October 6, 2013 Honorable James F. Savio, J.S.C.

Superior Court of New Jersey Law Division Civil Party Atlantic County Court House Atlantic City, New Jersey RE: Gary Stein v. McGettigan Docket No. ATL-L-4907-13 Dear Judge Savio: The Court adjourned and continued the defendants motion to dismiss this time sensitive Election Case to allow me an opportunity to supplement the record in writing to explain in more detail my opposition to the defendants motion to dismiss under R. 4:6-2(e). The following now hereby shall operate to clarify in more and specific detail my argument and explain exactly how and why I contend that the ballot location preference provided to the two statutory political parties by the defendant Atlantic County Clerk can not be applied and used at the November 5, 2013 General Election in New Jersey Legislative District 2. As directed by the Court, I hereby more specifically define the factual and legal issues that I raise in this case, which I claim that the Court at this
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early stage of the litigation is prohibited from dismissing as each claim clearly states a good faith prima facie cause of action against the defendant named herein: (1) Does the ballot location preference provided to the two statutory political parties in N.J.S.A. 19:14-12 and N.J.S.A. 19:14-12 apply as a matter or fact and law to the November 5, 2013 General Election in New Jersey? If no, then plaintiff is entitled to immediate relief. If no, then the inquiry continues with the following 2 questions, specifically Is the ballot location preference provided to the two statutory political parties in N.J.S.A. 19:14-12 and N.J.S.A. 19:14-12 at the November 5, 2013 General Election in New Jersey unconstitutional as a violate plaintiffs rights to equal protection of the laws as specifically guaranteed and secured by the Equal Protection Clause of the Fourteenth Amendments to the United States Constitution, and / or Is the ballot location preference provided to the two statutory political parties in N.J.S.A. 19:14-12 and N.J.S.A. 19:14-12 at the November 5, 2013 General Election in New Jersey unconstitutional as a violation of plaintiffs rights to political speech and association as guaranteed by the First Amendment to the United States Constitution (made applicable to the State of New Jersey by virtue of the Fourteenth Amendment to the United States Constitution) and Article I, paragraph 6 of the New Jersey Constitution (1947).

(2)

(3)

As will be shown, the Court does not need to reach the constitutional issues in #2 and #3 above as neither of the existing two statutory political parties have as a matter of fact and law qualified for preferred ballot location treatment as per N.J.S.A. 19:5-1, and therefore all Ballots in New Jersey Legislative District 2 on the face of the voting machines in Legislative District 2 are required to be Ordered by this Court to be immediately
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reconfigured and re-printed so that the names of all candidates for all office appear in a single Nomination by Petition Column for each office at issue, with no statutory political party receiving special party preference as per N.J.S.A. 19:14-12, and with all sample ballots to also be re-printed to match the face of the voting machines.1 STATEMENT OF FACTS: How a Political Organization Achieves Statutory Political Party Status Under New Jersey Election Laws: The modern New Jersey Republican political organization and the modern New Jersey Democratic political organization are the only political organizations that have qualified as a political party under New Jersey State Election Laws for the preferred and special treatment afforded to political parties and their candidates at by New Jerseys Election laws on the November 5, 2013 General Election. Plaintiff agrees as he must that he does not legally qualify for the conditional preferred candidate
1

The paper Overseas Military Ballots and the paper Absentee / Vote by Mail ballots have already been printed by the Clerk and the mailing of (and even receipt back of some of some of) such paper ballots has already taken place. The plaintiff first filed this case on July 15, 2013, after the political partys primary elections, after the Secretary of States July 11, 2013 release of the voter turn out at each of the political party primary elections demonstrating that neither statutory political party had met the N.J.S.A. 19:5-1 10% threshold condition for preferred ballot placement under N.J.S.A. 19:1412, and a full month before the actual N.J.S.A. 19:14-12 Clerks drawing where the preference was illegally conferred. However, as the Court has not heard this Election Matter in a more expeditious manner, plaintiff at this point can only realistically seek a partial remedy, that being a Court Order mandating change as to only the face of the voting machines and the re-printing of the sample ballots only in all of Legislative District 2. -3-

location treatment afforded the statutory political parties in N.J.S.A. 19:1412. Specifically, N.J.S.A. 19:1-1 defines a statutory political party as follows: *** Political party means a party which, at the election held for all of the members of the General Assembly next preceding the holding of any primary election held pursuant to this Title, polled for members of the General Assembly at least 10% of the total vote cast in the State. (Emphasis added). [N.J.S.A. 19:1-1].

When N.J.S.A. 19:1-1 was originally enacted in 1931, the election of members of the General Assembly was conducted every year on an annual basis under the form of the New Jersey Constitution then in effect. Therefore, each political organization and their candidates were required to re-qualify each year, on a year to year basis, for recognition of legal status as a political party under New Jersey Election Laws. Then, in 1947, the

State of New Jersey adopted a new State Constitution which changed the constitutional term of office of Member of the General Assembly from a 1 year term with annual elections to a 2 year term with biannual elections. However, after the 1947 Constitution was adopted the Legislature did not

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make any corresponding amendment to the definition of political party in N.J.S.A. 19:1-1 or elsewhere in the New Jersey Election Laws, therefore the cumulative and combined legal effect being that by the adoption of the 1947 Constitution and not changing the standard in N.J.S.A. 19:1-1, what had been to that point been an annual process of the opportunity of a political organization of achieving (or maintaining and continuing) statutory political party status, was essentially then constitutionally modified to what would now be a biannual process for the opportunity of a political organization of achieving (or maintaining and continuing) statutory political party status under New Jersey Election Laws. Otherwise stated,

once a political organization achieved statutory political party status, that status would remain recognized for 2 years instead of 1. Any organization that was not yet a statutory political party would now only have an opportunity to do so every 2 years, instead of every year. The Secretary of State Official Certification of a Statutory Political Party: After each now biannual election for all Members of the General Assembly, the Secretary is State is charged with determining which political organizations and their candidates qualify as a statutory political party under N.J.S.A. 19:1-1, and to then Certify such group or organization as a

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political party, which Certification shall remain in effect for two years, until the next General Election for all Members of the General Assembly. N.J.S.A. 19:12-1 provides as follows as to recognition by the State of New Jersey of a statutory political party: The Secretary of State shall within thirty days after completion of the canvass by the board of State canvassers, certify to each county clerk and county board the fact that at the next preceding election of the members of the General Assembly ten per centum (10%) of the total votes cate in the State for members of the General Assembly had been cast for candidates having the same designation, thereby creating, within the meaning of this Title, a political party to known and recognized as such under the same designation as used by the candidates for when the required number of votes were cast. (Emphasis added).

[N.J.S.A. 19:12-1]. Based upon the results of the November 2011 General Election, on December 12, 2011, in accordance with N.J.S.A. 19:12-1, the Secretary of State / Lt. Governor Kimberly Guadagno issued an Official Certification that both the modern New Jersey Republican political organization and the modern New Jersey Democratic political organization had met the requirements to be declared statutory political parties under New Jersey Election Laws. A true copy of the Secretary of State Certification of

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Political Parties is attached at Exhibit A, the contents of which this Court is required to take Judicial Notice of. As can be seen from the Certification, Guadagno Certified that only the Republican and Democratic political organizations had achieved statutory political party status as per the standards in N.J.S.A. 19:1-1 at the November 2011 General Election, and that no other political organization had achieved statutory political party status. Further, Guadagno specifically certified that the N.J.S.A. 19:1-1 ten per centum (10%) threshold for achieving statutory political party status cast (ie. 10% of the total ballots cast for Members of the General Assembly statewide) was 259,775 ballots cast. See Exhibit A. Stated again: The operative 10% number in N.J.S.A. 19:1-1 as Certified to by the Secretary of State pursuant to N.J.S.A. 19:121 is 259,775 ballots cast. (Exhibit A). The June 4, 2013 Political Party Primary Elections: Plaintiff obtained access to the November 5, 2013 General Election Ballot as a candidate pursuant to the Nomination and Petition procedure outlined in New Jersey Election Laws. This procedure for obtaining ballot access as a candidate must be used by any candidate that is seeking to run for public elective office independent of either of the 2 established statutory political parties, or used by any candidate who is endorsed or supported by

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any existing political organization that has not yet achieved statutory political party status (such as the Democratic-Republican Organization of New Jersey, the New Jersey Conservative Party, the Green Party, the Libertarian Party, the Reform Party, The Constitution Party, and several others that today exist in New Jersey). Any person who wishes to run at the General Election as a candidate of either of the two established statutory political parties must first obtain access to the political primary election ballot (through a Nomination and Petition Process), and on the first Tuesday in June, win that political primary election. Then, the winner of the political primary election has legally earned the right for his or her name to appear on the subsequent General Election Ballot as the candidate of the statutory political party. At the November 5, 2013 General Election only 5 candidates have legally qualified to appear as a candidate for the office of General Assembly: (1) Plaintiff, a wholly independent candidate, (2) Nick Russo and (3) Vince Mazzeo who both won the June 2013 Democratic Political Primary Election, and (4) John Amdeo and (5) Chris Brown who both won the June 2013 Republican Political Primary Election. There can be no dispute that all five candidates for General Assembly in the New Jersey Legislative District 2 at the November 5, 2013 General

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Election have each in their own way as the law applies to them and the status of their respective political organizations, if any lawfully obtained ballot access so that each candidates respective name is required by New Jersey Elections Laws to appear somewhere on the November 5, 2013 General Election Ballot. What remains to be determined is exactly where the names of each of the eight candidates (and the slogan or political party associated with their name) will appear. This is governed by New Jersey State Election Laws, subject to any restrictions on such Election Laws to operate in a way that violates the requirement that each candidate be treated equally within the meaning of the Fourteenth Amendment to the United States Constitution, and subject to any restrictions on such Election Laws to operate in a way that violates the right of each candidate equal rights to Political Speech and Association under the First Amendment to the United States Constitution and Article I, paragraph 6 of the New Jersey Constitution (1947). Ballot Candidate Location Placement Under N.J.S.A. 19:14-12 and the 10% Condition in N.J.S.A. 19:5-1: In New Jersey ballot location is governed by N.J.S.A. 19:14-12, which provides in relevant part as follows: The county clerk shall draw lots in his county to determine which columns the political parties which made nominations at the next
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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 next 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 have upon the general election ballot, shall be determined by the county clerks in the respective counties. * * * [N.J.S.A. 19:14-12].

Each of the 21 County Clerks all draw first for the best and most preferred and most advantageous top two Ballot positions between the separate party columns allocated to the statutory political party candidates as long as the statutory political party has met the 10% threshold of N.J.S.A. 19:5-1 at the Primary Election held to chose the candidate or candidates for the General Election at issue. All other candidates who have obtained access to the General Election Ballot through the Nomination by Petition process are then placed in the same identical column as to the office sought, with slogan printed below the candidates name, with location within the Nomination by Petition column determined by a separate drawing. However, N.J.S.A. 19:5-1 reads as follows:

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A political party may nominate candidates for public office at primary elections provided for in this Title, elect committees for the party within the State, County or Municipality, as the case may be, and in every other respect may exercise the rights and shall be subject to the restrictions herein provided for political parties; except that no political party which fails to poll at any primary election for a general election at least ten per centum (10%) of the votes cast in the State for members of the General Assembly at the next preceding general election, held for the election of all the members of the General Assembly, shall be entitled to have a party column on the official ballot at the general election for which the primary election has been held. In such case the names of the candidates so nominated at the primary election shall be printed in the column or columns noted Nomination by Petition on the official ballot under the respective titles of office for which the nominations have been made, followed by the designation of the political part of which the candidates are members. (Emphasis added). [N.J.S.A. 19:5-1].

As applies to this case, for a statutory political party and their candidate (here the Republican and Democratic candidates for United States Senate) to be entitled (or required) to be placed in the preferred and advantageous position by placement in a separate political party column on the Special General Election Ballot and to be entitled (or required) to participate in a drawing by the County Clerk under N.J.S.A. 19:14-12 for

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the most preferred and advantageous positions on the Special General Election Ballot in the two top left columns, the statutory political party must have met or exceeded the 10% threshold in N.J.S.A. 19:5-1 at the August 13, 2013 Special Primary Election. Stated simply, for the preferences to apply here, at least 259,775 persons must have cast ballots at the June 4, 2013 Special Primary Election in each separate statutory political party primary, or the statutory political party forfeits the statutory preference in N.J.S.A. 19:14-12. The Democratic Party failed to met the N.J.S.A. 19:5-1 statutory 10% threshold of 259,775 as only 246,347 ballots were cast, clearly less than what is required. A true copy of the Secretary of State Official Primary Election Turn Out June 4, 2013 issued on July 16, 2013 is attached at Exhibit B, the contents of which this Court is required to take Judicial Notice of. The Republican Party failed to met the N.J.S.A. 19:5-1 statutory 10% threshold of 259,775 as only 234,170 ballots were cast, clearly less than what is required. See Exhibit B. As such, as a matter of law, neither statutory political party is entitled to a separate political party column on the November 5, 2013 General Election Ballot and as such plaintiffs request for relief (reconfiguring the

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face of the voting machines and reprogramming the voting machines, and reprinting the sample ballots and poll books for all election districts in New Jersey Legislative District 2) must be immediately granted.2 Clarification of the Actual Scope of the Various Court Rulings in the 2012 New Jersey Democratic-Republican Organization Federal Court Litigation: Just last year a legal challenge was brought in Federal Court to the applicability and constitutionality of the ballot location preference conferred in New Jersey Election Laws N.J.S.A. 19:41-12 and N.J.S.A. 19:5-1 to the statutory political parties regarding the 2012 General Election in New Jersey.
2

See Democratic-Republican Organization of New Jeresy v.

The only facts that this Court may take judicial notice of in this motion to dismiss are facts which are not in dispute and which are taken from the official publications of the Division of Elections, which are provided at Exhibit A and Exhibit B, and which this Court is required to take judicial notice of. If defendants want to introduce facts outside the four corners of the pleadings, than their motion is no longer a R. 4:6-2(e) motion to dismiss but must then be converted to a motion for summary judgment. It is expected that defendants may seek to argue that the bizarre and legally incorrect ruling 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), where the Appellate Court essentially ruled that 2 + 2 = 22, or two die two, rather than 4. That ruling is incorrect, and may be binding on this Court even though clearly wrong of the defendants seek to present some evidence of the 2 + 2 = 22 statutory fiction the Court had to create there to prevent granting the NJCP relief. The only official document from the Secretary of State published and reporting on the issue of voter turn out at the June 4, 2013 statutory political primary elections is at Exhibit B here, and in such document, the number officially attributed to each statutory political party is less than the required 259,775. This can not be disputed. As noted, if the defendants seek to introduce further evidence outside the four corners of the pleadings (on a 2+2 = 22 theory) than this motion must be converted to a summary judgment motion. In any event, the motion to dismiss can not be granted, and indeed should be dismissed so that discovery on the issue of whether any records were kept by the Division of Elections or the County Clerk on the counting theory of the Appellate Division in NJCP. - 13 -

Guadagno, application for preliminary injunction denied 900 F.Supp.2d 447 (D.N.J. 2012) (Wolfson), denial of preliminary injunction affd. 900 F.3d. ____ (3d Cir. 2013) (Judges Fuentes, Smith and Hardiman), (motion for rehearing en banc on issue of denial of preliminary injunction subsequently denied without opinion). Certiorari was not sought in that case. Specifically, in that case, the District Court held that at the early preliminary injunction phase, before any hearing or evidence was taken, that the standard of review to apply to the constitutional claims at issue there was the so called Anderson Balancing Test, taken from the United States Supreme Courts holding in Anderson v. Celebrezzi, 460 U.S. 780 (1983), which was a ballot access case, not a ballot location case. Three Judges in the Third Circuit (Judges Fuentes, Smith and Hardiman) affirmed the District Courts application of the Anderson Balancing Test was the correct standard of review at the preliminary injunction phase before evidence had been taken, stating as follows: *** Having considered the record on appeal and the decision of the District Court, we affirm substantially for the reasons set forth by the District Court in its thorough and well-reasoned opinion. We pause to note that the District Court correctly applied the balancing test set forth by the Supreme Court in Anderson v. Celebrezzi, 460 U.S. 780, 789 (1983). The District Court concluded that Plaintiffs failed to provide any support or evidence
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that the ballot placement provisions for political party candidates burdened their independent candidacies. Furthermore, the District Court recognized that New Jerseys interest in maintaining a manageable ballot sufficiently justified its statutory scheme. Additionally, it concluded that Plaintiffs failed to establish that prohibiting them from referencing the names of New Jerseys political parties in their ballot slogan impermissibly burdened their First Amendment rights, and that the States Interest of avoiding voter confusion justified the ballot limitations. We find no error in this analysis. [See Id.].

Plaintiff is sure that the defendants will also seek to argue that the District Court ruled that the statutory preference in N.J.S.A. 19:41-12 and N.J.S.A. 19:5-1 is indeed constitutional. Nothing could be further from the truth. That is NOT what was ruled. Only someone who reads Digest Head Notes as opposed to reading the actual Court opinions in the cases would make such an argument. The distinction as to what was actually was ruled is a find point of distinction, but a most significant distinction. That fact is that all that was actually ruled by Judge Wolfson of Federal District Court, and all that was affirmed by the three judges of the Third Circuit, was that at the preliminary injunction phase before evidence had been taken by the Court, and before any finding of fact on the issue of whether ballot location

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makes any difference, that the standard of review to apply at the preliminary injunction phase was the Anderson Balancing Test. Plaintiffs there appealed the matter to the Third Circuit because they contended that the incorrect standard of review had been applied by Judge Wolfson in the District Court at the preliminary injunction phase, because clearly established precedent in the Third Circuit held that the standard of review of such claims when a final decision was made was to be strict constitutional scrutiny, relying upon the long existing cases of 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); Wellford v. Battaglia, 485 F.2d 1151 (3d Cir. 1973 (Judges Van Dusen, Gibbons and Hunter); and the Order entered only a year before on September 13, 2011 in Lewis v. Guadagno, No. 11-3401 (3d Cir. 2011 (Scirica, Ambro and Vanaskie). In short, all that last years DemocraticRepublican Organization of New Jeresy v. Guadagno case holds (in light of the other existing Third Circuit precedent, including a full en banc opinion on the issue) is that there is a different standard of review that the District Court will apply at the preliminary injunction (the Anderson Balancing Test) as opposed to the standard of review that the District Court will apply

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after facts have been determined and the Court is determining against those facts whether to enter a permanent injunction. Indeed, that is the only interpretation that can be subscribed to what occurred, because there is no question that a single panel of three judges (there, Judges Fuentes, Smith and Hardiman) acting alone can not overrule an existing published en banc opinion of the full bench of the Third Circuit, in this case, 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). Therefore, Allegheney County v. Allegheney County Department of Elections is binding on this Court, but only after at the end of the case, after discovery, after findings of fact have been made, when determining whether to enter a final permanent injunction. Then at that point (after discovery, trial and findings of fact) the standard of review is not the Anderson Balancing Test discussed in Democratic-Republican Organization of New Jeresy v. Guadagno but rather will be the strict constitutional scrutiny standard as stated in Allegheney County v. Allegheney County Department of Elections. This is the law. And this Court is bound by this law. Timing Issues:

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Plaintiff filed this case on July 15, 2013, after the political partys primary elections, after the Secretary of States July 11, 2013 release of the voter turn out at each of the political party primary elections demonstrating that neither statutory political party had met the N.J.S.A. 19:51 10% threshold condition for preferred ballot placement under N.J.S.A. 19:14-12, and a full month before the actual N.J.S.A. 19:14-12 Clerks drawing where the preference was illegally conferred. However, as the Court has not heard this Election Matter in a more expeditious manner, plaintiff at this point can only realistically seek a partial remedy, that being a Court Order mandating change as to only the face of the voting machines and the re-printing of the sample ballots only in all of Legislative District 2. It is expected that defendants will make an argument that such simply can not be done in the month remaining before the election. Firstly, this is THEIR mistake or failure to follow the law when configuring the General Election Ballot. There clearly is time. See New Jersey Democratic Party, Inc. v. Sampson, ___ N.J. ___ (2002) as to making changes to the ballot within a month of the election. Moreover, plaintiff attaches at Exhibit C a certification of Robert Giles, head of the Division of Elections in the Department of State, dated June 18, 2013, which Mr. Giles submitted to the New Jersey Supreme Court last June in another case, wherein Mr. Giles

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explained the time frame for re-programming voting machines and the like: It takes 48 hours for Mr. Giles to reprogram all of the 7,000 plus voting machines in the State of New Jersey. A true copy of Mr. Giles June 18, 2013 Certification is attached at Exhibit C, the contents of which this Court is required to take Judicial Notice of. Here, there is only one

Legislative District at issue, which should literally take a few hours. No credible argument can be made that the necessary re-printing can not be accomplished in the time frame either. CONCLUSION: For the foregoing reasons, it is submitted that the defendants motion to dismiss for failure to state a claim must be denied, that immediate relief must be granted as neither statutory political party met the 10% threshold in N.J.S.A. 19:5-1, and that the voting machine ballots be immediately reconfigured and new sample ballots printed. Alternatively, the case must be allowed to proceed for plaintiff to build a record, for the Court to make findings of fact, and at the end of the case, for the Court to apply strict constitutional scrutiny when assessing whether the ballot location preference in New Jersey Election Laws N.J.S.A. 19:14-1 and N.J.S.A. 19:51 is unconstitutional. Respectfully submitted,

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Gary Stein, Pro Se Candidate for New Jersey General Assembly Legislative District 2

cc:

Edward McGettigan, County Clerk (c/o Atlantic County Counsel)

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Exhibit A

Exhibit B

Exhibit C