dr 2015 appellate brief 3

8/9/2019 Dr 2015 Appellate Brief 3

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STATEMENT OF FACTS AND PROCEDURAL HISTORY:

This matter was initially filed as an emergent election case brought

against uncontested facts that squarely raised a specific and clearly defined

legal question as to whether the 21 County Clerks and the New Jersey

Secretary of State, the New Jersey statutory election officials who configure

election ballots in accordance with State law and otherwise administer

elections, were lawfully administering the Noember !, 2"1! #egular and

Special $ederal %eneral &lections and the contemporaneously held elections

for arious New Jersey State statutory county and local municipal offices in

accordance with certain mandatory election laws enacted by the State

'egislature( )ore specifically, this case is the latest direct legal challenge to

the initial correctness, the sustaining legal correctness and alidity oer time,

and alternatiely to the Constitutionality of, the *ugust 2+, 1 &mergent

*ppellate -rder of the 2 Judge *ppellate Court .anel /0onorable Stephen

leiner, J(*(( and 0onorable )arin 3raithwaite, J(*((4 /.a5 to .a5

1""4 and the subsequently issued written -pinion of *ppellate Judges

leiner and 3raithwaite /reported at 62! N.J. Super. !71 /*pp( i( 144

wherein Judges leiner and 3raithwaite heard emergent telephonic oral

argument and then summarily oerruled the *ugust 26, 1 -rder and

1


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*ugust 26, 1 written -pinion /unpublished41 of the 0onorable Clarkson

$isher, Jr(, .(J(Ch( /.a5+6 to .a5+4 where Judge $isher interpreted the plain

and clear statutory language in N.J.S.A. 18751 as mandating that only the

otes cast at a political party9s primary election for candidates running for

the office of %eneral *ssembly /to the e:clusion of all other otes cast for

other offices on the political party primary election ballot4 may lawfully be

counted by State election officials when calculating the 1"; threshold in

N.J.S.A. 18751, the meeting of which is an e:press and mandatory

precondition that must be met by a


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preference otherwise proided to the candidates of a


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delay of a week before the -rder to Show Cause was een signed because

the case was originally assigned to the 0onorable )ark J( $leming, J(S(C(

*s circumstances are, in 1 Judge $leming was employed as an *ssistant

*ttorney %eneral in the -ffice of the New Jersey *ttorney %eneral9s -ffice,

and was counsel of record with seeral other attorneys in the New Jersey

Conservative arty v. !armer case which is being directly challenged in this

action( Bt was assumed that the initial assignment of this case to Judge

$leming was inadertent, but neertheless, upon being adised that the

matter had been assigned to Judge $leming, and based on Judge $leming9s

prior appearance as one of the counsel of record for the State in the 1

New Jersey Conservative arty v. !armer case, on *ugust 17, 21"! a

formal written request was made that Judge $leming oluntarily sua sponte

recuse himself from hearing this case without necessity of a formal motion

being filed( /.a5111 to .a51274 Judge $leming in fact oluntarily sua

sponte recused himself from hearing this case, confirming same in a letter

dated *ugust 1, 2"1!( /.a512E4(

$inally, a week after the emergent election case was first filed, the

0onorable )ary C( Jacobson, *(J(S(C( entered an -rder to Show Cause in

the form as requested, fi:ed a serice and briefing schedule, and made the

matter returnable September 1", 2"1!( /.a512+ to .a51!14( Thereafter the

!


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named efendants and Bnterested .arties were all sered forthwith, and the

necessary proofs of serice were filed with the Clerk in the 'aw iision(

-n *ugust 21, 2"1! the New Jersey *ttorney %eneral, representing

Secretary of State im %uadagno, responded to the -rder to Show Cause by

filing a formal Notice of )otion to Transfer the >erified Complaint to the

*ppellate iision under R. 18165! or alternatiely to dismiss the >erified

Complaint for claimed lack of Furisdiction in the 'aw iision( /.a51!2 to

.a51!74( Specifically, the *ttorney %eneral9s contention was that the 21

County Clerks had acted on *ugust 11, 2"1! and conferred political party

columns and held a


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matter of history the first ever such “certification” ever issued by the

Secretary of State or by any other State Election Officer in the 84 years

since N..S.!. "#$%&" was first enacted in "#'(.6

The matter was fully briefed and ready for substantie argument in the

'aw iision on September 1", 2"1" on the piotal issue of e:actly what

otes are counted when determining whether a ergne( -n September 1", 2"1! the Notice in 'ieu of Subpoena Ad

"esti#icandum and Duces "ecum was oluntarily withdrawn on the record

after onna elly, *ssistant *ttorney %eneral, was forced to concede as fact

that there were no such other documents, and that the *ugust ?, 2"1!


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)ember of the New Jersey %eneral *ssembly at the June 6, 2"1! .olitical

.arty .rimary &lections(

The *ppellants all contend that the State and County &lection

-fficials had /once again4 misapplied the 1"; caeat in N.J.S.A. 18751 and

illegally allowed the #epublican and emocratic candidates statutory ballot

preference location under N.J.S.A. 181!512( The &lection -fficials did so

purportedly relying upon the 1 2 Judge *ppellate Court /3raithwaite and

leiner4 &mergent Telephonic #uling in New Jersey Conservative arty v.

!armer$ 62! N.J. Super. !71 /*pp( i( 14 which decision summarily

oerruled the ! day earlier decision of the Trial Court, the 0onorable

Clarkson $isher, .(J(Ch( /who is now sitting in the *ppellate iision4

where, in 1, Judge $isher considered the entire statutory scheme and the

1"; caeat in N.J.S.A. 18751 and @ *ppellants contend correctly 5 ruled as

follows8

* fair reading of our election laws, for the reasons

e:pressed aboe, leads to the interpretation urged

by plaintiffs( That is, the court finds that the

threshold of N..S.!. "#$%&" is met by the number

of )rimary votes cast for candidates for the

*eneral !ssembly only. /&mphasis added4(

GSee *ugust 26, 1 unpublished Trial Court opinion at .a5+6 through .a5

+, quoted passage found at .a51H(

The &mergent telephonic decision by the 2 Judge *ppellate Court in

New Jersey Conservative arty v. !armer summarily reersing Judge $isher

+


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regarding what .rimary &lection otes are counted by &lection -fficials

when calculating the N.J.S.A. 18751 1"; caeat was and is incorrect and

directly counter to the clear directies of the statutory scheme generally and

counter to the clear directies of N.J.S.A. 18751 specifically, and was

directly counter to /what is now, and has been since 2""!4 the unambiguous

and controlling Supreme Court dictum in Richardson v. Caputo$ !E N.J. 6,

1" /1E74, which @ Fust like Judge $isher did on *ugust 26, 1 @ interprets

N.J.S.A. 18751 as only including the votes cast for the office of *eneral

!ssembly at the +olitical +arty +rimary Elections , and was directly

counter to the interpretation of the 1+? 'egislature which, in the -fficial

'egislatie Commentary to a new proposed


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*ppellants contend that, Fust as Judge $isher found to be the case on

*ugust 26, 1, that under the statutory scheme, only otes cast for

candidates seeking the -ffice of %eneral *ssembly at the June 6, 2"1!

.olitical .arty .rimary &lections may be counted toward a


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Animal Rights$ -nc. v. 1ahwah "ownship$ 16? N.J. Super. /'aw i( 174,

a##2d 1!? N.J. Super. 2! /*pp( i( 1++4, certi#. denied +7 N.J. 27 /1++4(

*ppellants contend @ and the plain wording of N.J.S.A. 18751 certainly bear

out @ that what is at issue in this case is a iolation a specific mandatory

New Jersey State election statute @ N.J.S.A. 18751 5 which goerns and

mandates certain substantie actions that are specifically required to be

followed by the referenced election officials when administering the

Noember !, 2"1! #egular and Special %eneral &lections in the eent that

the 1"; conditional caeat in N.J.S.A. 18751 is not met( Bn this regard, the

fact that what is at issue is a mandatory New Jersey State &lection statute

made this case particularly time sensitie because the legal remedy that any

Court of competent Furisdiction is re-uired to Order , in the eent that

*ppellants are ultimately ruled to be correct after the Noember !, 2"1!

#egular and Special %eneral &lections hae occurred, will be mandatory

Fudicial inalidation of such elections and an -rder that completely new and

lawful elections be administered in compliance with the e:isting and plainly

worded mandatory New Jersey State election statutes forthwith( See -n re+

Smoc3$ 7 N.J. Super. !7, 7"1 /'aw i( 1!4 /


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!E?, !+! /'aw( i( 1+?4, a##2d 1+" N.J. Super. !1" /*pp( i( 1+4,

certi#. denied ?2 N.J. 2?" /1+4 /


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by -rder dated September 1", 2"1! which -rder also directed the 'aw

iision Clerk to immediately transmit the file to the *ppellate Clerk9s

-ffice( /.a51! through .a517"4(

Lith the case and *ppellants9 legal challenge now formally

transferred from the 'aw iision to the *ppellate iision, on September

12, 2"1! *ppellants filed a Joint *pplication for .ermission to file &mergent

)otions with the *ppellate Clerk9s -ffice( /.a5171 through .a51E24(

$ie days later on September 1+, 2"1! the 0onorable Jerome St( John,

J(*(( entered a


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filed by *ppellants by -ctober 6, 2"1!, with any opposition due on -ctober

E, 2"1!( /.a5211 through .a52124( Bn pursuance of the -ctober 6, 2"1!

&mergent *ppellate -rder, the matter was thereafter fully


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relief /a motion that *ppellants9 intentionally neer actually filed, see

footnote 2, supra. and footnote 1E, in#ra.4, and applied the legal standards

applicable at the .#&'B)BN*#M stage for T&).-#*#M inFunctie relief

and therefore denied the *ppellants9 &mergent motions,7 thereby allowing

the appeal and *ppellants9 legal challenge to otherwise proceed in due

course to $BN*' reiew, wheneer that may occur( /.a5216 to .a521!4

7 Bn this regard, it is important to note that on *ugust 12, 1 Judge

$isher @ applying the well known legal standards applicable to a request for

a Temporary .reliminary BnFunction @ denied the New Jersey Conseratie

.arty9s application for a T#-( Then, eleen days later, applying the

appropriate standard at the $inal BnFunction phase, Judge $isher ruled in

faor of the New Jersey Conseratie .arty and entered a $inal BnFunction(

The results in this case should mirror such earlier procedure(

1!


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LEGAL ARGUMENT:

POINT I:

The Ballot Preference Statte! N..S.!. "#:"$%&! 'oe( not a))l* to the

No+e,-er $! &."$ Re/lar General Elect0on Beca(e ne0ther of the

1(tattor* )ol0t0cal )art0e(2 ha+e (at0(f0e' the ".3 Thre(hol' 0n

N..S.!. "#:4%"! or alternat0+el* N..S.!. "#:4%" 0( Uncon(t0tt0onal! an'

a( (ch 'efen'ant Ga'a/no5( A/(t 6! &."$ 1Cert0f0cat0on2 0( 0n+al0'

an' 0lle/al an' an* 'ra70n/ con'cte' -* the 'efen'ant Cler8(! an' the

re(lt( of an* elect0on! are -oth +o0' ab initio:

A9 The Pla0n Lan/a/e an' S0,)le A))l0cat0on of the Ballot

Preference Stattor* Sche,e:

Bn New Jersey, ballot location of a candidate9s name is goerned by

N.J.S.A. 181!512, which proides in releant part as follows8

The county clerk shall draw lots in his

county to determine which columns the political

parties which made nominations at the ne:t

preceding primary election shall occupy on the

ballot in the county( The name of the party first

drawn shall occupy in the first column at the left of

the ballot, and the name of the party ne:t drawn

shall occupy the second column, and so forth(

The position which the names of candidates,

and bracketed groups of names of candidates

nominated by petitions for all offices, shall hae

upon the general election ballot, shall be

determined by the county clerks in the respectie

counties( I I I

G N.J.S.A. 181!512H(

&ach of the 21 County Clerks all draw first for the best and most

preferred and most adantageous top two 3allot positions between the

17


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separate


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which the candidates are members( /&mphasis

added4(

G N.J.S.A. 18751H(

Bt is undisputed that the base 1"; conditional caeat threshold


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election #or a general election at least ten per centum 5%678 o# the votes

cast in the State #or members o# the ,eneral Assembly at the ne9t preceding

general election = for N.J.S.A. 18751 purposes 5ow does one count, and

what does one count, to determine whether a statutory political party has

met the N.J.S.A. 18751 1"; threshold of


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/who issued his written unpublished opinion on *ugust 26, 14 and the

0onorable )ary C( Jacobson, *(J(S(C( /who issued her oral opinion on

-ctober 6, 2"164 who hae actually reiewed and considered the substance

of the question, and of the two New Jersey *ppellate Judges, specifically the

two Judge &mergent .anel consisting of The 0onorable )arin 3raithwaite,

J(*((, now retired, and the 0onorable Steen leiner, J(*((, now

deceased /&mergent *ppellate -rder issued *ugust 2+, 1, and formal

.ublished Lritten -pinion issued September 6, 14 who hae actually

considered the substance of the question, and the one $ederal Trial Court

Judge, the 0onorable $reda Lolfson, A(S((J( /Lritten -pinion issued

-ctober 12, 2"124 who has actually considered the substance of the

question, the only Judge out of this group that was actually legally correct in

their ruling on the interpretation of N.J.S.A. 18751 was Judge $isher, the

first Fudge to rule( That this is true will be conclusiely demonstrated(

)oreoer, as circumstances are now today and with what is now known

today, and as will be e:plained, in another odd quirk of procedure and

circumstance, another ironic legal truth is that the published *ppellate

iision opinion of Judges 3raithwaite and leiner in New Jersey

Conservative arty v. !armer$ 62! N.J. Super. !71 /*pp( i( 14 is not

precedent that this Court may follow, as the critical holding in the New

Jersey Conservative arty v. !armer *ppellate case regarding e:actly what

1


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is to be counted when determining whether a statutory political party has

met the N.J.S.A. 18751 threshold actually directly conflicts with specific and

clear language /albeit, arguably dictum4 in the New Jersey Supreme Court9s

holding in Richardson v. Caputo, !E N.J. 6 /1E74 where the Supreme Court

noted that only otes cast at the .rimary &lections for )embers of the

%eneral *ssembly are to be counted when calculating the 1"; threshold,

which must be carefully read in conte:t to be understood( The holding in

Richardson v. Caputo, !E N.J. 6, 1" /1E74, is a decision of the State9s

highest Court, superior to the *ppellate iision9s


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/albeit improperly and completely out of conte:t4 in Richardson v. Caputo in

their written published opinion /which was issued three days after their

&mergent -rder summarily reersing Judge $isher9s *ugust 26, 1

decision4 that @ when properly read @ confirms that they were wrong and

that Judge $isher was rightO

The true and accurate legislatie history of the statutory scheme

generally, and N.J.S.A. 18751 specifically, when considered in consort with

New Jersey State Constitutional and political history, when considered in

consort with the Supreme Court9s holding in Richardson v. Caputo, and

when considered in consort with the statements of the New Jersey

'egislature themseles in 1+? as to what otes were to be calculated when

determining the 1"; caeat condition threshold in N.J.S.A. 18751, confirms

that the Judge $isher was indeed right on *ugust 26, 1, and that by

application today8 6he only votes cast at the une '0 7("4 +rimary

Elections that may lawfully be counted toward the N..S.!. "#$%&" "(3

caveat condition threshold are votes cast at the une '0 7("4 +rimary

Elections that were cast for candidates seeing the right to run for the

office of New ersey *eneral !ssembly for their )olitical )arty at the

ensuing0 or in this case0 November 40 7("40 9egular *eneral Election:

-biously problematic for the *ppellees from a legal standpoint, and

more so for the two presently e:isting statutory political parties from a

21


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

whatsoever for any candidates for %eneral *ssembly at the June 6, 2"1!

.rimary &lection( Therefore, if *ppellants today are /and Judge $isher in

1 was4 right, then as a matter of law it was impossible for either party to

hae met the 1"; caeat condition threshold in N.J.S.A. 18751, and haing

failed to meet the 1"; caeat condition threshold @ which since 1!+ has

been a literally impossibility to meet in een numbered years 5 neither

statutory political party is therefore entitled to the statutory ballot preference

otherwise conferred by N.J.S.A. 181!512 at the Noember !, 2"1! #egular

%eneral &lection( )oreoer, the true fact of law is that the ballot preference

scheme as a matter of law does not, and can not eer, apply to a Special

%eneral &lection such as the one in istrict 1( Lhile at first reading this

may sound implausible, it is indeed the factual and legal truth(

eciding this case should not be problematic for the Court( *ll the

Court has to do is follow the law, and not pretend to be a two or three

member unelected 'egislature and &:ecutie 3ranch Fudicially re5writing a

statute so as to e:tra5constitutionally faor the candidates of the e:isting


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Constitution /1!+4 changed the term of office of )ember of the %eneral

*ssembly from 1 year to 2 years( 3y so doing, the new State Constitution

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

and in so doing unwittingly made the statutory scheme regarding the

opportunity for ballot location preference only operational eery other

calendar year, in odd numbered years, when )embers of the New Jersey

%eneral &lection were up for election, and candidates for such office would

appear on the .rimary &lection 3allot(

h* Only ,otes ;ast at the +rimary Elections for ;andidates for the

Office of *eneral !ssembly are Conte' hen Deter,0n0n/ hether the

".3 Thre(hol' 0n N..S.!. "#:4%" 0( Met:

Lhat today is codified as N.J.S.A. 18751 was first enacted in 16" as

/. 16", Chapter 1?+, .aragraph !!, Section 1+, which was part of an oerall

+ *rticle >

.*#TM -#%*NBP*TB-NS

.owers(

.ar( !!, Sec( 1( * political party may

nominate candidates for public office at primary

elections proided for in this act, elect committees

for the party within the State, county or

municipality, as the case may be, and in eery

other respect may e:ercise the rights and shall be

subFect to the restrictions herein proided for

political partiesK provided$ however$ that no

political party which shall fail to poll at any

primary election for a general election at least ten

per centum of the otes cast in the State for

members of the %eneral *ssembly at the ne:t

26


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comprehensie legislatie scheme for regulating the conduct of elections and

political parties( That statutory legislatie scheme, despite radical changes

in the State Constitutional form of goernment in 1!+ and again in the

1E"s, has neertheless remained essentially unchanged( Lhile the form of

Constitutional goernment and term of office of )ember of the %eneral

*ssembly was changed in 1!+ from 1 to 2 years, the statutory law then

long in effect and as enacted and specifically intended to apply annually to

determine statutory political party status, and intended to apply annually to

determine ballot location preference if the 1"; caeat condition in N.J.S.A.

18751 was met, all remained the same, and therefore, by their collectie

own terms, since 1!+ could only hae been legally operatie in odd

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

term of office of %eneral *ssembly(

preceding general election shall be entitled to hae

a party column on the official ballot at the general

election for which the primary election had been

held, but that the names of the candidates so

nominated at the primary election shall be printed

in the column or columns designated


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Bn 16", the State of New Jersey was then operating under the New

Jersey State Constitution /1?!!4( See generally "horpe2s Constitutions,

>olume > at pages 27 to 2E1! /hereinafter :"horpe=4(? Ander the New

Jersey State Constitution /1?!!4 the 'egislatie 3ranch of New Jersey State

Constitutional %oernment /like today4 consisted of a State Senate and a

%eneral *ssembly( The &:ecutie 3ranch of New Jersey State %oernment,

consisted of a single %oernor /today there is a %oernor and a 't(

%oernor4( 0oweer, there were many significant differences between the

form of State Constitutional goernment under the New Jersey State

Constitution /1?!!4 and the form of State Constitutional goernment

presently in effect under the New Jersey State Constitution /1!+4, as

amended(

$or e:ample, the single e:ecutie %oernor9s term was for a term of

three years, see New Jersey State Constitution /1?!!4, *rticle >, paragraph

6, in "horpe at page 2E"E, whereas today the term of office for the dual

? Citation in this )emorandum of 'aw to the New Jersey Constitution

/1?!!4 is to the official te:t as found in "he !ederal and State Constitutions+

Colonial Chargers$ and ;ther ;rganic /aws o# the States$ "erritories$ and

Colonies$ Now or


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e:ecutie %oernor and 't( %oernor is ! years( The 'egislatie 3ranch

similarly consisted of a State Senate and a %eneral *ssembly, with the term

of office for State Senate and for %eneral *ssembly both being one year,

meaning that there were annual #egular .rimary &lections in June and

#egular %eneral &lections in Noember each year for candidates running for

the office of )ember of the %eneral *ssembly( See New Jersey State

Constitution /1?!!4, *rticle B>, Section B, paragraphs 1 Q 6, in "horpe at

page 2E"152E"2( Today, under the New Jersey State Constitution /1!+4, as

amended, the term of office for State Senate was increased a term that was

more than one year /and today is on a 2 year, ! year, ! year tern in a 1" year

period4 and the term of office for member of the %eneral *ssembly was

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

The siDe of the State Senate under the New Jersey State Constitution

/1?!!4 was determined by affording one State Senator to each County

irrespectie of population, meaning that representation in the State Senate

was apportioned regionally by the artificial geographic political boundary of

a County9s diiding lines, and was not determined in any way by reference

to population( See New Jersey State Constitution /1?!!4, *rticle B>, Section

BB, paragraph 1, in "horpe at page 2E"2( The %eneral *ssembly was to

consist of an unspecified number of members


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/1?!!4, *rticle B>, Section BBB, paragraph 1, in "horpe at page 2E"2(

0oweer, the members of the %eneral *ssembly, while actually apportioned

to Counties, were neertheless to be


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Lith this knowledge, it should now be understood that in 16",

)embers of the %eneral *ssembly were elected on an annual basis with

each )ember sering a 1 year term, and that the )embers of the %eneral

*ssembly were the only State Constitutional elected officials whose office

ery same political history outlined herein, ine:plicably chose, apparently

for no other reason than pure politics and to achiee a desired result that the

actual written law did not allow, chose to completely ignore and neer een

so much as mentioned the significant @ and *ppellants9 contend

determinatie @ State Constitutional and political history and the associated

effect on the 1"; statutory scheme( The fact that when the statutory scheme

at issue was first enacted in 16" that the term of office of the New Jersey

*ssembly was one yearK the fact that when the statutory scheme was enacted

in 16" that there were annual #egular %eneral &lections for all )embers

of the %eneral *ssembly eery year each Noember, and that there were

annual .olitical .rimary &lections for the right to run for the office of

)ember of the %eneral *ssembly eery year each JuneK the fact that after

the Constitutional change to the term of office for )ember of the %eneral

*ssembly from 1 year to 2 years was effected in 1!+ there neer was any

statutory 'egislatie efforts made that were intended to address the radicalchange to the uniform 1"; scheme caused by the Constitutional change,

these all were presented to Judges 3raithwaite and leiner in the *ppellate

iision( Met, against this background, all that the *ppellate iision had to

say on the issue was the following8

Bf the plaintiffs9 interpretation of the statute is

correct, then in the years in which there are no

primary elections for the %eneral *ssembly, such

as the een numbered years, there would be no

method to determine whether a gien political

party was entitled to a party column on the

official ballot for the general election( .laintiffs

argue that N.J.S.A. 18751 only applies eery

other year, when there are primary elections for

the %eneral *ssembly( 3ecause in the een5

numbered years such as 1? when there are

generally no primary elections for the %eneral

2?


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

population and the people( The %oernor was only elected eery 6 years, so

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

'egislatie scheme reliant upon an annual election process( Lhile State

Senators were indeed elected eery year, they represented political

boundaries, not people, so 0udson County9s State Senator might in practical

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

Cumberland County9s State Senator might in practical fact be elected and

represent by less than 7",""" people( Therefore, the 'egislature decided in

16" that the best barometer of legitimate statewide support of a political

organiDation, both initial and sustaining oer time, was by looking at the

number of otes that were cast for )embers of the %eneral *ssembly, and

the 'egislature chose, for whateer reason, 1"; of the otes cast for the

office of )ember of the %eneral *ssembly statewide as the legislatie

benchmark in the legislatie scheme( Lhether or not one iews the 16"

'egislature9s linking the &lection 'aw scheme to 1"; of the statewide

%eneral *ssembly ote was a


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'egislature is free to enact and pass stupid laws, they Fust are not free to pass

unconstitutional laws(

Bmmediately after the passage of the 16" 'egislation / /. 16",

Chapter 1?+4 the new legislatie system was enacted, which system inoked

a uniform 1"; standard as a barometer of public support for determining


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now codified at N.J.S.A. 18151,1" N.J.S.A. 181251,11 N.J.S.A. 1825112,

N.J.S.A. 18751, and N.J.S.A. 181!512( Lhen taken together, the statutory

scheme as enacted in 16" operated together in a rather clear and easy to

understand system of related laws, each specifically related to the same

1" N.J.S.A. 18151 defines


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statutory 1"; number, with the first requirement being that a political

organiDation9s candidates for the office of )ember of the %eneral *ssembly

at the #egular %eneral &lection needed to receie combined a number of

otes that are equal to or greater than the 1"; in N.J.S.A. 18151, and then at

the June #egular .rimary &lection, the candidates of that now


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year to two years( Lhether through inadertence or design, the fact remains

that this Fust described legislatie scheme when enacted was clear and was

wholly reliant upon an annual process where political organiDations had an

opportunity each year to try to achiee


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een numbered calendar year, it is not possible to reconcile granting any

candidate ballot location preference by irtue of N.J.S.A. 181!512 since as a

matter of fact and law it is literally impossible for either of the two


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in N.J.S.A. 18751 is met, concluded with the scant legislatie history

aailable at that point in time as follows8

* fair reading of our election laws, for the reasons

e:pressed aboe, leads to the interpretation urged

by plaintiffs( That is, the court finds that the

threshold of N..S.!. "#$%&" is met by the number

of )rimary votes cast for candidates for the

*eneral !ssembly only. /&mphasis added4(

GSee unpublished -pinion and -rder of *ugust

26, 1 attached at .a5+6 through .a +=H(

Lhile not realiDed at the time, there is indeed Supreme Court

precedent /today binding on this Court4 and additional legislatie history

that confirms that Judge $isher was


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)oll the )ercentage we have just mentioned0 in

which eent that party9s nominees selected at the

primary shall appear on the general election ballot

in


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Lhile the opinion is


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'east the Court be concerned that the language in Richardson v.

Caputo is somewhat ambiguous /plaintiffs contend that read in conte:t it

certainly is not4, 'egislatie history has been found that directly confirms

the interpretation of Judge $isher and the Supreme Court in Richardson v.

Caputo that only otes cast for members of the %eneral *ssembly at the

.rimary &lection are counted when determining whether the 1"; threshold

in N.J.S.A. 18751 has been met(

There might be a more polite or eloquent ways to say it, but the fact

remains that the present state of the entirety of New Jersey9s &lection 'aws

codified as


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eterans A##airs Committee$ repared by the Sta## o# the New Jersey

Division o# /egislative -n#ormation and Research$ November 0%$ %&(*

/original on file at the New Jersey State 'ibrary under call number8 +!(",

&6?, 1+?c4( Bn that formal 'egislatie #eport, there was specific discussion

in the Commentary as to the presently understood meaning by the

'egislature itself of the law that they had themseles preiously enacted, and

were trying to now reise, and the new ersion proposed( The commentary

specifically discussed new proposed N.J.S.A. 1*8751 with reference to the

e:isting /and still e:isting4 N.J.S.A. 187518

I I I

1*8751 This section reduces the percentage of

the *eneral !ssembly ,ote necessary for party

columns on the official ballot from 1" percent to

fie percent( Bt also substitutes


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holding of 22 22 somehow still goerns this case, this argument simply

can not be reconciled with the 'egislature9s own interpretation of what they

say their own law says( The new Jersey 'egislature9s own interpretation of

their own long e:isting law, specifically N.J.S.A. 18751, is most certainly

not in any way ambiguous or equiocal( The New Jersey 'egislature quite

clearly stated that it was and is the total otes cast at the June #egular

.rimary &lection for the office of )ember of the %eneral *ssembly only /to

the e:clusion of all other offices that may appear on the .rimary 3allot4 that

are counted and calculated when determining whether the N.J.S.A. 18751

1"; caeat condition threshold has been met by either of the two statutory

political parties(

This Court @ indeed no Court @ has any legal authority to radically re5

write the te:t and meaning of a law alidly enacted by the New Jersey State

'egislature when the meaning is clear, when there is binding controlling

Supreme Court precedent interpreting the statute, and when there is clear

legislatie history that confirms the legislature9s interpretation of their own

law(

Bn N.J.S.A. 18151 @ literally the first statute listed in the codified

ersion of New Jersey9s statutory laws @ the 'egislature has directed how

Courts are to ealuate and construe the meaning of the statutes they enact,

specifically proiding as follows8

!"


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-n the construction o# the laws and statutes o# this

state, both ciil and criminal, words and phrases

shall be read and construed with their conte9t , and

shall, unless inconsistent with the manifest intent

of the legislature or unless another or different

meaning is e:pressly indicated, be gien their

generally accepted meaning, according to the

approed usage of the language( Technical words

and phrases, and words and phrases haing a

special or accepted meaning in the law, shall be

construed in accordance with such technical or

special and accepted meaning(

G N.J.S.A. 18151H(

$rom the onset, it is rather elementary principle of statutory

construction that when a Court is ealuating a statute to determine the

statutes meaning, the Court muse read and construe words and phrases in

statutes


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!!E /2""+4(


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simply completely ignored and completely disregarded the 1"; conditional

caeat requirement in N.J.S.A. 18751 for at least the preious 7" years, and

the election officials, without thought, question, or challenge, simply year

after year conferred the preferred ballot position to the #epublican and

emocratic parties without any consideration as to whether such action was

appropriate or legal(17 The further fact of history is that in light of

17 Bt is important to note here that in New Jersey Conservative arty v.

!armer$ 62! N.J. Super. !71 /*pp( i( 14, the *ppellate iision, in

their September 6, 1 written opinion issued subsequent to their *ugust

2+, 1 &mergent *ppellate -rder where they Summarily reersed Judge

$isher9s *ugust 26, 1 -pinion and -rder, stated the following8

)oreoer, the record is clear that, for the past fifty

years, defendant *ttorney %eneral, and before him

the Secretary of State, hae interpreted N.J.S.A.

18751 to mean that all primary elections are

considered in determining whether a political party

has met its target for party column purposes on theofficial ballot( 0ere, appropriate circumstances

e:ist to conclude that the defendants9 interpretation

of N.J.S.A. 18751 is consistent with the intent of

the 'egislature(

GBd( at !E15!E2H

This statement in the September 6, 1 written opinion is nothing but

blatant Fudicial fabrication and fantasy completely inented by the

imaginations of *ppellate Judges 3raithewaite and leiner( There was

nothing whatsoeer in the


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Richardson v. Caputo and the 1+? 'egislatie history as now known and

understood, Judge $isher was


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I I I Bn such case the names of the candidates

nominated at the primary election shall be )rinted

in the column or columns designated

“Nomination by +etition” on the official ballot

under the res)ective titles of office for which the

nominations have been made, followed by the

designation of the political party of which the

candidates are members(

G N.J.S.A. 18751H(

Bn sum, the ballot preference statute, N.J.S.A. 181!52, does not apply

to the Noember !, 2"1! #egular %eneral &lection because neither of the


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circumstances of this case and in the conte:t of the specific legal claims as

framed and adanced( This case should be disposed of on statutory

interpretation grounds, which obiates the necessity of een addressing the

$ederal Constitutional claims( 0oweer, assuming, arguendo$ that this

Court somehow disagrees and finds that the 1 *ppellate iision9s

statutory interpretation of the statutory scheme generally, and the

interpretation of N.J.S.A. 18751 specifically, is somehow


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7hether a /ro) 0( a )ol0t0cal )art* for )art*

col,n )r)o(e( on the off0c0al -allot9

Le resere the right to submit a full opinion

on this issue(

.laintiff9s / sic4 request for a stay is denied

and plaintiff9s / sic4 subsequent request for a

temporary stay until Tuesday, *ugust 61, 1 is

also denied( /&mphasis added4(

GSee /.a ? to .a 1""44, *ugust 2+, 1 -rder at

erified ComplaintH(

Bn the September 6, 1 written opinion, the 2 Judge &mergent

*ppellate Court held, consistent with their *ugust 2+, 1 &mergent -rder

in releant part as follows8

The question raised by plaintiffs is what primary

elections are to be considered in determining

whether a political party achieed the ten percent

target( I I I The piotal language here is


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that the Anited States Constitution9s $ourteenth *mendment9s &qual

.rotection Clause constitutionally mandates that a State must count the

weight of each ote the same in all aspects and at all stages of State electoral

schemes inoling elections of $ederal -fficials( Specifically, one year after

the *ppellate iisions holding in New Jersey Conservative arty v.

!armer$ supra.$ the Anited States Supreme Court unequiocally held that it

is a clear iolation of the &qual .rotection Clause of the $ourteenth

*mendment to the Anited States Constitution for a State administered

election, where $ederal -ffices are on the ballot, for the State to count one

oter9s ote differently than an another oter9s ote in the same election(

See 'ush v. ,ore$ 761 U.S. ? /2"""4K 'ush v. alm 'each County

Canvassing 'oard$ 761 U.S. 2" /2"""4( Therefore, if N.J.S.A. 18751 indeed

means and operates in the


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scrutiny to apply at the


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rights must be narrowly tailored and

adance a compelling State interest(

'esser burdens, howeer, trigger less

e:acting reiew, and a State9s

important regulatory interest will

usually be enough to Fustify

reasonable, nondiscriminatory

restrictions(

G -bid. /citations omitted4H(

G mpower our Neighborhoods v. ,uadagno$ )ercer County ocket No(

)'561!?511 /2"1! L' 16171? /'aw( i(, )arch 61, 2"1!4, )arch

61, 2"1! ecision on )otions and Cross )otions for Summary Judgment4H(

The )arch 61, 2"1! holding in mpower our Neighborhoods v.

,uadagno is consistent with long standing Third Circuit .recedent on the

issue of the application of


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this Court( Specifically, the Anited States Court of *ppeals for the Third

Circuit has long and unequiocally held that the correct leel of Fudicial

scrutiny for a Court to apply when ealuating a candidate litigant9s

$ourteenth *mendment &qual .rotection $ederal Constitutional Claims in a


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interest leel of Fudicial scrutiny=, otherwise commonly known as


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The 1Elect0on5( Cla(e an' the Se+enteenth A,en',ent:

*s this case and election inoles an &lection for Anited States Senate

and &lections for Anited States 0ouse of #epresentaties there can be no

question that this case specifically and directly inoles and implicates

restrictions on State regulation imposed by the Anited States Constitution9s


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Taken together, there is no question that the appropriate leel of

scrutiny to apply to the .laintiffs9 arious constitutional claims in this case at

the Summary Judgment .hase is


55/59


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Certain New Jersey &lection 'aws in Title 1 are made applicable to

Special #egular &lections by irtue of N.J.S.A. 182+51 which proides as

follows8

E1ce)t as herein otherwise )rovided candidates

for public office to be oted for at any special

election shall be nominated and the s)ecial

election shall be conducted and the results thereof

ascertained and certified in the same manner and

under the same conditions0 restrictions and

)enalties as herein )rovided for )rimary and

general elections. /&mphasis added4(

G N.J.S.A. 182+51H(

*s the statute says,


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not earlier than E6 nor later than 06 days prior to the special elections (=

/emphasis added4 -d. The stated time table in the $ebruary 1?, 2"1!


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CONCLUSION:

Statutory use of the word


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i( 1!4 /

dr 2015 appellate brief 3

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