Copy distributed L-1933-13

8/22/2019 Copy distributed L-1933-13

1/22

Eugene Martin LaVergne,Democratic-Republican for United States

Senate,

Plaintiff,

vs.

Steven M. Lonegan, Candidate for UnitedStates Senate, et als.,

Defendants,

and

Robert DePasqualle,Candidate for UnitedStates Senate, et als.,

I nterested Parti es.

---------------------------------------------------

In the Matter of the Application to

Recheck the Voting Machines to be

Used in the October 16, 2013 Special

General Election for the Office of

United States Senator.

Superior Court of New Jersey

Law DivisionCivil Part

Mercer County

Docket No. L-1933-13

Superior Court of New Jersey

Law DivisionCivil Part

Mercer County

Docket No. L-1933-13

Reply Memorandum in LaVergne v. Loneganto the Opposition Papers that were

received from Defendants and/or Interested Parties as of September 30, 2013

and

Preliminary Opposition to the Relief Requested in IMO Application to Recheck the

Voting Machines

Eugene Martin LaVergne

Democratic-Republicanfor United States Senate

543 Cedar Avenue

West Long Branch, New Jersey 07764

Telephone: (732) 272-1776

PlaintiffPro Se


2/22

- 2 -

Introduction:

Service of Process and of the Order to Show Cause and Motion Papers:

As required by the terms of the Order to Show Cause signed by the Court onSeptember 16, 2013, on Friday September 27, 2013 plaintiff filed the required Proofs of

Service by filing duly executed and notarized Affidavits of Service from each personserving the papers thereby presumptively proving that all defendants were timely servedwith process (the Summons and Verified Complaint) and the papers in support of the

plaintiffs motions brought by way of Order to Show Cause (the Order to Show Cause,Statement of Material Facts, and Memorandum of Law).1 Such documents as a matter oflaw presumptively demonstrate constitutional service of process and notice of the

plaintiffs emergent application, and it is up to any party served who disputes the validityof service to come forward to dispute the validity of service. As such, there is no

question that this Court now has obtained in personamjurisdiction over all parties unlesssome party seeks to contest the validity of service. All persons who served the process

and signed the Affidavits of Service which have been filed with the Clerk of the Court

will be physically present in Court on October 3, 2003 at the newly assigned time of11:00 a.m. so that in the event that any party seeks to make service an issue the challenge

can easily and quickly be dispelled.2 Plaintiff can clearly prove service if asked orrequired to do so.

1 There was attempted but failed service upon the Bergen County Clerk on Friday September 20,

2013 at approximately 4:20 p.m., which attempt was made before close of Government business hours.

However, for reasons unclear, the Bergen County Clerks Office closed that day at 4:00 p.m., apparently

early for the weekend. As such, a second attempt at service was immediately made on Monday September23, 2013 when service was indeed effected. Both Affidavits of Service (explaining the failed attempt on

Friday September 20, 2013 and explaining the effective service on Monday September 23, 2013) have been

filed with the Clerk of the Court. As such, while the Bergen County Clerk was indeed duly served, the

Bergen County Clerk it technically the onlyparty that was not actually served before the expiration of the

September 20, 2013 deadline, this because the public office closed early for the weekend.2 On Wednesday September 18, 2013 defendant Timothy Tyler was personally servedat his office

in Mount Holly, New Jersey, by Fredrick John LaVergne (plaintiffs brother)by Fredrick John LaVergne

giving to defendant Clerk Timothy Tyler himself (who is known to Fredrick John LaVergne) a copy of all

papers. See Affidavit of Service filed with the Court as to defendant Tyler. Indeed, not only was Tyler

personally served at that time (as opposed to service upon Tylers office) , defendant Tyler was indeed the

firstparty to be served by specific plan and design. Thereafter, by letter dated September 26, 2013 sent to

the Court, Peter H. Nelson, Burlington County Solicitor, in responding to the Order to Show Cause on

behalf of defendant Tyler, advises the Court that notwithstanding the fact that he (Nelson) was respondingon behalf of defendant Timothy Tyler that we were not served and are only aware of this through

emails from various county counsels. (Emphasis added). See September 26, 2013 Letter from Peter H.

Nelson, Burlington County Solicitor, page one, paragraph one. This is a completely false representation,

though it is not known what defendant Tyler told Mr. Nelson. Plaintiff has been made aware that as there

is no defense to the failure to abide by N.J.S.A. 19:5-1 that certain County Clerks plan of defense (asthere is no real defenseperse) will be to try to delay and try to somehow argue that they were not properly

or effectively served (when they all were) to try to delay the case from proceeding so that the Court will not

be able to act in time. If this is indeed true, this is shameful behavior from elected public officials, each

who has sworn an oath to follow the law. To date all but 6 County Clerk defendants - Bergen, Camden,Cape May, Gloucester, Ocean and Salem have not responded as yet. All 21 County Clerk defendants

including the 6 who have yet to respond were nonetheless properly served (which was no small effort),

and will have to somehow appear it they wish to seek contest service of process. Since defendant Tylers

attorney Peter H. Nelson is the only responding party to in any way or record actually question the

propriety of service, plaintiff contacted Nelson who initially claimed to plaintiff that it was his position that


3/22

- 3 -

The Opposition Papers Received:By 9:00 p.m.on Monday evening on September 30, 2013 plaintiff has received

the following motion papers on behalf of the following parties:

Governor and Lt. Governor

/ Secretary of State: 11 page Memorandum of Law from Donna Kelly, D.A.G.,dated September 27, 2013 and 3 page certification ofRobert F. Giles, Director of New Jersey Division of

Elections dated September 26, 2013.

Atlantic County Clerk: 3 page letter from James F. Ferguson, Atlantic County

Counsel, dated September 26, 2013 and a 2 pagecertification from Deputy Atlantic County Clerk Jacob

Austin dated September 26, 2013.

Burlington County Clerk: 3 page letter from James F. Ferguson, Atlantic County

Counsel, dated September 26, 2013 and a 2 pagecertification from Deputy Atlantic County Clerk Jacob

Austin dated September 26, 2013.

Cumberland County Clerk: 5 page letter from Theodore E. Baker, Cumberland CountyCounsel, dated September 27, 2013 and a 3 pagecertification from Cumberland County Clerk Gloria Noto

dated September 26, 2013.

Essex County Clerk: 1 page letter from James R. Paganelli, Essex County

Counsel dated September 26, 2013.

Hudson County Clerk: 2 page letter from Mark E. Morchel, Deputy Hudson

County Counsel dated September 27, 2013.

there was not effective service on defendant Tyler, but when advised by plaintiff that he had irrefutable

evidentiary proof that Tyler was indeed properly served, Nelson then modified his position to now claimingthat Tyler was given all papers exceptthe Order to Show Cause. As plaintiff knows this to be an inaccurate

recitation of history, and as plaintiff is not interested in playing nonsense games over service issues,

Frederick John LaVergne will be in Court to testify if the Court has any question on the issue whatsoever.

Further, plaintiff has already caused a separate subpoena ad testificandum to be served upon Tylerspecifically requiring Tyler to appear in Court on October 3 (thought the time stated was 2:00 p.m. as this

all occurred before the Court moved the argument back to 11:00 a.m.). However, once defendant Tyler

was served with thesubpoena ad testificandum, defendant Tyler apparently immediately and dramaticallychanged his position and quickly and unconditionally conceded to Frederick John LaVergne that indeed he

had been properly and personally served on Wednesday September 18 and was mistaken in hisunderstanding of service. Defendant Tyler specifically stated to Frederick John LaVergne that he is not

going to contesting the fact that he was indeed constitutionally served with process on Wednesday

September 18, 2013. However, plaintiff has not released Tyler from thesubpoena ad testificandum nor has

he been asked to, and no motion to quash has been received. It is expected that this will be the end of thenon-issue.


4/22

- 4 -

Hunterdon County Clerk: 2 page letter from Shana L. Taylor, Hunterdon County

Counsel dated September 27, 2013, 1 Page Notice of

Appearance dated September 27, 2013 and 2 pagecertification of Hunterdon County Clerk Mary Melfi dated

September 24, 2013.

Mercer County Clerk: 3 page letter from Joseph P. Blaney, Assistant Mercer

County Counsel, dated September 27, 2013 and a 2 pagecertification from Mercer County Clerk Paula Sollami-Covello, dated September 27, 2013.

Middlesex County Clerk: 1 page cover letter dated September 27, 2013 from Jopseph

A. Bilal, Esq., Deputy Middlesex County Counsel, 1 pageNotice of Appearance, and 3 page certification of Elaine M.

Flynn, Middlesex Clerk dated September 27, 2013.

Monmouth County Clerk: 1 page cover letter from Andrea I. Bazer, Monmouth

County Counsel, September 27, 2013, 1 page Notice ofAppearance dated September 27, 2013, 2 page Legal

Memorandum dated September 27, 2013, 2 pagecertification of M. Claire French, Monmouth County Clerkdated September 26, 2013.

Morris County Clerk: 1 page cover letter from Daniel W. OMullan datedSeptember 26, 2013, 3 page Legal Memorandum dated

September 26, 2013, and 2 page certification of LauraRoberts, Supervisor of the Elections Section in the MorrisCounty Clerks Office dated September 26, 2013.

Passaic County Clerk: 2 page letter from Matthew Malfa, Deputy Passaic CountyCounsel dated September 27, 2013.

Somerset County Clerk: 1 page cover letter from William T. Cooper, III dated

September 27, 2013, 2 Page Notice of Appearance datedSeptember 27, 2013 and 2 page certification of Somerset

County Clerk Brett A. Radi dated September 24, 2013.

Sussex County Clerk: 2 page letter from Dennis R. McConnell, Sussex County

Counsel, dated September 26, 2013 and a 2 pagecertification from Sussex County Clerk Jeffrey M. Parrott

dated September 25, 2013.

Union County Clerk: 2 page cover letter from Steven M. Merman, Assistant

County Counsel dated September 26, 2013, 6 page Letter

Brief from Robert E. Barry, Union County Counsel dated


5/22

- 5 -

September 26, 2013 and 4 page certification of UnionCounty Clerk Joanne Rajoppi dated September 24, 2013.

Warren County Clerk: 1 page cover letter from Joseph J. Bell, Warren CountyCounsel dated September 27, 2013, 2 page Letter Brief

from Joseph J. Bell dated September 26, 2013, and 2 pageNotice of Appearance, and certification of Union CountyClerk Joanne Rajoppi dated September 27, 2013.

No papers have been received by plaintiff as yet from the Bergen County Clerk,Camden County Clerk, Gloucester County Clerk, Ocean County Clerk, or the Salem

County Clerk, all of whom have been nevertheless served with process and served withthe plaintiffs moving papers. See Affidavits of Service filed with the Clerk of the Court.

Summary of Arguments of the Parties in Opposition:Of the 17 parties who have responded in 16 different submissions as outlined

above, it is more startling what is notdiscussed than what is actually addressed andargued. The arguments in opposition, to be polite, and as will be addressed in more detail

herein, are legally inapplicable, factually and legally incorrect, and equitably anemic atbest. However, to the point, it is simply amazing that no defendant so much as even

sought to address the direct and unequivocal allegations of plaintiff that certain CountyClerks cheated and rigged theN.J.S.A. 19:14-12 drawings for ballot position asdescribed in detail in the Verified Complaint and Memorandum of Law. Such

allegations, though cumulative, are clearly part of this case in addition to being the

subject of a formal complaint to the United States Office of Special Counsel asconstituting a violation of Federal Law. Not only was there no response to the allegations

of fraud, there no acknowledgment of the claim at all!3 Moreover, few defendantsactually were forthcoming enough to advise the Court of the results of the drawings intheir Counties - because, of course, such evidence will most certainly show that almost all

Republican Clerks have Lonegan listed first, and almost all Democratic Clerks haveBooker listed first. Coincidence? Not really. There is not even so much as even afeigned denial, or a superficial pretense at indignation of being accused of election fraud

by plaintiff. Nothing. See footnote 3,supra.As to what is argued, most papers simply advise of the status of the election

process in each County, and most even are honest enough at this point to acknowledgereceipt of plaintiffs August 16, 2013 letterbefore the Clerks drawing occurred. No

3 The closest any of the 17 parties came to acknowledging the plaintiffs direct allegation of election

fraud was with Sussex County Counsel Dennis R. McConnell, counsel for defendant Sussex County ClerkParrot, citing to the Mochary case, being the only submission of the 16 received by Plaintiff to do so.

However, McConnell cites Mochary as claimed precedent for the legal proposition that once an N.J.S.A.

19:14-12 ballot location drawing illegal or otherwisehas already occurred, it is too late for a Court to

intervene and change anything. Mochary says nothing of the sort. Most curious is the fact that defendantParrot, a Republican, does not deny that the selection of ballot placement was rigged. If plaintiff was

falsely accused of something so serious plaintiff would certainly deny false allegations. In this regard, it is

noted in passing that the Republican Party allegedly won the drawing in Sussex County and, absent a

Court Order, will indeed have the name of their candidate, defendant Lonegan, appear in Column 1 (or A)

on all ballots in Sussex County. Big surprise.


6/22

- 6 -

excuse for ignoring plaintiffs August 16, 2013 letter is given except by the AttorneyGeneral, Atlantic County and Cumberland County, each who now curiously and

specifically argue without any real detailed analysis that (they say) N.J.S.A. 19:5-1

does not apply to Special Elections. Of course by the same dyslexic standard ofstatutory of interpretation, if these parties are correct (they are not), then the ballot

preference in N.J.S.A. 19:14-12 does not apply to special elections either, because theword special election is not found anywhere in that statute either, and therefore underthis (incorrect) statutory analysis, even Booker must now be re-located to the same one

single column as the other 7 candidates, with all 8 candidates in the same column. It isalso curiously and generically argued by many that these defendants failure to followclearly established statutory law - as is their job and legal obligation to do - is somehow

plaintiffs fault, notwithstanding that plaintiffliterally told each party in writing by letterdated August 16, 2013 of the applicable law! Against this factual historical background,

it is therefore argued, by a most contorted extension of their version of logic, thatplaintiffs failure to sue defendants sooner for defendants not abiding by the law should

result in the plaintiffs claims being barred on the doctrine of latches! The latches

argument is as a matter of law and fact completely inapplicable to this case, and plaintiffwill not waste time or space in this Reply, but will be ready and able to respond further to

the latches argument at oral argument if there is any question in the Courts mind.Plaintiff will, however, specifically reply to the argument of the parties that seek to argue

that somehow, for reasons not really made clear, that N.J.S.A. 19:5-1 does not apply tospecial elections.


7/22

- 7 -

The N.J.S.A. 19:5-1 10% Condition Clearly Applies to this Special General

Election for United States Senate by its Own Terms and by Virtue ofN.J.S.A. 19:27-

1, and Any Arguments to the Contrary are Simply Nonsense:

What today is codified as N.J.S.A. 19:5-1 was first enacted in 1930 as L. 1930,Chapter 187, Paragraph 44, Section 1, in the following initial form:

Article V

PARTY ORGANIZATIONS

Powers.

Par. 44, Sec. 1. A political party may nominatecandidates for public office at primary elections provided

for in this act, elect committees for the party within theState, county or municipality, as the case may be, and in

every other respect may exercise the rights and shall be

subject to the restrictions herein provided for politicalparties; provided, however, that no political party which

shall fail to poll at any primary election for a generalelection at least ten per centum of the votes cast in the State

for members of the General Assembly at the next precedinggeneral election shall be entitled to have a party column onthe 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 beprinted in the column or columns designated Nomination

by Petition on the official ballot under the respective titlesof office for which the nominations have been made,followed by the designation of the political party of which

the candidates are members.

[L. 1930, Chapter 187, Paragraph 44, Section 1].

In 1930 whenL. 1930, Chapter 187, Paragraph 44, Section 1 was first enacted the

State of New Jersey was operating under the New Jersey State Constitution (1844).Under the 1844 New Jersey State Constitution the Legislative Branch of State

Government, like today, consisted of a State Senate and a General Assembly, except thatunder the 1844 Constitution both legislative houses were elected annually to 1 year terms,

and all members of each house had to stand for re-election every year. See Article IV,

Section I,New Jersey State Constitution (1844) at Volume V (New JerseyPhilippines)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 ofAmerica, compiled and edited under an Act of Congress dated June 30, 1906, by FrancisNewton Thorpe, United States Government Printing Office, Washington: (1909).

Therefore, each political party was required to qualify every year for political party status


8/22

- 8 -

as the elections for General Assembly were indeed held every year, not every two yearsas is the case today.

In 1947, the State of New Jersey adopted a new State Constitution, the New

Jersey State Constitution (1947), which now for the first time extended the Constitutionalterm of office for members of the General Assembly to two years in length. Therefore,

since New Jersey Election laws retained the same standards for statutory political partystatus (10% of votes cast for members of the General Assembly), and since now underthe new 1947 State Constitution members of the General Assembly were now to be

elected only once every two years, the related and associated process of a politicalorganization achieving statutory political party status then at that point became a biannualprocess, rather what to that point had been an annual process.

The next year, in 1948, the Legislature made modest changes to L. 1930, Chapter187, Paragraph 44, Section 1 by enacting L. 1948, Chapter 438, Section 1. The 1948

changes also now codified all election laws together in what was to thereafter (and to dateremains) Title 19 of New Jersey Statutes. After the 1948 revisions,N.J.S.A. 19:5-1 was

amended to its present form, and reads as follows:

19:5-1. A political party may nominate candidates

for public office at primary elections provided for in thisTitle, elect committees for the party within the State,

county or municipality, as the case may be, and in everyother respect may exercise the rights and shall be subject tothe restrictions herein provided for political parties; except

that no political party which shall fail to poll at any primary

election for a general election at least ten per centum (10%)of the votes cast in the State for members of the General

Assembly at the next preceding general election held forthe 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 electionhad been held. In such case the names of the candidates sonominated at the primary election shall be printed in the

column or columns designated Nominationby Petitionon the official ballot under the respective titles of office for

which the nominations have been made, followed by thedesignation of the political party of which the candidates

are members.

[N.J.S.A. 19:5-1].

The few defendants (a total of four in three submissions) that bother to advance

the frivolous argument that N.J.S.A. 19:5-1 does not apply to the matter at hand becausethis is a special election for United States Senate, all frame their anemicinapplicability argument essentially identical to each other and as stated by the

Attorney General:


9/22

- 9 -

* * *For the August 13 special primary election for the

office of United States Senator, the number of votes cast

for the Republican Party candidate was 130,340. (Pl.sExh. C) Plaintiff claims that this vote total renders the

Republican Party ineligible for a political party column onthe October 16 special general election ballot. Plaintiffs

claim is based on the assumption that the rules for a

primary election and a general election should be

applied to the October 16 special election.* * *

Because the Legislature specifically established anddefined special election as a distinct type of election

under Title 19 and did not include any specific requirementin Chapter 27 that there be a separate 10% analysis of the

special primary election results for purposes of ballot

placement for the special general election, plaintiff is hardpressed to argue that the county clerks acted in violation of

Title 19 by according the Republican Party a political partycolumn on the October 16 ballot. Absent such statutory

requirements, Plaintiff cannot establish a likelihood of

success on the meri ts of his claim. (Emphasis added).

[Attorney Generals Brief at pages 9-11].

The flaw in the Attorney Generals argument is that there is such a statutory

requirement. It is unquestionably true that the actual text ofN.J.S.A. 19:5-1 itself neverspecifically references the phrase special election anywhere, both in the form inexistence today or as originally enacted. And it is indeed absolutely true that, as the

Attorney General states, Plaintiffs claim is based on the assumption that the rules fora primary election and a general election should be applied to the October 16special election. However, it is more than just plaintiffs assumption that makes

N.J.S.A. 19:5-1 applicable to this Special General Election for United States Senate, it isthe law of the State of New Jersey that makes N.J.S.A. 19:5-1 applicable to this Special

General Election for United States Senate , specificallyN.J.S.A. 19:27-1.When a Court is called upon to interpret any of the provisions of New Jerseys

Title 19 Election Laws, the meaning and intent of the text of a given statute must bedetermined by reading all portions of the statutory framework in pari material, and then

the Court must then derive the meaning from the context and gathered from the whole.

See Hand v. Larason, 163 N.J.Super. 68 (Law Div. 1978); Application of Cucci, 92N.J.Super. 223 (Law Div. 1966). Here, the Court is called upon to interpret whether

N.J.S.A. 19:5-1 (and the conditions contained therein) applies to this Special GeneralElection for United States Senate. The question is conclusively answered in theaffirmative by the Legislatures enactment of law today codified at N.J.S.A. 19:27-1,

which provides as follows:


10/22

- 10 -

Except as herein otherwise providedcandidates for publicoffice to be voted for at any special election shall be

nominated and the special election shal l be conductedand

the results thereof ascertained and certified in the same

manner and under the same conditions, restr ictions and

penalties as herein provided for primary and generalelections. (Emphasis added).

[N.J.S.A. 19:27-1].

Since the Legislature has expressly and specifically declared that a special

election is required to be conduced by election officials in the same manner andunder the same conditions, restrictions and penalties as herein provided for primary and

general elections , and as there can be no dispute that N.J.S.A. 19:5-1 clearly by itsexpress terms applies to general elections, the correct inquiry therefore is not whether

plaintiff can show thatN.J.S.A. 19:5-1 applies, but rather whether any of the defendants

can show thatN.J.S.A. 19:5-1 does not apply. N.J.S.A. 19:27-1 creates a presumption thatN.J.S.A. 19:5-1 applies to this, and all, special elections. Stated somewhat more

plainly, unless the Legislature has specifically otherwise provided that the terms ofN.J.S.A. 19:5-1 shall not apply to a special election (the Legislature has not done so),

then underN.J.S.A. 19:27-1 the terms and standards ofN.J.S.A. 19:5-1 applyand mustbe applied - to this Special General Election for United States Senate. The RepublicanParty failed to poll the requisite 10%, so their candidate defendant Lonegan therefore is

not entitled to a separate political party column on any of the Special General Election

Ballots. This is not plaintiffs interpretation of the law: This is what the Legislaturehas decreed the law to be, and decreed what shall take place under the facts extant.

Plaintiff is merely seeking to have this Court enforce the law because the defendants areignoring the law and refusing to do so.

No arguments advanced by any of the defendants that have responded to date in

any way affects the clear right of plaintiff to the emergent and expedited relief requested.However, this matter has become more complicated by new issues that have arisen sincethe Order to Show Cause was signed by the Court on September 16, 2013. These

additional new issues make the proper remedy under the totality of the circumstancesclear: In addition to the relief initially requested, the Court should logically and equitably

further specifically Order that the Special General Election for United States Senate mustbe conducted in all 21 Counties with paper ballots only under the supervision of a Special

Master.

The New Issues That Have Developed Since This Case was Filed: The Appellate

Divisions Gusciora v. Chr istieDecision and the Attorney Generals New Lawsuit ofI n the Matter of the Application to Recheck the Voting M achines:

Since this matter was filed 2 new issues have arisen that require, in addition togranting the relief requested by plaintiff, the Court considering the further practicalremedy that only paper ballots be used at all polling locations at the October 16, 2013

Special General Election for United States Senate. This is logically required by the law

when considered in consort with the facts, the limited time frame at issue, the need to use


11/22

- 11 -

the election machines at the November 5, 2013 Regular General Election, and theAppellate Divisions Gusciora v. Christie decision and the Attorney Generals new

lawsuit ofIn the Matter of the Application to Recheck the Voting Machines. This is the

only practical answer. As such, these issues are addressed in this submissionnotwithstanding the fact that the return date in the Attorney Generals new submission is

not until October 9, 2013. All issues should be resolved on October 3, 2013 to thegreatest extent practicable so that both elections can proceed in an an orderly, fair, legaland constitutional and timely process where the will of the people and not the will of

party bosses in a rigged processis determined.

Background: The New DRE Voting Machines and the Absence of any VVPAT

Technology:

It is the clear intention of 20 of the 21 County Clerks in New Jersey, absent anOrder from this Court directing otherwise, to use the so called new electronic voting

machines at the October 16, 2016 Special General Election for United States Senate. See

Verified Complaint inIMO Application to Recheck the Voting Machines, Docket No. L-2013-13.

In 2004, the New Jersey State Legislature passed legislation to change frommechanical voting machines to a new form of electronic voting machine commonly

referred to as a direct recording electronic voting machine, or DRE. DREs areessentially computers that, operating in accordance with dedicated softwareprogramming, electronically record a voters votes on a computer hard drive and then

automatically tabulate all votes cast for each candidate on each voting machine and also

temporarily electronically store the results of all votes cast at that election on that DREmachine, specifically on each DRE machines hard drive. After thepassage of a variety

of mandatory statutory and Constitutionally required waiting periods after each election(as described in more detail infra.) the DREs computer hard drive is essentially at somepoint completely erased leaving no record whatsoever of the votes cast at the election last

used, and the now blank hard drive is then re-used at the next election in the DREmachine. The DRE machines approved by the legislature for use in 2004 operate in acompletely paperless manner, and do not generate any separate paper trail of the votes

or other permanent or semi-permanent record: All information is stored on the harddrive. And as noted, the DRE hard drives are erased and re-used over and over again

at successive elections, rather than the County Clerks using a new hard drive in eachmachine for each election, and then after each election removing the dedicated hard drive

which is placed into storage. Otherwise stated, once the hard drives are cleared orerased, the information regarding voting that actually occurred at that election is gone

forever leaving literally no record whatsoever.

Even in 2004 (which was a full three years before the release of the FirstGeneration IPhone) there was readily available technology that would have easily

allowed a permanent paper trail ofthe votes cast on each DRE machine to be createdthrough use of simple technology referred to as a verified paper audit tool, orVVPAT. For reasons that are unclear and will not be speculated upon, the 2004 New

Jersey State Legislation for some reason did not initially require that all new DRE

Machines purchased also have a VVPAT so as to create a corresponding paper record.


12/22

- 12 -

As such, the new election machines purchased through New Jersey government contractswere indeed DRE voting machines, but all withouta VVPAT.

Outraged at the fact that there would not be any permanent or verifiable record of

election results, in 2004 New Jersey Assemblyman Reed Gusciora and others filed suitagainst then Governor James McGreevy and the State Election Officials alleging, on a

variety of theories, that the States approval of the new DRE voting machines without anaccompanying VVPAT violated Title 19 and various constitutional provisions.While the Gusciora court case proceeded, the New Jersey State Legislature on its

own without any Court Order shortly thereafter legislatively agreed that there was novalid reason notto require that all the new DRE voting machines that were to bepurchased and used in New Jersey Elections be required to have VVPAT technology so

that a permanent and verifiable paper record would be created and readily available sothat all election results could be memorialized for history and also available to use as a

basis for candidates or voters to determine wither to bring an application for a statutoryre-count or an application for a statutory election contest (or any other form of lawful

challenge) to the results of any election. Therefore, the next year, in 2005, the

Legislature enacted, and the Governor approved, a specific legal requirement that afterJanuary 1, 2008 any and all DREs were either required to be retrofitted with a VVPAT,

and that any new DRE voting machines purchased had to also have a VVPAT, and thatafter the date of January 1, 2008, it would be illegal for a County Clerk to use any DRE

voting machine in any election in New Jersey if the DRE voting machine did not alsohave a VVPAT. See L. 2005, c. 137.

Again for reasons not clear, this mandatory statutory deadline of January 1,

2008 was thereafter extended by the State Legislature, and ultimately in March of 2009

the Legislature indefinitely suspended (until the unspecified time when federal or statefunds might be appropriated) the 2004 Legislative requirement that all DRE voting

machines have a VVPAT by 2008. See L. 2009, c. 17, now codified at N.J.S.A. 19:48-1(b)(2) and N.J.S.A. 19:53A-3(i)(2). That was four years ago, and to date, the DREmachines that are being used still have not been replaced or retrofitted with machines that

have VVPAT technology. Otherwise states, of the DRE voting machines that arepresently used by election officials in the 20 Counties that use these machines the verymachines that will be used at the October 16, 2016 Special General Election for United

States Senate absent an Order from this Court - will not have the VVPAT technologyand will only create a record of the votes cast on the DRE hard drive.

The Application of the Attorney General and the 20 County Election Officials in the

recently filed case of IMO Application to Recheck the Voting Machines, Docket No.

L-2013-13.

On September 24, 2013, during the pendency of this action and after they had been

served with this case, the Attorney General filed a separate action on behalf of 20 of NewJerseys 21 County Election Officials, In the Matter of the Application to Recheck the

Voting Machines to be Used in the October 16, 2013 Special General Election for theOffice of United States Senator, Docket No. L-2013-13, filed in the Superior Court ofNew Jersey, Mercer County, and assigned to your honor. The same day that this new

action was filed - September 24, 2013 your honor signed an Order to Show Cause


13/22

- 13 -

returnable on October 9, 2009 at 2:00 p.m. before your honor (exactly one week after thereturn date in this matter).

In support of that application the Attorney General submits a Verified Complaint,

no legal brief or memorandum of law, and an Order to Show Cause that was ultimatelyentered by the Court, a proposed form of Order, and a Civil Case Information Statement. 4

In fact, the only law actually cited in support of this extraordinary request for relief is anincorrect and partial citation to aportion of a statuteN.J.S.A. 19:52-6in a manner thatisseverely misleadingas to what the statute actually says and is cited in part and out of

context as to what this Court may even lawfully do.To the point, the Attorney General and the County election officials now suddenly

claim to have only recently just realized that they will have to use every single existi ng

DRE voting machine in the entire State of New Jersey at the October 16, 2013 SpecialGeneral Election for United States Senate.5 Those parties then cite the court to the 15

day mandatory statutory lock down period inN.J.S.A. 19:52-6which is only one of ahost of actual mandatory statutory time frames at issue as to the potential lock down and

impoundment of voting machines that may apply to any general election that affect the

period of time that voting machines can not be touched or tampered with while astatutory Election Recount, statutory Election Contest, or other lawful challenge to the

results of an election proceeds. The Attorney General and the 20 County Electionofficials propose that they conduct an immediate and free Election Recount of the a

total of 7,942 separate DRE machines in all 20 Counties, starting on Thursday October17, 2013 at 12 noon (literally starting the day after the election when the results may noteven be known yet) commencing the process in Atlantic County, and ending the process

a week later on Tuesday October 22, 2013 in Cape May County. See Schedule A to

Verified Complaint. Moreover, they propose that after this free process is completedon Tuesday October 22, 2013, less than a week after the Senate Election, that each of the

7,942 DRE voting machines shall then be released immediately from impoundmentso that it may be prepared for the November 5 General Election and that thecartridges for all the voting machines shall be released to the custody of the County

Commissioner of Registration, upon the commencement of the recheck, of suchcartridges are in the possession of the County Clerk. See Proposed form of Order.

In short, otherwise and more accurately described, the Attorney General and 20

County Election Officials are asking this Court to sign an Order, under what they claim isthe legal authority delegated to this Court in N.J.S.A. 19:52-6, to interfere with the

election process and within 6 days of the casting of the votes at the Special Senate

4 The Civil Case Information Sheet submitted by the Attorney General does not list the within

action or the Gusciora v. Christie decision of the Appellate Division of September 16, 2013 requiring an

expeditious remand hearing as a related case or proceeding. Moreover, the Attorney Generals Verified

Petition does not include the required R. 4:5-1 certification. Both this case and the Gusciora v. Christiecase is indeed quite clearly a related case or proceeding to the new filing by the Attorney General within

the meaning of Court Rules. As such, plaintiff has filed an amended R. 4:5-1 Certification to reference

both cases.5 This very issue was discussed in length and in detail by DAG Donna Kelly in a lengthy briefsubmitted to the New Jersey Supreme Court in June 2013 where the Attorney General was opposing a

request by another party that the New Jersey Supreme Court hear a challenge to a lower Courts decision

rejecting a legal claim that the Special General Election must only be held on November 5, 2013

simultaneous to the Regular General Election. Why this application then was not filed by the Attorney

General until literally months later on September 24, 2013 is not known.


14/22

- 14 -

Election and by Court Order authorize immediate and unconditional release fromimpoundment of all of the 7,942 separate DRE machines all without a VVPATback

to the custody and control of the County Election Officials so that they can then

immediately erase the hard drivesand thereby erase all actual record of the voting at theOctober 16 Senate Electionso that these same DRE machines and their hard drives can

then be reprogrammed and then used at the November 5 statewide General Election.As will be explained, such extraordinary relief is not in any way authorized by the statuterelied upon by the Attorney General and 20 County Election Officials (N.J.S.A. 19:52-6),

such extraordinary relief is in fact expressly prohibitedby the existence and working or ahost of other mandatory applicable statutes in Title 19, and as this is an election forUnited States Senate, would operate as a clear violation of plaintiffs rights as a candidate

for United States Senate as protected by United States Constitutions Article I, Section 4,clause 1, Article I, section 5, and the [Seventeenth Amendment]. Moreover, in light of

the recent Appellate Division Ruling in Gusciora from less than 2 weeks ago which isnow on remand to your honor, this Court is by practical logic if not by this recent

appellate precedent - all but prohibited from even considering the requested relief.

The Recent Gusciora v. Chri stieAppellate Decision and Limited Remand:

Less than 2 weeks ago on September 16, 2013 in Gusciora v. Christie, A-5608-10T36, the New Jersey Superior Court Appellate Division upheld in most parts but in a

limited ruling significant to and directly applicable to this case in part reversed nowretired Judge Linda Feinberg, A.J.S.C. (your honors predecessor) and remanded thematter requiring an expeditious remand hearing. The portion of Judge Feinbergs prior

decision that was reversed was ordered because the three Judges in the Appellate

Division directly and without reservation called into question the integrity of any electionthat uses a DRE without a VVPAT because there are not yet any adequate procedures

that have been established and put into place to ensure that the software used in a DRE isin fact properly loaded and properly configured in the hard drive of the DRE by theelection officials in the first instance. In short, there are not any procedures in place that

guarantee that when a voter actually casts a vote for plaintiff at the October 16, 2013Senate Election that the DRE software will have been properly installed and that that votewill in fact accurately and correctly be recorded as cast for plaintiff rather than

erroneously recorded as vote for some other candidate. This concern about the failingsand shortcomings and dangers of the DRE without a VVPAT expressed by the Appellate

Division is not conjecture about what could or might happen: It is based upon events thathave already happened! DRE machines used in New Jersey elections the same

machines that will be used in the Senate election - are already on record as a matter oflaw as having erroneously tabulated votes cast, thereby apportioning votes cast to a

different candidate than the voter voted for, which resulted in an election result where the

losing party was declared the winner, contrary to the actual will of the voters.

6 The recent Gusciora v. Christie Appellate Division opinion se is expected to be approved for

publication, but it has not been so approved as yet. Court Rules require that any unreported case cited mustbe provided to the Court and all parties. To this end, plaintiff directs the Court and the parties to the

following web address where the as yet to be approved for publication opinion is found:

http://scholar.google.com/scholar_case?case=11615146553337169370&hl=en&as_sdt=2&as_vis=1&oi=sc

holarr
http://scholar.google.com/scholar_case?case=11615146553337169370&hl=en&as_sdt=2&as_vis=1&oi=scholarrhttp://scholar.google.com/scholar_case?case=11615146553337169370&hl=en&as_sdt=2&as_vis=1&oi=scholarrhttp://scholar.google.com/scholar_case?case=11615146553337169370&hl=en&as_sdt=2&as_vis=1&oi=scholarrhttp://scholar.google.com/scholar_case?case=11615146553337169370&hl=en&as_sdt=2&as_vis=1&oi=scholarrhttp://scholar.google.com/scholar_case?case=11615146553337169370&hl=en&as_sdt=2&as_vis=1&oi=scholarr


15/22

- 15 -

Specifically, while the Gusciora case was proceeding, there was a separate case inCumberland County where a candidate named Zirkle was running for county committee

from his local election district in a party primary election where a DRE without a

VVPAT was being used. In such elections (where the candidate is only on the ballot in 1election district in 1 town) it is not uncommon at all for less that 40 votes total to be cast

in a given election with a person receiving less than 40 votes actually winning. After theelection was concluded, Zirkle was listed as receiving only 8 votes and was declared theloser, yet Zirkle knew that he should have received at least 28 votes. Either Zirkles

friends and neighbors who all specifically went to the polls to vote for Zirkle were lyingto and had voted for someone else, or the DRE was not operating properly. In short, aftera court challenge and evaluation of the DRE used, it was discovered that in fact 28 people

had indeed voted for Zirkle, and that the software had somehow mysteriously erroneouslyrecorded 20 of those votes more than 2/3 of the votes for another candidate. This

error was only able to be discovered due to the unique circumstances of such a smalluniverse of voters participating in an election for a seat on a political partys county

committee. However, as roughly 2 out of every 3 votes cast for Zirkle were

erroneously recorded for another candidate, has this election been for United StatesSenate and Zirkle received 900,000 votes, the DRE would have erroneously recorded

300,000 votes for Zirkle and erroneously recorded 600,000 of Zirkles votes foranother candidate or candidates! Otherwise stated, the DRE would report the wrong

winner, and once the hard drive was erased, without a VVPAT, there would be no recordto check to discover this. The will of the people would be violated what at best casescenario can be characterized as a technology glitch.

Stunned by this revelationthat DRE voting machines are now without question

on Court record as erroneously recording votes and actually also erroneouslyreporting the incorrect person as winning an election, the Appellate Division was moved

to state the obvious: In a free society this is intolerable. As stated by the AppellateDivision:

* * *

We express deep concern as a resul t of the Zi rkle

li tigation, not as to the fal li bil ity of DREs relati ve to other

voting devices, but r ather as to the efforts made by the

State to min imi ze the li kelihood of error. It is obvious that

but for the very limited pool of voters involved in theZirkle litigation, the human error that lead to completely

erroneous election results would never have been detected.In other words, has the election involved 10,000 votes, the

fact that the DREs were erroneously programmed would

never have been discovered, because it is highly unlikelythat a challenger could have been established the results

were wrong through affidavits of voters or other proof.Even though the DRE involved in the Zirkle

litigation performed as it was programmed to do, the pre-

LAT failed to reveal the programming error. Ironically,

Appel spoke to the limits of a pre-LAT during the trial


16/22

- 16 -

before Judge Feinberg. The Zirkle Litigation

demonstrates how a pre-LAT performed in an inattenti ve

or otherwise non-thorough manner can result in the

wrong candidate winning.Whether a lack of sufficient, mandatory pre-election

testing of all DREs without a VVPAT amounts to aviolation of Title 19 is a legitimate issue, based on theresults of the Zirkle litigation.

We do not believe we can exercise our originaljurisdiction on the record provided from the Zirklelitigation itself. R. 2:10-5. We are compelled to remand

the matter to the Law Division for a further hearing, thatshall focus on whether the State has devised and

implemented mandatory statewide pre-election testingprocedures to provide reasonable assurances that

programming errors will not go undetected. We urge the

Law Division to conduct its review with due speed, but weleave the conduct of the remand to the sound discretion of

the judge.

[See Id.]

Yet with this decision from the Appellate Division issued on September 16, 2013

directly and publically acknowledging that DRE voting machines without a VVPAT can

not be unconditionally trusted for accuracy in any way in light of the inadequateprocedures presently in place, exactly eight days later the very same parties and election

officials at issue in Gusciora have the literal gall to bring the instant application to askthat they be given Court permissionfrom the same Judge who will handle the remandin Gusciora - to erase the hard drives of 7,942 separate DRE machines in 20 Counties

less than 7 days after the Senate Election, and thereby erase all and the only -evidence of the votes cast at the October 16, 2013 Senate Election. Indeed, in light ofthe Gusciora decision, it appears that the Court probably is required to sua sponte enjoin

the use of DRE voting machine without a VVPAT to even be used in any election untilsuch time as the Court concludes the remand review required (with due speed) and is

the Court satisfied that adequate safety measures have truly been put into place to makesure that the Zirkle circumstances are not repeated.

The fact of the matter is that the October 16, 2013 Special Election for UnitedStates Senate is not a one day technical ratification process where the people will

merely ratify a candidate anointed by certain political party bosses, a mere inconvenience

to the election officials to get out of the way, so that they can move on to the election thatmatters. Perhaps this is not really the institutional attitude, but it certainly seems to be.

There are eight candidates for United States Senate in a State with a census populationapproaching 9 million people. It was no small task for each of the eight candidates tohave met the statutory requirements to achieve access as a candidate on the ballot. And

any one of the eight candidates has an equal statistical chance of winning the election

under the unusual circumstances extant, no matter what the remains of the so called


17/22

- 17 -

main stream media, or no matter what polls (each of which was limited to askingquestions about only 2 of the 8 candidates) may purport to indicate. There are millions of

unaffiliated voters who are eligible to participate and vote at the October 16, 2013

Special General Election for United States Senate. The actual real vote registrationnumbers, and the actual real numbers of participation in the political party primaries and

the candidates who were supported, and what level of support they received - indicatesomething quite different to the learned eye. Without disclosing campaign strategy, thatis all that will be said here by plaintiff.

In any event this is an election process that started with issuance of theGovernors Writ of Election on June 4, 2013 and will not necessarily end and concludeon the evening of October 16, 2013. It is not known who will win the election, what the

actual voter turn out will be, and whether after the election is over whether any statutoryElection Recounts will be demanded by any candidates - or by any group of 10 voters -

as is expressly allowed by N.J.S.A. 19:21-1 et seq., or whether any candidate will file astatutory Election Contest as is expressly allowed byN.J.S.A. 19:29-1 et seq. Despite

what the Attorney General and the 20 County Election officials may desire, the simple

fact of law and reality is that this Court may not grant the relief requested in the IMOApplication to Recheck the Voting Machines case because to do so would not only

destroy the very evidence of the election that Gusciora says must be preserved since thereis no VVPAT and a DRE without a VVPAT can not be trusted, but to do so would

directly violate the specific enumerated statutory rights guaranteed to all candidates and

guaranteed to all voters independent of any r ights of a candidateto demand anElection Recount (or to thereafterContest the results of any Election Recount once

announced) and would also directly violate the specific statutory rights guaranteed to all

candidates to bring an Election Contest. The application ignores the reality of theelection process, which may not actually conclude and which may require

impoundment of the machines used - for literally months after the actual October 16,2013 Senate Election date.

The Statutory Requirements of Locking the Voting Machine, Counting the Votes,

Locking the Counter Compartment Door, and Impounding the Machines for an

Initial Minimum of 15 days:N.J.S.A. 19:52-5 provides in relevant part that:

Immediately upon the close of the polls, the district electionofficers shall lock and seal the voting machines against

further voting and open the counter compartment in thepresence of persons who may be lawfully present at that

time, giving full view of the counters. * * * Afterthe

reading and announcing of the vote and before the doors ofthe counter compartment of the voting machine shall be

closed, ample opportunity shall be given to any person orpersons lawfully present to compare the results soannounced with the counters of the machine and any

necessary corrections shall then and there be made by the

district board.


18/22

- 18 -

[N.J.S.A. 19:52-5].

Once a voting machinehas been lockedso that no more votes can be cast, andafter the votes have been counted and recorded (and re-checked by the election officials if

necessary), the elections officials are required to close the counter compartment doorand then the election officials are then specifically required by statute to now at this pointin the process to also lockthe counter compartment door. See N.J.S.A. 19:52-6 (as to

statutory mandatethat the counter compartment door be locked.)Once the counter compartment door is locked, the voting machines are

collected and brought back from each local election district to a central location in each

County where all machines are stored together at the same location. Then and therebegins a statutory minimum mandatory 15 day lock down period during which time the

counter compartment door on each and every voting machine used is required toremain locked and closed and shall not be opened for at least15 days. With a Senate

Election of Wednesday October 16, 2013, the statutory mandatory 15 day lock out period

will run through Thursday October 31, 2013, meaning that the earliest that any machinesthat are used in the Senate Elections can be unlockedis Friday November 1, 2013.

The day after the election, or from the time that a winner is declared, the timeframe starts to run for any candidate - or any 10 voters- to formally demand a statutory

Election Recount of all or some (if only a Partial Election Recount is requested) ofthe results of the voting machines use in the election. See N.J.S.A. 19:21-1 et seq. (as toprocedures for demanding statutory Election Recounts). By statute, a candidate - orany 10 votershas until on or before the second Saturday after the election to file a

petition with the Superior Court in the County where the voting machine or machinesbeing challenged are located. With a Senate Election on Wednesday October 16, 2016,

the first Saturday following is October 19 and the second Saturday following is October26, meaning that any candidate - or any 10 votershas until close of business on FridayOctober 25, 2013 to file a demand for an Election Recount. Moreover, once an initial

Election Recount has been conducted and concluded, the candidates and voting publicare not required to blindly accept the results as accurate and final. Rather, from the daythat the results of the Election Recount are formally announced (however the

announcement may actually occur), any candidate or any 10 voters then has anadditional 10 days to file a formal Challenge to the results as announced in the Election

Recount. Therefore, for example, if an Election Recount is demanded by a candidateorby ten voterswith the filing of a petition demanding an Election Recount on Friday

October 25, 2013 at 4:15 p.m., even if the actual Recount can be Ordered by the Court,all parties noticed and given a reasonable opportunity to appear and attend, and even if

the actual Election Recount is then concluded by midnight on Monday October 28, 2013,

each candidate or any 10 voters still has 10 days fr om that dayto file a petitionContesting the announced results of the Election Recount, or with this example, until

Thur sday November 7, 2013, or 2 days after the Tuesday November 5, 2013 General

Election wi ll have already occur red.

Even were the Court to grant the Attorney Generals bizarre request (and plaintiff

does not believe the Court has legal or State or Federal Constitutional or equitable

authority whatsoever to do so) the proposed schedule for an Election Recount brought


19/22

- 19 -

forward by the Attorney General and the 20 County Election Officials would end withCape May on October 22, 2013. Any candidate would then have 10 daysor until close

of business on Friday November 1, 2013 to challenge the results of the Cape May

Election Recount by filing an action in the Superior Court of New Jersey in Cape MayCounty. How long it might take the Superior Court there to resolve that statutory

challenge to the Election Recount is not clear, as there are a myriad of unknown andunforeseen factors or issues that may arise. In any event, the fact is that with this oneexample, the earliest that the Cape May voting machines would be available to be opened

would be well after the November 5, 2013 General Election had already taken place. Italso must be remembered that this is a Statewide Election, so it is also not at all clearwhether the 10 day challenge period tobring a statutory contest any Election Recount

would or should begin to run for all 21 Counties only after Cape May has completed theirElection Recount on October 22, 2013, or whether there would be different dates when

the 10 day time period would begin to run relative to when a County completes theirindividual Countywide Election Recount. This is not really a question that needs to be

contemplated or seriously considered, because plaintiff only notes this as cumulative to

the many reasons to recognize what by this point should be obvious to the reader: As apractical matter, it must be recognized that it will simply be impossibleto use the same

exact voting machines in both elections without violating a host of long existingmandatory statutory laws. And it does not end here because an Election Recount is not

the only statutory right at issue that this Court may not interfere with.Separate and distinct from the issue of the statutory right of any candidate - or of

any 10 voters to petition the Superior Court in a given County to Order an ElectionRecount(and then for another candidate - or another 10 voters- to statutorily contest

the results of that Election Recount) there is the collateral and directly related buttechnically separate statutory right of any candidate to file an Election Contest pursuant

toN.J.S.A. 19:29-1 et seq. An Election Contest can be brought based upon a variety ofreasons for contesting the results of an election, some of which reasons may involvevoting machines (ie. as in the Zirklecase), some of which may not. An election contest

can be brought as of statutory right at any time within 30 days after an election(andeven thereafter is sufficient reason) and an Order administering an Election Contest willmost certainly require that all voting machines be impounded until the Election Contest is

completed. Certainly in almost any possible circumstance any machine orderedimpounded can notbe used again until the Election Contest has been completed, which

may be weeks if not months.Moreover, this is an election for United States Senate. Each candidate retains a

separate Federal Constitutional Right to bring a challenge to any election to the full bodyof the United States Senate itself, outside the State of Federal Judicial systems, by filing a

Petition Contesting a Senate Election with the Secretary of the United States Senate. In

this regard, the United States Constitutions Article I, Section 5 provides that in part thatEach House shall be the Judge of the Elections, Returns, and Qualifications of its own

Members, and a Majority of each shall constitute a Quorum to do business. ThisConstitutional Provision expressly vests jurisdiction with the Senate itself to inquire intothe legality and validity of any election challenged. Such legal challenges are not as rare

as one might think, the most recent Petition to a Senate election being filed in 2008 when

Norman Coleman, an incumbent Senator from Minnesota, formally challenged in the


20/22

- 20 -

Senate the validity of the election of then challenger (now incumbent) Al Franken.Under such circumstances it is all but routine that when such a challenge is brought that

any voting machines are impounded for the full duration of the challenge.7 If the data on

the only evidence of votingthe hard drive on all 7,942 separate DRE machines in all 20Counties - is destroyed within 6 days of the election itself (and in clear violation of State

Election Laws) such early destruction would most certainly be viewed as a violation ofthe United States Constitutions Article I, Section 5, as well as Article I, Section 4, clause1 (the Elections Clause), and the [Seventeenth Amendment].8

As a practical matter, the October 16, 2013 Special Senate Election will mostcertainly have to be held using exclusively paper ballots in all election districts in NewJersey.

Conclusion:

For the foregoing reasons and reasons cited in support thereof, it is respectfullyrequested that the Court grant the following relief:

(1)

An Order declaring that defendant Steven M. Lonegan is not entitled to aseparate political party column on the 16, 2013 Special General Election for

United States Senate;(2) An Order declaring null and void the Clerks drawing for any and all ballot

positions for the October 16, 2013 Special General Election for United StatesSenate which Clerks drawing was held in each of the 21 Counties on August22, 2013 at 10:00 a.m.;

(3) An Order directing that the name of defendant Steven M. Lonegan shallappear in the column designated Nomination by Petition with the sloganRepublican printed under his name in such line in the column as is

determined in a drawing among all candidates except candidate Corey Bookerwhose name shall be placed alone in Column 1 (or A) designated Democrat,and Line 1 (or A) in each of the 21 Counties;

(4) An Order appointing a Special Master;(5) An Order directing that the Special Master shall oversee and/or conduct an

immediate drawing on such terms are objective and fair for ballot position so

as to determine the location where the name of each candidate will appear on

7 New Jersey has already once had a Senator expelled from the United States Senate after such a

Constitutional Petition Challenging a Senators Election was filed and ruled on by the full Senate, though

this occurred prior to the ratification of the [Seventeenth Amendment]. Specifically, on March 4, 1865

John P. Stockton was issued credentials from the State of New Jersey confirming his election to the United

States Senate. Stocktons election was immediately challenged by a Petition filed with the Secretary of theUnited States Senate. A year later, after full albeit bitter partisan inquiry of the facts, on March 27, 1866,

Stockton was expelled from the Senate by a vote of 23 to 20 as having not been validly elected. See

United States Senate Election, Expulsion, and Censure Cases, 1793-1990, by Anne M. Butler and Wendy

Wolff, reprinted in Senate Document 103-55, Government Printing Office, Washington: 1995.8 If the Court grants the Attorney Generals request to destroy United States election records

plaintiff will likely not seek relief on appeal in the New Jersey State Court System but rather will

immediately have no choice but to file a petition and seek an injunction order from the Untied States Senate

itself. And under the unusual facts extant in this case, plaintiff is confident that such relief will most

assuredly be swiftly granted.


21/22

- 21 -

the October 16, 2013 Special General Election Ballot for United States Senatein accordance with the standards and procedures as otherwise directed herein;

(6) An Order declaring and directing that the Special Master shall oversee andhave final authority to make decisions regarding the immediate preparationand printing of (a) paper ballots and (b) sample ballots both in amounts

sufficient to be used exclusively for all voting at all polling locations in all 21Counties at the October 13, 2013 Special General Election for United StatesSenate;

(7) An Order in accordance with the recent observations of the Appellate Divisionin Gusciora v. Christie, A-5608-10T3, and in light of the fact that the Courthas not yet had opportunity to hold and complete the remand hearing required

by such case so as to determine whether there are now adequate procedures inplace to ensure that the DRE voting machines without VVPAT are properly

programmed so as to be safe to use in an election, specifically declaring anddirecting that paper ballots shall be exclusively used at the October 16, 2013

Special General Election for the United States Senate at all polling locations,

and that no DRE voting machines shall be allowed to be used at the October16, 2013 Special General Election for United States Senate; and

(8) An Order further directing that the Special Master shall immediately put intoplace reasonable and expedited procedures for using paper ballots at all

polling locations and mailing the sample ballots by working in conjunctionwith the 21 County Clerks or other County Election Officials as is necessary,with the Special Master having final authority to make all decisions in the

event of disagreement;

(9) An Order directing that the Application of the Attorney General and the 20County Election Officials inIMO Application to Recheck the Voting Machines

is hereby dismissed as moot; and(10) An Order fixing a time to conclude the remand hearing in Gusciora v.

Christie, A-5608-10T3 so that if the Court is convinced that adequate

protections can or have now been put into place by Election Officials in timefor the November 5, 2013 General Election, that the DRE voting machines,specifically barred from use at the October 16, 2016 Special General Election

for United States Senate, can perhaps still be used at the November 5, 2013General Election.

Respectfully submitted,

Eugene Martin LaVergne

Democratic-Republican

for United States Senate

543 Cedar Avenue

West Long Branch, New Jersey 07764

Telephone: (732) 272-1776

PlaintiffPro Se


22/22

EML:ms

Enclosure (Amended R. 4:5-1 Certification)

cc: All Parties or Counsel

Copy distributed L-1933-13

Documents

Transcript of Copy distributed L-1933-13