stein v. mcgettigan brief and a-c

7/27/2019 Stein v. McGettigan Brief and a-c

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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 defendant’s 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

defendant’s “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

(2) 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

plaintiff’s 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

(3) 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 plaintiff’s rights to political speech and association as guaranteed by

the First Amendment to the United States Constitution (madeapplicable 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).

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 Jersey’s 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 filedthis case on July 15, 2013, after the political party’s primary elections, after the Secretary

of State’s 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. 19:14-

12, and a full month before the actual N.J.S.A. 19:14-12 “Clerk’s 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 apartial 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.



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location treatment” afforded the statutory political parties in N.J.S.A. 19:14-

12.

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 creatin g, within the meaning of this Ti tle,

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 Certif ication of



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Politi cal Parties i s attached at “Exhi bit A”, the contents of which this

Court is required to take Judicial N otice 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. 19:12-

1 i s 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 candidate’s 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 hiscounty 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 candidatesnominated by petitions for all offices, shall have

upon the general election ballot, shall bedetermined 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 candidate’s 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 theState, 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, shal l be entitled to have a party column on the official

ballot at the general election for which the

primary election h as been held. I n such case the

names of the candidates so nominated at the

primary election shall be pri nted in th e column or

columns noted “Nomination by Petition” on the

official ballot under the respective titles of office

for which the nominations have been made,

fol lowed by the designation of the poli tical 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

El ection Tur n Out –Jun e 4, 2013” issued on J uly 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 plaintiff’s 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. See Democratic-Republican Organization of New Jeresy v.

2The 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 theDivision of Elections, which are provided at “Exhibit A” and “Exhibit B”, and which thisCourt 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 thereto 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.



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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 Court’s 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 th e preli minary in junction phase befor e evidence had

been taken , stating as follows:

* * *

Having considered the record on appeal and

the decision of the District Court, we affirmsubstantially 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 Courtrecognized that New Jersey’s interest in maintaining

a manageable ballot sufficiently justified its

statutory scheme. Additionally, it concluded that

Plaintiffs failed to establish that prohibiting themfrom referencing the names of New Jersey’s

political parties in their ballot slogan impermissibly burdened their First Amendment rights, and that the

State’s 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

prelimi nary in junction phase befor e 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 dif ference , 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 year’s Democratic-

Republican 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 party’s

primary elections, after the Secretary of State’s 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.

19:14-12, and a full month before the actual N.J.S.A. 19:14-12 “Clerk’s

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. 19:5-

1 is unconstitutional.

Respectfully submitted,



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Gary Stein, Pro Se

Candidate forNew Jersey General Assembly

Legislative District 2

cc: Edward McGettigan, County Clerk

(c/o Atlantic County Counsel)



Exhibit A



Exhibit B



Exhibit C

stein v. mcgettigan brief and a-c

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