United States District Court District of New Jersey Trenton Vicinage Democratic-Republican Organization of New Jersey; Eugene Martin

LaVergne; Frederick John LaVergne, Leonard P. Marshall; Scott Neuman; Tracy M. Caprioni; Kimberly Sue Johnson; and Donald E. Letton, Plaintiffs, vs. Kimberly Guadagno; Edward P. McGettigan; Timothy D. Tyler; Joseph Ripa; Rita Marie Fulginiti; Gloria Noti; Christopher J. Durkin; James Hogan; Barbara A. Netchert; Mary H. Melfi; Paula Sollami-Covello; M. Claire French; Elaine Flynn; Joan Bramhall; Scott M. Colabella; Kristin M. Corado; Gilda T. Gill; Brett Radi; Jeff Parrott; Joan Rajoppi; New Jersey Republican Party; and New Jersey Democratic Party, Defendants.

Civil Action No. 12-5658(FLW)

Plaintiffs Legal Memorandum in Reply to the Opposition of Defendant Guadagno to Plaintiffs Request for Preliminary Declaratory and Injunctive 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 Plaintiffs

Introductory Comments: While the plaintiffs Verified Complaint is quite voluminous due to what were necessary exhibits attached and verified so as to properly bring the essential and undisputed facts before the Court to support the emergent claim for relief being sought, in the end this is really not a complicated case. The factual issues the plaintiffs raise are not complicated to understand. The legal issues the actual legal issues at issue in this application are not hard to define. So, again, this is not a complicated case. That being said, defendant Guadagnos Brief is 40 pages in length under six legal point headings where save for parts of Point IV and footnote 3 on page 32 the Brief fails to address any of the real issues relevant to the pending application. Rather than seek to address the relevant issues head on, defendant Guadagno instead whether by design or otherwise raises what are extraneous and inapplicable procedural issues and completely mischaracterizes plaintiffs actual claims. Plaintiffs do not want the debate in this case to be mischaracterized or improperly defined or clouded. Therefore, so that there be no confusion, at the onset plaintiffs hereby reiterate and restate the questions before the Court as simply and as properly framed: 1. Whether the 10% statutory standard in N.J.S.A. 19:5-1, as such statute is interpreted and applied in accordance with the decision of the New Jersey Superior Court, Appellate Divisions opinion in New Jersey Conservative Party v. Farmer, 324 N.J.Super. 451, 735 A.2d 1189 (App. Div. 1999), is in application an arbitrary and irrational legislative classification in violation of the Fourteenth and [First Amendment] to the United States Constitution? 2. Whether N.J.S.A. 19:13-4, facially and as applied to plaintiffs so as to prevent their use of the slogan Democratic-Republican, violates the Fourteenth and [First Amendment] of the United States Constitution?

Plaintiffs shall first reply to the arguments in Point IV of defendant Guadagnos Brief which somewhat address these issues, and then plaintiffs will comment briefly on the remainder of the arguments advanced in defendant Guadagnos Brief. REPLY TO POINT IV: A. First Things First: The Proper Standard of Judicial Scrutiny:

Under present United States Supreme Court jurisprudence, a majority of the members of the Supreme Court agree (and so the law is) that there are three distinct levels of so called judicial scrutiny that a Court may apply when evaluating whether a State statute (election or otherwise) violates the Constitutions Fourteenth and / or [First Amendment]. The first and most exacting level is commonly referred to as strict judicial scrutiny. The second level is commonly referred to as mid level judicial scrutiny. Under both of these first two standards, a statute is presumed to be invalid, and the burden is on the State to demonstrate otherwise. The third level, and the least exacting level, is commonly referred to as rational basis judicial scrutiny. All three levels of scrutiny somewhat mask the reality of the judicial process of evaluation, namely that in the final analysis, all Constitutional challenges require the Court to make one basic but somewhat subjective determination: Whether the challenged legislative classification is, or is not, rational to a Constitutional degree. When determining the appropriate level of judicial scrutiny the Court must first look at the character and magnitude of injury the states regulation causes to the [First Amendment] and Fourteenth Amendment rights the plaintiff seeks to vindicate; next the Court needs to identify the interests the state offers to justify the regulation; and finally, the Court determines the strength and legitimacy of the states purported interest and the extent

to which they necessitate the specific burden the plaintiff has suffered. Anderson v. Celebrezze, 460 U.S. 780, 789 (1981). In this case plaintiffs claim that when evaluating their claims that the Court should apply the highest level of scrutiny that being strict judicial scrutiny to both questions #1 and #2 above. Plaintiffs cite to the United States Supreme Courts decision in Timmons v. Twin Cities New Party, 520 U.S. 351 (1997) in support of their position that strict judicial scrutiny is the appropriate standard of review in the context of their claims and the rights at issue. Conversely, defendant Guadagno argues that when

evaluating plaintiffs claims in this case that the Court should apply the lowest level of scrutiny that being rational basis judicial scrutiny. To support her position,

defendant Guadagno cites to and primarily relies on the unpublished District Court case of Lewis v. Guadagno, 2011 U.S. Dist. LEXIS 101095 (D.N.J. Sept. 6, 2011), affd., 2011 U.S. Dist. LEXIS at 24 to 25. One of the parties must be wrong on this critical threshold issue. That party here is clearly defendant Guadagno: The proper level of scrutiny is clearly strict judicial scrutiny. See infra. B. Defendant Guadagnos legal analysis regarding the level of judicial scrutiny is flawed and incorrect as this case is NOT a ballot access case:

Defendant Guadagno seeks to completely mischaracterize the plaintiffs factual and legal claims in this case from the onset, and does so as a vehicle to then argue from an incorrect and false perspective of this case that the lowest level of judicial scrutiny should apply here. After citing to a series of published and inapplicable ballot access cases, defendant Guadagno cites to and principally relies upon the unpublished ballot access case of Lewis v. Gradagno, supra. In that case, former Olympian Carl Lewis sought to run for

New Jersey State Senate, but his candidacy was challenged because it was alleged that he had not lived in New Jersey for 4 years as required by New Jersey State Election Laws as a condition of candidacy. Unlike the plaintiffs in this case, Lewis never gained access to the General Election Ballot. In Lewis, after waves of emergent litigation in State and Federal Court, the case ended quietly in the Third Circuit in September 2011 when the Third Circuit affirmed the District Courts dismissal of Lewis constitutional challenge to the 4 year residency requirement. In so ruling, the Third Circuit stated the following: Lewis contention that he has a right to run unencumbered by discrimination is correct. But he fails to articulate what discrimination the residency requirement imposes. Rather, he appears to argue that he has a fundamental right to run for office, but the Supreme Court has rejected the argument that an individual has a fundamental right to candidacy. See Clements v. Fashing, 457 U.S. 957, 963 (1982), Bullock 405 U.S. at 142-143. [Lewis v. Guadagno, 2011 U.S. Dist. LEXIS at 24 to 25]. This quote is directly relevant to this case for two reasons. First, the Third Circuit confirmed that what was at issue in the Lewis case was ballot access, not fair and equal treatment of candidates who have already obtained access to the General Election Ballot. The Third Circuit noted that the Constitution does not recognize a fundamental right to run for office, and, since what was at issue was not a fundamental right, the Third Circuit affirmed the District Courts application of rational basis judicial scrutiny to the evaluation of the 4 year residency requirement. Ballot access itself is not a fundamental right, but once access is lawfully obtained as it has been by plaintiffs here, plaintiffs assertion that they have a right to run unencumbered by discrimination is correct. Id.

Plaintiffs argue that their Fourteenth Amendment and [First Amendment] Constitutional rights to equal protection and political association and speech are impaired by the laws at issue. Unlike access to the ballot which is not a fundamental Constitutional right, the rights the plaintiffs assert unquestionably are fundamental and core Constitutional rights, which invoke strict judicial scrutiny. Timmons v. Twin Cities New Party, 520 U.S. 351 (1997). As such, contrary to defendant Guadagnos contentions, this case requires review of the claims under strict judicial scrutiny, Id. Therefore, from the inception, there is a presumption that the legislative classification and statutory preference is invalid. Id. C. Defendant Guadagnos other mischaracterizations of plaintiffs claims:

In point heading IV of her Legal Argument, defendant Guadagno specifically argues in opposition to the application of plaintiffs that New Jersey Statutory Provisions Relating to Political Party Designation Comport with Equal Protection Guarantees Under the Fourteenth Amendment of the United States Constitution. Defendant Guadagnos Brief at page 21. Plaintiffs do not understand this argument, or assertion of a legal position, made by the defendant Guadagno in the context of the actual specific legal claims that plaintiffs have actually made in this case. The statute that creates political party designation, specifically N.J.S.A. 19:1-1 and the 10% threshold contained therein, and the N.J.S.A. 19:12-1 10% threshold Secretary of State Certification process, is not in any way challenged in this lawsuit. Plaintiffs agree, and for purposes of this litigation will indeed stipulate, that the initial 10% threshold as defined in N.J.S.A. 19:1-1 which creates a political party within the meaning of Title 19, the New Jersey Election Law Statutes, and the N.J.S.A. 19:12-1 10% threshold Secretary of State Certification process which

officially confirms which organizations have achieved political party status, both comport with the confines of the equal protection clause of the Fourteenth Amendment of the United States Constitution. The 10% threshold standard in both statutes, which is identical and uniform in application in both statutes, while certainly arbitrary in the general sense that all legislative standards and classifications draw lines and create legislative distinctions at some point or level, is nonetheless uniform and is applied equally to all candidates and political organizations and therefore is not unconstitutionally arbitrary and irrational. The 10% figure in N.J.S.A. 19:1-1 and N.J.S.A. 19:12-1 is clearly defined and remains the same from year to year, from election to election, from candidate to candidate, from party to party. In short, while the two statutes create an arbitrary threshold, that arbitrary threshold is applied equally to all, including plaintiffs. Despite this fact, in the first sentence of the text of Point IV, defendant Guadagno seeks to frame the debate by completely mischaracterizing plaintiffs actual claims, stating the following: Plaintiffs here assert that their alleged political group, the Democratic-Republican party, is entitled to the statutory benefits currently accorded to the Democratic and Republican parties, on the ground that the State scheme violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. [Attorney General Brief at page 21]. This is not plaintiffs argument at all. Plaintiffs moving papers claim nothing of the sort. Plaintiffs do not claim that they, the Democratic-Republican organization, are entitled to (what at this point even the Attorney General refers to here as) the statutory benefit accorded to the Democratic Party and Republican Party in receiving automatic placement in the first two columns on the left of the November 6, 2012 General Election Ballot.

Rather, conversely, what the plaintiffs contend is that the Democratic Party and Republican Party are not entitled to the automatic statutory benefit in receiving placement in the first two columns on the left of the November 6, 2012 General Election Ballot because the statute that confers this statutory benefit, that being N.J.S.A. 19:5-1, as such statute is interpreted and applied in accordance with the odd decision of the New Jersey Superior Court, Appellate Divisions opinion in New Jersey Conservative Party v. Farmer, 324 N.J.Super. 451, 735 A.2d 1189 (App. Div. 1999), is in application a completely arbitrary and irrational legislative classification, is therefore unconstitutional, the statutory scheme is therefore invalid, and the statutory preference is invalid and may not be automatically conferred on the major parties. Plaintiffs do not contend that they too are entitled to this (what defendant Guadagno herself calls) statutory benefit: Plaintiff claims that the statute that confers this benefit is unconstitutional and invalid, and that therefore NO ONE is entitled to any such special and preferential treatment. At base, plaintiffs simply contend that all candidates for public office already on the November 6, 2012 General Election Ballot whether having received Ballot access through the Nomination and Petition Process (as the plaintiffs here have done) or through the Primary Process (as the major political party candidates have done), are all now similarly situated in the eyes of the law, and all candidates should be therefore be treated equally without preference or statutory benefit being conferred to any one or more candidates. And this being the case plaintiffs should have an equal opportunity for placement in the first and second column on the left of the General Election Ballot.

D.

Equality of treatment among all Candidates on the General Election Ballot and the Constitutional invalidity of New Jersey providing by statute preferred associational rights to major political parties and their candidates.

As the Third Circuit confirmed in Lewis, a candidates claim that he or she has a right to run unencumbered by discrimination is correct. Lewis v. Guadagno, 2011 U.S. Dist. LEXIS at 24 to 25. Stated plainly, plaintiffs contention as a matter of law that once having overcome the initial statutory hurdle of gaining access to the General Election Ballot as a candidate, that all other candidates on the ballot have the right to run unencumbered by discrimination is therefore too correct. Id. Yet despite this,

defendant Guadagno, actually a party in the Lewis case, argues the actual opposite of the law. And criticizes plaintiffs for having the audacity to think that in an election in the United States of America that they have a right to be treated equally. Guadagno actually states as follows: [T]hese seven individuals have the temerity to request this Court to order the State to confer upon them the same benefits that are statutorily reserved for political parties, which have had to establish the requisite support by way of the ballot box. *** To reiterate, in asking the Court to confer the same benefits statutorily provided for political parties, these seven individual plaintiffs have essentially asked this Court to provide an unwarranted advantage to a political group that may not even exist beyond its alleged seven members, and without a scintilla of evidence of community popular support. (Emphasis added). [Guadagno Brief at page 28].

Such a statement by defendant Guadagno is severely disturbing, though not wholly unexpected. One would perhaps expect such statements from the attorney for the Republican Party or the Democratic Party, but certainly not such bold statements from the chief election officer for the entire State of New Jersey. Make no mistake, these are not ambiguous or equivocal statements. Defendant Guadagno is flat out conceding that the treatment challenged by plaintiffs here in this case is indeed a statutory benefit, albeit one that is reserved for political parties, to the express exclusion of plaintiffs. Guadagno is essentially stating that plaintiffs certainly can seek to run for public office outside of the two major party structure, and that plaintiffs can seek access to the ballot by collecting signatures on Petitions (among the plaintiffs somewhere between 1,300 and 1,500 signatures, certainly more than a scintilla of community support), but after overcoming all of these hurdles, plaintiffs should not expect to be treated on equal footing with the major party candidates on the General Election Ballot. By analogy, defendant Guadagno begrudgingly concedes that plaintiffs have an equal right to ride on the public election bus, it is just that they plaintiffs may only sit in the back of the bus, and are expected to be quiet and not complain while sitting there. It was thought that such overtly institutionally discriminatory mindsets in State Government had been muted, at least since 1954 and the Supreme Courts decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Political partisanship often clouds the judgment of even the best in a moment of weakness. By illustration, there are presently in excess of 8.8 million people living in the State of New Jersey. Of that number, only a total of 11 people have successfully sought and met the statutory requirements fixed by New Jersey Election Laws to obtain access to and placement the 2012 General Election Ballot, all now having the equal right (in theory) to

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seek and be elected to the Office of United States Senator from New Jersey. The candidate out of the 11 candidates who receives the most votes will serve a 6 year term in the United States Senate. That is what the Constitution, as modified by the [Seventeenth

Amendment], and the New Jersey Election Laws provide. In theory. At a minimum, all 11 candidates, now similarly situated under the law for Fourteenth Amendment purposes, are entitled to the same no better and no worse treatment as each other candidate. This principle of fairness is so basic that the Third Circuit, without need to resort to any citation, recently noted that all candidates for public office have a right to run for public office unencumbered by discrimination. Lewis v. Guadagno, 2011 U.S. Dist. LEXIS at 24 to 25. And at the November 6, 2012 General Election, no one, or two, of these 11 candidates, should be granted ANY preferential treatment over the others. No one, or two, of these 11 candidates may be granted a statutory benefit without somehow overcoming the presumption of invalidity that attaches to any special treatment, and by passing judicial review under strict judicial scrutiny. E. Guadagnos specific arguments to overcome the presumption of invalidity:

Defendant Guadagno does little to advance any factual arguments to justify the different treatment among candidates on the General Election Ballot so as to overcome the presumption of invalidity. On page 25 in point heading IV(2), it alleged that the

challenged statutory scheme Furthers the Legitimate State Interests of [1] Electoral Integrity, [2] Reserving State Electoral Benefits Based upon a showing of Community Support, and [3] Avoidance of Voter Confusion. However, it is not ever explained or implied how any of these interests are furthered or advanced by treating the candidates and parties so differently. On page 32, defendant Guadagno only generally and in a conclusory

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manner references [1]ballot integrity (whatever that means) and [2] avoidance of voter confusion (again, whatever that means). Such, taken in total, is not enough to overcome even the lowest standard of judicial scrutiny. misstates the law. (1) Legislatively Providing benefits Moreover, defendant Guadagno flatly

On page 28, defendant Guadagno states that the Supreme Court has firmly held that states can constitutionally require a preliminary showing of support based on percentage of overall votes as a prerequisite to obtaining access and/or benefits to a states electoral process. (Emphasis added), citing to Jenness v. Fortson, 403 U.S. 431, 442 (1971). This is a complete misstatement of the law. Jenness says nothing of the sort. Jenness limits the holding to confirming that states may require a candidate to make a preliminary showing of community support before actually being allowed access to the General Election Ballot as a candidate. Neither Jenness, nor any other case that can be found says anything about it being permissible for a State to conferr special benefits to certain candidates to the exclusion of other candidates once all candidates have obtained access to the General Election Ballot. Further, it seems that the State has lost its compass, so to speak, in legislatively favoring the Republican Party and Democratic Party. States have broad, but not unlimited, power to regulate the time, place and manner of elections because of their acknowledged state interests to ensure that every election is fair, honest and orderly. Storer v. Brown, 415 U.S. 724, 730 (1974). (specifically noting that substantial regulation is necessary to ensure that all elections are fair, honest and orderly.) By the same token, it is also long acknowledged and well ingrained in our jurisprudence and literally written in the text of

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the amended body of the Constitution itself - that individuals and groups of like minded individuals share a fundamental [First Amendment] right to advance their political ideas and political goals. United States Constitution (1787), [First Amendment]. In the face of these simple and clearly established competing interests that of the State to regulate elections to ensure that they are fair, honest and orderly, and that of the individual and groups to associate and advance political views during and in elections it has long been acknowledged that, with a proper showing of some necessity and rational justification, a state may enact regulations that affect all political parties and their candidates (both major and minor) so as to ensure fair, honest and orderly elections. See Eu v. San Fransisco Democratic Committee, 489 U.S. 214, 231 (1989). What possible rational justification can there be for the State to overcome the presumption of invalidity that attaches to the different treatment at issue here based upon the irrational and arbitrary classification upon which it is conferred? The State does not really say, and as such the State has not met their burden to overcome the presumption of invalidity. Therefore, the statutory preference is invalid, and the relief requested by plaintiffs must be granted. (2) The 10% standard in N.J.S.A. 19:5-1 is unconstitutional.

As already noted in detail, the 10% threshold is an integral part of the overall statutory scheme in the Election Laws in the State of New Jersey for determining when a political organization should be recognized as a political party and therefore subject to regulation. This 10% threshold is used as an initial gage for determining a level of public support for achieving political party status (see N.J.S.A. 19:1-1) which results in official state recognition and certification as a political party by the Secretary of State (see N.J.S.A. 19:12-1) which then results in substantial state regulation. See footnote 1 in initial

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motion brief. Reasonably different treatment of political parties and their candidates from that afforded to minor political parties and their candidates and to completely independent candidates may be permitted for reasonable regulation of elections without violating the Constitutions Fourteenth Amendments Equal Protection Clause. However, at issue is not a regulation really, but what is now openly conceded to be a statutory preference or benefit which is statutorily conferred as per N.J.S.A. 19:5-1 to major political parties and their candidates to the specific exclusion of all others. What possible regulatory interest that is implicated by conferring this preference or benefit is not ever really explained by defendant Guadagno despite the legal shift in burdens in this case. In any event, what is not in question is that there is no automatic right to this statutory preference or benefit conferred to the political parties merely from their achieving political party status in the first instance. Rather, each party must independently satisfy the additional 10% threshold in N.J.S.A. 19:5-1 at each primary election to be entitled to this stated General Election Ballot preference or benefit. However, unlike the 10%

threshold in all other places in Title 19 of New Jerseys Election Laws, according to the New Jersey Superior Court, Appellate Divisions opinion in New Jersey Conservative Party v. Farmer, 324 N.J.Super. 451, 735 A.2d 1189 (App. Div. 1999), this 10% standard, unlike the others, is different. According to the cited case, the 10% threshold in N.J.S.A. 19:5-1 is not met by counting the number of voters appearing at the voting booth, with each being counted as 1, but rather that the 10% is calculated by counting each voter that appears multiplied by the number of possible candidates who are on the ballot that could possibly be voted for. So 1 voter could count as 1 toward meeting the threshold, or that same 1 voter could count as 4 toward meeting the threshold, or indeed that very same

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voter could count as 10 toward meeting the threshold. The standard of counting votes and for achieving the N.J.S.A. 19:5-1 threshold is different and will vary in each primary election between Party to Party, County to County, Town to Town, and even from Election District to Election District within each town. And will also vary from year to year. In short, 1 could be counted as 1, or as 3, or as 7 or even as 11. Indeed, this is the statutory scheme used to confer a statutory preference and benefit to the major political parties and their candidates on the General Election Ballot (something that can not be conferred anyway states can regulate, not FAVOR). The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the state may not, by latter arbitrary and disparate treatment, value one persons vote over that of another. See, e.g., Harper v. Virginia Board of Elections, 383 U.S. 663, 665 (1966) ([o]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.). It must be remembered that the right of suffrage can be denied by a debasement or dilution of the weight of a citizens vote just as effectively as by wholly prohibiting the free exercise of the franchise. Reynolds v. Simms, 377 U.S. 533, 555 (1964). [Bush v. Gore, 531 U.S. 98, 104-105 (2000)]. As noted, having once granted the right to vote on equal terms, the state may not, by latter arbitrary and disparate treatment, value one persons vote over that of another. Id. Yet that is precisely what the State of New Jersey is doing with N.J.S.A. 19:5-1 as interpreted and applied in accordance with the New Jersey Conservative Party v. Farmer case. An early case in our one person one vote jurisprudence arose when a state accorded arbitrary and disparate treatment to

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voters in different counties. Grey v. Sanders, 372 U.S. 368 (1963). The Court found a constitutional violation. We relied on these principles in the context of the Presidential selection process in Moore v. Ogilvie, 394 U.S. 814 (1969), where we invalidated a county-based procedure that diluted the influence of citizens in larger counties in the nominating process. There we observed [t]he idea that one group can be granted greater voting strength then another is hostile to the one man, one vote basis of our representative government. Id. at 819. [Bush v. Gore, 531 U.S. 98, 107 (2000)]. As noted, [t]he idea that one group can be granted greater voting strength then another is hostile to the one man, one vote basis of our representative government. Id. Yet once again, that is precisely what the State of New Jersey is doing with N.J.S.A. 19:5-1 as interpreted and applied in accordance with the New Jersey Conservative Party v. Farmer case. In Moore v. Ogilvie, 394 U.S. 814 (1969), the United States Supreme Court quoted verbatim from Grey v. Sanders, 372 U.S. 368, 379 (1963) as follows:

How then can one person be given twice or ten times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural country? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote - whatever their race, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. [Grey v. Sanders, 372 U.S. 368, 379 (1963) (also cited verbatim in Moore v. Ogilvie, 394 U.S. 814, 817 (1969)]. How? How then can one person be given twice or ten times the voting power of another person in a statewide election? That is for defendant Guadagno to explain, and so far there has been no cogent explanation advanced.

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REPLY TO POINT I: The State argues that this Court should abstain from hearing the plaintiffs constitutionally significant and extremely time sensitive claims under the principles of Younger v. Harris, 401 U.S. 37 (1971). In so doing, the State openly acknowledges that there indeed is no actual ongoing or contemplated State Court proceeding such that abstention in Younger normally could or should be invoked by this Court. Moreover, in making this abstention argument, the State oddly fails to cite the Court to the published opinion in Lewis v. Guadagno, 837 F.Supp. 393 (D.N.J. 2001) (Hillman, D.J.), while in subsequent and unrelated legal arguments (see States Brief at pages 23, 24 & 25 and argument, supra.) the State sees appropriate to cite to and rely upon the subsequent unpublished (and not precedential) opinions from later proceedings in the same identical Lewis v. Guadagno litigation. See Lewis v. Guadagno, 2011 19605 U.S.Dist.LEXIS 101095 D.N.J. Sept. 6, 2011) affd., 2011 U.S.App.LEXIS 19605 (3d Cir. Sept. 22, 2011). In any event, in the published decision in Lewis v. Guadagno, 837 F.Supp. 393 (D.N.J. 2001) (Hillman, D.J.), where, unlike here, there were in fact ongoing or previous collateral State Court proceedings, the District Court rejected the application there by the New Jersey Attorney Generals Office (which application of no small significance was made by the exact same attorneys in this case on behalf of the same defendant in this case) to invoke Younger abstention. In the face of actual earlier collateral related State Court proceedings in Lewis (something indisputably not at issue in this case), Judge Hillman still found it appropriate to proceed and exercise jurisdiction and consider the actual merits of the case, relying upon the well understood exception to Younger that applies when there is an extraordinarily pressing need for immediate federal equitable relief. Lewis v.

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Guadagno, 837 F.Supp. 393, 397 (D.N.J. 2001) (citing Diamond D. Construction Corp. v. McGowan, 282 F.3d 191, 201 (2d Cir. 2002) (quoting Kugler v. Helfant, 421 U.S. 117 (1975)). Notwithstanding what plaintiffs claim is the factual and legal inapplicability of Younger to this case in the first instance, even if the Court somehow finds (notwithstanding the absence of any State proceedings) that Younger may apply, it is submitted that the exception allowing an Article III Court to proceed and consider the merits of the case and grant or deny relief, as cited to and as relied upon by Judge Hillman in the Lewis case, is equally if not more applicable to the plaintiffs claims in this case. REPLY TO POINT II: The State also argues that the claims that the plaintiffs bring in this case were previously decided and by implication dispositively decided - by the Federal District Court for the District of New Jersey in Voltagio v. Caputo, 201 F.Supp. 337 (D.N.J. 1962) (Three Judge Court), appeal dismissed 371 U.S. 232 (1963). This is simply not true, or is not true to the extent that Voltaggio is still good law. On September 28, 1962, when the District Court opinion in Voltagio was issued, Constitutional jurisprudence, and indeed the Constitution itself, provided very different and much lesser guarantees regarding elections and the [First Amendment] rights of political association of candidates and political groups. Indeed, it was only a few months earlier on April 27, 1962 that Congress proposed what was to become, upon ratification on January 23, 1964, what today is known as the [Twenty Fourth Amendment] prohibiting the States from charging a poll tax to voters as a condition of voting. It would not be until March 23, 1971 when Congress was to propose what we today commonly refer to as the [Twenty Fifth Amendment] guaranteeing all citizens 18 years of age or older the right to vote. In

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addition to the evolution and literal and specific changes in the organic law of the Constitution itself as noted, it was only that year that the Supreme Court in Baker v. Carr, 369 U.S. 186 (1962) overruled their own long existing precedent in Colgrove v. Green, 328 U.S. 549 (1946), and decided that Article III Courts could properly consider as justiciable on Fourteenth Amendment equal protection grounds Legislative Apportionment and Legislative Redistricting challenges. And it would not be until 1968 in William v. Rhodes, 393 U.S. 23 (1968) before the slow changes in the existing Fourteenth Amendment jurisprudence as relied upon by the Court in Voltagio, started to develop to where is today. See supra. And as noted, the [First Amendment] was never raised or considered by the Court in Voltagio. Had it been, the issue would have been limited to the [First one man, and not the [First Amendment] political

Amendment] speech rights of

associational rights at issue in this case. Plaintiffs restate their arguments as advanced in the original motion brief, as supplemented by the arguments made here to demonstrate that the Fourteenth Amendment jurisprudence that was relied upon 50 years ago by the Court in Voltagio has long since changed or evolved such that by todays Fourteenth Amendment jurisprudence Voltagio would have been decided in favor of the plaintiff there. Moreover, and in any event, as no [First Amendment] claim was either raised or considered by the Court in Voltagio, that this Court must conduct an independent analysis of plaintiffs claims under present day [First Amendment] jurisprudence. REPLY TO POINT III: As was clearly pointed out by Judge Fisher in detail in footnote 4 of his opinion in New Jersey Conservative Party v. Farmer, 332 N.J.Super. 278, 753 A.2d 192 (Ch. Div.

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1999), the claims that are raised here were not raised or addressed there, and were indeed described by him as certainly colorable, and did not factually arise until after the Appellate Division came up with their 2 + 2 = 22 interpretation of N.J.S.A. 19:5-1. None of the applicable doctrines of preclusion and bar operate to prevent the plaintiffs from asserting the Constitutional Claims that they actually assert herein. CONCLUSION: For the foregoing reasons and authorities cited in support therefore, it is respectfully requested that the plaintiffs applications for accelerated declaratory and injunctive relief be GRANTED.

Dated:

______________________________ Richard Luzzi, Esq. Attorney for Plaintiffs

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