F TH[ ST,~T p O C ~y ~ :'~ ti l V ".

' ' ~' 11+t ,~ F rt~l

State of New Jersey

CHRIS CHRISTI Gouer~ia OPPIC~ OP'1'H~ ATTORNEY GENERAL DrPARTM~NT OP I.AW AND PUBLIC SAb'~TY ~TOHN J. HOFFMAN Acting Attorney Ge~ieral

DrvrsioN or Lew
KIM GUADAUNO 25 MaRIiET STRUT CHRISTOPHER S. PORRINO

Lt. Gouerri.or

PO Box 112 TxENTON, NJ 08625-0112

Dia~ector

October 7, 2013

The Honorable Mary C. Jacobson, A. J.S. C. Mercer County Criminal Courthouse 400 S. Warren Street P.O. Box 8068 Trenton, New Jersey 08650-0068 Re: Lavergne v. Lonegan, et al. Docket No. MER-L-1933-13 State Defendants' Opposition to Plaintiff's Motion for Reconsideration

Dear Judge Jacobson: Kindly accept this letter and accompanying Certification on behalf of Governor in Christie and Lt. to Governor Guadagno ("State for

Defendants")

opposition

plaintiff's

motion

reconsideration of the court's order of October 3, 2013 denying plaintiff's application for injunctive relief and dismissing the complaint. Plaintiff's application is both procedurally and

substantively flawed and should be summarily rejected. To begin, plaintiff's reconsideration is motion is if

procedurally ~, '*
;* ~,~ ~ ~

improper.

Reconsideration

only appropriate

HuGFi~s Jus'ric~ CoMPL~x T~L~rxoN~:(609) 984-9504 Fax:(609) 292-0690 New Jersey Is Arti Is'q~ca.l Opporturidty Employer Printed on Recycled Paper a~tid Recyclable

October 7, 2013 Page 2 there are "matters or controlling decisions which the R. 4:49-2.

court has overlooked or as to which it has erred." If

the motion for reconsideration is -based on facts that were

either known by or knowable to the moving party before the court rendered the challenged decision, then there is no basis for

reconsideration.

See Del Vecchio v. Hemberger, 388 N.J. Super.

179, 189 (App. Div. 2006) (denying reconsideration where there was "no reason" why additional not have facts been in support of

reconsideration

motion

could

gathered

earlier);

Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 4:49-2 (2013) facts ("the known motion to is properly denied to if based of on the

unraised

the

movant

prior

entry

judgment") . In his motion, of plaintiff Giles, which the was relies Director filed of upon of in the the June New 2013 Jersey Supreme

certification Division Court by of

Robert

Elections, State in

the

State v.

the

matter

Grillo

Christie,

September Term 2012, Docket No. 072773.

This filing has been a Nothing prevented

matter of public record for quite some time.

plaintiff from searching the Internet -- where, he admits, the document lawsuit. still remains long before he filed the instant
--

His decision not to include discoverable facts in his

earlier papers provides no basis for reconsideration.

October 7, 2013 Page 3 Independent application is of wholly its procedural merit. impropriety, The motion plaintiff's evidences a

without

fundamental misunderstanding both of election law in general and of the specific factual assertions made and issues raised in the two separate law suits. Here, injunctive the relief State opposed he plaintiff's application new for

because

sought an order for a

ballot

draw for the October 16 special general election by the twentyone county clerks. of all of the Such relief would have required reprinting and would have placed the State out of

ballots

compliance with federal law requiring the transmittal of ballots to the military and overseas See 42 voters forty-five ~ days before In a a

federal

election.

U.S.C.A.

1973ff-1(a)(8)

nutshell, plaintiff was asking for the election officials to go back weeks State to square one for electoral preparations, Before not fewer this than two

before

the

October 16 that there

election. simply was

court, the time to

explained

sufficient

restart the process from the ballot phase. By contrast, the Certification of Mr. Giles in the Grillo Plaintiff's reliance position, or to

matter addressed wholly different issues. on that Certification to dispute the

State's

imply that the State misled the court, misses the mark.

October 7, 2013 Page 4 The Grillo Certification focused only on the voting machine phase draw, 2013 of electoral preparations, printing, of 2013 and which comes after the ballot 7,

ballot

ballot

programming. at 19)

See

(Oct. Mr.

Certification in June

Robert that, the 5

Giles with

Giles the be

certified voting readied frame. time

sufficient 16

resources, could

machines for the

used

for

October

election a

November

election

within

three-week

time

(Ibid.) for

That time frame, however, did not include the the ballot draw, ballot printing, and ballot

needed

programming for each voting machine.

(Ibid.)

As the attached October 7, 2013 Certification of Mr. Giles explains, the State will be able to prepare the voting machines after October 16 and the in time for the and November 5 election was done As

precisely

because

ballot

design

programming

well in advance of the November election.

(Id. at 20.)

Mr. Giles states, the voting machine programming had to be done before the mail-in ballots could be generated and the

transmittal of those ballots had to commence on September 21 -forty-five N.J.S.A. ballots). October days 19:63-9 Unlike before the November time 5 election. forwarding by (Ibid.); of see

(governing the scenario where

for

mail-in for have the to

envisioned county

plaintiff would

16

election,

the

clerks

redraw, redesign, and reprogram the ballot, and then the voting

October 7, 2013 Page 5 machines could be prepared, those ballot steps have already been completed for the November 5 election. (Ibid.)

Plaintiff is simply misinformed about the election process in New Jersey. His reliance on Mr. Giles's June 2013

Certification is misplaced and provides no basis for this court to reconsider its earlier decision. For the foregoing reasons, the court should deny the motion for reconsideration. Respectfully submitted, JOHN J. HOFFMAN ACTING ATTORNEY GENERAL OF NEW JERSEY

Assistant Attorn~v General c: Eugene Lavergne Steve Lonegan County Counsel

JOHN J. HOFFMAN Acting Attorney General of New Jersey Attorney for Respondents Governor Chris Christie and Lt. Governor Kimberly Guadagno Richard J. Hughes Justice Complex P.O. Box 112 Trenton, New Jersey 08625 BY: DONNA KELLY Assistant Attorney General Attorney ID # 025791978 (609) 984-9504

SUPERIOR COURT OF NEW JERSEY LAW DIVISION - CIVIL PART MERCER COUNTY DOCKET NO. MER-L-1933-13 LAVERGNE, Plaintiff, v. CERTIFICATION OF ROBERT GILES Civil Action

LONEGAN, et als. Defendants.

I, Robert F. Giles, being of full age, hereby certify: 1. ("DOE"), I am the Director of the New Jersey Division of Elections in the New Jersey Department of State, for which the

Secretary of State ("Secretary") is the agency head. I have held this position since May 2008. Prior to May 2008, I served as the Executive Supervisor of the Ocean County Board of Election for

eight years. I am thoroughly familiar with the State's electoral

process and the duties and responsibilities imposed on the various county election officials, with whom I interact on a regular basis. 2. The Secretary is the Chief Election Official in New

Jersey, charged by federal and state laws with specific electoral responsibilities, for which DOE is the administrative arm. One such federal law is the MOVE Act, 42 U.S.C.A. ~ 1973ff-1 (a) (8) (A), which requires each State to commence the mailing of ballots to military and overseas voters no later than 45 days before a federal election. 3. clerk is Under Title 19, Election Laws of New Jersey, each county mandated For the to print all the ballots for an upcoming

election.

October 16 special general election for the

office of United States Senator, the county clerks have completed ballot printing. 4. By way of submissions filed in this matter prior to the

October 3 hearing, 16 of the 21 county clerks informed the trial court that 3,941,130 sample ballots, 194,867 vote by mail ballots, 7,532 machine ballots, 132,120 emergency ballots, and 100,547

provisional ballots had been printed. 5. The Statewide Voter Registration System ("SVRS"), which

is overseen by the Secretary, is the official repository for the State's election records, including the number of mail-in ballots issued by the county clerks for an upcoming election, as well as

the number of voted mail-in ballots returned to the county boards of election. 6. For the October 16, 2013 election, the SVRS records

indicate that as of October 7, 159,436 mail-in ballots have been issued by the county clerks statewide. Of that number, 955 were issued to military and overseas civilian voters. 7. ballots Furthermore, have already as been of October 7, to 77,889 the voted mail-in of

returned

county

boards

election. In other words, 77,889 New Jersey voters have already cast their vote for the October 16, 2013 election. Of that number, 309 ballots have been returned by military and overseas voters. 8. If the court were to order a redrawing, reprinting and

reissuance of the ballots for the October 16 election, it would be a significant undertaking for the county clerks in an extremely compressed time frame. 9. In addition, if the county clerks were now to reissue

ballots to military and overseas voters, the State would be out of compliance with the MOVE Act's firm 45-day deadline to mail ballots to military and overseas voters, as the reprinted ballots would be sent well within 45 days of the election. Also, the reprinted

ballots may not reach the military and overseas voters in a timely manner to assure the returned voted ballots are received by the county boards of election by the deadline of 8:00 p.m. on election

night. Any military or overseas ballot returned after that mandated deadline must be rejected. 10. Moreover, judicial intervention into the electoral

process at this point in time will likely hinder the ability of the State's county commissioners of registration to have the voting machines ready for October 16. 11. During part of my tenure with the Ocean County Board of

Election, I was assigned to assist in the preparation of the voting machines for upcoming elections. I know firsthand the various steps that must be taken to properly prepare a voting machine. Plaintiff appears to believe that his extraordinary request for a reprinting of the ballots, including the machine face ballots, will not have an adverse impact on this aspect of the election process. It will. There are a number of steps that would have to be undertaken if the county commissioners of registration were required to replace the voting machine ballots. It is not simply a matter of putting a new paper ballot face on the machine. As the voting machines used in the State are electronic devices, each individual voting machine would have to be reprogrammed. 12. Of the over 11,000 voting machines, approximately 10,500

of them are Dominion AVC Advantage machines. This machine is in 18 of the 21 counties, including by the Ocean Ocean County. I worked on this

machine

while

employed

County Board of

Election.

Voting machine preparation requires a multi-step process, which 4

includes the programming of the ballot for each election district, burning the ballot definition onto the respective voting machine cartridge (which stores the recorded votes), testing the machines, and certifying them with eventual transport to the respective

polling places. 13. All ballot information is entered into the voting machine

by way of a cartridge created by the appropriate election office based on the ballots designed by the county clerk and set up by the printer on a gridded format. On the printer's grid, each office and candidate is assigned a switch position as coordinates on a graph. This ballot information is entered into a database by way of the applicable program designed for the voting machine. Any change in the ballot position for a candidate, after the initial designation, would require the county to re-do the ballot programming for each machine. 14. Once the ballot information for each election district is

created, it must be downloaded onto a cartridge, which is uniquely identified by serial number and associated with a particular voting machine. 15. Voting machine preparation also includes the following

steps. A Set-Up Diagnostics, which tests the functionality of the various components of each machine, is performed. The ballot face must be placed on the machine with the protective mylar cover

secured over it. The machine cartridge is inserted and the Pre-

logic and Accuracy (Pre-Lat) test is performed. For this test, the technician will cast votes on each machine, in pre-election mode, to assure that votes will be accurately recorded. The emergency ballot box attached to each machine must also be filled with the appropriate number of paper ballots. 16. It is my understanding that a significant number of

voting machines for the October 16 have already been prepared and readied for the election. At least one county, Middlesex, started

shipping the October 16 machines and expects to have at least 25 percent done by the end of the day on October 7, 2013. 17. At this point in time, any redoing of the ballot would

force the counties to redo the voting machines. Overall, it is my view that any disruption of the current election process could well defeat the fundamental goal of the electoral process -- the full participation of the electorate. 18. Plaintiff has alleged that the facts I provided in my

initial Certification in this matter are directly contradicted by my Certification that the State provided to the Supreme Court of New Jersey in opposition to a petition for certification in Grillo v. Christie, Supreme Court of New Jersey, September Term 2012, Docket No. 072773. certifications. 19. In my Grillo Certification, I discussed the voting However, there is no contradiction between my

machine phase of electoral preparations,

which comes after the

ballot

draw,

ballot

printing,

and

ballot

programming,

and

detailed the efforts that would be made well in advance of the November 5, 2013 general election to assure that the voting

machines would be ready in the compressed time frame following the October 16, 2013 special general election. between November the 5, October 16, 2013 There are 20 days the be

2013 special general election and election. The preparations to

general

completed in that 20-day time frame do not include the ballot draw, ballot printing, and ballot programming for each voting machine. 20. An important component for the success of the November 5

election was the ballot design and programming being completed well in advance of the election. For example, in Ocean County the voting machine program had to be completed before the mail-in ballots could be generated. As discussed earlier these ballots must be available not fewer than 45 days before the election. As a result of this preparation well in advance, there will not be any ballot draw, design, or printing necessary between the October 16, 2013 and November 5, 2013 elections it will because only be that has already burn been the

completed.

Therefore,

necessary to

cartridges and reset the voting machines so they can be tested, certified, and delivered for the November 5, 2013 election. 21. In addition, expedited schedules for the pick-up and

delivery of the voting machines were developed well in advance to assure the voting machines will be ready for the November 5, 2013 7

general election. In many cases this required special arrangements to be made with the municipal clerks and the owners of the polling place facilities. 22. In this matter, plaintiff requests that this Court order

the county election officials to start the entire election process for the October 16, 2013 special general election from the very beginning, i.e., the ballot draw, design, and printing. 23. There are a mere 9 days between October 7, 2013 and

October 16, 2013, as compared to the 20 days between the October 16, 2013 and November 5, 2013 elections. 24. Nine days is not enough time to, as plaintiff requests,

conduct a ballot draw, design the ballot, re-print and mail the ballots, reprogram and retest the voting machines with a new

ballot, and deliver the voting machines to the polling places to conduct an orderly election on October 16, 2013.

Z certify ~ha~ the foregoing statements made by me axe true. I am aware that if any o~ the foregoing statements made by me are willfu~~y false, I am subject of punishment.

~~~~i~~ Robext Giles Date : jv~~ ~~

JOHN J. HOFFMAN Acting Attorney General of New Jersey Attorney for Respondents Governor Chris Christie and Lt. Governor Kimberly Guadagno Richard J. Hughes Justice Complex P.O. Box 112 Trenton, New Jersey 08625 BY: DONNA KELLY Assistant Attorney General Attorney ID # 025791978 (609) 984-9504 SUPERIOR COURT OF NEW JERSEY LAW DIVISION - CIVIL PART MERCER COUNTY DOCKET NO. MER-L-1933-13 LAVERGNE, Plaintiff, u CERTIFICATION OF DONNA KELLY Civil Action

LONEGAN, et als. Defendants

DONNA KELLY, being of full age, by way of certification, says: 1. I am an Assistant Attorney General in the Division

of Law, Department of Law and Public Safety, State of New Jersey. 2. The facsimile signature on the October 7, 2013

certification of Robert Giles is genuine.

The document or a copy

with an original signature affixed will be filed if requested by the Court or a party.

I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements

made by me are willfully false, I am subject to punishment.

Dated:

October 7, 2013