United States Court of Appeals Third Circuit No. 12-3977 Democratic-Republican Organization of New Jersey, et als., Appellants, vs.

Kimberly Guadagno, et als., Appellees.

Joint Expedited Motion for Preliminary Declaratory and Injunctive Relief and For Other Forms of Expedited Relief Oler & Luzzi, L.L.C. 6 Apple Tree Lane Sparta, New Jersey 07871 Telephone: (973) 983-7020 Telefax: (973) 983-7030 By: Richard Luzzi, Esq. Attorney for Appellants DemocraticRepublican Organization of New Jersey, Frederick John LaVergne, Leonard P. Marshall, Tracy M. Caprioni, Kimberly Sue Johnson and Donald E. Letton

Eugene Martin LaVergne, Appellant Pro Se 543 Cedar Avenue West Long Branch, New Jersey 07764 Telephone: (732) 272-1776

RELIEF REQUESTED BY EXPEDITED MOTIONS: Appellants by way of joint appellate motions hereby move on an expedited basis for Orders from the United States Court of Appeals for the Third Circuit granting the following relief:
A.)

An Order entering preliminary declaratory and injunction relief, pending appeal, specifically declaring and directing: (1) That each individual Appellant shall have the right to use the slogan Democratic-Republican associated with their individual name and as an associated political group on the November 6, 2012 General Election Ballot; (2) That Appellants shall have the right to be bracketed together in the same vertical column on the November 6, 2012 General Election Ballot in Counties where there are multiple DemocraticRepublican candidates on the General Election Ballot; (3) That Appellants and all other candidates shall be afforded an equal opportunity to be placed in the first two columns on the left and at the top of the November 6, 2012 General Election Ballot on the Election Machines and all paper provisional ballots; and (4) That the 21 County Clerk defendants be directed to comply with the preliminary declaratory and injunctive relief granted by this Court when configuring the final form of the General Election Ballot for the machines and paper provisional ballots

to be used at the November 6, 2012 General Election.

B.)

An Order pursuant to Third Circuit L.A.R. 4 expediting the Courts consideration of all of the applications made herein, allowing all briefs filed to below to be considered, and with a proposed briefing schedule to supplement arguments as follows:
-

All Appellees shall have until 12:00 noon on Tuesday October 23, 2012 (or such other shorter time as the Court may fix) to reply to the moving papers filed by Appellants herein or to otherwise advise the Court that they rely upon the briefs filed below; Appellants hereby waive the right to respond in writing by reply due to the shortness of time, so that the expedited applications will be before the Court for consideration and disposition no later than noon on Tuesday October 23, 2012.

BACKGROUND: On Monday September 11, 2011 the collective plaintiffs filed a Verified Complaint with extensive exhibits as well as an application for an Order to Show Cause in the United States District Court for the District of New Jersey, Newark Vicinage. Plaintiff Democratic-Republican Organization of

New Jersey is a minor party political organization (ie. they have not yet qualified as a political party under New Jersey Election Laws, specifically N.J.S.A. 19:1-1, and are therefore

not subject to the State run Primary Election Process when selecting their candidates) and the named individual

candidate plaintiffs are all members of the DemocraticRepublican Organization and are candidates for various Federal and New Jersey State Elected office on the

November 6, 2012 General Election Ballot.

In this lawsuit

plaintiffs (1) sought to use the name of their organization Democratic-Republican as the General Election Ballot slogan associated with each candidates name on all actual 2012 General Election Ballots, (2) sought to be bracketed together in the same vertical column along with the slogan Democratic-Republican in all Counties where there were multiple Democratic-Republican candidates on the General Election Ballot, and (3) sought an Order giving them and all other candidates an equal opportunity to be placed in the first two columns on the left and at the top of the General Election Ballots. plaintiffs were seeking In the Order to Show cause accelerated preliminary

certain

declaratory and injunctive relief (the same as that sought here in these emergent motions) to ensure that they could

be awarded these three specific forms of relief in time for the November 6, 2012 General Election. On September 12 and 14, 2012, the Honorable Freda L. Wolfson, U.S.D.J., of the District of New Jersey Trenton Vicinage 1 held telephone conferences with certain parties and ultimately issued an Order to Show Cause, though in a form slightly different from that submitted by plaintiffs. The Order to show cause, as requested by plaintiffs, fixed an accelerated service and accelerated briefing schedule and set October 3, 2012 as the return date of the Order to Show Cause. Thereafter, service was affected and briefs

were filed by the various defendants objecting and raising certain legal arguments, which arguments were then replied to in writing by plaintiffs. All briefs are in the docket below. On Thursday October 3, 2012 the Court heard oral argument on the relief requested by plaintiffs in the Order

The Complaint named plaintiffs from various counties and named defendants from all 21 of New Jerseys Counties (ie., the Clerk of each County). The Clerks Office made an internal decision to transfer the matter from the Newark Vicinage where it was filed to the Trenton Vicinage where it was assigned to Judge Wolfson 3 days later on September 14, 2012.
1

to Show Cause.2 indicated that it

At the end of oral argument the Court would be denying the accelerated

declaratory and injunctive relief plaintiffs had sought in the Order to Order to Show Cause, and that and the Court would be getting out an Order and accompanying written Opinion to that effect and with the Courts specific reasons in short order. A week later, on Thursday October 10, 2012, the Court filed the written Opinion (Document 33) and an Order (Document 34) denying plaintiffs accelerated request for declaratory and injunctive relief.3 The next day, October 11, 2012, a month to the day after the initial September 11, Just prior to oral argument a substitution of attorney form was filed so that plaintiff Eugene Martin LaVergne, who was previously represented like all other parties by Richard Luzzi, Esq., was not proceeding pro se so that he could be heard separately. On Appeal Eugene Martin LaVergne remains pro se for that same purpose. 3 Immediately upon receipt of the original Opinion and Order on October 10, 2011 appellant Eugene Martin LaVergne contacted the Court Reporter to inquire about the necessity of a transcript for an emergent appeal as there was detailed written opinion. The Court Reporter was advised that plaintiffs intended to seek emergent review in the Third Circuit because the District Court had clearly (so Appellants believe) applied the incorrect standard of judicial scrutiny and in so doing had incorrectly framed the legal burdens.
2

2012 filing, the District Court issued an Amended Opinion (Document 35) which was identical in all respects to the original Opinion except for the now inclusion of footnote 8 that starts on the bottom of page 20 and ends on page 21 of the Amended Opinion. On Thursday October 18, Appellants filed a Joint Notice of Appeal with the Clerk of the District Court. Appellants

now file the instant Joint Expedited Motion for Preliminary Declaratory and Injunctive Relief and For Other Forms of Expedited Relief. SUMMARY OF ARGUMENT: All Appellants here have already lawfully obtained access to the General Election Ballot4 and will appear as In New Jersey there are only two ways that a candidate obtains access to appear as a candidate on the General Election Ballot. Candidates who are seeking to run for public office as a candidate for a political party as defined in N.J.S.A. 19:1-1 must obtain a number of signatures on a which varies depending upon the office being sought. For example, a candidate for the Office of House of Representatives in one of the 12 statewide Congressional Districts must obtain the signatures of 50 voters on a Nominating Petition, while a candidate for the office of United States Senate, a statewide office, must obtain the signatures of 800 voters. That qualifies the major political party candidate to have access to the Primary Election Ballot held in June. The winner of that Primary Election from
4

candidates for the various Federal and State elected offices that they seek on the November 6, 2012 General Election Ballot. As such, this is not a so called candidate ballot

access case, as all Appellants have already satisfied and met the legal qualifications as candidates individually for the elected offices that they seek, and all Appellants have thereafter satisfied the States legal requirements of

demonstrating the statutorily defined level of community support and have otherwise successfully complied with and

among all those seeking the right to run as the political partys candidate then in turn earns the right to appear on the following November General Election Ballot for the office sought as the political partys candidate. At present, only the Republican Party and Democratic Party qualify as a political party under New Jersey Election Laws. Conversely, all of other candidates, such as Appellants here, obtain access to the General Election Ballot also by obtaining the identical number of signatures for the office sought on a nominating petition, which entitles the candidate to have direct access to the General Election Ballot without any Primary Election. By illustration, Appellant Eugene martin LaVergne, the Democratic-Republican candidate was required to obtain the same 800 signatures on a Nominating Petition as required to be obtained by the Republican Senate Candidate and the Democratic Candidate. The only difference is that the Republican and Democratic Senate Candidates had to also win their partys Primary Election. The threshold demonstration of community support for access to the General Election Ballot is identical for all candidates.
9

satisfied all state required procedures for earning the legal right to appear as a candidate for the elected offices that they seek on the November 6, 2012 General Election Ballot. Appellants contend that, now having overcome these

substantial hurdles, and now having actually earned the right to appear as candidates for elected Federal and State public office on the November 6, 2012 General Election Ballot by demonstrating the statutorily defined level of community support (the same statutorily defined threshold level of support as is required of the major political party candidates), and now with Appellants in fact actually appearing as candidates for elected Federal and State public office on the November 6, 2012 General Election Ballot, Appellants claim that they are therefore similarly situated to all other candidates who will be appearing on the General Election Ballot in the eyes of the law, and that now having already obtained actual access to the General Election Ballot like all other candidates, that all candidates have equal constitutional rights, none superior to the others, to political association and political expression and political

10

communication on the General Election Ballot. To the point, Appellants contend that the special treatments at issue here (ballot position preference, exclusive use of certain words as part of a slogan) that the State by admitted design and plan confers upon the political parties to the specific exclusion of Appellants and all other minor party and independent unaffiliated candidates is therefore impermissible and

unconstitutional.

Clear Supreme Court precedent supports

Appellants position in this regard. See infra. Moreover, any different treatment (preferential or otherwise) afforded by the State on the actual General Election Ballot to major political parties to that afforded to other candidates is subject to strict judicial scrutiny and is presumed to be unconstitutional. That is the clearly established law in the

United States Supreme Court and in the Third Circuit. See infra. Notwithstanding this, the District Court below

disregarded clearly established Supreme Court and Third Circuit precedent on the critical issue of the appropriate standard of judicial scrutiny to apply when evaluating

11

Appellants constitutional claims.

The District Court below

analogized Appellants factual claims to that of a candidate ballot access case (as noted, all Appellants are already on the General Election Ballot this is NOT a candidate ballot access case) and then applied what it referred to as the balancing test of Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) which the District Court argued applied to all election law cases. With the application of the so called Anderson balancing test, the burden is on the moving party, not the State, and the standard is similar to the rational basis test, the lowest level of judicial scrutiny. 5 Only one year ago, a different judge in the District of New Jersey applied the rational basis test rather than the similar Anderson balancing test when evaluating the constitutional claims raised there in a Fourteenth Amendment Equal Protection as applied challenge in a candidate ballot access case. See Lewis v. Guadagno, 837 F.Supp.2d 404 (D.N.J. 2011) (Hillman). By Order dated September 13, 2011 a panel of the Third Circuit quickly and summarily reversed the District Court, ruling in the Order that the District Court had relied upon the incorrect standard of judicial scrutiny when evaluating the constitutional claims, that the correct level of scrutiny was the intermediate compelling State interest level of judicial scrutiny. See explanation in Argument, infra. Then, a week later, and not changing the ruling on the issue of the appropriate level of judicial scrutiny declared in the September 13, 2012 Order, the same panel heard further oral argument on the actual substance of the appeal and
5

12

Even were the District Court below to be viewed as correctly evaluating plaintiffs constitutional claims with the standard of judicial scrutiny normally applied to a candidate ballot access case, the District Court still applied the incorrect level of judicial scrutiny and in so doing thereby incorrectly imparted the burden of proof on the Appellants when the affirmed the District Court on a factual issue that as a matter of fact, in this as applied challenge, and as a threshold matter, candidate Carl Lewis had failed to point to any other candidate that was being treated differently than him. In sum, Lewis constitutional claim would necessarily fail as a matter of fact, irrespective of the level of scrutiny applied. See September 13, 2011 Order and September 20 2011 Opinion in Lewis v. Gaudagno, No. 11-3401 (3d Cir. 2011) (Scirica, Ambro and Vanaskie). It is noted more than just in passing that the same office for the State, and literally the same attorney for the State, that appeared in the Lewis case and certainly was aware that in the Third Circuit even in ballot access cases (where candidates are not yet on the ballot) require intermediate level compelling State interest judicial scrutiny, appeared for the State below in this case and nonetheless argued in this case to the District Court that, contrary Third Circuit law, rational basis scrutiny should applied to candidate ballot access cases, and in so doing never so much as mentioned the Lewis case or the Third Circuits September 13, 2011 Order reasserting the correct standard of review in candidate ballot access cases. This is noted in the context of Appellants coming forward and notifying the District Court of the adverse legal authority (and Appellants claim now inapplicable) in Voltaggio as is expressly required by requirements of candor. This is noted in the context of any delay caused, and that Appellants should not be prejudiced under the circumstances.
13

burden of proof properly was on the State.

In the Third

Circuit, a candidate ballot access constitutional claim must be evaluated using the intermediate compelling state interest level of judicial scrutiny, where the challenged restrictions are presumed unconstitutional, with the State required to prove that the regulations are not

unconstitutional. In short, under any standard, the District Court below applied the incorrect level of judicial scrutiny and therefore must be reversed. Moreover, due to the

critical time constraints, and due to the serious constitutional issues and constitutional rights of Appellants and the millions of voters in New Jersey that are at stake, it is submitted that this Court must act immediately to ensure that the remedy can be implemented in time for the November 6, 2012 General Election.

POINT I: THE DISTRICT COURT APPLIED THE WRONG LEVEL OF JUDICIAL SCRITINY WHEN EVALUATING PLAITNIFFS CONSTITUTIONAL CLAIMS: The District Court below applied the incorrect level of judicial scrutiny when evaluating plaintiffs constitutional
14

claims.

When the correct level of judicial scrutiny is

applied to the facts of this case, it is evident that plaintiffs are entitled to the emergent declaratory and injunctive relief requested. This is a simple case. As the District Court below

pointed out in the first sentence of both the Opinion and Amended Opinion: Before the Court is a motion for a preliminary injunction and other relief, wherein the moving parties specifically challenge the preferences New Jersey Provides to the two main political parties through placing them in the first two columns of the general election ballots and prohibiting the use of any part of their name by other, unaffiliated candidates. [Amended Opinion at page 1] Plaintiffs all have properly obtained access to the November 6, 2011 General Election Ballot as candidates for various public office. Appellants are already on the

November 6, 2012 as candidates for the respective Federal and State elective offices that they seek. Now having

already overcome the substantial hurdle of obtaining access as a candidate for public office whose name will appear on
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the November 6, 2012 General Election Ballot, plaintiffs argue that they now have political speech and associational rights equal to those of all other candidates on the General Election Ballot, whether such other candidates are major party candidates, minor party candidates, or single unaffiliated candidates. Plaintiffs argue that the actual

General Election Ballot is the most important medium for expressing and advancing and communicating their political views as candidates and their views as a collective political association. Plaintiffs directly contend, and logically it can

not be disputed that, the content of the actual General Election Ballot is the most relevant and direct contact and communication with each voter in the State of New Jersey. This is simply because the contact and communication is being made between the candidates and each voter literally during the actual real time process of each voter reviewing the candidates listed on the ballot and deciding who to cast their vote for. Plaintiffs argue that once having earned the right to appear as a candidate for public office, that all candidates are required to be treated equally as to [First

16

Amendment] political speech and associational rights and that no one candidate or class of candidates or no one political organization or class of political organizations should be granted special, preferred, or different

treatment from the others. There is clear binding precedent for these principles of law. See Cook v. Gralike, 531 U.S. 510 (2001) and Citizens United v. Federal Election Commission, ___ U.S. ___ (2011), both explained in further detail, infra. The District Court below quite simply and quite clearly applied the incorrect level of judicial scrutiny when evaluating plaintiffs constitutional claims. When the correct level of judicial scrutiny is applied to the facts of and legal issues raised in this case, it is evident that Appellants are entitled to the emergent declaratory and injunctive relief as requested and without limitation. This is a candidate ballot placement or candidate ballot location case, brought by Federal and State Candidates that have already obtained access to the General Election Ballot, and as such Appellants Constitutional claims must be evaluated under a strict judicial scrutiny standard: Plaintiffs contended from the onset that the statutory scheme being challenged violates and burdens their core
17

fundamental constitutional rights to freedom of political speech and political association and that the statutory scheme denies them (and others similarly situated) of the equal protection of laws otherwise guaranteed by the Fourteenth Amendment. Plaintiffs are all already on the This is NOT a

November 6, 2012 General Election Ballot: ballot access case.

The State of New Jersey, through its election laws and classifications made therein, is regulating the political speech and political associational rights of candidates on the actual General Election Ballot (1) by limiting language that may be used in slogans and (2) by providing what all parties agree is preferred ballot position to the two major political parties. Moreover, because there are candidate plaintiffs in this case seeking the elected office of United States Senate and the elected office of United States Hours of

Representatives, this case not only involves the [First Amendment] political speech and associational issues

(facially and as applied) and Fourteenth Amendment equal protection issues (facially and as applied) as discussed, but

18

also directly involves and directly implicates the additional restrictions on State regulation of Federal Elections as imposed by the Elections Clause, Article I, sec. 4, cl. 1 of the United States Constitution, and the [Seventeenth

Amendment] of the United States Constitution. The [First Amendment] Issues: If the recent decision of the United States Supreme Court in Citizens United v. Federal Election Commission, ___ U.S. ___ (2011) stands for any clear legal principle, it is that the government may not regulate political speech or political association based upon the identity of the speaker without infringing on the [First Amendment]. Now after

Citizens United, there is no longer any reasonable question but that all forms of political speech regarding political candidates and political elections, even if engaged in by fictitious corporate or union entities, are all core [First Amendment] rights. This remains so, and is more

compelling, where as here the core [First Amendment] political speech and associational rights at issue are those rights held by actual human candidates and actual human

19

voters. That being the case, surely the rights of Appellants here, actual living breathing candidates on the November 2012 General Election Ballot, and their living breathing voter supporters, have [First Amendment] political speech and political associational rights that are at least equal to the [First Amendment] political speech and political associational rights of fictitious corporate and union entities. Just as the fictitious corporate or union entities have a core [First Amendment] fundamental right to speak for or against Appellants candidacies, surely the living human candidate Appellants themselves and their living human voter

supporters have equal rights to speak for Appellants candidacies. Those rights necessarily and logically include

political speech and political association on the General Election Ballot, the place and time where expression of political views is indisputably the most critical. And

Appellants have the right to engage in this protected activity free from any discrimination. See Lewis v. Guadagno, No. Directly to

11-3401 (September 20, 2011) (3d Cir. 2011).

the point, the Supreme Court has unequivocally reiterated

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that the appropriate standard of judicial scrutiny to apply when a legal claim is brought alleging that a government regulation infringes upon [First Amendment] political speech and political associational rights is strict judicial scrutiny. As Justice Kennedy clearly stated in the Citizens United majority opinion: political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws 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. (Emphasis added). [Citizens United v. Federal Election Commission, Kennedy, J. (majority slip op at page 23) (quoting Federal Election Commission v. Womens Right to Life, Inc., 551 U.S. 449, 646 (2007) (opinion of Roberts, C.J.))]. In short, Appellants maintained below, and Appellants maintain here again on emergent appeal, that this case whether described as a candidate ballot placement or candidate ballot location case, in light of Citizens United v. Federal Election Commission, the law clearly requires the District Court and this Circuit Court apply strict judicial

21

scrutiny when evaluating Appellants constitutional claims. It is undisputed that the District Court did not do so. Rather, the District Court applied what it referred to as Anderson balancing test scrutiny (very similar to the so called rational basis test, the lowest level of scrutiny) as articulated in the candidate ballot access case of Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).6
6

When the

On the issue of which level of judicial scrutiny was appropriate to apply to plaintiffs claims, the District Court below noted that plaintiffs argued (as they again initially argue here) that strict judicial scrutiny, the highest and most exacting level, should be applied to an evaluation of their constitutional claims, whereas the State argued below that the so called rational basis scrutiny, the lowest and most deferential level, should be applies when evaluating plaintiffs constitutional claims. The District Court ultimately ruled that ..[n]either partys position is correct. Amended Opinion at page 7. Rather, the Court ruled that the appropriate level of judicial scrutiny for - what the District Court referred to as cases that involve an election law challenge - is the balancing test level of judicial scrutiny as stated in Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). As noted, Anderson was a candidate ballot access case, and as such Anderson is inapplicable to this case. This case is not a candidate ballot access case: This case is a First and Fourteenth Amendment core political speech and association case. Moreover, even were it proper to evaluated plaintiffs claims here as a candidate ballot access case, the Third Circuit has long established that the standard of judicial scrutiny to apply is the compelling state interest standard of judicial scrutiny (an intermediate level of review, where the statute is still presumed to be unconstitutional). See Wellford v. Battaglia, 485 F.2d 1151 (3d Cir. 1973) (Van Dusen, Gibbons and
22

statutory scheme at issue in this case is evaluated using strict judicial scrutiny, the State can not possibly provide sufficient and satisfactory facts to rebut the strong

presumption of unconstitutionality and invalidity.

As such,

this Court should independently evaluate plaintiffs claims using the strict judicial scrutiny standard and grant the declaratory and injunctive relief requested. The Elections Clause of Article I: Because there are candidate plaintiffs seeking the office of United States Senate and the office of the United States Hours of Representatives, this case not only involves [First Amendment] political speech and associational issues (facially and as applied) and Fourteenth Amendment equal protection issues (facially and as applied) but also involves and implicates the additional restrictions on State regulation of Federal Elections as imposed by the Elections Clause, Article I, sec. 4, cl. 1 of the United States Constitution, and

Hunter). See also argument, infra.

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the

[Seventeenth

Amendment]

of

the

United

States

Constitution.7 The federal offices at stake aris[e] from the Constitution itself. U.S. Term Limits, Inc. v Thorton, 514 U.S., at 805. Because any State authority to regulate It is significant to note that the District Court below heavily relied upon the reasoning of the New Jersey Superior Court, Chancery Division (trial level court) on remand in the case of 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). Firstly, the constitutional claims raised herein were expressly neither raised nor addressed before that Court, who even noted in a footnote that such arguments, had they been raised then and there at that time (they were not) were certainly colorable. See 332 N.J.Super. 278, 753 A.2d 192 (Ch. Div. 1999) at footnote 5. What took place is that the Appellate Division in that case to save the major political parties the right to preferred placement literally interpreted (or twisted) State Law (N.J.S.A. 19:5-1) in a matter that was not only contrary to legislative history, logic, and the actual plain text, but was in such a way that rendered the statutory scheme conferring preferential ballot placement unconstitutional. The counting method is completely arbitrary and irrational. Such are Appellants specific claims here. If that is the law, then the conferring of preferred position is unconstitutional. If this Court independently interprets State Law contrary to the State Appellate Division as is allowed by Bush v. Gore, 531 U.S. 98 (2000), and applies the law as actually written as initially found by the Chancery Division initially, and somehow rejects Appellants other constitutional claims on ballot placement, then the Republican Party has failed to poll the required amount to be entitled to the location preference in N.J.S.A. 19:5-1, falling short by over 50,000 votes. Moreover,
7

24

election to those offices could not precede their very creation by the Constitution, such power had to be delegated to, rather than reserved by, the States. Id., at 804. Cf. 1 Story sec. 627 (It is no original prerogative of State power to appoint a representative, a senator, or president for the union.). Though 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. 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, ___ (2001)]. As stated, States may regulate the incidents of such elections, including balloting, only within the exclusive delegation of power under the Elections Clause.

the elections in 1999 did not involve any candidates for Federal Office on the Ballot, so the Constitutions Elections Clause of Article I and the [Seventeenth Amendment] were not at issue. Because there are Federal Candidates, this is a strict scrutiny case.
25

(emphasis added), Id. Moreover, the United States Supreme Court in Cook v. Gralike, supra, in a unanimous opinion which is controlling on the District Court and this Court, specifically ruled that when a Court is called upon to evaluate a claim by a candidate for the Federal office of United States Senate or the United States House of Representatives who has already obtained access to the General Election Ballot (such is at issue here) where the Federal Candidate on the ballot makes a claim that a State regulation or series of State regulations governing the configuring and content of the General Election Ballot discriminates Fourteenth or otherwise infringes on the [First], and the

and

[Seventeenth]

Amendments

Elections Clause, Article I, sec. 4, cl. 1 of the United States Constitution (such is at issue here), the standard of judicial scrutiny to apply to the Federal candidates claims in such a case is strict judicial scrutiny. Cook v. Gralike, 531 U.S.

510, ___ (2001) (Stevens, J) and (Rhenquist, C.J. and OConner, J, concurring). When the statutory scheme at

issue in this case is evaluated using strict judicial scrutiny,

26

the State can not possibly provide sufficient and satisfactory facts to rebut the strong presumption of unconstitutionality and invalidity. As such, this Court should independently

evaluate plaintiffs claims using the strict judicial scrutiny standard and grant the declaratory and injunctive relief requested.8

On the issue of slogan, Appellants reassert that Riddell v. National Democratic Party, 508 F.2d 770 (5th Cir. 1975) is directly on point, directly applicable, and compels a ruling in Appellants favor. The District Court attempted to distinguish this case and in so doing, once again, relied upon the incorrect standard of judicial scrutiny to apply to the claim. Anderson did not affect Riddell as Riddell was not a ballot access case any more than this case is a ballot access case. See also Freedom Socialists v. Bradburry, 182 Ore.App. 217, 48 P.3d 199 (Oregon 2002); Norman v. Reed, 502 U.S. 279 (1992). When the correct level is scrutiny is applied, the arguments advanced by the state a generic argument regarding a State interest seeking to avoid confusion between major and minor political party candidates simply does not overcome the presumption of unconstitutionality. As such, Appellants must be allowed to use their organizations name Democratic-Republican as the slogan associated with their name on the November 6, 2012 General Election Ballot.
8

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Assuming, arguendo, that the District Court properly characterized and analogized plaintiffs constitutional claims to a candidate ballot access case, the District Court still must be reversed as having incorrectly disregarded the controlling Third Circuit precedents in Wellford v. Battaglia and the full Court en banc decision in Reform Party of Allegheney County v. Allegheney County Department of Elections: Assuming, arguendo, that even were the claims of plaintiffs here somehow to be properly viewed and evaluated as a candidate ballot access case (even though all candidates are already ON the November 6, 2012 General Election Ballot as candidates, albeit without a slogan and bracket and placed well to the right on the Ballot) and therefore reviewed under the level of judicial scrutiny applicable to a candidate ballot access case, the District Court below still applied the incorrect standard of review. The Third Circuit has long and unequivocally held that the appropriate standard of review in a candidate ballot access case is the compelling state interest standard of judicial scrutiny (an intermediate level of review, where the statute is still presumed to be unconstitutional). See Wellford v.

Battaglia, 485 F.2d 1151 (3d Cir. 1973) (Van Dusen, Gibbons

28

and Hunter) and 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). Moreover, only one year ago Wellford v. Battaglia was specifically cited as controlling authority by a panel of this Court (Scirica, Ambro and Vanaskie) as to the standard of scrutiny to apply when evaluating a candidate ballot access case. Specifically, by Order dated September 13, 2011, the referenced Third Circuit panel by Order provided as follows: The judgment of the District Court, entered September 7, 2011, is hereby reversed. The District Court, inter alia, incorrectly applied a rational basis standard of review of this as applied challenge, rather than the stricter compelling state interest standard. See Wellford v. Battaglia, 343 F.Supp. 143 (D. Del. 1972), affd, 485 F.2d 1151 (3d Cir. 1973). The State has failed to demonstrate a compelling state interest in the application of this durational residency requirement to this particular candidate. Accordingly, it is hereby ordered that the ballot at issue in this appeal include the name of Appellant. Opinion of the Court to follow.

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[See Order of September 13, 2011 in Lewis v. Guadagno, No. 11-3401 (3d Cir. 2011) (Scirica, Ambro and Vanaskie)]. Wellford v. Battaglia has not been overruled9, nor has the full Third Circuit en banc decision in Allegheney County v. Allegheney County Department of Elections, 174 F.3d 305 (3d Cir. 1999) been overruled, and as such both are still controlling precedent and still govern the standard of judicial scrutiny that the District Court below was to have applied to plaintiffs constitutional claims. The one thing that is clear is that even if this is case properly viewed as a candidate ballot access case (plaintiffs contends that it is not), neither the Anderson balancing test nor the rational basis test is

A week later, on September 20, 2011, without changing their position on the appropriate standard of judicial scrutiny to apply, this same panel affirmed the lower Courts denial of allowing Carl Lewis on the General Election Ballot as a candidate because it was found as a matter of fact that Lewis he had failed to demonstrate any other person who was treated differently than he in what at that point was only a Fourteenth Amendment Equal Protection as applied claim. However, this unpublished opinion never mentioned any level of scrutiny. So while the result of Lewiss right to Ballot Access was reversed, the legal position as to the standard of Judicial Scrutiny applicable as articulated in the Courts September 13, 2011 Order was not.
9

30

the proper level of the level of judicial scrutiny to apply when evaluating plaintiffs constitutional claims. If the plaintiffs constitutional claims here are indeed subject to strict judicial scrutiny as plaintiffs contend they must be, then the statutory scheme is presumed

unconstitutional and invalid and the burden is on the State to demonstrate otherwise. Conversely, even if the District

Court was correct in analogizing this case a case where all plaintiffs are already on the actual General Election Ballot to the line of so called candidate ballot access cases, the proper standard of review for such a case in the Third Circuit is without question the compelling state interest standard of scrutiny test, an intermediate level of review, where the statutory scheme is still presumed to be unconstitutional and invalid until the State proves otherwise. Wellford v.

Battaglia, 485 F.2d 1151 (3d Cir. 1973); Allegheney County v. Allegheney County Department of Elections, 174 F.3d 305 (3d Cir. 1999) (en banc). In short, under any possible scenario, and no matter how this case is properly viewed, it is clear that the District Court below applied the incorrect

31

standard of judicial scrutiny. statutory scheme

Under either scenario, the is presumptively

challenged

unconstitutional and invalid, and remains so unless and until the State demonstrates otherwise. That all being said, the justifications for this presumptively unconstitutional and invalid statutory scheme advanced by the State can not possibly satisfy either of the noted judicial scrutiny tests.

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Whether plaintiffs constitutional claims are evaluated under either a strict judicial scrutiny standard or are evaluated under a compelling state interest judicial scrutiny standard, in either event the State has not presented a sufficient basis to rebut the presumption that the challenged statutory scheme is unconstitutional and invalid and as such Appellants are entitled to the requested declaratory and injunctive relief. The strict judicial scrutiny test which plaintiffs

contend applies to an evaluation of the constitutional claims made in this case requires the State to come forward and demonstrate that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. Citizens United v. Federal Election Commission, ___ U.S. ___ (2011) Kennedy, J. (majority slip op at page 23) (quoting Federal Election Commission v. Womens Right to Life, Inc., 551 U.S. 449, 646 (2007) (opinion of Roberts, C.J.)); See also Cook v. Gralike, 531 U.S. 510, ___ (2001) (Stevens, J) and (Rhenquist, C.J. and OConner, J, concurring). Conversely,

viewing plaintiffs constitutional claims in this case as a candidate ballot access case such as the District Court saw fit to do requires application of the so called compelling state interest standard of judicial scrutiny, which requires

33

the State to demonstrate a compelling State interest in the application challenged. of the discriminatory statutory scheme

Wellford v. Battaglia, 485 F.2d 1151 (3d Cir.

1973); Allegheney County v. Allegheney County Department of Elections, 174 F.3d 305 (3d Cir. 1999) (en banc). In either event, the challenged statutory scheme is presumed

unconstitutional and invalid. What are the justifications advanced by the State for the different and preferable treatment that the statutory scheme admittedly gives to major political parties and their candidates? As to the Ballot placement, the District Court

recited the explanation at pages 16-17 of the Amended Opinion: I note that the State has offered, in its papers and at the hearing, several interests supporting its method of regulating ballot placement in a way that might appear to favor political parties. Specifically, the State claims that political party candidates have demonstrated a certain modicum of community support and therefore it is reasonable to place them together on the same side of the ballot to the exclusion of the unaffiliated candidates, who have failed to demonstrate the same amount of support. Cf. Jennes,
34

403 U.S. at 42. In that connection, the State posits, it is important for voters to easily identify these candidates and parties on the ballot, which is accomplished by ensuring that these candidates for political parties are clearly separated on the ballot from candidates nominated by petition. In sum, the State argues, these regulations serve the interest of maintaining the integrity of the election process. [Amended Opinion at 16-17]. Directly to the point, the only justification that the State has advanced whatsoever for this different treatment is that:
(1) major political parties have demonstrated a modicum

of community support (whatever that means); {FN} (2) so it is therefore (so the State says) reasonable to place all major political party candidates on the same side of the ballot, specifically away from candidates who have obtained access to the ballot through the nomination and petition process; (3) and that it is therefore reasonable to place all major political party candidates together on the same side of the ballot because it is important for voters to easily identify these candidates and parties on the ballot. The problem with the entirety of the States argument in this regard is that the interests that they articulate are not legitimate and recognized State interests. The reasons advanced may operate to
35

address

and

protect

the

interests of the two established major political parties and their candidates, but the interests of established major political parties and their candidates most certainly do not equate as a matter of law with the interests of the State of New Jersey that a Court may take cognizance of when evaluating the constitutionality of the challenged legislative classifications and restrictions. As the Sixth Circuit said in

Libertarian Party of Ohio v. Blackwell, 465 F.3d. 579, 587 (6th Cir. 2006): [T]he State may not be a wholly independent or neutral arbiter as it is controlled by the political parties in power, which presumably have in incentive to shape the rules of the electoral game to their own benefit. [Libertarian Party of Ohio v. Blackwell, supra, 465 F.3d. at 587 (quoting from Clingman v. Beaver, 544 U.S. 581 (2005) (OConner, J., concurring)]. In this regard, it is simply not the place of the State to take sides by enacting election laws that favor one party over another or one candidate over another, or to enact election laws that inherently favor established political parties and their candidates over new political parties and their candidates. [W]hile states enjoy a wide latitude in
36

regulating elections and in controlling ballot content and ballot access, they must exercise this power in a reasonable, nondiscriminatory, politically neutral fashion. (Emphasis added). Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006). Despite this fact and despite the actual law, there is not even so much as a pretense of an argument from the State that the classifications and preferences that plaintiffs

challenge here are politically neutral. In fact, the State quite clearly argues the contrary, literally arguing that the State has the right to overtly favor the major political parties and their candidates over minor political parties and their candidates when configuring the actual General Election Ballot without violating the [First] and Fourteenth

Amendments!

The State amazingly argues that it is both

reasonable and important for voters to easily identify and find the major political parties and their candidates on the General Election Ballot. This is reasonable and

important because -the State says - political parties have demonstrated a modicum of support. To the point, how

37

making it easier for voters to find the major party candidates on the General Election Ballot - and in so doing admittedly therefore making it more difficult, or at least not as easy, for voters to find minor political party candidates on the General Election Ballot is a State interest is not explained by the State. Moreover, how such admitted State

discrimination can possibly equate with a State interest is neither explained by the District Court nor understood by plaintiffs. Nor can such favorable treatment ever equate

with any legitimate, valid and recognizable State interest for constitutional analysis. In Williams v. Rhodes, 393 U.S. 23, 31-32 (1968) the Supreme Court specifically and clearly ruled that State election laws that favor the two major political parties and their candidates over minor political parties and their candidates under the pretext of the States promoting the stability of two parties is an impermissible State interest that the First Amendment simply does not recognize.10 As the only reason articulated by the State is At footnote 8 on page 14 of the Amended Opinion the District Court acknowledges that at oral argument Eugene LaVergne argued that Williams v. Rhodes, 393 U.S. 23 (1968) supported the legal position
10

38

not a State interest that may even be recognized by any Court, there certainly is no compelling State interest, nonetheless one that is narrowly tailored to achieve that State interest. See Citizens United v. Federal Elections

Commission, supra., Cook v. Gralike, supra, Wellford v. Battaglia, supra., Allegheney County v. Allegheney County Department of Elections, supra. To rebut the presumption

that the discriminatory statutory scheme is unconstitutional

that preferential ballot placement for a candidate or political party violates the Constitution. The Court then stated that: Plaintiffs argument rests on the conclusory assertion that certain ballot placements are more preferential than others - - in terms of garnering votes or otherwise - - and accordingly I reject it for the same reasons as stated above. What is at issue here is not a conclusory assertion by plaintiffs at all but rather is a fact openly admitted by the State. The State itself here argues that the ballot placement given to the major political parties is a benefit and is a preference and that such placement on the General Election Ballot (the conferred benefit and preference) makes it easier for voters to quickly identify, find on the General Election Ballot, and vote for the major political party candidates! Indeed, this is, by the States own admission, specifically why the State confers this benefit and preference on the major political parties and their candidates.

39

and invalid the State must articulate a valid and recognized State interest. They have not done so, nor can they. As

such, plaintiffs have demonstrated a clear probability of success on the merits and as such this Court should enter the declaratory and injunctive relief requested.11
11

Applications for injunctive relief are governed by Rule 65 of the Federal Rules of Civil Procedure (F.R.Civ.P. 65). The standards governing an application for injunctive relief in the Third Circuit are well established: To satisfy the injunction standard, the moving party must demonstrate the classic four elements: (1) a reasonable probability of success on the merits; (2) that denial of injunctive relief will result in irreparable harm; (3) that granting injunctive relief will non result in even greater harm to the non-moving party; and (4) that granting injunctive relief will be in the public interest. [Saudi Basic Industry, Corp. v. Exxon Corp., 364 F.3d 106, 112 (3d Cir. 2004), citing Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999)]. In this case, the District Court below assumed that all standards were met except the probability of success on the merits prong. When the proper level of judicial scrutiny Strict Judicial Scrutiny is applied to Appellants actual claims, it is submitted that Appellants have in fact demonstrated a probability of success on the merits and are entitled to the declaratory and injunctive relief requested.

40

POINT II: THE CIRCUIT COURT SHOULD, IF EVEN NECESSARY, TAKE JUDICIAL NOTICE OF THE FACT THAT BALLOT LOCATION HAS AN EFFECT ON ELECTIONS: The State openly concedes that placement of the major political parties and their candidates in the first two columns on the left and at the top of the General Election ballot is a preference and a benefit. Moreover, not only is this fact conceded, but the State literally argues that it is expressly because this placement confers a preference and benefit that the State has an interest in specifically conferring this benefit and preference on the major political parties and their candidates to the specific exclusion of all minor political parties and their candidates. That is literally the States

position and argument. See Point I, supra. Despite this reality, the District Court still found that at this preliminary stage of the proceedings plaintiffs had not demonstrated a likelihood of success on the merits. This finding by the District Court was specifically and only because the Court took the position that there was no evidence yet before the Court that demonstrated that any benefit or burden existed by the placement of the major
41

political parties in the first two columns on the left and top of the General Election Ballot. This finding by the District Court was made in the face of the reality that the State conceded the fact of positional bias to exist. Court stated as follows: Thus, Plaintiffs, at the very least, should have presented the Court with some type of evidence demonstrating a benefit and/or burden that stems from ballot placement. Without any such evidence, the Court is unable to make a determination that Plaintiffs have suffered any cognizable, constitutional harm in this case. In other words, Plaintiffs have failed to establish a likelihood of success on the merits that would allow a preliminary injunction to issue. [Amended Opinion at page 16]. Under the facts of this case plaintiffs do not or should not - need to present any further evidence, even at this early stage of the litigation, on an issue of fact that the State openly concedes is true. Therefore, in the actual context of this case, the District Courts position that [w]ithout any such evidence, the Court is unable to make a determination that Plaintiffs have suffered any cognizable, constitutional The District

42

harm in this case ..., Id., with all due deference, literally makes no logical sense. With the concessions made by the State here, there simply is no disputed issue or question of fact on the issue of positional bias on the General Election Ballot: The State concedes the issue of fact.12 Moreover, on the facts of this case in the context of plaintiffs actual constitutional claims, as a threshold matter plaintiffs are not required to prove positional bias on the General Election Ballot but rather as a threshold matter are only required to demonstrate different treatment from others similarly Once

situated, which plaintiffs have undisputedly done.

plaintiffs have demonstrated different treatment by the 14 years ago 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), the State of New Jersey took the literal contrary position, arguing that there was no evidence that had been presented yet in that case that demonstrated that there is any bias or preference created by ballot position. Now, the State not only concedes what all have always understood to be true, that there is unquestionably indeed a bias and therefore a preference in ballot position, but the State argues that it is because of this bias and preference that they have conferred the first two columns on the left of the General Election Ballot to the major political parties and their candidates to the exclusion of all minor political parties and their candidates.
12

43

State of some candidates on the General Election Ballot from other candidates on the General Election Ballot as plaintiffs have clearly done, the burden then shifts to the State to show that there is NOT positional bias of a constitutional magnitude. See Citizens United, supra. and Wellford v. Whether this case is properly evaluated

Battaglia, supra.

under a strict scrutiny or compelling state interest standard, Id., in either event the burden is on the State to demonstrate that the different treatment of candidates on the General Election Ballot does not create a positional bias. The District Court applied the incorrect standard of judicial scrutiny, and in do doing, improperly stated the burden of proof as if plaintiffs had to demonstrate bias. This is

incorrect, as under either of the two possible correct standards of review, the burden is on the State to demonstrate that there is not positional bias, whereas the District Court (in applying the incorrect standard of Judicial Scrutiny) incorrectly ruled that the burden was on plaintiff to demonstrate that there is positional bias.

44

However, least there be any question on the issue that could affect this Court from granting the declaratory and injunctive relief requested, plaintiffs hereby formally request that this Court take judicial notice under F.R.Evid. 201 of the adjudicatory fact that providing the two left columns at the top of the General Election Ballot to the major political parties to the exclusion of the minor political parties created and causes a positional bias. For more than 70 years courts at various times and under various circumstances have acknowledged the fact that a candidates placement at the preferred locations on the General Election Ballot (top of ballot, to the left of the ballot) provide a substantial benefit. It is a commonly known and accepted fact that in an election, either primary or general, where a number of candidates or nominees for the same office are before the electorate, those whose name appear at the head of the list have a distinct advantage. (emphasis added). [Elliott v. Secretary of State, 295 Mich. 245, 294 N.W. 171, 173 (Mich. 1940).] Today, in year 2012, 72 years after the Michigan State Courts statement that positional bias on the General

45

Election Ballot is a commonly known and accepted fact, there is no longer any reasonable dispute that all empirical evidence and date support the factual conclusion that the first two columns on the left and the top locations of a General Election Ballot confer a benefit and operate as a preference for any candidate as this location makes it easier for voters to identify and find a candidate. While studies

may differ as to degree of effect, there is no reasonable question now in year 2012 that there is a significant effect. See eg. The Impact of Candidate Name Order on Election Outcomes, by Joanne M. Miller & Jon A. Krosnick, 62 Pub.OpinionQ, Vol.62, No. 3, 291, 293-294, 308-308 (1998); Election by Lottery: Ballot Order, Equal Protection, and the Irrational Voter, by Laura Miller, 13 N.Y.U.J.Legis.&Pub.Poly 373, 405 (2010) (collecting empirical social science studies). Further, countless Federal and State Courts have

acknowledged and struck down as unconstitutional statutes that grant ballot placement preferences to the major political parties and their candidates, all finding as fact that position on the ballot makes a difference. See e.g. McLain v. Meier,

46

637 F.2d 1159, 1167 (8th Cir. 1980) (Such favoritism burdens the fundamental right to vote possessed by

supporters of the last-listed candidates, in violation of the fourteenth amendment.); Emmons v. Hooper, CIV-78-404 (D.N.M. July 6, 1979) ([C]itizens voting for an unfavorably positioned candidate would lose their power of their vote to a group of equal strength whose candidate appears in top positions.); Graves v. McElderry, 946 F.Supp. 1569

(W.D.Okla. 1996) (Striking Democratic-first statute.); Rosen v. Brown, 970 F.2d 169 (6th Cir. 1992); Weisberg v. Powell, 417 F.2d 388, 392-393 (7th Cir. 1969) (Policy of granting priority ballot placement to candidates of major parties held to be unconstitutional.); Cullition v. Board of Election Commissioners of the County of DuPage, 419 F.Supp. 126 (N.D. Ill. 1976) (holding that Republican-first provision violated equal protection clause.); Sangmeister v. Woodard, 565 F.2d 460, 465-467 (7th Cir. 1977) (Affirming District Courts finding that ballot positioning practices favoring certain parties are unconstitutional.); Atkins v. New

Hampshire Secretary of State, 154 N.H. 67, 904 A.2d 702

47

(N.H. 2006) (Listing candidates from the party that receive the most votes in the previous election and alphabetizing the names of the remaining candidates held unconstitutional.); Holtzman v. Power, 313 N.Y.S.2d 904, 62 Misc.2d 1020, affd mem. 34 App.Div.2d 917, 311 N.Y.S.2d 824, affd mem. 27 N.Y.2d 628, 313 N.Y.S.2d 760, 261 N.E.2d 666 (1970) (Statute requiring name of incumbent to appear first on the ballot held to be unconstitutional.) Most recently, on February 3, 2012, in Green Party of Tennessee v. Hargett, Case No. 3:11-00692 (Mid.D.Tenn. 2012) (Document 45) the Honorable William J. Haynes of the Middle District of Tennessee took judicial notice of social statistics that confirm ballot position bias by including in his opinion social science studies not relied upon by either party when concluding the adjudicative fact of positional bias. Plaintiffs are asking this Court, to the extent even necessary, to do the same here. Notwithstanding the fact that the State concedes this that there is positional bias and a preference and a benefit that is derived from being located to the top and left of the

48

general election ballot, to the extent necessary, plaintiffs ask this Court to take Judicial Notice under F.R.Evid. 201 of the well known and commonly accepted fact that a

candidates location at the preferred locations on the General Election Ballot (top of ballot, to the left of the ballot) provide a substantial benefit. As such, there plaintiffs

submit that they have demonstrated a probability of success on the merits. POINT III: EXPEDITED REVIEW IS APPROPRIATE TO PROTECT THE CONSTITUTIONAL RIGHTS OF APPELLANTS AND OF ALL VOTERS IN THE ENTIRE STATE OF NEW JERSEY: There is more than ample precedent for an Article III Court to Order expedited review in election matters when

constitutional rights are at stake and the constitutional validity of a State Election Statute is called into question in a Federal election. Under such circumstances expedited

review may be granted on the application of a party or even Ordered sua sponte. See Norman v. Reed, 502 U.S. 279, 287 (1992) (Expediting review and Supreme Court Ordering Election Ballots to be changed to comply with Constitution less than 2 weeks before the Election); Bush v. Gore, 531
49

U.S. 98 (2000) and Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000) (expedited review of

Constitutionality of Florida State Election Laws in context of a Federal Election). Article III Courts have not hesitated to conduct expedited review and enter appropriate preliminary injunctive relief when the Constitutionality of a law or the actions of a government official are at issue. See

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (expedited review of constitutionality of actions of Article II President in the so called steel seizure cases); United States v. Nixon, 418 U.S. 683 (1983) (expedited review in the Nixon Tapes Case); New York Times Co. v. United States, 403 U.S. 713 (1971) (expedited review in the Pentagon Papers Case); Bowsher v. Synar, 478 U.S. 714 (1986) (expedited review of the constitutionality of the Gram-Rudman Act); Dames & Moore v. Regan, 453 U.S. 654 (1981) (expedited review on the constitutionality of seizure of Iranian Assets); Raines v. Byrd, 521 U.S. 811

50

(1997) (expedited review of the constitutionality of the line item veto).13

Although the Article III Courts heard Raines v. Byrd in an expedited case, ultimately the Supreme Court dismissed the case finding that the plaintiffs there lacked Article III standing to bring the legal challenge. Thereafter, in a case which was not heard on an expedited basis but where the plaintiffs were found to have Article III standing, the line item veto was declared unconstitutional. See Clinton v. New York, 524 U.S. 417 (1998).
13

51

CONCLUSION: For the foregoing reasons and authorities cited in support thereof, it is respectfully requested that Appellants Motions be GRANTED.

____/s/ Luzzi_________________

Richard

By: Richard Luzzi, Esq. Attorney for Appellants DemocraticRepublican Organization of New Jersey, Frederick John LaVergne, Leonard P. Marshall, Tracy M. Caprioni, Kimberly Sue Johnson and Donald E. Letton Dated: October 19, 2012 ____/s/ Eugene Martin LaVergne_______ Eugene Martin LaVergne Appellant Pro Se Dated: October 19, 2012

PROOF OF SERVICE AND COMBINED CERTIFICATIONS: [ADD]

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