STATEMENT OF FACTS AND PROCEDURAL HISTORY:

This matter was initially filed as an emergent election case brought

against uncontested facts that squarely raised a specific and clearly defined
legal question as to whether the 21 County Clerks and the New Jersey
Secretary of State, the New Jersey statutory election officials who configure
election ballots in accordance with State law and otherwise administer
elections, were lawfully administering the November 4, 2014 Regular and
Special Federal General Elections and the contemporaneously held elections
for various New Jersey State statutory county and local municipal offices in
accordance with certain mandatory election laws enacted by the State
Legislature. More specifically, this case is the latest direct legal challenge to
the initial correctness, the sustaining legal correctness and validity over time,
and alternatively to the Constitutionality of, the August 27, 1999 Emergent
Appellate Order of the 2 Judge Appellate Court Panel (Honorable Stephen
Kleiner, J.A.D. and Honorable Marvin Braithwaite, J.A.D.) (Pa-99 to Pa100) and the subsequently issued written Opinion of Appellate Judges
Kleiner and Braithwaite (reported at 324 N.J. Super. 451 (App. Div. 1999))
wherein Judges Kleiner and Braithwaite heard emergent telephonic oral
argument and then summarily overruled the August 23, 1999 Order and

August 23, 1999 written Opinion (unpublished)1 of the Honorable Clarkson

Fisher, Jr., P.J.Ch. (Pa-73 to Pa-97) where Judge Fisher interpreted the plain
and clear statutory language in N.J.S.A. 19:5-1 as mandating that only the
votes cast at a political partys primary election for candidates running for
the office of General Assembly (to the exclusion of all other votes cast for
other offices on the political party primary election ballot) may lawfully be
counted by State election officials when calculating the 10% threshold in
N.J.S.A. 19:5-1, the meeting of which is an express and mandatory
precondition that must be met by a political party for a political partys
candidates to be statutorily entitled to the ballot location benefit and
For reasons not clear, back in 1999 the New Jersey Supreme Court
Committee on Opinions did not approve Judge Fishers August 23, 1999
written Opinion for publication, but did then in fact approve the written
Opinion of Appellate Judges Kleiner and Braithwaite (which written
Opinion was actually issued approximately a week after their August 27,
1999 Emergent Appellate Order), now reported at 324 N.J. Super. 451 (App.
Div. 1999). After the New Jersey Supreme Court declined to grant leave to
appeal (with only Associate Justice Virginia Long, her first day on the
Supreme Court, voting to grant leave to appeal), and later with the case on
remand to Judge Fisher from the Appellate Division, Judge Fisher issued a
subsequent written Opinion on an unrelated legal issue which written
Opinion was approved for publication by the New Jersey Supreme Court
Committee on Opinions. See 332 N.J. Super. 278 (Ch. Div. 1999). The
Committees failure to approve for publication and the Committees failure
to publish Judge Fishers October 23, 1999 written Opinion leaves an
incomplete and largely distorted and inaccurate public history of the
1999 New Jersey Conservative Party case in the official published Court
record. Since Appellants are specifically relying upon Judge Fishers
unpublished opinion, a copy of same is being provided to this Appellate
Court with this Joint Merits Brief as required by Court Rules, and is found in
VOLUME I of the Appendix at (Pa-73 to Pa-97).
1

preference otherwise provided to the candidates of a political party by

application of N.J.S.A. 19:14-12. The facts were and to this day are not
in dispute.
Plaintiffs-Appellants / Petitioners (hereinafter referred to in this Brief
simply as Appellants), a political organization, its Federal and State
candidates, and voters who support such political organization and the
political organizations candidates, initially filed this emergent election
action on August 14, 2014 in the Law Division under the authority of
N.J.S.A. 2A:16-51 et seq. (the New Jersey Declaratory Judgments Act) and
42 U.S.C. sec. 1983 by way of Verified Complaint and Order to Show Cause
seeking to proceed in a summary manner to final declaration and final
judgment on the return date of the Order to Show Cause. (See Verified
Complaint with Exhibits at Pa-4 through Pa-110). At no time did Appellants
ever apply for or temporary relief.2

Notwithstanding the fact that this time

sensitive election case was first filed on August 14, 2014, there was an initial
In the Law Division Appellants specifically moved for FINAL
Declaratory Judgment by way of requesting permission to proceed in a
summary manner and contemporaneously moving for FINAL Judgment by
way of a motion for Summary Judgment. After permission was granted for
the filing of Emergent Appellate Motions, Appellants again specifically
moved for FINAL Declaratory Judgment by way of requesting permission to
proceed in a summary manner and contemporaneously moving for FINAL
Judgment by way of a motion for Summary Judgment. This was done
intentionally by Appellants specifically because of the differing standards of
review that are required to be applied by a Court (Trial or Appellate) at the
preliminary versus the final stage of litigation.
2

delay of a week before the Order to Show Cause was even signed because
the case was originally assigned to the Honorable Mark J. Fleming, J.S.C.
As circumstances are, in 1999 Judge Fleming was employed as an Assistant
Attorney General in the Office of the New Jersey Attorney Generals Office,
and was counsel of record with several other attorneys in the New Jersey
Conservative Party v. Farmer case which is being directly challenged in this
action. It was assumed that the initial assignment of this case to Judge
Fleming was inadvertent, but nevertheless, upon being advised that the
matter had been assigned to Judge Fleming, and based on Judge Flemings
prior appearance as one of the counsel of record for the State in the 1999
New Jersey Conservative Party v. Farmer case, on August 15, 2104 a
formal written request was made that Judge Fleming voluntarily sua sponte
recuse himself from hearing this case without necessity of a formal motion
being filed. (Pa-111 to Pa-125)

Judge Fleming in fact voluntarily sua

sponte recused himself from hearing this case, confirming same in a letter
dated August 19, 2014. (Pa-126).
Finally, a week after the emergent election case was first filed, the
Honorable Mary C. Jacobson, A.J.S.C. entered an Order to Show Cause in
the form as requested, fixed a service and briefing schedule, and made the
matter returnable September 10, 2014. (Pa-127 to Pa-141). Thereafter the

named Defendants and Interested Parties were all served forthwith, and the
necessary proofs of service were filed with the Clerk in the Law Division.
On August 21, 2014 the New Jersey Attorney General, representing
Secretary of State Kim Guadagno, responded to the Order to Show Cause by
filing a formal Notice of Motion to Transfer the Verified Complaint to the
Appellate Division under R. 1:13-4 or alternatively to dismiss the Verified
Complaint for claimed lack of jurisdiction in the Law Division. (Pa-142 to
Pa-145). Specifically, the Attorney Generals contention was that the 21
County Clerks had acted on August 11, 2014 and conferred political party
columns and held a drawing for the statutory political parties under
N.J.S.A. 19:14-12 in furtherance of the Department of State Certification
of Party Column (Pa-3) that has been issued by the Secretary of State
ostensibly under the authority of N.J.S.A. 19:5-1. The Attorney General
Claimed that this case was really a challenge to final agency action, the
August 8, 2014 Department of State Certification of Party Column, and
that as such the proper jurisdiction in the first instance was with the
Appellate Division under R. 2:2-3. This position was taken despite the
undisputed historical fact stipulated to by Assistant Attorney General
Donna Kelly on the record on September 10, 2014 - that the August 8, 2014
Department of State Certification of Party Column issued by Secretary
of State Guadagno which was claimed to be final agency action, was as a
5

matter of history the first ever such certification ever issued by the
Secretary of State or by any other State Election Officer in the 84 years
since N.J.S.A. 19:5-1 was first enacted in 1930.3
The matter was fully briefed and ready for substantive argument in the
Law Division on September 10, 2010 on the pivotal issue of exactly what
votes are counted when determining whether a statutory political party has
met the 10% caveat of N.J.S.A. 19:5-1, and whether the statutory political
parties had met such threshold at the June 3, 2014 Political Party Primary
Elections. It was and is undisputed as a matter of historical fact that not a
single vote was cast for any candidate seeking the public elective office of
Appellant Eugene Martin LaVergne believed that this Department of
State Certification of Party Column was the first time ever that the
Secretary of State had issued such a certification and that this document
was in fact created and issued in contemplation of this expected legal
challenge, so as to manufacture a legal argument for transfer to the Appellate
Division, and to delay a court of competent jurisdiction from timely deciding
the substantive merits of the true legal meaning and application of N.J.S.A.
19:5-1. As such, on September 5, 2014 a Notice in Lieu of Subpoena Ad
Testificandum and Duces Tecum was served on Secretary of State Guadagno
through the Attorney Generals Office demanding production of any other
Department of State Certification of Party Column that had been issued
in the last 84 years. (Pa-145 to Pa-146). The Attorney General moved to
quash the Notice in Lieu of Subpoena Ad Testificandum and Duces Tecum
(Pa-147-148) which was opposed by Appellant Pro Se Eugene Martin
LaVergne. On September 10, 2014 the Notice in Lieu of Subpoena Ad
Testificandum and Duces Tecum was voluntarily withdrawn on the record
after Donna Kelly, Assistant Attorney General, was forced to concede as fact
that there were no such other documents, and that the August 8, 2014
Department of State Certification of Party Column was indeed the first
such a document ever issued.
3

Member of the New Jersey General Assembly at the June 3, 2014 Political
Party Primary Elections.
The Appellants all contend that the State and County Election
Officials had (once again) misapplied the 10% caveat in N.J.S.A. 19:5-1 and
illegally allowed the Republican and Democratic candidates statutory ballot
preference location under N.J.S.A. 19:14-12. The Election Officials did so
purportedly relying upon the 1999 2 Judge Appellate Court (Braithwaite and
Kleiner) Emergent Telephonic Ruling in New Jersey Conservative Party v.
Farmer, 324 N.J. Super. 451 (App. Div. 1999) which decision summarily
overruled the 4 day earlier decision of the Trial Court, the Honorable
Clarkson Fisher, P.J.Ch. (who is now sitting in the Appellate Division)
where, in 1999, Judge Fisher considered the entire statutory scheme and the
10% caveat in N.J.S.A. 19:5-1 and Appellants contend correctly - ruled as
follows:
A fair reading of our election laws, for the reasons
expressed above, leads to the interpretation urged
by plaintiffs. That is, the court finds that the
threshold of N.J.S.A. 19:5-1 is met by the number
of primary votes cast for candidates for the
General Assembly only. (Emphasis added).
[See August 23, 1999 unpublished Trial Court opinion at Pa-73 through Pa97, quoted passage found at Pa-91].
The Emergent telephonic decision by the 2 Judge Appellate Court in
New Jersey Conservative Party v. Farmer summarily reversing Judge Fisher
7

regarding what Primary Election votes are counted by Election Officials

when calculating the N.J.S.A. 19:5-1 10% caveat was and is incorrect and
directly counter to the clear directives of the statutory scheme generally and
counter to the clear directives of N.J.S.A. 19:5-1 specifically, and was
directly counter to (what is now, and has been since 2004) the unambiguous
and controlling Supreme Court dictum in Richardson v. Caputo, 46 N.J. 3,
10 (1965), which just like Judge Fisher did on August 23, 1999 interprets
N.J.S.A. 19:5-1 as only including the votes cast for the office of General
Assembly at the Political Party Primary Elections , and was directly
counter to the interpretation of the 1978 Legislature which, in the Official
Legislative Commentary to a new proposed Title 19A to replace the (still)
existing Title 19, said the following with regard to the new proposed
N.J.S.A. 19A:5-1 which would replace the existing N.J.S.A. 19:5-1:
***
19A:5-1.
This section reduces the
percentage of the General Assembly Vote
necessary for party columns on the official
ballot from 10 percent to five percent. It
also substitutes no political group or
organization for no political party.
[See Commentary on Proposed Title 19A, Assembly Bill Number 744, 1978:
A Report to the Assembly State Government, and Federal and State
Interstate Relations and Veterans Affairs Committee, Prepared by the Staff
of the New Jersey Division of Legislative Information and Research,
November 21, 1978 (original on file at the New Jersey State Library under
call number: 974.90, E38, 1978c), copy of relevant pages found at Pa-107
though 108].
8

Appellants contend that, just as Judge Fisher found to be the case on

August 23, 1999, that under the statutory scheme, only votes cast for
candidates seeking the Office of General Assembly at the June 3, 2014
Political Party Primary Elections may be counted toward a statutory
political party meeting the 10% conditional caveat threshold in N.J.S.A.
19:5-1, and since as a matter of undisputed historical fact not a single such
vote was cast, neither the Democratic nor Republican parties met the 10%
conditional caveat threshold. The law is clear as to what election officials
are required to do when a statutory political party fails to meet the 10%
conditional caveat threshold in N.J.S.A. 19:5-1, because the statute itself
states in relevant part as follows:
* * * In such case the names of the candidates
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].
Statutory use of the word shall in N.J.S.A. 19:5-1 as noted denotes
the imperative and mandatory, whereas the use of the word may in a
statute (not used in N.J.S.A. 19:5-1) denotes the permissive and directory.
9

Animal Rights, Inc. v. Mahwah Township, 138 N.J. Super. (Law Div. 1995),
affd 148 N.J. Super. 249 (App. Div. 1977), certif. denied 75 N.J. 25 (1977).
Appellants contend and the plain wording of N.J.S.A. 19:5-1 certainly bear
out that what is at issue in this case is a violation a specific mandatory
New Jersey State election statute N.J.S.A. 19:5-1 - which governs and
mandates certain substantive actions that are specifically required to be
followed by the referenced election officials when administering the
November 4, 2014 Regular and Special General Elections in the event that
the 10% conditional caveat in N.J.S.A. 19:5-1 is not met. In this regard, the
fact that what is at issue is a mandatory New Jersey State Election statute
made this case particularly time sensitive because the legal remedy that any
Court of competent jurisdiction is required to Order, in the event that
Appellants are ultimately ruled to be correct after the November 4, 2014
Regular and Special General Elections have occurred, will be mandatory
judicial invalidation of such elections and an Order that completely new and
lawful elections be administered in compliance with the existing and plainly
worded mandatory New Jersey State election statutes forthwith. See In re:
Smock, 5 N.J. Super. 495, 501 (Law Div. 1949) ( Obviously not every
infraction of the election laws will invalidate the contest. There is a settled
distinction between violations of directory, as distinguished from mandatory,
provisions of the law.); In re: Matter of Petition of Byron, 165 N.J. Super.
10

468, 474 (Law. Div. 1978), affd 170 N.J. Super. 410 (App. Div. 1979),
certif. denied 82 N.J. 280 (1979) ( If the section is characterized as one
that is mandatory in nature, the ballot or election will be overturned ; if the
section is characterized as one that is directory in nature, the ballot or
election will be upheld. (Emphasis added)). Otherwise stated, the holding
of the Regular and Special General Elections before deciding the substantive
merits of the challenge of Appellants / Petitioners as brought herein will not
in any way moot this case, and inevitably could and Appellants contend
should result in a mandatory Court Order invalidating the entirety of the
November 4, 2014 elections and requiring the holding of new elections.
Against this factual and legal and time sensitive background the
parties appeared on the return date of the Order to Show Cause on
September 10, 2014, a month after the case was first filed.4

Nevertheless,

Judge Jacobson ruled that the action should under the totality of all of the
circumstances - be heard in the first instance by the Appellate Division, and
the Court transferred the case to the Appellate Division pursuant to R. 1:13-4
While each case is fact sensitive, it is worth noting that like here, New
Jersey Democratic Party, Inc. v. Samson, 175 N.J. 172 (2002) (October 3,
2002 interim Order) and 175 N.J. 178 (2002) (October 8, 2002 written
opinion) was a time sensitive election case where the office of United States
Senate was on the ballot. That case was not filed until September 30, 2002,
and yet was heard and decided by the New Jersey Supreme Court directly on
October 3, 2002 within 3 days.
4

11

by Order dated September 10, 2014 which Order also directed the Law
Division Clerk to immediately transmit the file to the Appellate Clerks
Office. (Pa-149 through Pa-150).
With the case and Appellants legal challenge now formally
transferred from the Law Division to the Appellate Division, on September
12, 2014 Appellants filed a Joint Application for Permission to file Emergent
Motions with the Appellate Clerks Office. (Pa-151 through Pa-162).
Five days later on September 17, 2014 the Honorable Jerome St. John,
J.A.D. entered a Disposition Order on the Joint Application for Permission
to file Emergent Motions. (Pa-163) The Disposition Order permitted the
filing of Emergent Motions as requested, directed that a Notice of Appeal
and Case Information be filed (notwithstanding the Order of Transfer),
directed that briefs be filed on the issue of jurisdiction only, and effectively
extended the emergent review time frame until at least September 26, 2014
for all papers to be filed by all parties. Appellants filed their papers as
directed, including a Joint Notice of Emergent Motions (Pa-164), Joint
Notice of Appeal (Pa-175 through 193) and Joint Case Information
Statement (Pa-194 through Pa-210).
Five days later, Judge St. John issued a further Emergent Order
denying the request of Appellants to be allowed to proceed on the briefs as
filed below in the Law Division and directing that formal Appellate briefs be
12

filed by Appellants by October 3, 2014, with any opposition due on October

6, 2014. (Pa-211 through Pa-212). In pursuance of the October 3, 2014
Emergent Appellate Order, the matter was thereafter fully Appellate
briefed by the Appellants and the briefs were timely served on all parties.
There was and is no issue of this Appellate Courts Jurisdiction,
and Judges St. John and Rothstadt and this Appellate Court are not required
to follow the incorrect decision of New Jersey Conservative Party v. Farmer,
324 N.J. Super. 451 (App. Div. 1999). Appellants contend that New Jersey
Conservative Party v. Farmer is not good law, and that this Court must say
so and enforce the law as written and enacted and as intended by the
Legislature in 1930, and must do so in time for the General Election Ballots
to be brought in conformance with law, because the failure to do so if
Appellants were correct would require invalidating the entirety of the
November 4, 2014 Elections as having been administered and conducted in
violation of New Jersey State Election Law, and the results will therefore be
invalid as a violation of the United States Constitutions Article I Elections
Clause, and the First, Fourteenth and Seventeenth Amendments to the
United States Constitution.
On October 10, 2014, without hearing oral argument, Judges St. John
and Rothstadt treated Appellants Emergent Application for FINAL
injunctive relief as an Emergent Application for TEMPORARY injunctive
13

relief (a motion that Appellants intentionally never actually filed, see

footnote 2, supra. and footnote 16, infra.), and applied the legal standards
applicable at the PRELIMINARY stage for TEMPORARY injunctive relief
and therefore denied the Appellants Emergent motions, 5 thereby allowing
the appeal and Appellants legal challenge to otherwise proceed in due
course to FINAL review, whenever that may occur. (Pa-213 to Pa-214)

In this regard, it is important to note that on August 12, 1999 Judge

Fisher applying the well known legal standards applicable to a request for
a Temporary Preliminary Injunction denied the New Jersey Conservative
Partys application for a TRO. Then, eleven days later, applying the
appropriate standard at the Final Injunction phase, Judge Fisher ruled in
favor of the New Jersey Conservative Party and entered a Final Injunction.
The results in this case should mirror such earlier procedure.
5

14

LEGAL ARGUMENT:
POINT I:
The Ballot Preference Statute, N.J.S.A. 19:14-2, does not apply to the
November 4, 2014 Regular General Election Because neither of the
statutory political parties have satisfied the 10% Threshold in
N.J.S.A. 19:5-1, or alternatively N.J.S.A. 19:5-1 is Unconstitutional, and
as such defendant Guadagnos August 8, 2014 Certification is invalid
and illegal and any drawing conducted by the defendant Clerks, and the
results of any election, are both void ab initio:
A.

The Plain Language and Simple Application of the Ballot

Preference Statutory Scheme:
In New Jersey, ballot location of a candidates name is governed by

N.J.S.A. 19:14-12, which provides in relevant part as follows:

The county clerk shall draw lots in his
county to determine which columns the political
parties which made nominations at the next
preceding primary election shall occupy on the
ballot in the county. The name of the party first
drawn shall occupy in the first column at the left of
the ballot, and the name of the party next drawn
shall occupy the second column, and so forth.
The position which the names of candidates,
and bracketed groups of names of candidates
nominated by petitions for all offices, shall have
upon the general election ballot, shall be
determined by the county clerks in the respective
counties. * * *
[N.J.S.A. 19:14-12].
Each of the 21 County Clerks all draw first for the best and most
preferred and most advantageous top two Ballot positions between the
15

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. All other candidates who have obtained
access to the General Election Ballot through the Nomination by Petition
process are then placed in the same identical column as to the office sought,
with slogan printed below the candidates name, with location within the
Nomination by Petition column determined by a separate drawing.
However, N.J.S.A. 19:5-1 reads as follows:
A political party may nominate candidates for
public office at primary elections provided for in
this Title, elect committees for the party within the
State, County or Municipality, as the case may be,
and in every other respect may exercise the rights
and shall be subject to the restrictions herein
provided for political parties; except that no
political party which fails to poll at any primary
election for a general election at least ten per
centum (10%) of the votes cast in the State for
members of the General Assembly at the next
preceding general election, held for the election
of all the members of the General Assembly, shall
be entitled to have a party column on the official
ballot at the general election for which the
primary election has been held. In such case the
names of the candidates so nominated at the
primary election shall be printed in the column or
columns noted Nomination by Petition on the
official ballot under the respective titles of office
for which the nominations have been made,
followed by the designation of the political part of
16

which the candidates are members.

added).

(Emphasis

[N.J.S.A. 19:5-1].
It is undisputed that the base 10% conditional caveat threshold
number at issue in N.J.S.A. 19:5-1 is the number as certified to by
defendant Guadagno on December 3, 2013 in her Certification of Political
Parties, which number is 372,197. (Pa-1).
As long as each statutory political party did not 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 (emphasis added), or in this case at least
372,197, at their respective June 3, 2014 Regular Primary Elections, then
there can be no dispute that, at least facially, that each statutory political
party is entitled to the preferential ballot location position treatment afforded
to them to the exclusion of all other candidates by application of N.J.S.A.
19:14-12.
The question becomes what does it mean, in the negative, as written in
the statute, to fail to poll 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
? Conversely, what does it mean positively to poll at any primary
17

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 for N.J.S.A. 19:5-1 purposes? How does one count, and
what does one count, to determine whether a statutory political party has
met the N.J.S.A. 19:5-1 10% threshold of 372,197? This is where the
parties part company on their interpretation of the statutory scheme. This is
because of the peculiar and what plaintiffs, contend is the actually not
precedential and otherwise invalid - Appellate Division opinion in New
Jersey Conservative Party v. Farmer, 324 N.J. Super. 451 (App. Div. 1999),
which has unnecessarily muddied the waters, so to speak, for 15 years.
The Earlier Cases and the Precedent that this Court Must Follow:
There have been three cases brought since 1999, all in most respects
by the same litigants though under somewhat different circumstances each
time, yet each on the applicability and interpretation of N.J.S.A. 19:5-1.
Each time the specific issue of the proper interpretation of how one counts,
and what one counts, to determine whether a statutory political party has met
the N.J.S.A. 19:5-1 10% threshold was specifically and directly at issue in
the case.

As will be shown, the ironic legal truth is that of the two New

Jersey State Trial Court Judges, the Honorable Clarkson Fisher, P.J.Ch. 6
In 1999 Judge Fisher was the Presiding Judge of the Chancery
Division, General Equity Part, Monmouth County. Today, Judge Fisher sits
in the Appellate Division.
6

18

(who issued his written unpublished opinion on August 23, 1999) and the
Honorable Mary C. Jacobson, A.J.S.C. (who issued her oral opinion on
October 3, 2013) who have actually reviewed and considered the substance
of the question, and of the two New Jersey Appellate Judges, specifically the
two Judge Emergent Panel consisting of The Honorable Marvin Braithwaite,
J.A.D., now retired, and the Honorable Steven Kleiner, J.A.D., now
deceased (Emergent Appellate Order issued August 27, 1999, and formal
Published Written Opinion issued September 3, 1999) who have actually
considered the substance of the question, and the one Federal Trial Court
Judge, the Honorable Freda Wolfson, U.S.D.J. (Written Opinion issued
October 12, 2012) who has actually considered the substance of the
question, the only Judge out of this group that was actually legally correct in
their ruling on the interpretation of N.J.S.A. 19:5-1 was Judge Fisher, the
first judge to rule. That this is true will be conclusively demonstrated.
Moreover, as circumstances are now today and with what is now known
today, and as will be explained, in another odd quirk of procedure and
circumstance, another ironic legal truth is that the published Appellate
Division opinion of Judges Braithwaite and Kleiner in New Jersey
Conservative Party v. Farmer, 324 N.J. Super. 451 (App. Div. 1999) is not
precedent that this Court may follow, as the critical holding in the New
Jersey Conservative Party v. Farmer Appellate case regarding exactly what
19

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

met the N.J.S.A. 19:5-1 threshold actually directly conflicts with specific and
clear language (albeit, arguably dictum) in the New Jersey Supreme Courts
holding in Richardson v. Caputo, 46 N.J. 3 (1965) where the Supreme Court
noted that only votes cast at the Primary Elections for Members of the
General Assembly are to be counted when calculating the 10% threshold,
which must be carefully read in context to be understood. The holding in
Richardson v. Caputo, 46 N.J. 3, 10 (1965), is a decision of the States
highest Court, superior to the Appellate Divisions peculiar holding in
New Jersey Conservative Party v. Farmer, 324 N.J. Super. 451 (App. Div.
1999), and is therefore binding on this Court to the exclusion of the
referenced incorrect Appellate Division case. This remains true even if the
language in Richardson v. Caputo, 46 N.J. 3, 10 (1965) is viewed as dictum.
See State v. Breitweiser, 373 N.J. Super. 271, 282-283 (App. Div. 2004),
certif. denied 182 N.J. 628 (2005); Nardello v. Township of Voorhees, 377
N.J. Super. 428, 435 (App. Div. 2005) (Carefully considered dictum of the
New Jersey Supreme Court is binding on lower courts.). In 1999 when
Judges Braithwaite and Kleiner reversed Judge Fisher, Supreme Court
dictum was not binding on the lower Appellate and Trial Courts, where as of
2004 it became so. See Id. Lastly, and perhaps in the greatest irony of all,
Judges Braithwaite and Kleiner actually cited verbatim to the very language
20

(albeit improperly and completely out of context) in Richardson v. Caputo in

their written published opinion (which was issued three days after their
Emergent Order summarily reversing Judge Fishers August 23, 1999
decision) that when properly read confirms that they were wrong and
that Judge Fisher was right!
The true and accurate legislative history of the statutory scheme
generally, and N.J.S.A. 19:5-1 specifically, when considered in consort with
New Jersey State Constitutional and political history, when considered in
consort with the Supreme Courts holding in Richardson v. Caputo, and
when considered in consort with the statements of the New Jersey
Legislature themselves in 1978 as to what votes were to be calculated when
determining the 10% caveat condition threshold in N.J.S.A. 19:5-1, confirms
that the Judge Fisher was indeed right on August 23, 1999, and that by
application today:

The only votes cast at the June 3, 2014 Primary

Elections that may lawfully be counted toward the N.J.S.A. 19:5-1 10%
caveat condition threshold are votes cast at the June 3, 2014 Primary
Elections that were cast for candidates seeking the right to run for the
office of New Jersey General Assembly for their political party at the
ensuing, or in this case, November 4, 2014, Regular General Election!
Obviously problematic for the Appellees from a legal standpoint, and
more so for the two presently existing statutory political parties from a
21

political standpoint, is the undisputable fact that there were no votes cast
whatsoever for any candidates for General Assembly at the June 3, 2014
Primary Election. Therefore, if Appellants today are (and Judge Fisher in
1999 was) right, then as a matter of law it was impossible for either party to
have met the 10% caveat condition threshold in N.J.S.A. 19:5-1, and having
failed to meet the 10% caveat condition threshold which since 1947 has
been a literally impossibility to meet in even numbered years - neither
statutory political party is therefore entitled to the statutory ballot preference
otherwise conferred by N.J.S.A. 19:14-12 at the November 4, 2014 Regular
General Election. Moreover, the true fact of law is that the ballot preference
scheme as a matter of law does not, and can not ever, apply to a Special
General Election such as the one in District 1. While at first reading this
may sound implausible, it is indeed the factual and legal truth.
Deciding this case should not be problematic for the Court. All the
Court has to do is follow the law, and not pretend to be a two or three
member unelected Legislature and Executive Branch judicially re-writing a
statute so as to extra-constitutionally favor the candidates of the existing
statutory political parties to the detriment and disadvantage of all other
candidates.
The law is the law, and the fact of history is that there are fatal flaws
in this law because the law was not revised after the new New Jersey
22

Constitution (1947) changed the term of office of Member of the General

Assembly from 1 year to 2 years. By so doing, the new State Constitution
changed what was to that point an annual process into a biannual process,
and in so doing unwittingly made the statutory scheme regarding the
opportunity for ballot location preference only operational every other
calendar year, in odd numbered years, when Members of the New Jersey
General Election were up for election, and candidates for such office would
appear on the Primary Election Ballot.
Why Only Votes Cast at the Primary Elections for Candidates for the
Office of General Assembly are Counted When Determining Whether the
10% Threshold in N.J.S.A. 19:5-1 is Met:
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 17, which was part of an overall
7

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
23

comprehensive legislative scheme for regulating the conduct of elections and

political parties. That statutory legislative scheme, despite radical changes
in the State Constitutional form of government in 1947 and again in the
1960s, has nevertheless remained essentially unchanged. While the form of
Constitutional government and term of office of Member of the General
Assembly was changed in 1947 from 1 to 2 years, the statutory law then
long in effect and as enacted and specifically intended to apply annually to
determine statutory political party status, and intended to apply annually to
determine ballot location preference if the 10% caveat condition in N.J.S.A.
19:5-1 was met, all remained the same, and therefore, by their collective
own terms, since 1947 could only have been legally operative in odd
numbered calendar years, all because of the Constitutional change in the
term of office of General Assembly.

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].
24

In 1930, the State of New Jersey was then operating under the New
Jersey State Constitution (1844).

See generally Thorpes Constitutions,

Volume V at pages 2599 to 2614 (hereinafter Thorpe).8 Under the New

Jersey State Constitution (1844) the Legislative Branch of New Jersey State
Constitutional Government (like today) consisted of a State Senate and a
General Assembly. The Executive Branch of New Jersey State Government,
consisted of a single Governor (today there is a Governor and a Lt.
Governor). However, there were many significant differences between the
form of State Constitutional government under the New Jersey State
Constitution (1844) and the form of State Constitutional government
presently in effect under the New Jersey State Constitution (1947), as
amended.
For example, the single executive Governors term was for a term of
three years, see New Jersey State Constitution (1844), Article V, paragraph
3, in Thorpe at page 2606, whereas today the term of office for the dual

Citation in this Memorandum of Law to the New Jersey Constitution

(1844) is to the official text as found 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), Volume V at pages 2599 to 2614. This citation is used
because this official and accurate government version is readily available in
the public domain online for free at www.hathitrust.org .
8

25

executive Governor and Lt. Governor is 4 years. The Legislative Branch

similarly consisted of a State Senate and a General Assembly, with the term
of office for State Senate and for General Assembly both being one year,
meaning that there were annual Regular Primary Elections in June and
Regular General Elections in November each year for candidates running for
the office of Member of the General Assembly.

See New Jersey State

Constitution (1844), Article IV, Section I, paragraphs 1 & 3, in Thorpe at

page 2601-2602. Today, under the New Jersey State Constitution (1947), as
amended, the term of office for State Senate was increased a term that was
more than one year (and today is on a 2 year, 4 year, 4 year tern in a 10 year
period) and the term of office for member of the General Assembly was
increased to a two year term, where it remains today.
The size of the State Senate under the New Jersey State Constitution
(1844) was determined by affording one State Senator to each County
irrespective of population, meaning that representation in the State Senate
was apportioned regionally by the artificial geographic political boundary of
a Countys dividing lines, and was not determined in any way by reference
to population. See New Jersey State Constitution (1844), Article IV, Section
II, paragraph 1, in Thorpe at page 2602. The General Assembly was to
consist of an unspecified number of members and the whole number of
members shall never exceed sixty.
26

See New Jersey State Constitution

(1844), Article IV, Section III, paragraph 1, in Thorpe at page 2602.

However, the members of the General Assembly, while actually apportioned
to Counties, were nevertheless to be apportioned among the said
counties as nearly as may be according to the number of their inhabitants.
See Id. This process was similar to the Federal Constitutional system, with
the Counties by analogy being treated somewhat similar to how the Federal
Constitution treats States, and with each County being afforded 1 State
Senator irrespective of population (under the Federal Constitution it is two
Senators per State) and, in the Legislative body that was representative of
the People themselves, the number of members in the General Assembly to
be apportioned to each County was determined based specifically upon
population (similar to apportionment of the U.S. House of Representatives
among the States under the Federal Constitution). As has evolved with
many amendments since 1947, today in 2014 the New Jersey State
Constitution (1947) has divided the State up into 40 Legislative Districts,
with each District allowed 1 State Senator (on a 2 year term, 4 year term, 4
year term 10 year cycle) and 2 Members of the General Assembly (for 2 year
terms). The foregoing was explained in detail here because sometimes
historical details matter, and this is one of those cases.9
Judges Braithwaite and Kleiner in Appellate Division in the
emergently decided case of New Jersey Conservative Party v. Farmer, 324
N.J. Super. 451 (App. Div. 1999), while advised in painstaking detail of this
9

27

With this knowledge, it should now be understood that in 1930,

Members of the General Assembly were elected on an annual basis with
each Member serving a 1 year term, and that the Members of the General
Assembly were the only State Constitutional elected officials whose office

very same political history outlined herein, inexplicably chose, apparently

for no other reason than pure politics and to achieve a desired result that the
actual written law did not allow, chose to completely ignore and never even
so much as mentioned the significant and Appellants contend
determinative State Constitutional and political history and the associated
effect on the 10% statutory scheme. The fact that when the statutory scheme
at issue was first enacted in 1930 that the term of office of the New Jersey
Assembly was one year; the fact that when the statutory scheme was enacted
in 1930 that there were annual Regular General Elections for all Members
of the General Assembly every year each November, and that there were
annual Political Primary Elections for the right to run for the office of
Member of the General Assembly every year each June; the fact that after
the Constitutional change to the term of office for Member of the General
Assembly from 1 year to 2 years was effected in 1947 there never was any
statutory Legislative efforts made that were intended to address the radical
change to the uniform 10% scheme caused by the Constitutional change,
these all were presented to Judges Braithwaite and Kleiner in the Appellate
Division. Yet, against this background, all that the Appellate Division had to
say on the issue was the following:
If the plaintiffs interpretation of the statute is
correct, then in the years in which there are no
primary elections for the General Assembly, such
as the even numbered years, there would be no
method to determine whether a given political
party was entitled to a party column on the
official ballot for the general election. Plaintiffs
argue that N.J.S.A. 19:5-1 only applies every
other year, when there are primary elections for
the General Assembly. Because in the evennumbered years such as 1998 when there are
generally no primary elections for the General
28

was in any way related to, and apportioned in direct actual relation to, the
population and the people. The Governor was only elected every 3 years, so
this election while indeed statewide, was not suited to be linked by law to a
Legislative scheme reliant upon an annual election process. While State
Senators were indeed elected every year, they represented political
boundaries, not people, so Hudson Countys State Senator might in practical
fact be elected by and represent more than 1 million people, while
Cumberland Countys State Senator might in practical fact be elected and
represent by less than 50,000 people. Therefore, the Legislature decided in
1930 that the best barometer of legitimate statewide support of a political
organization, both initial and sustaining over time, was by looking at the
number of votes that were cast for Members of the General Assembly, and
the Legislature chose, for whatever reason, 10% of the votes cast for the
office of Member of the General Assembly statewide as the legislative
benchmark in the legislative scheme. Whether or not one views the 1930
Legislatures linking the Election Law scheme to 10% of the statewide
General Assembly vote was a good idea or bad idea is irrelevant: The

Assembly, the other primary elections must be

considered to determine party status for a party
column on the official ballot.
[Id. at 460-461].
29

Legislature is free to enact and pass stupid laws, they just are not free to pass
unconstitutional laws.
Immediately after the passage of the 1930 Legislation (L. 1930,
Chapter 187) the new legislative system was enacted, which system invoked
a uniform 10% standard as a barometer of public support for determining
statutory political party status annually in the first instance, and the
continuing necessary showing of public support and viability to be entitled
to certain statutory preferences that excluded candidates who were not
members of a statutory political party in the second instance. The related
components of the statutory system, with a few modest and irrelevant
amendments over time, still remain in essentially the same form in which
they were originally enacted in 1930, and, as are relevant to this case, are

30

now codified at N.J.S.A. 19:1-1,10 N.J.S.A. 19:12-1,11 N.J.S.A. 19:2-112,

N.J.S.A. 19:5-1, and N.J.S.A. 19:14-12. When taken together, the statutory
scheme as enacted in 1930 operated together in a rather clear and easy to
understand system of related laws, each specifically related to the same

10

N.J.S.A. 19:1-1 defines 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.
[N.J.S.A. 19:1-1].

11

N.J.S.A. 19:12-1 provides in relevant part as follows:

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
all of the members of the General Assembly ten
per centum (10%) of the total vote cast in the State
for members of the General Assembly had been
cast for candidates having the same designation,
thereby creating, within the meaning of this Title, a
political party, to be 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].

12

N.J.S.A. 19:2-1 defines provides as follows:

Primary elections for delegates and alternatives to
national conventions of political parties and for
general election shall be held in each year on the
31

statutory 10% number, with the first requirement being that a political
organizations candidates for the office of Member of the General Assembly
at the Regular General Election needed to receive combined a number of
votes that are equal to or greater than the 10% in N.J.S.A. 19:1-1, and then at
the June Regular Primary Election, the candidates of that now statutory
political party for the office of Member of the General Assembly had to
receive combined a number the votes that was equal to or greater than the
same 10% number to receive the ballot placement preference treatment in
N.J.S.A. 19:14-12. And each of these two events occurred annually: First at
the November Regular General Election, and once again at the June Regular
Primary Election.
This 1930 Legislative scheme and system made perfect sense for its
first 17 years of its existence, during which time it had by all accounts
apparently worked fine. However, suddenly in 1947 the statutory scheme
was rendered operative only in odd numbered calendar years when the
new New Jersey Constitution (1947) was enacted and changed the
Constitutional term of office for Member of the General Assembly from one
Tuesday next after the first Monday in June
between the hours of 6:00 A.M. and 8:00 P.M.,
Standard time. Primary elections for special
elections shall be held not earlier than 30 nor later
than 20 days prior to the special election.
[N.J.S.A. 19:2-1].
32

year to two years. Whether through inadvertence or design, the fact remains
that this just described legislative scheme when enacted was clear and was
wholly reliant upon an annual process where political organizations had an
opportunity each year to try to achieve statutory political party, and was
reliant on an annual process where there were candidates for the General
Assembly on every Primary Election Ballot each June. Yet, after 1947 and
to date no substantive changes were made to the statutory scheme to account
for the Constitutional change in the term of office for General Assembly
from 1 year to 2 years,13 which Constitutional change radically affected the
viability of the statutory scheme, at least in even numbered calendar years.
Now, without changing the statute, political organizations only had a chance
once every two years to attempt to qualify as a statutory political party,
and those who had achieved statutory political party status now retained
that status for 2 years, not merely for 1 year until the next Regular General
Election. But all of that being said, since this is indeed the truth, in 2014, an
In 1948 the Legislature made certain changes to the statutory scheme
when the entirety of the election laws were compiled together and codified
for the first time as Title 19, where the phrase Title replaced the word
act in the law, with a few other non substantive changes. See L. 1948,
Chapter 438, Section 1. Despite the Attorney Generals expected continued
attempts to contort the plain meaning of words and the plain application of
the English language, the 1948 changes did nothing whatsoever to change or
alter the statutory scheme generally and N.J.S.A. 19:5-1 specifically to in
any way mean what Judges Braithwaite and Kleiner ruled it to mean.
Judicial interpretation is only necessary when the plain meaning of the
statutory scheme is somehow ambiguous, which is simply not the case here.
13

33

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

candidate ballot location preference by virtue of N.J.S.A. 19:14-12 since as a
matter of fact and law it is literally impossible for either of the two
statutory political parties to have met the 10% threshold in N.J.S.A. 19:51, because it is undisputed as fact that there were no ballots whatsoever cast
for General Assembly at the June 3, 2014 Primary Elections as there were no
candidates for such office even on the Regular Primary Election Ballots.
Since only votes cast at the June 3, 2014 Primary Election for candidates for
the office of Member of the General Assembly can be counted when
determining whether the 10% threshold in N.J.S.A. 19:5-1 has been met, and
since no votes were cast for such office at all, there simply is no way either
statutory political party can meet the 10% threshold.
Judge Fisher was Right:
On August 23, 1999 in the unpublished trial court opinion of New
Jersey Conservative Party et als. v. John J. Farmer, Attorney General of
New Jersey, et als., Docket No. MON-C-233-99 (See opinion attached at
Exhibit E to this Verified Complaint, Pa-72 to Pa97) the Honorable
Clarkson Fisher, then P.J.Ch. in Monmouth County (now serving in the
Appellate Division), after exhaustive evaluation of the statutory scheme in
New Jersey statutes Title 19 that grants to a statutory political party the
ballot preference afforded in N.J.S.A. 19:14-12 if the 10% condition caveat
34

in N.J.S.A. 19:5-1 is met, concluded with the scant legislative history

available at that point in time as follows:
A fair reading of our election laws, for the reasons
expressed above, leads to the interpretation urged
by plaintiffs. That is, the court finds that the
threshold of N.J.S.A. 19:5-1 is met by the number
of primary votes cast for candidates for the
General Assembly only. (Emphasis added).
[See unpublished Opinion and Order of August
23, 1999 attached at Pa-73 through Pa 97].
While not realized at the time, there is indeed Supreme Court
precedent (today binding on this Court) and additional legislative history
that confirms that Judge Fisher was right and that that Judges Braithwaite
and Kleiner were wrong. In Richardson v. Caputo, 46 N.J. 3 (1965) the
New Jersey Supreme Court briefly discussed the statutory scheme in New
Jersey statutes Title 19 that grants to a statutory political party the ballot
preference afforded in N.J.S.A. 19:14-12 and the 10% condition caveat in
N.J.S.A. 19:5-1, stating in relevant part as follows:
Political party is defined to mean a party which,
at the election held for all of the members of the
General Assembly next preceding the holding of
any primary election polled for members of
the General Assembly at least ten per centum
(10%) of the total vote cast in this State.
N.J.S.A. 19:1-1. A party which attains that status is
entitled to a primary election, N.J.S.A. 19:2-1, and
such a political party is accorded a party column
on the ballot for the general election unless the
party shall have failed at its primary election to
35

poll the percentage we have just mentioned, in

which event that partys nominees selected at the
primary shall appear on the general election ballot
in the column or columns designated Nomination
by Petition. N.J.S.A. 19:5-1.
[Richardson v. Caputo, 46 N.J. 3, 10 (1965)].
The Supreme Courts statement must be read carefully and slowly
and, most importantly, in context. The Supreme Court specifically referred
to unless the party shall have failed to poll the percentage we have just
mentioned (Emphasis added) when referencing how the N.J.S.A. 19:5-1
caveat condition threshold is met, and the percentage that must be
polled that was just mentioned , in the immediately preceding
sentence, was where it was specifically discussed that the standard was 10%
of the General Assembly votes, not merely an unspecified 10% of some
unspecified collection of votes, but rather 10% of the General Assembly
votes. That is what the Supreme Court stated. And that Supreme Court
holding is binding on this Court. See State v. Breitweiser, 373 N.J. Super.
271, 282-283 (App. Div. 2004), certif. denied 182 N.J. 628 (2005); Nardello
v. Township of Voorhees, 377 N.J. Super. 428, 435 (App. Div. 2005)
(Carefully considered dictum of the New Jersey Supreme Court is binding
on lower courts.). This means that this Court must disregard the peculiar
and incorrect Appellate Division opinion of New Jersey Conservative Party
v. Farmer, 324 N.J. Super. 451 (App. Div. 1999) as it is no longer good law.
36

While the opinion is out there so to speak 14, and while it is true that the
published Appellate Division opinion has not as yet been expressly
overruled, it is equally true that a higher Court decision on the exact issue
exists predated no less where the Supreme Court interprets the law
differently, that being Richardson v. Caputo, 46 N.J. 3, 10 (1965). But it
does not end there.

The fact that there has been a decision by a subsequent Court with
authority that effectively operates to change the law so as to effectively
overrule an earlier case, doing so without expressly saying so, is a somewhat
unique but not unheard of circumstance. For example, in State v. Breakiron,
108 N.J. 591 (1987) the New Jersey Supreme Court ruled that the New
Jersey diminished capacity statute, which as written places the burden of
persuasion on a criminal defendant, did not violate the Federal
Constitutions requirement that the State prove each and every element of a
criminal offense beyond a reasonable doubt. That remained good law for
the next two years until 1989, when in Humanik v. Beyer, 871 F.2d 432 (3d.
Cir. 1989), cert. denied 493 U.S. 812 (1989) the United States Court of
Appeals for the Third Circuit differed and ruled that the New Jersey
diminished capacity statute, which places the burden of persuasion on a
criminal defendant, violates the Federal Constitutions requirement that the
State prove each and every element of a criminal offense beyond a
reasonable doubt. The practical effect of Humanik which is controlling
precedent superior to that of the New Jersey Supreme Court on issues of
Federal Constitutional interpretation was to render State v. Breakiron
invalid, and no longer good law. Somewhat similarly, in 2004 when State
v. Breitweiser, supra. was decided, the now binding New Jersey Supreme
Court dictum in Richardson v. Caputo (which was not binding on Judges
Kleiner and Braithwaite under the state of the law in 1999) effectively
operated to overrule the Appellate Division opinion in New Jersey
Conservative Party v. Farmer, 324 N.J. Super. 451 (App. Div. 1999) where
the interpretation of N.J.S.A. 19:5-1 (in addition to being wrong) was and
is directly counter to the interpretation of such statute subscribed to by the
New Jersey Supreme Court in dictum in Richardson v. Caputo.
14

37

Least the Court be concerned that the language in Richardson v.

Caputo is somewhat ambiguous (plaintiffs contend that read in context it
certainly is not), Legislative history has been found that directly confirms
the interpretation of Judge Fisher and the Supreme Court in Richardson v.
Caputo that only votes cast for members of the General Assembly at the
Primary Election are counted when determining whether the 10% threshold
in N.J.S.A. 19:5-1 has been met.
There might be a more polite or eloquent ways to say it, but the fact
remains that the present state of the entirety of New Jerseys Election Laws
codified as Title 19 since 1948 are a mess of no longer applicable and
somewhat ambiguous provisions which also contain a literal tangle of rank
contradictions. There was serious Legislative effort in the mid-1960s to
comprehensively revise Title 19, including a formal law revision
commission that lasted, with extensions, well over 10 years past the mid
1970s. However, the Legislature refused to act. Again efforts were made in
1978 in Assembly Bill 744, which if enacted would have resulting in an
entirely new Title 19A that would have fixed many of the extant problems,
including those pertaining to the 10% threshold in N.J.S.A. 19:5-1. During
the process a Formal Legislative Report was issued, Commentary on
Proposed Title 19A, Assembly Bill Number 744, 1978: A Report to the
Assembly State Government, and Federal and State Interstate Relations and
38

Veterans Affairs Committee, Prepared by the Staff of the New Jersey

Division of Legislative Information and Research, November 21, 1978
(original on file at the New Jersey State Library under call number: 974.90,
E38, 1978c). In that formal Legislative Report, there was specific discussion
in the Commentary as to the presently understood meaning by the
Legislature itself of the law that they had themselves previously enacted, and
were trying to now revise, and the new version proposed. The commentary
specifically discussed new proposed N.J.S.A. 19A:5-1 with reference to the
existing (and still existing) N.J.S.A. 19:5-1:
***
19A:5-1
This section reduces the percentage of
the General Assembly Vote necessary for party
columns on the official ballot from 10 percent to
five percent. It also substitutes no political group
or organization for no political party.
[See (Pa-106 to Pa 108) Exhibit I to Plaintiffs Verified Complaint, excerpt
from Commentary on Proposed Title 19A, Assembly Bill Number 744, 1978:
A Report to the Assembly State Government, and Federal and State
Interstate Relations and Veterans Affairs Committee, Prepared by the Staff
of the New Jersey Division of Legislative Information and Research,
November 21, 1978 (original on file at the New Jersey State Library under
call number: 974.90, E38, 1978c) (hereinafter The Official 1978 Assembly
Report)].
While defendants may try to argue (Appellants contend not
successfully) that Richardson v. Caputo, 46 N.J. 3 (1965) is somehow
ambiguous or equivocal and that Judge Fisher was wrong, and that New
Jersey Conservative Party v. Farmer, 324 N.J. Super. 451 (App. Div. 1999)
39

holding of 2+2 = 22 somehow still governs this case, this argument simply
can not be reconciled with the Legislatures own interpretation of what they
say their own law says. The new Jersey Legislatures own interpretation of
their own long existing law, specifically N.J.S.A. 19:5-1, is most certainly
not in any way ambiguous or equivocal. The New Jersey Legislature quite
clearly stated that it was and is the total votes cast at the June Regular
Primary Election for the office of Member of the General Assembly only (to
the exclusion of all other offices that may appear on the Primary Ballot) that
are counted and calculated when determining whether the N.J.S.A. 19:5-1
10% caveat condition threshold has been met by either of the two statutory
political parties.
This Court indeed no Court has any legal authority to radically rewrite the text and meaning of a law validly enacted by the New Jersey State
Legislature when the meaning is clear, when there is binding controlling
Supreme Court precedent interpreting the statute, and when there is clear
legislative history that confirms the legislatures interpretation of their own
law.
In N.J.S.A. 1:1-1 literally the first statute listed in the codified
version of New Jerseys statutory laws the Legislature has directed how
Courts are to evaluate and construe the meaning of the statutes they enact,
specifically providing as follows:
40

In the construction of the laws and statutes of this

state, both civil and criminal, words and phrases
shall be read and construed with their context, and
shall, unless inconsistent with the manifest intent
of the legislature or unless another or different
meaning is expressly indicated, be given their
generally accepted meaning, according to the
approved usage of the language. Technical words
and phrases, and words and phrases having a
special or accepted meaning in the law, shall be
construed in accordance with such technical or
special and accepted meaning.
[N.J.S.A. 1:1-1].
From the onset, it is rather elementary principle of statutory
construction that when a Court is evaluating a statute to determine the
statutes meaning, the Court muse read and construe words and phrases in
statutes with their context. Id. Here, the context is the entire related
statutory scheme of election laws including N.J.S.A. 19:1-1, N.J.S.A. 19:121, N.J.S.A. 19:2-1, N.J.S.A. 19:5-1, and N.J.S.A. 19:14-12. When a statute is
unambiguous, the statute must speak for itself and be construed according to
its terms. Bass v. Allen Home Improvement Company, 8 N.J. 219 (1952). If
statutory language is plain and unambiguous, a courts function is to enforce
the statute as written, nothing more.

Gatto Design & Development

Corporation v. Township of Colts Neck, 316 N.J. Super. 110 (App. Div.
1998). A Courts role is to construe a statute as the Legislature enacted it,
not to impose its own policy preferences. In re: Ordinance 04-75, 192 N.J.
41

446 (2007). Because the regulation of elections is exclusively a legislative

matter, courts, even when they question the wisdom of legislation, must
respect the legislative scheme. Matter of Municipal Election Held o May
10, 1994, 139 N.J. 553, 558 (1995); see also Committee to Recall v.
Casagrande, 304 N.J. Super. 496, 503 (Law Div. 1997) (same). A clarity of
legislative expression makes it improper for a Court an attempt to seek to
impose a different meaning under the guise of statutory construction.
Maurice E. Keating, Inc. v. Southampton Township, 149 N.J. Super. 118
(App. Div. 1977). Perhaps most directly applicable to this case is the axiom
that a new meaning may not be given by a Court to words of an old statute
in consequence of changed conditions that were probably not foreseeable by
the enacting legislature.

Fidelity & Deposit Company of Maryland v.

Abignale, 97 N.J. Super. 132 (Law Div. 1967). Lastly, when a statute is
susceptible to two possible meanings, one meaning which will operate to
violate the Federal or State Constitution and one meaning which will not
violate the Constitutions, Courts are to choose the latter. New Jersey State
Board of Education v. Board of Directors of Shelton College, 90 N.J. 470
(1982); State v. Monroe, 30 N.J. 160 (1959).
In this regard, it must also be restated here that the true fact of history
is that when the New Jersey Conservative Party brought the first court
challenge in 1999, the New Jersey State election officials had to that point
42

simply completely ignored and completely disregarded the 10% conditional

caveat requirement in N.J.S.A. 19:5-1 for at least the previous 50 years, and
the election officials, without thought, question, or challenge, simply year
after year conferred the preferred ballot position to the Republican and
Democratic parties without any consideration as to whether such action was
appropriate or legal.15

The further fact of history is that in light of

It is important to note here that in New Jersey Conservative Party v.

Farmer, 324 N.J. Super. 451 (App. Div. 1999), the Appellate Division, in
their September 3, 1999 written opinion issued subsequent to their August
27, 1999 Emergent Appellate Order where they Summarily reversed Judge
Fishers August 23, 1999 Opinion and Order, stated the following:
15

Moreover, the record is clear that, for the past fifty

years, defendant Attorney General, and before him
the Secretary of State, have interpreted N.J.S.A.
19:5-1 to mean that all primary elections are
considered in determining whether a political party
has met its target for party column purposes on the
official ballot. Here, appropriate circumstances
exist to conclude that the defendants interpretation
of N.J.S.A. 19:5-1 is consistent with the intent of
the Legislature.
[Id. at 461-462]
This statement in the September 3, 1999 written opinion is nothing but
blatant judicial fabrication and fantasy completely invented by the
imaginations of Appellate Judges Braithewaite and Kleiner. There was
nothing whatsoever in the record (Appellate or elsewhere) that
demonstrated anything of the sort. In fact, the only information in the
record was that for the 50 years leading up to 1999 and the N.J.C.P. legal
challenge, the election officials simply completely ignored and completely
disregarded the 10% requirement in N.J.S.A. 19:5-1. It is also noted in this
regard that the entirety of the remaining Appellate File in the Courts
Archives in the N.J.C.P. case as of July 2014 now only contains a total of
43

Richardson v. Caputo and the 1978 Legislative history as now known and
understood, Judge Fisher was right, and the Appellate Division opinion in
New Jersey Conservative Party v. Farmer is both demonstrably wrong.
The controlling precedent that this Court must follow is the correct legal and
historical truth, that being that the only votes that are counted when
determining whether a statutory political party has met the 10% caveat
condition threshold in N.J.S.A. 19:5-1 are the votes cast at the June 3, 2014
Political Primary Elections for candidates seeking the office of Member of
the General Assembly. And as there were no such votes (and certainly not
372,197 such votes as required to satisfy N.J.S.A. 19:5-1), then N.J.S.A.
19:14-12 does not apply to the 2014 Regular and Special General Elections.
The law is clear as to what election officials are required to do when a
statutory political party fails to meet the 10% conditional caveat threshold
in N.J.S.A. 19:5-1, because the statute itself states in relevant part as follows:
two documents: The August 27, 1999 Emergent Appellate Order, and the
subsequent September 3, 1999 written opinion. For reasons not clear, even
the parties briefs have been purged, so for reasons that are not clear, there
no longer is any Appellate Record. So while there is no Appellate record
in existence today, the true fact of history is that there never was any
record in existence before the Appellate Division that supported the
contention that anyone anywhere ever at any time before the New Jersey
Conservative Party v. Farmer case interpreted N.J.S.A. 19:5-1 with the 2 + 2
= 22 method of counting ultimately approved by the Appellate Division.
Any statements or claims otherwise are simply historically untrue.

44

* * * In such case the names of the candidates

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].
In sum, the ballot preference statute, N.J.S.A. 19:14-2, does not apply
to the November 4, 2014 Regular General Election because neither of the
statutory political parties have satisfied the 10% threshold in N.J.S.A.
19:5-1, and as such defendant Guadagnos August 8, 2014 Certification is
invalid and illegal and any drawing conducted by the defendant Clerks is
void ab initio and a violation of the mandatory language of the State
Legislature in N.J.S.A. 19:5-1.

B.

Assuming, Arguendo, that Judges Kleiner and Braithwaite were

right and Judge Fisher was wrong, then N.J.S.A. 19:5-1 is
Unconstitutional both Facially and As Applied to Appellants:
It is Appellants contention that for the reasons previously stated that

the emergent 2 judge Appellate Division published opinion of Judges

Braithwaite and Kleiner in New Jersey Conservative Party v. Farmer, 324
N.J. Super. 451 (App. Div. 1999) is no longer good law in the
45

circumstances of this case and in the context of the specific legal claims as
framed and advanced.

This case should be disposed of on statutory

interpretation grounds, which obviates the necessity of even addressing the

Federal Constitutional claims.

However, assuming, arguendo, that this

Court somehow disagrees and finds that the 1999 Appellate Divisions
statutory interpretation of the statutory scheme generally, and the
interpretation of N.J.S.A. 19:5-1 specifically, is somehow correct, then
both facially and as applied, the statutory interpretation of the Appellate
Division renders the statutory scheme generally, and N.J.S.A. 19:5-1
specifically, unconstitutional and invalid.
Specifically, as noted, on August 27, 1999, a 2 judge panel of the
Appellate Division in New Jersey Conservative Party v. Farmer, supra.,
issued the following Emergent Order after hearing telephonic argument on
an expedited and emergent basis on the States appeal:
We grant leave to appeal and summarily
reverse the partial declaratory judgment entered in
favor of plaintiff.
The Chancery Division judge erred in
interpreting N.J.S.A. 19:5-1 when he concluded
that the only primary election to be considered in
determining eligibility for a party column on the
official ballot is the primary election for the
general assembly. We conclude that the language
of N.J.S.A. 19:5-1 that says at any primary
election for a general election means that all
primary elections are considered in deciding
46

whether a group is a political party for party

column purposes on the official ballot.
We reserve the right to submit a full opinion
on this issue.
Plaintiffs (sic) request for a stay is denied
and plaintiffs (sic) subsequent request for a
temporary stay until Tuesday, August 31, 1999 is
also denied. (Emphasis added).
[See (Pa 98 to Pa 100)), August 27, 1999 Order at
Exhibit F to Plaintiffs Verified Complaint].
In the September 3, 1999 written opinion, the 2 Judge Emergent
Appellate Court held, consistent with their August 27, 1999 Emergent Order
in relevant part as follows:
The question raised by plaintiffs is what primary
elections are to be considered in determining
whether a political party achieved the ten percent
target. * * * The pivotal language here is at any
primary election for a general election. N.J.S.A.
19:5-1. We conclude that this language is plain
and requires that all primary elections for the
general election must be considered and not just
those for the General Assembly. * * * Because in
the even-numbered years such as 1998 when there
are generally no primary elections for the General
Assembly, the other primary elections must be
considered to determine party status for a party
column on the official ballot.
[New Jersey Conservative Party v. Farmer,
supra., 324 N.J. Super. at 458, 459 and 461].
If this Court is willing to accept the 2 + 2 = 22 logic of Judges
Kleiner and Braithwaite, then the New Jersey ballot preference scheme is
unconstitutional as the United States Supreme Court has unequivocally held
47

that the United States Constitutions Fourteenth Amendments Equal

Protection Clause constitutionally mandates that a State must count the
weight of each vote the same in all aspects and at all stages of State electoral
schemes involving elections of Federal Officials. Specifically, one year after
the Appellate Divisions holding in New Jersey Conservative Party v.
Farmer, supra., the United States Supreme Court unequivocally held that it
is a clear violation of the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution for a State administered
election, where Federal Offices are on the ballot, for the State to count one
voters vote differently than an another voters vote in the same election.
See Bush v. Gore, 531 U.S. 98 (2000); Bush v. Palm Beach County
Canvassing Board, 531 U.S. 20 (2000). Therefore, if N.J.S.A. 19:5-1 indeed
means and operates in the peculiar way as stated by the Appellate Division
in New Jersey Conservative Party v. Farmer, supra., then the statutory
scheme is unconstitutional and invalid.
The Appropriate Level of Judicial Scrutiny for this Court to Apply
when Evaluating Plaintiffs Constitutional Claims the Summary
Judgment Phase is Strict Constitutional Scrutiny:
One year ago, in Empower our Neighborhoods v. Guadagno, Mercer
County Docket No. MER-L-3148-11 (March 31, 2014 Decision on Motions
and Cross Motions for Summary Judgment, see 2014 WL 1315198 (Law.
Div., March 31, 2014) the Court evaluated the proper level of judicial
48

scrutiny to apply at the Summary Judgment phase of a case when there

was a challenge that an New Jersey State Election Law violated the First and
Fourteenth Amendments to the United States Constitution. There, the Court
correctly stated as follows:
Generally, courts view First Amendment
cases differently depending on whether the
government is regulating the content of the speech,
the time, place or manner of the speech, or if the
government is suppressing political speech. The
general rule is that, [l]aws that burden political
speech are subject to strict scrutiny, which
requires the Government to prove that the
restriction furthers a compelling interest and is
narrowly tailored to achieve that interest.
Citizens United v. Federal Elections Commission,
558 U.S. 310, 340 (2010) (citing Federal Elections
Commission v. Wisconsin Right to Life, Inc., 551
U.S. 449, 464 (2007)). Thus, political speech
must prevail against laws that would suppress it,
whether by design or inadvertence. Ibid.; see
generally Council on Alternative Political Parties
v. Division of Elections, 334 N.J. Super. 225, 238
(App. Div. 2001). The proper analysis was set
forth in Timmons v. Twin Cities Area New Party,
520 U.S. 351, 358 (1997):
When deciding whether a state
election law violated First and
Fourteenth Amendment associational
rights, we weigh the character and
magnitude of the burden the States
rule imposes on those rights against
the interests the State contends justify
that burden, and consider the extent to
which the States concerns make the
burden necessary.
Regulations
imposing severe burdens on plaintiffs
49

rights must be narrowly tailored and

advance a compelling State interest.
Lesser burdens, however, trigger less
exacting review, and a States
important regulatory interest will
usually be enough to justify
reasonable,
nondiscriminatory
restrictions.
[Ibid. (citations omitted)].
[Empower our Neighborhoods v. Guadagno, Mercer County Docket No.
MER-L-3148-11 (2014 WL 1315198 (Law. Div., March 31, 2014), March
31, 2014 Decision on Motions and Cross Motions for Summary Judgment)].
The March 31, 2014 holding in Empower our Neighborhoods v.
Guadagno is consistent with long standing Third Circuit Precedent on the
issue of the application of strict constitutional scrutiny at the summary
judgment phase16 - which is where this case now is which is binding on
It should be noted that two years ago on October 1, 2012 in a similar case
brought by many of the same parties here in this case, in DemocraticRepublican Organization of New Jersey v. Guadagno, 900 F.Supp.2d 447
(D.N.J. 2013), the Honorable Freda Wolfson, U.S.D.J., ruled that at the
early preliminary injunction phase of a ballot location case, on an
applicants request that a preliminary injunction be issued under Rule 65,
that at that early stage of litigation pending final resolution of a case and
pending ruling on an application for a final injunction request, that the
correct level of judicial scrutiny to apply at that early stage of the
litigation was the so called Anderson balancing test as articulated by the
United States Supreme Court in Anderson v. Celebrezze, 460 U.S. 780
(1983). The law in the Third Circuit was, and is, absolutely clear that at the
final injunction phase of such a case, that the proper level of judicial
scrutiny to apply is strict scrutiny. See e.g. Allegheney County v.
Allegheney County Department of Elections, 174 F.3d 305 (3d Cir. 1999) (en
banc); Wellford v. Battaglia, 485 F.2d 1151 (3d Cir. 1973). Judge Wolfson
ruled that the less exacting Anderson balancing test was the correct test to
apply at the preliminary injunction phase. While it was clear that the
16

50

this Court. Specifically, the United States Court of Appeals for the Third
Circuit has long and unequivocally held that the correct level of judicial
scrutiny for a Court to apply when evaluating a candidate litigants
Fourteenth Amendment Equal Protection Federal Constitutional Claims in a
candidate ballot access case is the compelling state interest level of
judicial scrutiny. Specifically in 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, Scirica, Nygaard, Alito,
Roth, Lewis, McKee, Rendell and Rosen), the Third Circuit, sitting en banc,
unanimously held that the correct level of judicial scrutiny for a Court to
apply when evaluating a candidate litigants Federal Constitutional
Fourteenth Amendment Equal Protection claims at the summary judgment
phase of a case in a candidate ballot access case is the compelling state
standard of judicial scrutiny was strict scrutiny at the at the summary
judgment phase, in a case of first impression in the District of New Jersey,
Judge Wolfson applied the much less exacting Anderson balancing test at
the preliminary injunction phase. That decision was affirmed by a three
judge panel of the Third Circuit, and request for en banc review was denied.
See Democratic-Republican Organization of New Jersey v. Guadagno, 700
F.3d 130 (3d. Cir. 2012). That case has no bearing on this case as here
Appellants are moving for final judgment and final relief. It is also noted
that on an application for a preliminary injunction in the New Jersey
Conservative Party v. Farmer case in 1999, Judge Fisher denied the
preliminary request on August 12, 1999, see Exhibit D to Plaintiffs
Verified Complaint at (Pa 52 to Pa 71), but then eleven days later, Judge
Fisher ruled at the summary judgment stage, using the correct standard of
review at that stage of the litigation, in favor of the New Jersey Conservative
Party. (Pa 72 to Pa 100).
51

interest level of judicial scrutiny, otherwise commonly known as strict

scrutiny. This en banc holding was consistent with and mirrored the earlier
Third Circuit 3 Judge panel published opinion in Wellford v. Battaglia, 485
F.2d 1151 (3d Cir. 1973), a case decided more than 25 years before the
unanimous en banc decision of the full Third Circuit in Allegheney, supra.,
where an earlier panel of the Third Circuit (Judges Van Dusen, Gibbons and
Hunter) also unanimously held that the correct level of judicial scrutiny for a
Court to apply when evaluating a candidate litigants Federal Constitutional
Fourteenth Amendment Equal Protection claims at the summary judgment
phase of a case in a candidate ballot access case is the compelling state
interest level of judicial scrutiny, otherwise known as strict scrutiny. As
recently as three years ago, in an Order entered September 13, 2011 in Lewis
v. Guadagno, No. 11-3401 (3d Cir. 2011), another panel of the Third Circuit
(Scirica, Ambro and Vanaskie) specifically ruled that the correct level of
judicial scrutiny for a Court to apply when evaluating a candidate litigants
Federal Constitutional claims at the summary judgment phase in a
candidate ballot access case is the compelling state interest level of
judicial scrutiny, otherwise known as strict scrutiny, and in so doing
specifically cited with approval the existing Third Circuit Precedent of
Wellford v. Battaglia, supra.

52

The Elections Clause and the Seventeenth Amendment:

As this case and election involves an Election for United States Senate
and Elections for United States House of Representatives there can be no
question that this case specifically and directly involves and implicates
restrictions on State regulation imposed by the United States Constitutions
Elections Clause (Article I, section 4, clause 1) and the Seventeenth
Amendment.
Through the Elections Clause, the Constitution
delegated to the States the power to regulate the
Times, Places and Manner of holding Elections
for Senator and Representatives, subject to a grant
of authority to Congress to make or alter such
Regulations. [United States v.] Classic, 313 U.S.
299, 315 (1941). No other constitutional provision
gives the States authority over congressional
elections, and no such authority could be reserved
under the Tenth Amendment. By process of
elimination, the States may regulate the incidents
of such elections, including balloting, only within
the exclusive delegation of power under the
Elections Clause.
[Cook v. Gralike, 531 U.S. 510, 522 (2010); see
also United States Term Limits v. Thorton, 514
U.S. 779 (1995)].
As stated, States such as New Jersey may regulate the incidents of
such elections, including balloting, only within the exclusive delegation of
power under the Elections Clause. Id.
53

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

scrutiny to apply to the Plaintiffs various constitutional claims in this case at
the Summary Judgment Phase is strict constitutional scrutiny, where the
law is presumed unconstitutional, and the burden then shifts to the State to
come forward and demonstrate that (1) the restriction furthers a compelling
interest, and (2) that the restriction is narrowly tailored to achieve that
interest.

See Citizens United v. Federal Elections Commission, supra.;

Federal Elections Commission v. Wisconsin Right to Life, Inc., supra.;

Timmons v. Twin Cities Area New Party, supra.; Cook v. Gralike, supra.;
United States Term Limits v. Thorton, supra.; Allegheney County v.
Allegheney County Department of Elections, supra.; Wellford v. Battaglia,
supra.; Lewis v. Guadagno, supra.; Council on Alternative Political Parties
v. Division of Elections, supra.; and Empower our Neighborhoods v.
Guadagno, supra.
And against the strict scrutiny standard, there is no question that the
statutory ballot location preference scheme generally, and N.J.S.A. 19:5-1 as
applied and interpreted by the Appellate Division in New Jersey
Conservative Party v. Farmer, supra., specifically, can not be justified by the
State, and that such State statutory scheme operates to violate Appellants
rights as guaranteed and secured by the First, Fourteenth Amendments and
Seventeenth Amendments to the United States Constitution and the
54

Elections Clause found in Article I, Section 4, Clause 2 of the United

States Constitution. The burden at this now FINAL INJUNCTION stage
of the litigation is on the State to come forward with information to
somehow overcome a Constitutional presumption that the statutory scheme
is unconstitutional, which the State simply can not do as the State now
openly concedes that the ballot location statutory scheme at issue confers a
preference and a benefit to the candidates of the two established
political parties to the specific exclusion of the candidates of all other
candidates, something which the United States Constitution clearly
prohibits.
POINT II:
N.J.S.A. 19:14-12, the Ballot Location Preference Statute, does not apply
to the November Special General Election in District 1 by application of
N.J.S.A. 19:27-1:
The February 18, 2014 Writ of Election signed by the the
Honorable Chris Christie, New Jersey Governor (Pa-2) fixed November 4,
2014 as the date for the holding of the Special Regular Election in District 1
for the unexpired term of Robert Andrews in the United States House of
Representatives.

55

Certain New Jersey Election Laws in Title 19 are made applicable to

Special Regular Elections by virtue of N.J.S.A. 19:27-1 which provides as
follows:
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].
As the statute says, Except as herein otherwise provided the
special election shall be conducted in the same manner and under the
same conditions, restrictions and penalties as herein provided for primary
and general elections. (Emphasis added)

Therefore, unless there is

something in Title 19 that indicates that part of the statutory scheme can not
apply that herein otherwise provide[s] , that provision of Title 19
applies to Special Elections.
N.J.S.A. 19:1-1 defines special election as follows: * * * Special
election an election which is not provided for by law to be held at stated
intervals. Id. N.J.S.A. 19:2-1 is applicable to all special elections (of which
the November 4, 2014 Special Election in District 1 is one) and provides
in relevant part that Primary elections for special elections shall be held
56

not earlier than 30 nor later than 20 days prior to the special elections.
(emphasis added) Id.

The stated time table in the February 18, 2014

Governors Writ of Election clearly violates N.J.S.A. 19:2-1 as the date for
the Primary Election fixed in the Writ was June 3, 2014, is well outside the
mandatory statutory time frame of not earlier than 30 nor later than 20
days prior to the November 4, 2014 Special General Election date.
However, specifically at issue here, the ballot location preference drawing in
N.J.S.A. 19:14-12 is required to be held 85 days before the Regular Election,
well before the correct legal time frame when the Primary Election for a
Special Election may even be held. As such, the 85 day time frame in
N.J.S.A. 19:14-12 can not be reconciled with the not earlier than 30 nor
later than 20 days prior to time frame in N.J.S.A. 19:2-1. As such, this
is clearly a case where the Legislature has herein otherwise provided
, N.J.S.A. 19:27-1, and as such the ballot location preference in N.J.S.A.
19:14-12 can not, as a matter of law, apply to the Special General Election in
District 1. By allowing such a preference to Democratic candidate Norcross
in the Special General Election in District 1, defendants have violated a
mandatory election law.

57

CONCLUSION:
Statutory use of the word shall in N.J.S.A. 19:5-1 as noted denotes
the imperative and mandatory, whereas the use of the word may in a
statute (not used in N.J.S.A. 19:5-1) denotes the permissive and directory.
Animal Rights, Inc. v. Mahwah Township, 138 N.J. Super. (Law Div. 1995),
affd 148 N.J. Super. 249 (App. Div. 1977), certif. denied 75 N.J. 25 (1977).
Appellants contend and the plain wording of N.J.S.A. 19:5-1 certainly bear
out that what is at issue in this case is a violation a specific mandatory
New Jersey State election statute N.J.S.A. 19:5-1 - which governs and
mandates certain substantive actions that are specifically required to be
followed by the referenced election officials when administering the
November 4, 2014 Regular and Special General Elections in the event that
the 10% conditional caveat in N.J.S.A. 19:5-1 is not met. In this regard, the
fact that what is at issue is a mandatory New Jersey State Election statute
makes this case particularly time sensitive because the legal remedy that any
Court of competent jurisdiction is required to Order, in the event that
Appellants are ultimately ruled to be correct after the November 4, 2014
Regular and Special General Elections have occurred will be mandatory
judicial invalidation of such elections and an Order that completely new and
lawful elections be held in compliance with mandatory New Jersey State
election statutes forthwith. See In re: Smock, 5 N.J. Super. 495, 501 (Law
58

Div. 1949) ( Obviously not every infraction of the election laws will
invalidate the contest. There is a settled distinction between violations of
directory, as distinguished from mandatory, provisions of the law.); In re:
Matter of Petition of Byron, 165 N.J. Super. 468, 474 (App. Div. 1978), affd
170 N.J. Super. 410 (App. Div. 1979), certif. denied 82 N.J. 280 (1979) (
If the section is characterized as one that is mandatory in nature, the
ballot or election will be overturned ; if the section is characterized as one
that is directory in nature, the ballot or election will be upheld. (Emphasis
added)).
In this case, for the foregoing reasons, there is no question but that the
State Election Officials conducted the November 3, 2014 Regular and
Special General Elections in violation of the clear and mandatory directives
in the New Jersey Election laws generally, an in violation of N.J.S.A. 19:5-1
and N.J.S.A. 19:14-12 specifically. As such, this Appellate Court must
declare the results of the entirety of all of the November 3, 2014 Federal,
State, County and Municipal elections invalid and Order that entirely new
elections be held forthwith in compliance with law.
Respectfully submitted,

Respectfully submitted,

Richard Luzzi, Esq.

Eugene Martin LaVergne

Attorney for Appellants

Democratic-Republican for U.S. Senate

Appellant Pro Se
Dated: March 7, 2015

Dated: March 7, 2015

59