Eugene Martin LaVergne,

Democratic-Republican for United States Senate, Plaintiff, vs.

Superior Court of New Jersey Law Division Civil Part Mercer County Docket No. L-1933-13

Steven M. Lonegan, Candidate for United

States Senate, et als., Defendants, and

Robert DePasqualle, Candidate for United

States Senate, et als., Interested Parties.

--------------------------------------------------In the Matter of the Application to Recheck the Voting Machines to be Used in the October 16, 2013 Special General Election for the Office of United States Senator. Superior Court of New Jersey Law Division Civil Part Mercer County Docket No. L-1933-13

Reply Memorandum in LaVergne v. Lonegan to the Opposition Papers that were received from Defendants and/or Interested Parties as of September 30, 2013 and Preliminary Opposition to the Relief Requested in IMO Application to Recheck the Voting Machines

Eugene Martin LaVergne Democratic-Republican for United States Senate 543 Cedar Avenue West Long Branch, New Jersey 07764 Telephone: (732) 272-1776 Plaintiff Pro Se

Introduction: Service of Process and of the Order to Show Cause and Motion Papers: As required by the terms of the Order to Show Cause signed by the Court on September 16, 2013, on Friday September 27, 2013 plaintiff filed the required Proofs of Service by filing duly executed and notarized Affidavits of Service from each person serving the papers thereby presumptively proving that all defendants were timely served with process (the Summons and Verified Complaint) and the papers in support of the plaintiffs motions brought by way of Order to Show Cause (the Order to Show Cause, Statement of Material Facts, and Memorandum of Law).1 Such documents as a matter of law presumptively demonstrate constitutional service of process and notice of the plaintiffs emergent application, and it is up to any party served who disputes the validity of service to come forward to dispute the validity of service. As such, there is no question that this Court now has obtained in personam jurisdiction over all parties unless some party seeks to contest the validity of service. All persons who served the process and signed the Affidavits of Service which have been filed with the Clerk of the Court will be physically present in Court on October 3, 2003 at the newly assigned time of 11:00 a.m. so that in the event that any party seeks to make service an issue the challenge can easily and quickly be dispelled.2 Plaintiff can clearly prove service if asked or required to do so.
1

There was attempted but failed service upon the Bergen County Clerk on Friday September 20, 2013 at approximately 4:20 p.m., which attempt was made before close of Government business hours. However, for reasons unclear, the Bergen County Clerks Office closed that day at 4:00 p.m., apparently early for the weekend. As such, a second attempt at service was immediately made on Monday September 23, 2013 when service was indeed effected. Both Affidavits of Service (explaining the failed attempt on Friday September 20, 2013 and explaining the effective service on Monday September 23, 2013) have been filed with the Clerk of the Court. As such, while the Bergen County Clerk was indeed duly served, the Bergen County Clerk it technically the only party that was not actually served before the expiration of the September 20, 2013 deadline, this because the public office closed early for the weekend. 2 On Wednesday September 18, 2013 defendant Timothy Tyler was personally served at his office in Mount Holly, New Jersey, by Fredrick John LaVergne (plaintiffs brother) by Fredrick John LaVergne giving to defendant Clerk Timothy Tyler himself (who is known to Fredrick John LaVergne) a copy of all papers. See Affidavit of Service filed with the Court as to defendant Tyler. Indeed, not only was Tyler personally served at that time (as opposed to service upon Tylers office), defendant Tyler was indeed the first party to be served by specific plan and design. Thereafter, by letter dated September 26, 2013 sent to the Court, Peter H. Nelson, Burlington County Solicitor, in responding to the Order to Show Cause on behalf of defendant Tyler, advises the Court that notwithstanding the fact that he (Nelson) was responding on behalf of defendant Timothy Tyler that we were not served and are only aware of this through emails from various county counsels . (Emphasis added). See September 26, 2013 Letter from Peter H. Nelson, Burlington County Solicitor, page one, paragraph one. This is a completely false representation, though it is not known what defendant Tyler told Mr. Nelson. Plaintiff has been made aware that as there is no defense to the failure to abide by N.J.S.A. 19:5-1 that certain County Clerks plan of defense (as there is no real defense per se) will be to try to delay and try to somehow argue that they were not properly or effectively served (when they all were) to try to delay the case from proceeding so that the Court will not be able to act in time. If this is indeed true, this is shameful behavior from elected public officials, each who has sworn an oath to follow the law. To date all but 6 County Clerk defendants - Bergen, Camden, Cape May, Gloucester, Ocean and Salem have not responded as yet. All 21 County Clerk defendants including the 6 who have yet to respond were nonetheless properly served (which was no small effort), and will have to somehow appear it they wish to seek contest service of process. Since defendant Tylers attorney Peter H. Nelson is the only responding party to in any way or record actually question the propriety of service, plaintiff contacted Nelson who initially claimed to plaintiff that it was his position that

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The Opposition Papers Received: By 9:00 p.m. on Monday evening on September 30, 2013 plaintiff has received the following motion papers on behalf of the following parties: Governor and Lt. Governor / Secretary of State:

11 page Memorandum of Law from Donna Kelly, D.A.G., dated September 27, 2013 and 3 page certification of Robert F. Giles, Director of New Jersey Division of Elections dated September 26, 2013. 3 page letter from James F. Ferguson, Atlantic County Counsel, dated September 26, 2013 and a 2 page certification from Deputy Atlantic County Clerk Jacob Austin dated September 26, 2013. 3 page letter from James F. Ferguson, Atlantic County Counsel, dated September 26, 2013 and a 2 page certification from Deputy Atlantic County Clerk Jacob Austin dated September 26, 2013. 5 page letter from Theodore E. Baker, Cumberland County Counsel, dated September 27, 2013 and a 3 page certification from Cumberland County Clerk Gloria Noto dated September 26, 2013. 1 page letter from James R. Paganelli, Essex County Counsel dated September 26, 2013. 2 page letter from Mark E. Morchel, Deputy Hudson County Counsel dated September 27, 2013.

Atlantic County Clerk:

Burlington County Clerk:

Cumberland County Clerk:

Essex County Clerk:

Hudson County Clerk:

there was not effective service on defendant Tyler, but when advised by plaintiff that he had irrefutable evidentiary proof that Tyler was indeed properly served, Nelson then modified his position to now claiming that Tyler was given all papers except the Order to Show Cause. As plaintiff knows this to be an inaccurate recitation of history, and as plaintiff is not interested in playing nonsense games over service issues, Frederick John LaVergne will be in Court to testify if the Court has any question on the issue whatsoever. Further, plaintiff has already caused a separate subpoena ad testificandum to be served upon Tyler specifically requiring Tyler to appear in Court on October 3 (thought the time stated was 2:00 p.m. as this all occurred before the Court moved the argument back to 11:00 a.m.). However, once defendant Tyler was served with the subpoena ad testificandum, defendant Tyler apparently immediately and dramatically changed his position and quickly and unconditionally conceded to Frederick John LaVergne that indeed he had been properly and personally served on Wednesday September 18 and was mistaken in his understanding of service. Defendant Tyler specifically stated to Frederick John LaVergne that he is not going to contesting the fact that he was indeed constitutionally served with process on Wednesday September 18, 2013. However, plaintiff has not released Tyler from the subpoena ad testificandum nor has he been asked to, and no motion to quash has been received. It is expected that this will be the end of the non-issue.

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Hunterdon County Clerk:

2 page letter from Shana L. Taylor, Hunterdon County Counsel dated September 27, 2013, 1 Page Notice of Appearance dated September 27, 2013 and 2 page certification of Hunterdon County Clerk Mary Melfi dated September 24, 2013. 3 page letter from Joseph P. Blaney, Assistant Mercer County Counsel, dated September 27, 2013 and a 2 page certification from Mercer County Clerk Paula SollamiCovello, dated September 27, 2013. 1 page cover letter dated September 27, 2013 from Jopseph A. Bilal, Esq., Deputy Middlesex County Counsel, 1 page Notice of Appearance, and 3 page certification of Elaine M. Flynn, Middlesex Clerk dated September 27, 2013. 1 page cover letter from Andrea I. Bazer, Monmouth County Counsel, September 27, 2013, 1 page Notice of Appearance dated September 27, 2013, 2 page Legal Memorandum dated September 27, 2013, 2 page certification of M. Claire French, Monmouth County Clerk dated September 26, 2013. 1 page cover letter from Daniel W. OMullan dated September 26, 2013, 3 page Legal Memorandum dated September 26, 2013, and 2 page certification of Laura Roberts, Supervisor of the Elections Section in the Morris County Clerks Office dated September 26, 2013. 2 page letter from Matthew Malfa, Deputy Passaic County Counsel dated September 27, 2013. 1 page cover letter from William T. Cooper, III dated September 27, 2013, 2 Page Notice of Appearance dated September 27, 2013 and 2 page certification of Somerset County Clerk Brett A. Radi dated September 24, 2013. 2 page letter from Dennis R. McConnell, Sussex County Counsel, dated September 26, 2013 and a 2 page certification from Sussex County Clerk Jeffrey M. Parrott dated September 25, 2013. 2 page cover letter from Steven M. Merman, Assistant County Counsel dated September 26, 2013, 6 page Letter Brief from Robert E. Barry, Union County Counsel dated

Mercer County Clerk:

Middlesex County Clerk:

Monmouth County Clerk:

Morris County Clerk:

Passaic County Clerk:

Somerset County Clerk:

Sussex County Clerk:

Union County Clerk:

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September 26, 2013 and 4 page certification of Union County Clerk Joanne Rajoppi dated September 24, 2013. Warren County Clerk: 1 page cover letter from Joseph J. Bell, Warren County Counsel dated September 27, 2013, 2 page Letter Brief from Joseph J. Bell dated September 26, 2013, and 2 page Notice of Appearance, and certification of Union County Clerk Joanne Rajoppi dated September 27, 2013.

No papers have been received by plaintiff as yet from the Bergen County Clerk, Camden County Clerk, Gloucester County Clerk, Ocean County Clerk, or the Salem County Clerk, all of whom have been nevertheless served with process and served with the plaintiffs moving papers. See Affidavits of Service filed with the Clerk of the Court. Summary of Arguments of the Parties in Opposition: Of the 17 parties who have responded in 16 different submissions as outlined above, it is more startling what is not discussed than what is actually addressed and argued. The arguments in opposition, to be polite, and as will be addressed in more detail herein, are legally inapplicable, factually and legally incorrect, and equitably anemic at best. However, to the point, it is simply amazing that no defendant so much as even sought to address the direct and unequivocal allegations of plaintiff that certain County Clerks cheated and rigged the N.J.S.A. 19:14-12 drawings for ballot position as described in detail in the Verified Complaint and Memorandum of Law. Such allegations, though cumulative, are clearly part of this case in addition to being the subject of a formal complaint to the United States Office of Special Counsel as constituting a violation of Federal Law. Not only was there no response to the allegations of fraud, there no acknowledgment of the claim at all! 3 Moreover, few defendants actually were forthcoming enough to advise the Court of the results of the drawings in their Counties - because, of course, such evidence will most certainly show that almost all Republican Clerks have Lonegan listed first, and almost all Democratic Clerks have Booker listed first. Coincidence? Not really. There is not even so much as even a feigned denial, or a superficial pretense at indignation of being accused of election fraud by plaintiff. Nothing. See footnote 3, supra. As to what is argued, most papers simply advise of the status of the election process in each County, and most even are honest enough at this point to acknowledge receipt of plaintiffs August 16, 2013 letter before the Clerks drawing occurred. No
The closest any of the 17 parties came to acknowledging the plaintiffs direct allegati on of election fraud was with Sussex County Counsel Dennis R. McConnell, counsel for defendant Sussex County Clerk Parrot, citing to the Mochary case, being the only submission of the 16 received by Plaintiff to do so. However, McConnell cites Mochary as claimed precedent for the legal proposition that once an N.J.S.A. 19:14-12 ballot location drawing illegal or otherwise has already occurred, it is too late for a Court to intervene and change anything. Mochary says nothing of the sort. Most curious is the fact that defendant Parrot, a Republican, does not deny that the selection of ballot placement was rigged. If plaintiff was falsely accused of something so serious plaintiff would certainly deny false allegations. In this regard, it is noted in passing that the Republican Party allegedly won the drawing in Sussex County and, absent a Court Order, will indeed have the name of their candidate, defendant Lonegan, appear in Column 1 (or A) on all ballots in Sussex County. Big surprise.
3

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excuse for ignoring plaintiffs August 16, 2013 letter is given except by the Attorney General, Atlantic County and Cumberland County, each who now curiously and specifically argue without any real detailed analysis that (they say) N.J.S.A. 19:5-1 does not apply to Special Elections. Of course by the same dyslexic standard of statutory of interpretation, if these parties are correct (they are not), then the ballot preference in N.J.S.A. 19:14-12 does not apply to special elections either, because the word special election is not found anywhere in that statute either, and therefore under this (incorrect) statutory analysis, even Booker must now be re-located to the same one single column as the other 7 candidates, with all 8 candidates in the same column. It is also curiously and generically argued by many that these defendants failure to follow clearly established statutory law - as is their job and legal obligation to do - is somehow plaintiffs fault, notwithstanding that plaintiff literally told each party in writing by letter dated August 16, 2013 of the applicable law! Against this factual historical background, it is therefore argued, by a most contorted extension of their version of logic, that plaintiffs failure to sue defendants sooner for defendants not abiding by the law should result in the plaintiffs claims being barred on the doctrine of latches! The latches argument is as a matter of law and fact completely inapplicable to this case, and plaintiff will not waste time or space in this Reply, but will be ready and able to respond further to the latches argument at oral argument if there is any question in the Courts mind. Plaintiff will, however, specifically reply to the argument of the parties that seek to argue that somehow, for reasons not really made clear, that N.J.S.A. 19:5-1 does not apply to special elections.

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The N.J.S.A. 19:5-1 10% Condition Clearly Applies to this Special General Election for United States Senate by its Own Terms and by Virtue of N.J.S.A. 19:271, and Any Arguments to the Contrary are Simply Nonsense: What today is codified as N.J.S.A. 19:5-1 was first enacted in 1930 as L. 1930, Chapter 187, Paragraph 44, Section 1, in the following initial form: Article V PARTY ORGANIZATIONS Powers. Par. 44, Sec. 1. A political party may nominate candidates for public office at primary elections provided for in this act, 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; 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 votes cast in the State for members of the General Assembly at the next preceding general election shall be entitled to have 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 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 party of which the candidates are members. [L. 1930, Chapter 187, Paragraph 44, Section 1]. In 1930 when L. 1930, Chapter 187, Paragraph 44, Section 1 was first enacted the State of New Jersey was operating under the New Jersey State Constitution (1844). Under the 1844 New Jersey State Constitution the Legislative Branch of State Government, like today, consisted of a State Senate and a General Assembly, except that under the 1844 Constitution both legislative houses were elected annually to 1 year terms, and all members of each house had to stand for re-election every year. See Article IV, Section I, New Jersey State Constitution (1844) at Volume V (New Jersey Philippines) in The Federal and State Constitutions: Colonial Chargers, and Other Organic Laws of the States, Territories, and Colonies, Now or Heretofore Forming the United States of America, compiled and edited under an Act of Congress dated June 30, 1906, by Francis Newton Thorpe, United States Government Printing Office, Washington: (1909). Therefore, each political party was required to qualify every year for political party status

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as the elections for General Assembly were indeed held every year, not every two years as is the case today. In 1947, the State of New Jersey adopted a new State Constitution, the New Jersey State Constitution (1947), which now for the first time extended the Constitutional term of office for members of the General Assembly to two years in length. Therefore, since New Jersey Election laws retained the same standards for statutory political party status (10% of votes cast for members of the General Assembly), and since now under the new 1947 State Constitution members of the General Assembly were now to be elected only once every two years, the related and associated process of a political organization achieving statutory political party status then at that point became a biannual process, rather what to that point had been an annual process. The next year, in 1948, the Legislature made modest changes to L. 1930, Chapter 187, Paragraph 44, Section 1 by enacting L. 1948, Chapter 438, Section 1. The 1948 changes also now codified all election laws together in what was to thereafter (and to date remains) Title 19 of New Jersey Statutes. After the 1948 revisions, N.J.S.A. 19:5-1 was amended to its present form, and reads as follows: 19:5-1. 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 shall fail 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 had been held. In such case the names of the candidates so nominated at the primary election shall be printed in the column or columns designated 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 party of which the candidates are members. [N.J.S.A. 19:5-1]. The few defendants (a total of four in three submissions) that bother to advance the frivolous argument that N.J.S.A. 19:5-1 does not apply to the matter at hand because this is a special election for United States Senate, all frame their anemic inapplicability argument essentially identical to each other and as stated by the Attorney General:

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*** For the August 13 special primary election for the office of United States Senator, the number of votes cast for the Republican Party candidate was 130,340. (Pl.s Exh. C) Plaintiff claims that this vote total renders the Republican Party ineligible for a political party column on the October 16 special general election ballot. Plaintiffs claim is based on the assumption that the rules for a primary election and a general election should be applied to the October 16 special election. *** Because the Legislature specifically established and defined special election as a distinct type of election under Title 19 and did not include any specific requirement in Chapter 27 that there be a separate 10% analysis of the special primary election results for purposes of ballot placement for the special general election, plaintiff is hard pressed to argue that the county clerks acted in violation of Title 19 by according the Republican Party a political party column on the October 16 ballot. Absent such statutory requirements, Plaintiff cannot establish a likelihood of success on the merits of his claim. (Emphasis added). [Attorney Generals Brief at pages 9-11]. The flaw in the Attorney Generals argument is that there is such a statutory requirement. It is unquestionably true that the actual text of N.J.S.A. 19:5-1 itself never specifically references the phrase special election anywhere, both in the form in existence today or as originally enacted. And it is indeed absolutely true that, as the Attorney General states, Plaintiffs claim is based on the assumption that the rules for a primary election and a general election should be applied to the October 16 special election. However, it is more than just plaintiffs assumption that makes N.J.S.A. 19:5-1 applicable to this Special General Election for United States Senate, it is the law of the State of New Jersey that makes N.J.S.A. 19:5-1 applicable to this Special General Election for United States Senate , specifically N.J.S.A. 19:27-1. When a Court is called upon to interpret any of the provisions of New Jerseys Title 19 Election Laws, the meaning and intent of the text of a given statute must be determined by reading all portions of the statutory framework in pari material, and then the Court must then derive the meaning from the context and gathered from the whole. See Hand v. Larason, 163 N.J.Super. 68 (Law Div. 1978); Application of Cucci, 92 N.J.Super. 223 (Law Div. 1966). Here, the Court is called upon to interpret whether N.J.S.A. 19:5-1 (and the conditions contained therein) applies to this Special General Election for United States Senate. The question is conclusively answered in the affirmative by the Legislatures enactment of law today codified at N.J.S.A. 19:27-1, which provides as follows:

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Except as herein otherwise provided candidates for public office to be voted for at any special election shall be nominated and the special election shall be conducted and the results thereof ascertained and certified in the same manner and under the same conditions, restrictions and penalties as herein provided for primary and general elections. (Emphasis added). [N.J.S.A. 19:27-1]. Since the Legislature has expressly and specifically declared that a special election is required to be conduced by election officials in the same manner and under the same conditions, restrictions and penalties as herein provided for primary and general elections , and as there can be no dispute that N.J.S.A. 19:5-1 clearly by its express terms applies to general elections, the correct inquiry therefore is not whether plaintiff can show that N.J.S.A. 19:5-1 applies, but rather whether any of the defendants can show that N.J.S.A. 19:5-1 does not apply. N.J.S.A. 19:27-1 creates a presumption that N.J.S.A. 19:5-1 applies to this, and all, special elections. Stated somewhat more plainly, unless the Legislature has specifically otherwise provided that the terms of N.J.S.A. 19:5-1 shall not apply to a special election (the Legislature has not done so), then under N.J.S.A. 19:27-1 the terms and standards of N.J.S.A. 19:5-1 apply and must be applied - to this Special General Election for United States Senate. The Republican Party failed to poll the requisite 10%, so their candidate defendant Lonegan therefore is not entitled to a separate political party column on any of the Special General Election Ballots. This is not plaintiffs interpretation of the law: This is what the Legislature has decreed the law to be, and decreed what shall take place under the facts extant. Plaintiff is merely seeking to have this Court enforce the law because the defendants are ignoring the law and refusing to do so. No arguments advanced by any of the defendants that have responded to date in any way affects the clear right of plaintiff to the emergent and expedited relief requested. However, this matter has become more complicated by new issues that have arisen since the Order to Show Cause was signed by the Court on September 16, 2013. These additional new issues make the proper remedy under the totality of the circumstances clear: In addition to the relief initially requested, the Court should logically and equitably further specifically Order that the Special General Election for United States Senate must be conducted in all 21 Counties with paper ballots only under the supervision of a Special Master. The New Issues That Have Developed Since This Case was Filed: The Appellate Divisions Gusciora v. Christie Decision and the Attorney Generals New Lawsuit of In the Matter of the Application to Recheck the Voting Machines : Since this matter was filed 2 new issues have arisen that require, in addition to granting the relief requested by plaintiff, the Court considering the further practical remedy that only paper ballots be used at all polling locations at the October 16, 2013 Special General Election for United States Senate. This is logically required by the law when considered in consort with the facts, the limited time frame at issue, the need to use

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the election machines at the November 5, 2013 Regular General Election, and the Appellate Divisions Gusciora v. Christie decision and the Attorney Generals new lawsuit of In the Matter of the Application to Recheck the Voting Machines. This is the only practical answer. As such, these issues are addressed in this submission notwithstanding the fact that the return date in the Attorney Generals new submission is not until October 9, 2013. All issues should be resolved on October 3, 2013 to the greatest extent practicable so that both elections can proceed in an an orderly, fair, legal and constitutional and timely process where the will of the people and not the will of party bosses in a rigged process is determined. Background: The New DRE Voting Machines and the Absence of any VVPAT Technology: It is the clear intention of 20 of the 21 County Clerks in New Jersey, absent an Order from this Court directing otherwise, to use the so called new electronic voting machines at the October 16, 2016 Special General Election for United States Senate. See Verified Complaint in IMO Application to Recheck the Voting Machines, Docket No. L2013-13. In 2004, the New Jersey State Legislature passed legislation to change from mechanical voting machines to a new form of electronic voting machine commonly referred to as a direct recording electronic voting machine, or DRE. DREs are essentially computers that, operating in accordance with dedicated software programming, electronically record a voters votes on a computer hard drive and then automatically tabulate all votes cast for each candidate on each voting machine and also temporarily electronically store the results of all votes cast at that election on that DRE machine, specifically on each DRE machines hard drive. After the passage of a variety of mandatory statutory and Constitutionally required waiting periods after each election (as described in more detail infra.) the DREs computer hard drive is essentially at some point completely erased leaving no record whatsoever of the votes cast at the election last used, and the now blank hard drive is then re-used at the next election in the DRE machine. The DRE machines approved by the legislature for use in 2004 operate in a completely paperless manner, and do not generate any separate paper trail of the vot es or other permanent or semi-permanent record: All information is stored on the hard drive. And as noted, the DRE hard drives are erased and re-used over and over again at successive elections, rather than the County Clerks using a new hard drive in each machine for each election, and then after each election removing the dedicated hard drive which is placed into storage. Otherwise stated, once the hard drives are cleared or erased, the information regarding voting that actually occurred at that election is gone forever leaving literally no record whatsoever. Even in 2004 (which was a full three years before the release of the First Generation IPhone) there was readily available technology that would have easily allowed a permanent paper trail of the votes cast on each DRE machine to be created through use of simple technology referred to as a verified paper audit tool, or VVPAT. For reasons that are unclear and will not be speculated upon, the 2004 New Jersey State Legislation for some reason did not initially require that all new DRE Machines purchased also have a VVPAT so as to create a corresponding paper record.

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As such, the new election machines purchased through New Jersey government contracts were indeed DRE voting machines, but all without a VVPAT. Outraged at the fact that there would not be any permanent or verifiable record of election results, in 2004 New Jersey Assemblyman Reed Gusciora and others filed suit against then Governor James McGreevy and the State Election Officials alleging, on a variety of theories, that the States approval of the new DRE voting machines without an accompanying VVPAT violated Title 19 and various constitutional provisions. While the Gusciora court case proceeded, the New Jersey State Legislature on its own without any Court Order shortly thereafter legislatively agreed that there was no valid reason not to require that all the new DRE voting machines that were to be purchased and used in New Jersey Elections be required to have VVPAT technology so that a permanent and verifiable paper record would be created and readily available so that all election results could be memorialized for history and also available to use as a basis for candidates or voters to determine wither to bring an application for a statutory re-count or an application for a statutory election contest (or any other form of lawful challenge) to the results of any election. Therefore, the next year, in 2005, the Legislature enacted, and the Governor approved, a specific legal requirement that after January 1, 2008 any and all DREs were either required to be retrofitted with a VVPAT, and that any new DRE voting machines purchased had to also have a VVPAT, and that after the date of January 1, 2008, it would be illegal for a County Clerk to use any DRE voting machine in any election in New Jersey if the DRE voting machine did not also have a VVPAT. See L. 2005, c. 137. Again for reasons not clear, this mandatory statutory deadline of January 1, 2008 was thereafter extended by the State Legislature, and ultimately in March of 2009 the Legislature indefinitely suspended (until the unspecified time when federal or state funds might be appropriated) the 2004 Legislative requirement that all DRE voting machines have a VVPAT by 2008. See L. 2009, c. 17, now codified at N.J.S.A. 19:481(b)(2) and N.J.S.A. 19:53A-3(i)(2). That was four years ago, and to date, the DRE machines that are being used still have not been replaced or retrofitted with machines that have VVPAT technology. Otherwise states, of the DRE voting machines that are presently used by election officials in the 20 Counties that use these machines the very machines that will be used at the October 16, 2016 Special General Election for United States Senate absent an Order from this Court - will not have the VVPAT technology and will only create a record of the votes cast on the DRE hard drive. The Application of the Attorney General and the 20 County Election Officials in the recently filed case of IMO Application to Recheck the Voting Machines, Docket No. L-2013-13. On September 24, 2013, during the pendency of this action and after they had been served with this case, the Attorney General filed a separate action on behalf of 20 of New Jerseys 21 County Election Officials, In the Matter of the Application to Recheck the Voting Machines to be Used in the October 16, 2013 Special General Election for the Office of United States Senator, Docket No. L-2013-13, filed in the Superior Court of New Jersey, Mercer County, and assigned to your honor. The same day that this new action was filed - September 24, 2013 your honor signed an Order to Show Cause

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returnable on October 9, 2009 at 2:00 p.m. before your honor (exactly one week after the return date in this matter). In support of that application the Attorney General submits a Verified Complaint, no legal brief or memorandum of law, and an Order to Show Cause that was ultimately entered by the Court, a proposed form of Order, and a Civil Case Information Statement. 4 In fact, the only law actually cited in support of this extraordinary request for relief is an incorrect and partial citation to a portion of a statute N.J.S.A. 19:52-6 in a manner that is severely misleading as to what the statute actually says and is cited in part and out of context as to what this Court may even lawfully do. To the point, the Attorney General and the County election officials now suddenly claim to have only recently just realized that they will have to use every single existi ng DRE voting machine in the entire State of New Jersey at the October 16, 2013 Special General Election for United States Senate. 5 Those parties then cite the court to the 15 day mandatory statutory lock down period in N.J.S.A. 19:52-6 which is only one of a host of actual mandatory statutory time frames at issue as to the potential lock down and impoundment of voting machines that may apply to any general election that affect the period of time that voting machines can not be touched or tampered with while a statutory Election Recount, statutory Election Contest, or other lawful challenge to the results of an election proceeds. The Attorney General and the 20 County Election officials propose that they conduct an immediate and free Election Recou nt of the a total of 7,942 separate DRE machines in all 20 Counties, starting on Thursday October 17, 2013 at 12 noon (literally starting the day after the election when the results may not even be known yet) commencing the process in Atlantic County, and ending the process a week later on Tuesday October 22, 2013 in Cape May County. See Schedule A to Verified Complaint. Moreover, they propose that after this free process is completed on Tuesday October 22, 2013, less than a week after the Senate Election, that each of the 7,942 DRE voting machines shall then be released immediately from impoundment so that it may be prepared for the November 5 General Election and that the cartridges for all the voting machines shall be released to the custody of the County Commissioner of Registration, upon the commencement of the recheck, of such cartridges are in the possession of the County Clerk. See Proposed form of Order. In short, otherwise and more accurately described, the Attorney General and 20 County Election Officials are asking this Court to sign an Order, under what they claim is the legal authority delegated to this Court in N.J.S.A. 19:52-6, to interfere with the election process and within 6 days of the casting of the votes at the Special Senate
4

The Civil Case Information Sheet submitted by the Attorney General does not list the within action or the Gusciora v. Christie decision of the Appellate Division of September 16, 2013 requiring an expeditious remand hearing as a related case or proceeding. Moreover, the Attorney Generals Verified Petition does not include the required R. 4:5-1 certification. Both this case and the Gusciora v. Christie case is indeed quite clearly a related case or proceeding to the new filing by the Attorney General within the meaning of Court Rules. As such, plaintiff has filed an amended R. 4:5-1 Certification to reference both cases. 5 This very issue was discussed in length and in detail by DAG Donna Kelly in a lengthy brief submitted to the New Jersey Supreme Court in June 2013 where the Attorney General was opposing a request by another party that the New Jersey Supreme Court hear a challenge to a lower Courts decision rejecting a legal claim that the Special General Election must only be held on November 5, 2013 simultaneous to the Regular General Election. Why this application then was not filed by the Attorney General until literally months later on September 24, 2013 is not known.

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Election and by Court Order authorize immediate and unconditional release from impoundment of all of the 7,942 separate DRE machines all without a VVPAT back to the custody and control of the County Election Officials so that they can then immediately erase the hard drives and thereby erase all actual record of the voting at the October 16 Senate Election so that these same DRE machines and their hard drives can then be reprogrammed and then used at the November 5 statewide General Election. As will be explained, such extraordinary relief is not in any way authorized by the statute relied upon by the Attorney General and 20 County Election Officials ( N.J.S.A. 19:52-6), such extraordinary relief is in fact expressly prohibited by the existence and working or a host of other mandatory applicable statutes in Title 19, and as this is an election for United States Senate, would operate as a clear violation of plaintiffs rights as a candidate for United States Senate as protected by United States Constitutions Article I, Section 4, clause 1, Article I, section 5, and the [Seventeenth Amendment]. Moreover, in light of the recent Appellate Division Ruling in Gusciora from less than 2 weeks ago which is now on remand to your honor, this Court is by practical logic if not by this recent appellate precedent - all but prohibited from even considering the requested relief. The Recent Gusciora v. Christie Appellate Decision and Limited Remand: Less than 2 weeks ago on September 16, 2013 in Gusciora v. Christie, A-56086 10T3 , the New Jersey Superior Court Appellate Division upheld in most parts but in a limited ruling significant to and directly applicable to this case in part reversed now retired Judge Linda Feinberg, A.J.S.C. (your honors predecessor) and remanded the matter requiring an expeditious remand hearing. The portion of Judge Feinbergs prior decision that was reversed was ordered because the three Judges in the Appellate Division directly and without reservation called into question the integrity of any election that uses a DRE without a VVPAT because there are not yet any adequate procedures that have been established and put into place to ensure that the software used in a DRE is in fact properly loaded and properly configured in the hard drive of the DRE by the election officials in the first instance. In short, there are not any procedures in place that guarantee that when a voter actually casts a vote for plaintiff at the October 16, 2013 Senate Election that the DRE software will have been properly installed and that that vote will in fact accurately and correctly be recorded as cast for plaintiff rather than erroneously recorded as vote for some other candidate. This concern about the failings and shortcomings and dangers of the DRE without a VVPAT expressed by the Appellate Division is not conjecture about what could or might happen: It is based upon events that have already happened! DRE machines used in New Jersey elections the same machines that will be used in the Senate election - are already on record as a matter of law as having erroneous ly tabulated votes cast, thereby apportioning votes cast to a different candidate than the voter voted for, which resulted in an election result where the losing party was declared the winner, contrary to the actual will of the voters.
6

The recent Gusciora v. Christie Appellate Division opinion se is expected to be approved for publication, but it has not been so approved as yet. Court Rules require that any unreported case cited must be provided to the Court and all parties. To this end, plaintiff directs the Court and the parties to the following web address where the as yet to be approved for publication opinion is found: http://scholar.google.com/scholar_case?case=11615146553337169370&hl=en&as_sdt=2&as_vis=1&oi=sc holarr

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Specifically, while the Gusciora case was proceeding, there was a separate case in Cumberland County where a candidate named Zirkle was running for county committee from his local election district in a party primary election where a DRE without a VVPAT was being used. In such elections (where the candidate is only on the ballot in 1 election district in 1 town) it is not uncommon at all for less that 40 votes total to be cast in a given election with a person receiving less than 40 votes actually winning. After the election was concluded, Zirkle was listed as receiving only 8 votes and was declared the loser, yet Zirkle knew that he should have received at least 28 votes. Either Zirkles friends and neighbors who all specifically went to the polls to vote for Zirkle were lying to and had voted for someone else, or the DRE was not operating properly. In short, after a court challenge and evaluation of the DRE used, it was discovered that in fact 28 people had indeed voted for Zirkle, and that the software had somehow mysteriously erroneously recorded 20 of those votes more than 2/3 of the votes for another candidate. This error was only able to be discovered due to the unique circumstances of such a small universe of voters participating in an election for a seat on a political partys county committee. However, as roughly 2 out of every 3 votes cast for Zirkle were erroneously recorded for another candidate, has this election been for United States Senate and Zirkle received 900,000 votes, the DRE would have erroneously recorded 300,000 votes for Zirkle and erroneously recorded 600,000 of Zirkles votes for another candidate or candidates! Otherwise stated, the DRE would report the wrong winner, and once the hard drive was erased, without a VVPAT, there would be no record to check to discover this. The will of the people would be violated what at best case scenario can be characterized as a technology glitch. Stunned by this revelation that DRE voting machines are now without question on Court record as erroneously recording votes and actually also erroneously reporting the incorrect person as winning an election, the Appellate Division was moved to state the obvious: In a free society this is intolerable. As stated by the Appellate Division: * * * We express deep concern as a result of the Zirkle litigation, not as to the fallibility of DREs relative to other voting devices, but rather as to the efforts made by the State to minimize the likelihood of error. It is obvious that but for the very limited pool of voters involved in the Zirkle litigation, the human error that lead to completely erroneous election results would never have been detected. In other words, has the election involved 10,000 votes, the fact that the DREs were erroneously programmed would never have been discovered, because it is highly unlikely that a challenger could have been established the results were wrong through affidavits of voters or other proof. Even though the DRE involved in the Zirkle litigation performed as it was programmed to do, the preLAT failed to reveal the programming error. Ironically, Appel spoke to the limits of a pre-LAT during the trial

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before Judge Feinberg. The Zirkle Litigation demonstrates how a pre-LAT performed in an inattentive or otherwise non-thorough manner can result in the wrong candidate winning. Whether a lack of sufficient, mandatory pre-election testing of all DREs without a VVPAT amounts to a violation of Title 19 is a legitimate issue, based on the results of the Zirkle litigation. We do not believe we can exercise our original jurisdiction on the record provided from the Zirkle litigation itself. R. 2:10-5. We are compelled to remand the matter to the Law Division for a further hearing, that shall focus on whether the State has devised and implemented mandatory statewide pre-election testing procedures to provide reasonable assurances that programming errors will not go undetected. We urge the Law Division to conduct its review with due speed, but we leave the conduct of the remand to the sound discretion of the judge. [See Id.] Yet with this decision from the Appellate Division issued on September 16, 2013 directly and publically acknowledging that DRE voting machines without a VVPAT can not be unconditionally trusted for accuracy in any way in light of the inadequate procedures presently in place, exactly eight days later the very same parties and election officials at issue in Gusciora have the literal gall to bring the instant application to ask that they be given Court permission from the same Judge who will handle the remand in Gusciora - to erase the hard drives of 7,942 separate DRE machines in 20 Counties less than 7 days after the Senate Election, and thereby erase all and the only evidence of the votes cast at the October 16, 2013 Senate Election. Indeed, in light of the Gusciora decision, it appears that the Court probably is required to sua sponte enjoin the use of DRE voting machine without a VVPAT to even be used in any election until such time as the Court concludes the remand review required (with due speed) and is the Court satisfied that adequate safety measures have truly been put into place to make sure that the Zirkle circumstances are not repeated. The fact of the matter is that the October 16, 2013 Special Election for United States Senate is not a one day technical ratification process where the people will merely ratify a candidate anointed by certain political party bosses, a mere inconvenience to the election officials to get out of the way, so that they can move on to the election that matters. Perhaps this is not really the institutional attitude, but it certainly seems to be. There are eight candidates for United States Senate in a State with a census population approaching 9 million people. It was no small task for each of the eight candidates to have met the statutory requirements to achieve access as a candidate on the ballot. And any one of the eight candidates has an equal statistical chance of winning the election under the unusual circumstances extant, no matter what the remains of the so called

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main stream media, or no matter what polls (each of which was limited to asking questions about only 2 of the 8 candidates) may purport to indicate. There are millions of unaffiliated voters who are eligible to participate and vote at the October 16, 2013 Special General Election for United States Senate. The actual real vote registration numbers, and the actual real numbers of participation in the political party primaries and the candidates who were supported, and what level of support they received - indicate something quite different to the learned eye. Without disclosing campaign strategy, that is all that will be said here by plaintiff. In any event this is an election process that started with issuance of the Governors Writ of Election on June 4, 2013 and will not necessarily end and conclude on the evening of October 16, 2013. It is not known who will win the election, what the actual voter turn out will be, and whether after the election is over whether any statutory Election Recounts will be demanded by any candidates - or by any group of 10 voters as is expressly allowed by N.J.S.A. 19:21-1 et seq., or whether any candidate will file a statutory Election Contest as is expressly allowed by N.J.S.A. 19:29-1 et seq. Despite what the Attorney General and the 20 County Election officials may desire, the simple fact of law and reality is that this Court may not grant the relief requested in the IMO Application to Recheck the Voting Machines case because to do so would not only destroy the very evidence of the election that Gusciora says must be preserved since there is no VVPAT and a DRE without a VVPAT can not be trusted, but to do so would directly violate the specific enumerated statutory rights guaranteed to all candidates and guaranteed to all voters independent of any rights of a candidate to demand an Election Recount (or to thereafter Contest the results of any Election Recount once announced) and would also directly violate the specific statutory rights guaranteed to all candidates to bring an Election Contest. The application ignores the reality of the election process, which may not actually conclude and which may require impoundment of the machines used - for literally months after the actual October 16, 2013 Senate Election date. The Statutory Requirements of Locking the Voting Machine, Counting the Votes, Locking the Counter Compartment Door, and Impounding the Machines for an Initial Minimum of 15 days: N.J.S.A. 19:52-5 provides in relevant part that: Immediately upon the close of the polls, the district election officers shall lock and seal the voting machines against further voting and open the counter compartment in the presence of persons who may be lawfully present at that time, giving full view of the counters. * * * After the reading and announcing of the vote and before the doors of the counter compartment of the voting machine shall be closed, ample opportunity shall be given to any person or persons lawfully present to compare the results so announced with the counters of the machine and any necessary corrections shall then and there be made by the district board.

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[N.J.S.A. 19:52-5]. Once a voting machine has been locked so that no more votes can be cast, and after the votes have been counted and recorded (and re-checked by the election officials if necessary), the elections officials are required to close the counter compartment door and then the election officials are then specifically required by statute to now at this point in the process to also lock the counter compartment door. See N.J.S.A. 19:52-6 (as to statutory mandate that the counter compartment door be locked.) Once the counter compartment door is locked, the voting machines are collected and brought back from each local election district to a central location in each County where all machines are stored together at the same location. Then and there begins a statutory minimum mandatory 15 day lock down period during which time the counter compartment door on each and every voting machine use d is required to remain locked and closed and shall not be opened for at least 15 days. With a Senate Election of Wednesday October 16, 2013, the statutory mandatory 15 day lock out period will run through Thursday October 31, 2013, meaning that the earliest that any machines that are used in the Senate Elections can be unlocked is Friday November 1, 2013. The day after the election, or from the time that a winner is declared, the time frame starts to run for any candidate - or any 10 voters - to formally demand a statutory Election Recount of all or some (if only a Partial Election Recount is requested) of the results of the voting machines use in the election. See N.J.S.A. 19:21-1 et seq. (as to procedures for demanding statutory Election Recounts). By statute, a candidate - or any 10 voters - has until on or before the second Saturday after the election to file a petition with the Superior Court in the County where the voting machine or machines being challenged are located. With a Senate Election on Wednesday October 16, 2016, the first Saturday following is October 19 and the second Saturday following is October 26, meaning that any candidate - or any 10 voters has until close of business on Friday October 25, 2013 to file a demand for an Election Recount. Moreover, once an initial Election Recount has been conducted and concluded, the candidates and voting public are not required to blindly accept the results as accurate and final. Rather, from the day that the results of the Election Recount are formally announced (however th e announcement may actually occur), any candidate or any 10 voters then has an additional 10 days to file a formal Challenge to the results as announced in the Election Recount. Therefore, for example, if an Election Recount is demanded by a candidate or by ten voters with the filing of a petition demanding an Election Recount on Friday October 25, 2013 at 4:15 p.m., even if the actual Recount can be Ordered by the Court, all parties noticed and given a reasonable opportunity to appear and attend, and even if the actual Election Recount is then concluded by midnight on Monday October 28, 2013, each candidate or any 10 voters still has 10 days from that day to file a petition Contesting the announced results of the Election Recount, or with this example, until Thursday November 7, 2013, or 2 days after the Tuesday November 5, 2013 General Election will have already occurred. Even were the Court to grant the Attorney Generals bizarre reques t (and plaintiff does not believe the Court has legal or State or Federal Constitutional or equitable authority whatsoever to do so) the proposed schedule for an Election Recount brought

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forward by the Attorney General and the 20 County Election Officials would end with Cape May on October 22, 2013. Any candidate would then have 10 days or until close of business on Friday November 1, 2013 to challenge the results of the Cape May Election Recount by filing an action in the Superior Court of New Jersey in Cape May County. How long it might take the Superior Court there to resolve that statutory challenge to the Election Recount is not clear, as there are a myriad of unknown and unforeseen factors or issues that may arise. In any event, the fact is that with this one example, the earliest that the Cape May voting machines would be available to be opened would be well after the November 5, 2013 General Election had already taken place. It also must be remembered that this is a Statewide Election, so it is also not at all clear whether the 10 day challenge period to bring a statutory contest any Election Recount would or should begin to run for all 21 Counties only after Cape May has completed their Election Recount on October 22, 2013, or whether there would be different dates when the 10 day time period would begin to run relative to when a County completes their individual Countywide Election Recount. This is not really a question that needs to be contemplated or seriously considered, because plaintiff only notes this as cumulative to the many reasons to recognize what by this point should be obvious to the reader: As a practical matter, it must be recognized that it will simply be impossible to use the same exact voting machines in both elections without violating a host of long existing mandatory statutory laws. And it does not end here because an Election Recount is not the only statutory right at issue that this Court may not interfere with. Separate and distinct from the issue of the statutory right of any candidate - or of any 10 voters to petition the Superior Court in a given County to Order an Election Recount (and then for another candidate - or another 10 voters - to statutorily contest the results of that Election Recount) there is the collateral and directly related but technically separate statutory right of any candidate to file an Election Contest pursuant to N.J.S.A. 19:29-1 et seq. An Election Contest can be brought based upon a variety of reasons for contesting the results of an election, some of which reasons may involve voting machines (ie. as in the Zirkle case), some of which may not. An election contest can be brought as of statutory right at any time within 30 days after an election (and even thereafter is sufficient reason) and an Order administering an Election Contest will most certainly require that all voting machines be impounded until the Election Contest is completed. Certainly in almost any possible circumstance any machine ordered impounded can not be used again until the Election Contest has been completed, which may be weeks if not months. Moreover, this is an election for United States Senate. Each candidate retains a separate Federal Constitutional Right to bring a challenge to any election to the full body of the United States Senate itself, outside the State of Federal Judicial systems, by filing a Petition Contesting a Senate Election with the Secretary of the United States Senate. In this regard, the United States Constitutions Article I, S ection 5 provides that in part that Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do business. This Constitutional Provision expressly vests jurisdiction with the Senate itself to inquire into the legality and validity of any election challenged. Such legal challenges are not as rare as one might think, the most recent Petition to a Senate election being filed in 2008 when Norman Coleman, an incumbent Senator from Minnesota, formally challenged in the

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Senate the validity of the election of then challenger (now incumbent) Al Franken. Under such circumstances it is all but routine that when such a challenge is brought that any voting machines are impounded for the full duration of the challenge. 7 If the data on the only evidence of voting the hard drive on all 7,942 separate DRE machines in all 20 Counties - is destroyed within 6 days of the election itself (and in clear violation of State Election Laws) such early destruction would most certainly be viewed as a violation of the United States Constitutions Article I, Section 5, as well as Article I, Section 4, clause 1 (the Elections Clause), and the [Seventeenth Amendment]. 8 As a practical matter, the October 16, 2013 Special Senate Election will most certainly have to be held using exclusively paper ballots in all election districts in New Jersey. Conclusion: For the foregoing reasons and reasons cited in support thereof, it is respectfully requested that the Court grant the following relief: (1) An Order declaring that defendant Steven M. Lonegan is not entitled to a separate political party column on the 16, 2013 Special General Election for United States Senate; An Order declaring null and void the Clerks drawing for any and all ballot positions for the October 16, 2013 Special General Election for United States Senate which Clerks drawing was held in each of the 21 Counties on August 22, 2013 at 10:00 a.m.; An Order directing that the name of defendant Steven M. Lonegan shall appear in the column designated Nomination by Petition with the slogan Republican printed under his name in such line in the column as is determined in a drawing among all candidates except candidate Corey Booker whose name shall be placed alone in Column 1 (or A) designated Democrat, and Line 1 (or A) in each of the 21 Counties; An Order appointing a Special Master; An Order directing that the Special Master shall oversee and/or conduct an immediate drawing on such terms are objective and fair for ballot position so as to determine the location where the name of each candidate will appear on

(2)

(3)

(4) (5)

New Jersey has already once had a Senator expelled from the United States Senate after such a Constitutional Petition Challenging a Senators Election was filed and ruled on by the full Senate, though this occurred prior to the ratification of the [Seventeenth Amendment]. Specifically, on March 4, 1865 John P. Stockton was issued credentials from the State of New Jersey confirming his election to the United States Senate. Stocktons election was immediately challenged by a Petition filed with the Secretary of the United States Senate. A year later, after full albeit bitter partisan inquiry of the facts, on March 27, 1866, Stockton was expelled from the Senate by a vote of 23 to 20 as having not been validly elected. See United States Senate Election, Expulsion, and Censure Cases, 1793 -1990, by Anne M. Butler and Wendy Wolff, reprinted in Senate Document 103-55, Government Printing Office, Washington: 1995. 8 If the Court grants the Attorney Generals request t o destroy United States election records plaintiff will likely not seek relief on appeal in the New Jersey State Court System but rather will immediately have no choice but to file a petition and seek an injunction order from the Untied States Senate itself. And under the unusual facts extant in this case, plaintiff is confident that such relief will most assuredly be swiftly granted.

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(6)

(7)

(8)

(9)

(10)

the October 16, 2013 Special General Election Ballot for United States Senate in accordance with the standards and procedures as otherwise directed herein; An Order declaring and directing that the Special Master shall oversee and have final authority to make decisions regarding the immediate preparation and printing of (a) paper ballots and (b) sample ballots both in amounts sufficient to be used exclusively for all voting at all polling locations in all 21 Counties at the October 13, 2013 Special General Election for United States Senate; An Order in accordance with the recent observations of the Appellate Division in Gusciora v. Christie, A-5608-10T3, and in light of the fact that the Court has not yet had opportunity to hold and complete the remand hearing required by such case so as to determine whether there are now adequate procedures in place to ensure that the DRE voting machines without VVPAT are properly programmed so as to be safe to use in an election, specifically declaring and directing that paper ballots shall be exclusively used at the October 16, 2013 Special General Election for the United States Senate at all polling locations, and that no DRE voting machines shall be allowed to be used at the October 16, 2013 Special General Election for United States Senate; and An Order further directing that the Special Master shall immediately put into place reasonable and expedited procedures for using paper ballots at all polling locations and mailing the sample ballots by working in conjunction with the 21 County Clerks or other County Election Officials as is necessary, with the Special Master having final authority to make all decisions in the event of disagreement; An Order directing that the Application of the Attorney General and the 20 County Election Officials in IMO Application to Recheck the Voting Machines is hereby dismissed as moot; and An Order fixing a time to conclude the remand hearing in Gusciora v. Christie, A-5608-10T3 so that if the Court is convinced that adequate protections can or have now been put into place by Election Officials in time for the November 5, 2013 General Election, that the DRE voting machines, specifically barred from use at the October 16, 2016 Special General Election for United States Senate, can perhaps still be used at the November 5, 2013 General Election.

Respectfully submitted,

Eugene Martin LaVergne Democratic-Republican for United States Senate 543 Cedar Avenue West Long Branch, New Jersey 07764 Telephone: (732) 272-1776 Plaintiff Pro Se

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EML:ms Enclosure (Amended R. 4:5-1 Certification) cc: All Parties or Counsel

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