385, 388 (1965)].
The manner in which entitlement to a column is calculated as per New
Jersey Conservative Party v. Farmer, see note 12, is clearly arbitrary and
irrational and therefore unconstitutional as a violation of the Equal
Protection Clause of the Fourteenth Amendment.
CONCLUSION:
The following observation on the sustaining legitimacy of our
Democratic form of government is sadly exponentially truer today than
when it was penned by its author over 20 years ago:
Party Column. However, Appellants contend that this Circuit Court need
not necessarily address the contorted meaning of the 10% requirement in
N.J.S.A. 19:5-1, as this is really a collateral matter, as the entire statutory
scheme regarding ballot placement and use of slogans is unconstitutional
anyway in light ofCitizens United.
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There is a growing concern in our country about
public life - - a sense that government is no longer
accountable to the people but rather advances itselfor the interests of groups other than its
constituencies. Voter turnout continues to decline
because of the perception that votes do not count.
Voters feel alienated from their elected
representatives. The Kettering Foundation reports
that the public perceives our political system as so
autonomous that the public is no longer able to
control and direct it. The voters, Yes. But Which
Ones, N.Y.Times, April 10, 1992 at A36.
[Save our Shore District v. New Jersey Redistricting Commission, 131 N.J.
594, 622 A.2d843 (1992) (OHern, J., Concurring).].
Appellants, former members of the established Republican and
Democratic and Conservative Parties in New Jersey do not want to waste
another 20 years before action, and as such have banded together to try to
bring about peaceful positive change. Appellants have the right to do so,
and the right to associate together under the common slogan Democratic-
Republican and the right to convey their message to all voters and supporters
on the General Election Ballot, to do so in column reserved for them, and
with an equal opportunity to appear in the most preferred of all ballot
locations. Appellants have the right stand for election on a General Election
Ballot where all candidates who have earned the right to appear on the
General Election Ballot are treated fairly and equally. That is all they ask.
____/s/ Richard Luzzi_________________
By: Richard Luzzi, Esq.
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Attorney for Appellants Democratic-Republican
Organization of New Jersey, Frederick John
LaVergne, Leonard P. Marshall, Scott Neuman,Tracy M. Caprioni, Kimberly Sue Johnson and
Donald E. Letton
Dated: October 28, 2012
____/s/ Eugene Martin LaVergne_______
Eugene Martin LaVergne
Appellant Pro Se
Dated: October 28, 2012
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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 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 and page length are within the
parameters of what is allowed by the Federal Rules of Appellate Procedure
and the Third Circuit Local Appellate Rules for motions and responses.
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 wellprior 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 Joint Supplemental Written Argument 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: [email protected] and
Donna Kelly, D.A.G. at: [email protected] and
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Edward Florio, Esq. at: [email protected]
James B. Arsenault, Jr., Esq. at: [email protected] and
James Ferguson, Esq. at: [email protected]
John Carbone, Esq. at [email protected] and
Michael David Witt, Esq. at: [email protected]
Moshood Muftau, Esq. at: [email protected] and
Robert B. Campbell, Esq. at: [email protected] and
(2) Upon the following counsel for the Appellee(s) who entered an
appearance below as counsel entered an appearance but is not a registeredECMF 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
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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-Republican
Organization of New Jersey, Frederick John
LaVergne, Leonard P. Marshall, Scott Neuman,
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 LaVergneAppellant Pro Se
Dated: October 19, 2012
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Continuing F.R.A.P. 28 Addendum to Joint Supplemental Written Argument:
(Redacted)
Exhibit 9 Laws of 1898, CHAPTER 139, an Act to regulate
elections (Revision of 1898) as officially published in
ACTS of the ONE HUNDRED AND TWENTY-SECOND
LEGISLATURE of the State of New Jersey, and the Fifty-
fourth Under the New Constitution, MacCrellish &
Quigley, Current Publisher, Trenton, New Jersey (1898)
(Title page and pages 254 to 269 and pages 330 to 333only).
Exhibit 10 Laws of 1930, CHAPTER 187, an Act to regulate
elections (Revision of 1930) as officially published in
ACTS of the ONE HUNDRED AND FIFTY-FOURTH
LEGISLATURE of the State of New Jersey, and the
Eighty-Sixth Under the New Constitution, MacCrellish &
Quigley Co., Printers, Trenton, New Jersey (1930) (Titlepage and page 689, pages 720 to 723, and pages 736 to
741 only).
Exhibit 11 Laws of 1948, CHAPTER 438, Section 4, as officially
published in ACTS of the One Hundred and
Seventy=second Legislature of the State of New Jersey,
and the First Under the New Constitution, MacCrellish &
Quigley Co., Printers, Trenton, New Jersey (1948) (Title
page and pages 1696-1697 only).
Exhibit 12 Laws of 1968, CHAPTER 226, as officially published in
ACTS of the One Hundred and Ninety=second
Legislature of the State of New Jersey, and the Twenty-
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first Under the New Constitution, Trenton, New Jersey
(1968) (Title page and pages 676-679 only).
Exhibit 13 Laws of 1977, CHAPTER 431, as officially published in
ACTS of the One Hundred and Ninety=seventh
Legislature of the State of New Jersey, and the Twenty-
sixth Under the New Constitution, Trenton, New Jersey
(1977) (Title page and pages 1530-1533 only).
