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United States Court of AppealsThird CircuitNo. 12-3977

Democratic-RepublicanOrganization of NewJersey, et als.,

Appellants,

vs.

Kimberly Guadagno, etals.,

Appellees.

Joint Expedited Motion for Preliminary Declaratoryand Injunctive

Relief and For Other Forms of ExpeditedRelief

Oler & Luzzi, L.L.C.6 Apple Tree LaneSparta, New Jersey 07871Telephone: (973) 983-7020Telefax: (973) 983-7030By: Richard Luzzi, Esq.Attorney for Appellants Democratic-Republican Organization of NewJersey, Frederick John LaVergne,Leonard P. Marshall, Tracy M.Caprioni, Kimberly Sue Johnson andDonald E. Letton

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RELIEF REQUESTED BY EXPEDITED MOTIONS:

Appellants by way of joint appellate motions hereby

move on an expedited basis for Orders from the United

States Court of Appeals for the Third Circuit granting the

following relief:

A.) An Order entering preliminary declaratory andinjunction relief, pending appeal, specificallydeclaring and directing:

(1) That each individual Appellant shall have theright to use the slogan Democratic-Republicanassociated with their individual name and as anassociated political group on the November 6, 2012General Election Ballot;

(2) That Appellants shall have the right to bebracketed together in the same vertical column onthe November 6, 2012 General Election Ballot in

Counties where there are multiple Democratic-Republican candidates on the General Election Ballot;

(3) That Appellants and all other candidates shall beafforded an equal opportunity to be placed in thefirst two columns on the left and at the top of theNovember 6, 2012 General Election Ballot on theElection Machines and all paper provisional ballots;and

(4) That the 21 County Clerk defendants be directedto comply with the preliminary declaratory andinjunctive relief granted by this Court whenconfiguring the final form of the General ElectionBallot for the machines and paper provisional ballots

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to be used at the November 6, 2012 GeneralElection.

B.) An Order pursuant to Third Circuit L.A.R. 4 expeditingthe Courts consideration of all of the applications

made herein, allowing all briefs filed to below to beconsidered, and with a proposed briefing schedule tosupplement arguments as follows:

- All Appellees shall have until 12:00 noon onTuesday October 23, 2012 (or such other shortertime as the Court may fix) to reply to the movingpapers filed by Appellants herein or to otherwiseadvise the Court that they rely upon the briefsfiled below;

- Appellants hereby waive the right to respond inwriting by reply due to the shortness of time, sothat the expedited applications will be before theCourt for consideration and disposition no laterthan noon on Tuesday October 23, 2012.

BACKGROUND:

On Monday September 11, 2011 the collective plaintiffs

filed a Verified Complaint with extensive exhibits as well as

an application for an Order to Show Cause in the United

States District Court for the District of New Jersey, Newark

Vicinage. Plaintiff Democratic-Republican Organization of

New Jersey is a minor party political organization (ie. they

have not yet qualified as a political party under New Jersey

Election Laws, specifically N.J.S.A. 19:1-1, and are therefore

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not subject to the State run Primary Election Process when

selecting their candidates) and the named individual

candidate plaintiffs are all members of the Democratic-

Republican Organization and are candidates for various

Federal and New Jersey State Elected office on the

November 6, 2012 General Election Ballot. In this lawsuit

plaintiffs (1) sought to use the name of their organization

Democratic-Republican as the General Election Ballot

slogan associated with each candidates name on all

actual 2012 General Election Ballots, (2) sought to be

bracketed together in the same vertical column along with

the slogan Democratic-Republican in all Counties where

there were multiple Democratic-Republican candidates on

the General Election Ballot, and (3) sought an Order giving

them and all other candidates an equal opportunity to be

placed in the first two columns on the left and at the top of

the General Election Ballots. In the Order to Show cause

plaintiffs were seeking certain accelerated preliminary

declaratory and injunctive relief (the same as that sought

here in these emergent motions) to ensure that they could

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be awarded these three specific forms of relief in time for

the November 6, 2012 General Election.

On September 12 and 14, 2012, the Honorable Freda L.

Wolfson, U.S.D.J., of the District of New Jersey Trenton

Vicinage1 held telephone conferences with certain parties

and ultimately issued an Order to Show Cause, though in a

form slightly different from that submitted by plaintiffs. The

Order to show cause, as requested by plaintiffs, fixed an

accelerated service and accelerated briefing schedule

and set October 3, 2012 as the return date of the Order to

Show Cause. Thereafter, service was affected and briefs

were filed by the various defendants objecting and raising

certain legal arguments, which arguments were then replied

to in writing by plaintiffs. All briefs are in the docket below.

On Thursday October 3, 2012 the Court heard oral

argument on the relief requested by plaintiffs in the Order

1 The Complaint named plaintiffs from various countiesand named defendants from all 21 of New Jerseys Counties(ie., the Clerk of each County). The Clerks Office made aninternal decision to transfer the matter from the NewarkVicinage where it was filed to the Trenton Vicinage where itwas assigned to Judge Wolfson 3 days later on September14, 2012.

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to Show Cause.2 At the end of oral argument the Court

indicated that it would be denying the accelerated

declaratory and injunctive relief plaintiffs had sought in the

Order to Order to Show Cause, and that and the Court would

be getting out an Order and accompanying written Opinion

to that effect and with the Courts specific reasons in short

order.

A week later, on Thursday October 10, 2012, the Court

filed the written Opinion (Document 33) and an Order

(Document 34) denying plaintiffs accelerated request for

declaratory and injunctive relief.3 The next day, October 11,

2012, a month to the day after the initial September 11,

2 Just prior to oral argument a substitution of attorneyform was filed so that plaintiff Eugene Martin LaVergne, whowas previously represented like all other parties by RichardLuzzi, Esq., was not proceeding pro se so that he could beheard separately. On Appeal Eugene Martin LaVergneremainspro se for that same purpose.3 Immediately upon receipt of the original Opinion andOrder on October 10, 2011 appellant Eugene MartinLaVergne contacted the Court Reporter to inquire about the

necessity of a transcript for an emergent appeal as therewas detailed written opinion. The Court Reporter wasadvised that plaintiffs intended to seek emergent review inthe Third Circuit because the District Court had clearly (soAppellants believe) applied the incorrect standard of judicialscrutiny and in so doing had incorrectly framed the legalburdens.

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2012 filing, the District Court issued an Amended Opinion

(Document 35) which was identical in all respects to the

original Opinion except for the now inclusion of footnote 8

that starts on the bottom of page 20 and ends on page 21 of

the Amended Opinion.

On Thursday October 18, Appellants filed a Joint Notice

of Appeal with the Clerk of the District Court. Appellants

now file the instant Joint Expedited Motion for Preliminary

Declaratory and Injunctive Relief and For Other Forms of

Expedited Relief.

SUMMARY OF ARGUMENT:

All Appellants here have already lawfully obtained

access to the General Election Ballot4 and will appear as

4 In New Jersey there are only two ways that a candidateobtains access to appear as a candidate on the GeneralElection Ballot. Candidates who are seeking to run for publicoffice as a candidate for a political party as defined inN.J.S.A. 19:1-1 must obtain a number of signatures on awhich varies depending upon the office being sought. Forexample, a candidate for the Office of House of

Representatives in one of the 12 statewide CongressionalDistricts must obtain the signatures of 50 voters on aNominating Petition, while a candidate for the office ofUnited States Senate, a statewide office, must obtain thesignatures of 800 voters. That qualifies the major politicalparty candidate to have access to the Primary Election Ballotheld in June. The winner of that Primary Election from

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candidates for the various Federal and State elected offices

that they seek on the November 6, 2012 General Election

Ballot. As such, this is not a so called candidate ballot

access case, as all Appellants have already satisfied and

met the legal qualifications as candidates individually for the

elected offices that they seek, and all Appellants have

thereafter satisfied the States legal requirements of

demonstrating the statutorily defined level of community

support and have otherwise successfully complied with and

among all those seeking the right to run as the politicalpartys candidate then in turn earns the right to appear onthe following November General Election Ballot for the officesought as the political partys candidate. At present, only

the Republican Party and Democratic Party qualify as apolitical party under New Jersey Election Laws.Conversely, all of other candidates, such as Appellants here,obtain access to the General Election Ballot also by obtainingthe identical number of signatures for the office sought on anominating petition, which entitles the candidate to havedirect access to the General Election Ballot without anyPrimary Election. By illustration, Appellant Eugene martinLaVergne, the Democratic-Republican candidate wasrequired to obtain the same 800 signatures on a Nominating

Petition as required to be obtained by the Republican SenateCandidate and the Democratic Candidate. The onlydifference is that the Republican and Democratic SenateCandidates had to also win their partys Primary Election.

The threshold demonstration of community support foraccess to the General Election Ballot is identical for allcandidates.

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satisfied all state required procedures for earning the legal

right to appear as a candidate for the elected offices that

they seek on the November 6, 2012 General Election Ballot.

Appellants contend that, now having overcome these

substantial hurdles, and now having actually earned the

right to appear as candidates for elected Federal and State

public office on the November 6, 2012 General Election

Ballot by demonstrating the statutorily defined level of

community support (the same statutorily defined threshold

level of support as is required of the major political party

candidates), and now with Appellants in fact actually

appearing as candidates for elected Federal and State public

office on the November 6, 2012 General Election Ballot,

Appellants claim that they are therefore similarly situated

to all other candidates who will be appearing on the General

Election Ballot in the eyes of the law, and that now having

already obtained actual access to the General Election Ballot

like all other candidates, that all candidates have equal

constitutional rights, none superior to the others, to political

association and political expression and political

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communication on the General Election Ballot. To the point,

Appellants contend that the special treatments at issue here

(ballot position preference, exclusive use of certain words as

part of a slogan) that the State by admitted design and plan

confers upon the political parties to the specific exclusion

of Appellants and all other minor party and independent

unaffiliated candidates is therefore impermissible and

unconstitutional. Clear Supreme Court precedent supports

Appellants position in this regard. See infra. Moreover, any

different treatment (preferential or otherwise) afforded by

the State on the actual General Election Ballot to major

political parties to that afforded to other candidates is

subject to strict judicial scrutiny and is presumed to be

unconstitutional. That is the clearly established law in the

United States Supreme Court and in the Third Circuit. See

infra.

Notwithstanding this, the District Court below

disregarded clearly established Supreme Court and Third

Circuit precedent on the critical issue of the appropriate

standard of judicial scrutiny to apply when evaluating

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Appellants constitutional claims. The District Court below

analogized Appellants factual claims to that of a candidate

ballot access case (as noted, all Appellants are already on

the General Election Ballot this is NOT a candidate ballot

access case) and then applied what it referred to as the

balancing test ofAnderson v. Celebrezze, 460 U.S. 780,

789 (1983) which the District Court argued applied to all

election law cases. With the application of the so called

Anderson balancing test, the burden is on the moving

party, not the State, and the standard is similar to the

rational basis test, the lowest level of judicial scrutiny.5

5 Only one year ago, a different judge in the District of

New Jersey applied the rational basis test rather than thesimilar Anderson balancing test when evaluating theconstitutional claims raised there in a FourteenthAmendment Equal Protection as applied challenge in acandidate ballot access case. See Lewis v. Guadagno, 837F.Supp.2d 404 (D.N.J. 2011) (Hillman). By Order datedSeptember 13, 2011 a panel of the Third Circuit quickly andsummarily reversed the District Court, ruling in the Orderthat the District Court had relied upon the incorrect standardof judicial scrutiny when evaluating the constitutional

claims, that the correct level of scrutiny was theintermediate compelling State interest level of judicialscrutiny. See explanation in Argument, infra. Then, a weeklater, and not changing the ruling on the issue of theappropriate level of judicial scrutiny declared in theSeptember 13, 2012 Order, the same panel heard furtheroral argument on the actual substance of the appeal and

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Even were the District Court below to be viewed as correctly

evaluating plaintiffs constitutional claims with the standard

of judicial scrutiny normally applied to a candidate ballot

access case, the District Court still applied the incorrect

level of judicial scrutiny and in so doing thereby incorrectly

imparted the burden of proof on the Appellants when the

affirmed the District Court on a factual issue that as amatter of fact, in this as applied challenge, and as a

threshold matter, candidate Carl Lewis had failed to point toany other candidate that was being treated differently thanhim. In sum, Lewis constitutional claim would necessarilyfail as a matter of fact, irrespective of the level of scrutinyapplied. See September 13, 2011 Order and September 202011 Opinion in Lewis v. Gaudagno, No. 11-3401 (3d Cir.2011) (Scirica, Ambro and Vanaskie). It is noted more than

just in passing that the same office for the State, and literallythe same attorney for the State, that appeared in the Lewis

case and certainly was aware that in the Third Circuit even inballot access cases (where candidates are not yet on theballot) require intermediate level compelling State interest

judicial scrutiny, appeared for the State below in this caseand nonetheless argued in this case to the District Courtthat, contrary Third Circuit law, rational basis scrutinyshould applied to candidate ballot access cases, and in sodoing never so much as mentioned the Lewis case or the

Third Circuits September 13, 2011 Order reasserting thecorrect standard of review in candidate ballot access

cases. This is noted in the context of Appellants comingforward and notifying the District Court of the adverselegal authority (and Appellants claim now inapplicable) inVoltaggio as is expressly required by requirements ofcandor. This is noted in the context of any delay caused,and that Appellants should not be prejudiced under thecircumstances.

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burden of proof properly was on the State. In the Third

Circuit, a candidate ballot access constitutional claim must

be evaluated using the intermediate compelling state

interest level of judicial scrutiny, where the challenged

restrictions are presumed unconstitutional, with the State

required to prove that the regulations are not

unconstitutional. In short, under any standard, the District

Court below applied the incorrect level of judicial scrutiny

and therefore must be reversed. Moreover, due to the

critical time constraints, and due to the serious constitutional

issues and constitutional rights of Appellants and the millions

of voters in New Jersey that are at stake, it is submitted that

this Court must act immediately to ensure that the remedy

can be implemented in time for the November 6, 2012

General Election.

POINT I:

THE DISTRICT COURT APPLIED THE WRONG LEVEL OFJUDICIAL SCRITINY WHEN EVALUATING PLAITNIFFSCONSTITUTIONAL CLAIMS:

The District Court below applied the incorrect level of

judicial scrutiny when evaluating plaintiffs constitutional

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claims. When the correct level of judicial scrutiny is

applied to the facts of this case, it is evident that plaintiffs

are entitled to the emergent declaratory and injunctive relief

requested.

This is a simple case. As the District Court below

pointed out in the first sentence of both the Opinion and

Amended Opinion:

Before the Court is a motion for apreliminary injunction and other relief,wherein the moving parties specificallychallenge the preferences New JerseyProvides to the two main political partiesthrough placing them in the first twocolumns of the general election ballotsand prohibiting the use of any part oftheir name by other, unaffiliatedcandidates.

[Amended Opinion at page 1]

Plaintiffs all have properly obtained access to the

November 6, 2011 General Election Ballot as candidates for

various public office. Appellants are already on the

November 6, 2012 as candidates for the respective Federal

and State elective offices that they seek. Now having

already overcome the substantial hurdle of obtaining access

as a candidate for public office whose name will appear on

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the November 6, 2012 General Election Ballot, plaintiffs

argue that they now have political speech and associational

rights equal to those of all other candidates on the General

Election Ballot, whether such other candidates are major

party candidates, minor party candidates, or single

unaffiliated candidates. Plaintiffs argue that the actual

General Election Ballot is the most important medium for

expressing and advancing and communicating their political

views as candidates and their views as a collective political

association. Plaintiffs directly contend, and logically it can

not be disputed that, the content of the actual General

Election Ballot is the most relevant and direct contact and

communication with each voter in the State of New Jersey.

This is simply because the contact and communication is

being made between the candidates and each voter literally

during the actual real time process of each voter reviewing

the candidates listed on the ballot and deciding who to cast

their vote for. Plaintiffs argue that once having earned the

right to appear as a candidate for public office, that all

candidates are required to be treated equally as to [First

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Amendment] political speech and associational rights and

that no one candidate or class of candidates or no one

political organization or class of political organizations -

should be granted special, preferred, or different

treatment from the others. There is clear binding precedent

for these principles of law. See Cook v. Gralike, 531 U.S. 510

(2001) and Citizens United v. Federal Election Commission,

___U.S.___ (2011), both explained in further detail, infra.

The District Court below quite simply and quite clearly

applied the incorrect level of judicial scrutiny when

evaluating plaintiffs constitutional claims. When the correct

level of judicial scrutiny is applied to the facts of and legal

issues raised in this case, it is evident that Appellants are

entitled to the emergent declaratory and injunctive relief as

requested and without limitation.

This is a candidate ballot placement or candidateballot location case, brought by Federal and StateCandidates that have already obtained access to the

General Election Ballot, and as such AppellantsConstitutional claims must be evaluated under astrict judicial scrutiny standard:

Plaintiffs contended from the onset that the statutory

scheme being challenged violates and burdens their core

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fundamental constitutional rights to freedom of political

speech and political association and that the statutory

scheme denies them (and others similarly situated) of the

equal protection of laws otherwise guaranteed by the

Fourteenth Amendment. Plaintiffs are all already on the

November 6, 2012 General Election Ballot: This is NOT a

ballot access case.

The State of New Jersey, through its election laws and

classifications made therein, is regulating the political

speech and political associational rights of candidates on the

actual General Election Ballot (1) by limiting language that

may be used in slogans and (2) by providing what all parties

agree is preferred ballot position to the two major political

parties. Moreover, because there are candidate plaintiffs in

this case seeking the elected office of United States Senate

and the elected office of United States Hours of

Representatives, this case not only involves the [First

Amendment] political speech and associational issues

(facially and as applied) and Fourteenth Amendment equal

protection issues (facially and as applied) as discussed, but

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also directly involves and directly implicates the additional

restrictions on State regulation of Federal Elections as

imposed by the Elections Clause, Article I, sec. 4, cl. 1 of

the United States Constitution, and the [Seventeenth

Amendment] of the United States Constitution.

The [First Amendment] Issues:

If the recent decision of the United States Supreme

Court in Citizens United v. Federal Election Commission, ___

U.S. ___ (2011) stands for any clear legal principle, it is that

the government may not regulate political speech or

political association based upon the identity of the speaker

without infringing on the [First Amendment]. Now after

Citizens United, there is no longer any reasonable question

but that all forms of political speech regarding political

candidates and political elections, even if engaged in by

fictitious corporate or union entities, are all core [First

Amendment] rights. This remains so, and is more

compelling, where as here the core [First Amendment]

political speech and associational rights at issue are those

rights held by actual human candidates and actual human

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voters. That being the case, surely the rights of Appellants

here, actual living breathing candidates on the November

2012 General Election Ballot, and their living breathing voter

supporters, have [First Amendment] political speech and

political associational rights that are at least equal to the

[First Amendment] political speech and political associational

rights of fictitious corporate and union entities. Just as the

fictitious corporate or union entities have a core [First

Amendment] fundamental right to speak for or against

Appellants candidacies, surely the living human candidate

Appellants themselves and their living human voter

supporters have equal rights to speak for Appellants

candidacies. Those rights necessarily and logically include

political speech and political association on the General

Election Ballot, the place and time where expression of

political views is indisputably the most critical. And

Appellants have the right to engage in this protected activity

free from any discrimination. See Lewis v. Guadagno, No.

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

the point, the Supreme Court has unequivocally reiterated

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that the appropriate standard of judicial scrutiny to apply

when a legal claim is brought alleging that a government

regulation infringes upon [First Amendment] political speech

and political associational rights is strict judicial scrutiny.

As Justice Kennedy clearly stated in the Citizens United

majority opinion:

political speech must prevail againstlaws that would suppress it, whether by

design or inadvertence. Laws thatburden political speech aresubject to strict scrutiny, whichrequires the Government to provethat the restriction furthers acompelling interest and is narrowlytailored to achieve that interest.(Emphasis added).

[Citizens United v. Federal Election Commission, Kennedy, J.

(majority slip op at page 23) (quoting Federal ElectionCommission v. Womens Right to Life, Inc., 551 U.S. 449, 646(2007) (opinion of Roberts, C.J.))].

In short, Appellants maintained below, and Appellants

maintain here again on emergent appeal, that this case

whether described as a candidate ballot placement or

candidate ballot location case, in light ofCitizens United v.

Federal Election Commission, the law clearly requires the

District Court and this Circuit Court apply strict judicial

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scrutiny when evaluating Appellants constitutional claims.

It is undisputed that the District Court did not do so. Rather,

the District Court applied what it referred to as Anderson

balancing test scrutiny (very similar to the so called

rational basis test, the lowest level of scrutiny) as

articulated in the candidate ballot access case ofAnderson

v. Celebrezze, 460 U.S. 780, 789 (1983).6 When the

6 On the issue of which level of judicial scrutiny was appropriate toapply to plaintiffs claims, the District Court below noted that plaintiffsargued (as they again initially argue here) that strict judicialscrutiny, the highest and most exacting level, should beapplied to an evaluation of their constitutional claims,whereas the State argued below that the so called rationalbasis scrutiny, the lowest and most deferential level, shouldbe applies when evaluating plaintiffs constitutional claims.

The District Court ultimately ruled that ..[n]either partys

position is correct. Amended Opinion at page 7. Rather,the Court ruled that the appropriate level of judicial scrutinyfor - what the District Court referred to as cases that involvean election law challenge - is the balancing test level of

judicial scrutiny as stated in Anderson v. Celebrezze, 460U.S. 780, 789 (1983). As noted,Anderson was a candidateballot access case, and as such Anderson is inapplicable tothis case. This case is not a candidate ballot access case:

This case is a First and Fourteenth Amendment corepolitical speech and association case. Moreover, even were

it proper to evaluated plaintiffs claims here as a candidateballot access case, the Third Circuit has long establishedthat the standard of judicial scrutiny to apply is thecompelling state interest standard of judicial scrutiny (anintermediate level of review, where the statute is stillpresumed to be unconstitutional). See Wellford v. Battaglia,485 F.2d 1151 (3d Cir. 1973) (Van Dusen, Gibbons and

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statutory scheme at issue in this case is evaluated using

strict judicial scrutiny, the State can not possibly provide

sufficient and satisfactory facts to rebut the strong

presumption of unconstitutionality and invalidity. As such,

this Court should independently evaluate plaintiffs claims

using the strict judicial scrutiny standard and grant the

declaratory and injunctive relief requested.

The Elections Clause of Article I:

Because there are candidate plaintiffs seeking the

office of United States Senate and the office of the United

States Hours of Representatives, this case not only involves

[First Amendment] political speech and associational issues

(facially and as applied) and Fourteenth Amendment equal

protection issues (facially and as applied) but also involves

and implicates the additional restrictions on State regulation

of Federal Elections as imposed by the Elections Clause,

Article I, sec. 4, cl. 1 of the United States Constitution, and

Hunter). See also argument, infra.

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the [Seventeenth Amendment] of the United States

Constitution.7

The federal offices at stake aris[e] from

the Constitution itself. U.S. TermLimits, Inc. v Thorton, 514 U.S., at 805.Because any State authority to regulate

7 It is significant to note that the District Court belowheavily relied upon the reasoning of the New Jersey SuperiorCourt, Chancery Division (trial level court) on remand in thecase of New Jersey Conservative Party v. Farmer, 324N.J.Super. 451, 735 A.2d 1189 (App. Div. 1999), leave to

appeal denied ___ N.J. ___ (1999), on remand to the trialcourt at 332 N.J.Super. 278, 753 A.2d 192 (Ch. Div. 1999).Firstly, the constitutional claims raised herein were expresslyneither raised nor addressed before that Court, who evennoted in a footnote that such arguments, had they beenraised then and there at that time (they were not) werecertainly colorable. See 332 N.J.Super. 278, 753A.2d 192(Ch. Div. 1999) at footnote 5. What took place is that theAppellate Division in that case to save the major political

parties the right to preferred placement literallyinterpreted (or twisted) State Law (N.J.S.A. 19:5-1) in amatter that was not only contrary to legislative history, logic,and the actual plain text, but was in such a way thatrendered the statutory scheme conferring preferential ballotplacement unconstitutional. The counting method iscompletely arbitrary and irrational. Such are Appellantsspecific claims here. If that is the law, then the conferring ofpreferred position is unconstitutional. If this Courtindependently interprets State Law contrary to the State

Appellate Division as is allowed by Bush v. Gore, 531 U.S. 98(2000), and applies the law as actually written as initiallyfound by the Chancery Division initially, and somehowrejects Appellants other constitutional claims on ballotplacement, then the Republican Party has failed to poll therequired amount to be entitled to the location preference inN.J.S.A. 19:5-1, falling short by over 50,000 votes. Moreover,

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election to those offices could notprecede their very creation by theConstitution, such power had to bedelegated to, rather than reserved by,the States. Id., at 804. Cf. 1 Story sec.

627 (It is no original prerogative ofState power to appoint a representative,a senator, or president for the union.).

Though the Elections Clause, theConstitution delegated to the States thepower to regulate the Times, Placesand Manner of holding Elections forSenator and Representatives, subjectto a grant of authority to Congress to

make or alter such Regulations.Classic, 313 U.S. 299, 315 (1941). Noother constitutional provision gives theStates authority over congressionalelections, and no such authority couldbe reserved under the TenthAmendment. By process of elimination,the States may regulate the incidents ofsuch elections, including balloting, onlywithin the exclusive delegation of power

under the Elections Clause.

[Cook v. Gralike, 531 U.S. 510, ___ (2001)].

As stated, States may regulate the incidents of such

elections, including balloting, only within the exclusive

delegation of power under the Elections Clause.

the elections in 1999 did not involve any candidates forFederal Office on the Ballot, so the Constitutions ElectionsClause of Article I and the [Seventeenth Amendment] werenot at issue. Because there are Federal Candidates, this is astrict scrutiny case.

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(emphasis added), Id. Moreover, the United States Supreme

Court in Cook v. Gralike, supra, in a unanimous opinion

which is controlling on the District Court and this Court,

specifically ruled that when a Court is called upon to

evaluate a claim by a candidate for the Federal office of

United States Senate or the United States House of

Representatives who has already obtained access to

the General Election Ballot(such is at issue here) where

the Federal Candidate on the ballot makes a claim that a

State regulation or series of State regulations governing the

configuring and content of the General Election Ballot

discriminates or otherwise infringes on the [First],

Fourteenth and [Seventeenth] Amendments and the

Elections Clause, Article I, sec. 4, cl. 1 of the United States

Constitution (such is at issue here), the standard of judicial

scrutiny to apply to the Federal candidates claims in such a

case is strict judicial scrutiny. Cook v. Gralike, 531 U.S.

510, ___ (2001) (Stevens, J) and (Rhenquist, C.J. and

OConner, J, concurring). When the statutory scheme at

issue in this case is evaluated using strict judicial scrutiny,

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the State can not possibly provide sufficient and satisfactory

facts to rebut the strong presumption of unconstitutionality

and invalidity. As such, this Court should independently

evaluate plaintiffs claims using the strict judicial scrutiny

standard and grant the declaratory and injunctive relief

requested.8

8 On the issue of slogan, Appellants reassert that Riddellv. National Democratic Party, 508 F.2d 770 (5th Cir. 1975) is

directly on point, directly applicable, and compels a ruling inAppellants favor. The District Court attempted todistinguish this case and in so doing, once again, relied uponthe incorrect standard of judicial scrutiny to apply to theclaim. Anderson did not affect Riddell as Riddell was not aballot access case any more than this case is a ballot accesscase. See also Freedom Socialists v. Bradburry, 182Ore.App. 217, 48 P.3d 199 (Oregon 2002); Norman v. Reed,502 U.S. 279 (1992). When the correct level is scrutiny isapplied, the arguments advanced by the state a generic

argument regarding a State interest seeking to avoidconfusion between major and minor political partycandidates simply does not overcome the presumption ofunconstitutionality. As such, Appellants must be allowed touse their organizations name Democratic-Republican asthe slogan associated with their name on the November 6,2012 General Election Ballot.

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Assuming, arguendo, that the District Court properlycharacterized and analogized plaintiffs constitutionalclaims to a candidate ballot access case, theDistrict Court still must be reversed as havingincorrectly disregarded the controlling Third Circuit

precedents in Wellford v. Battaglia and the full Courten banc decision in Reform Party of AllegheneyCounty v. Allegheney County Department ofElections:

Assuming, arguendo, that even were the claims of

plaintiffs here somehow to be properly viewed and evaluated

as a candidate ballot access case (even though all

candidates are already ON the November 6, 2012 General

Election Ballot as candidates, albeit without a slogan and

bracket and placed well to the right on the Ballot) and

therefore reviewed under the level of judicial scrutiny

applicable to a candidate ballot access case, the District

Court below still applied the incorrect standard of review.

The Third Circuit has long and unequivocally held that the

appropriate standard of review in a candidate ballot access

case is the compelling state interest standard of judicial

scrutiny (an intermediate level of review, where the statute

is still presumed to be unconstitutional). See Wellford v.

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

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and Hunter) and Allegheney County v. Allegheney County

Department of Elections, 174 F.3d 305 (3d Cir. 1999) (en

banc, Becker, C.J., and Sloviter, Stapleton, Mansmann,

Greenberg, Scricia, Nygaard, Alito, Roth, Lewis, McKee,

Rendell and Rosen). Moreover, only one year ago Wellford

v. Battaglia was specifically cited as controlling authority by

a panel of this Court (Scirica, Ambro and Vanaskie) as to the

standard of scrutiny to apply when evaluating a candidate

ballot access case. Specifically, by Order dated September

13, 2011, the referenced Third Circuit panel by Order

provided as follows:

The judgment of the District Court,entered September 7, 2011, is hereby

reversed. The District Court, inter alia,incorrectly applied a rational basisstandard of review of this as appliedchallenge, rather than the strictercompelling state interest standard. SeeWellford v. Battaglia, 343 F.Supp. 143(D. Del. 1972), affd, 485 F.2d 1151 (3dCir. 1973). The State has failed todemonstrate a compelling state interest

in the application of this durationalresidency requirement to this particularcandidate. Accordingly, it is herebyordered that the ballot at issue in thisappeal include the name of Appellant.Opinion of the Court to follow.

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the proper level of the level of judicial scrutiny to apply when

evaluating plaintiffs constitutional claims.

If the plaintiffs constitutional claims here are indeed

subject to strict judicial scrutiny as plaintiffs contend they

must be, then the statutory scheme is presumed

unconstitutional and invalid and the burden is on the State

to demonstrate otherwise. Conversely, even if the District

Court was correct in analogizing this case a case where all

plaintiffs are already on the actual General Election Ballot

to the line of so called candidate ballot access cases, the

proper standard of review for such a case in the Third Circuit

is without question the compelling state interest standard

of scrutiny test, an intermediate level of review, where the

statutory scheme is still presumed to be unconstitutional and

invalid until the State proves otherwise. Wellford v.

Battaglia, 485 F.2d 1151 (3d Cir. 1973); Allegheney County

v. Allegheney County Department of Elections, 174 F.3d 305

(3d Cir. 1999) (en banc). In short, under any possible

scenario, and no matter how this case is properly viewed, it

is clear that the District Court below applied the incorrect

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standard of judicial scrutiny. Under either scenario, the

statutory scheme challenged is presumptively

unconstitutional and invalid, and remains so unless and until

the State demonstrates otherwise. That all being said, the

justifications for this presumptively unconstitutional and

invalid statutory scheme advanced by the State can not

possibly satisfy either of the noted judicial scrutiny tests.

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Whether plaintiffs constitutional claims areevaluated under either a strict judicial scrutinystandard or are evaluated under a compelling stateinterest judicial scrutiny standard, in either eventthe State has not presented a sufficient basis to rebut

the presumption that the challenged statutoryscheme is unconstitutional and invalid and as suchAppellants are entitled to the requested declaratoryand injunctive relief.

The strict judicial scrutiny test which plaintiffs

contend applies to an evaluation of the constitutional claims

made in this case requires the State to come forward and

demonstrate that the restriction furthers a compelling

interest and is narrowly tailored to achieve that interest.

Citizens United v. Federal Election Commission, ___U.S. ___

(2011) Kennedy, J. (majority slip op at page 23) (quoting

Federal Election Commission v. Womens Right to Life, Inc.,

551 U.S. 449, 646 (2007) (opinion of Roberts, C.J.)); See also

Cook v. Gralike, 531 U.S. 510, ___ (2001) (Stevens, J) and

(Rhenquist, C.J. and OConner, J, concurring). Conversely,

viewing plaintiffs constitutional claims in this case as a

candidate ballot access case such as the District Court saw

fit to do requires application of the so called compelling

state interest standard of judicial scrutiny, which requires

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the State to demonstrate a compelling State interestin the

application of the discriminatory statutory scheme

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

1973);Allegheney County v. Allegheney County Department

of Elections, 174 F.3d 305 (3d Cir. 1999) (en banc). In either

event, the challenged statutory scheme is presumed

unconstitutional and invalid.

What are the justifications advanced by the State for

the different and preferable treatment that the statutory

scheme admittedly gives to major political parties and their

candidates? As to the Ballot placement, the District Court

recited the explanation at pages 16-17 of the Amended

Opinion:

I note that the State has offered, in itspapers and at the hearing, severalinterests supporting its method ofregulating ballot placement in a waythat might appear to favor politicalparties. Specifically, the State claimsthat political party candidates have

demonstrated a certain modicum ofcommunity support and therefore it isreasonable to place them together onthe same side of the ballot to theexclusion of the unaffiliated candidates,who have failed to demonstrate thesame amount of support. Cf. Jennes,

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403 U.S. at 42. In that connection, theState posits, it is important for voters toeasily identify these candidates andparties on the ballot, which isaccomplished by ensuring that these

candidates for political parties areclearly separated on the ballot fromcandidates nominated by petition. Insum, the State argues, these regulationsserve the interest of maintaining theintegrity of the election process.

[Amended Opinion at 16-17].

Directly to the point, the only justification that the State

has advanced whatsoever for this different treatment is that:

(1) major political parties have demonstrated a modicumof community support (whatever that means); {FN}

(2)so it is therefore (so the State says) reasonable toplace all major political party candidates on the sameside of the ballot, specifically away from candidates

who have obtained access to the ballot through thenomination and petition process;

(3)and that it is therefore reasonable to place all majorpolitical party candidates together on the same side ofthe ballot because it is important for voters to easilyidentify these candidates and parties on the ballot.

The problem with the entirety of the States argument

in this regard is that the interests that they articulate are

not legitimate and recognized State interests. The reasons

advanced may operate to address and protect the

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interests of the two established major political parties and

their candidates, but the interests of established major

political parties and their candidates most certainly do not

equate as a matter of law with the interests of the State of

New Jersey that a Court may take cognizance of when

evaluating the constitutionality of the challenged legislative

classifications and restrictions. As the Sixth Circuit said in

Libertarian Party of Ohio v. Blackwell, 465 F.3d. 579, 587 (6

th

Cir. 2006):

[T]he State may not be a whollyindependent or neutral arbiter as it iscontrolled by the political parties inpower, which presumably have inincentive to shape the rules of theelectoral game to their own benefit.

[Libertarian Party of Ohio v. Blackwell, supra, 465 F.3d. at587 (quoting from Clingman v. Beaver, 544 U.S. 581 (2005)(OConner, J., concurring)].

In this regard, it is simply not the place of the State to

take sides by enacting election laws that favor one party

over another or one candidate over another, or to enact

election laws that inherently favor established political

parties and their candidates over new political parties and

their candidates. [W]hile states enjoy a wide latitude in

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regulating elections and in controlling ballot content and

ballot access, they must exercise this power in a reasonable,

nondiscriminatory, politically neutral fashion. (Emphasis

added). Texas Democratic Party v. Benkiser, 459 F.3d 582

(5th Cir. 2006).

Despite this fact and despite the actual law, there is not

even so much as a pretense of an argument from the State

that the classifications and preferences that plaintiffs

challenge here are politically neutral. In fact, the State quite

clearly argues the contrary, literally arguing that the State

has the right to overtly favor the major political parties and

their candidates over minor political parties and their

candidates when configuring the actual General Election

Ballot without violating the [First] and Fourteenth

Amendments! The State amazingly argues that it is both

reasonable and important for voters to easily identify

and find the major political parties and their candidates on

the General Election Ballot. This is reasonable and

important because -the State says - political parties have

demonstrated a modicum of support. To the point, how

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making it easier for voters to find the major party candidates

on the General Election Ballot - and in so doing admittedly

therefore making it more difficult, or at least not as easy,

for voters to find minor political party candidates on the

General Election Ballot is a State interest is not explained

by the State. Moreover, how such admitted State

discrimination can possibly equate with a State interest is

neither explained by the District Court nor understood by

plaintiffs. Nor can such favorable treatment ever equate

with any legitimate, valid and recognizable State interestfor

constitutional analysis. In Williams v. Rhodes, 393 U.S. 23,

31-32 (1968) the Supreme Court specifically and clearly

ruled that State election laws that favor the two major

political parties and their candidates over minor political

parties and their candidates under the pretext of the States

promoting the stability of two parties is an impermissible

State interest that the First Amendment simply does not

recognize.10 As the only reason articulated by the State is

10 At footnote 8 on page 14 of the Amended Opinion theDistrict Court acknowledges that at oral argument EugeneLaVergne argued that Williams v. Rhodes, 393 U.S. 23(1968) supported the legal position

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not a State interest that may even be recognized by any

Court, there certainly is no compelling State interest,

nonetheless one that is narrowly tailored to achieve that

State interest. See Citizens United v. Federal Elections

Commission, supra., Cook v. Gralike, supra, Wellford v.

Battaglia, supra., Allegheney County v. Allegheney County

Department of Elections, supra. To rebut the presumption

that the discriminatory statutory scheme is unconstitutional

that preferential ballot placement for a candidate orpolitical party violates the Constitution. The Court thenstated that:

Plaintiffs argument rests on theconclusory assertion that certain ballot

placements are more preferential thanothers - - in terms of garnering votes orotherwise - - and accordingly I reject itfor the same reasons as stated above.

What is at issue here is not a conclusory assertion byplaintiffs at all but rather is a fact openly admitted by theState. The State itself here argues that the ballot placementgiven to the major political parties is a benefit and is a

preference and that such placement on the General

Election Ballot (the conferred benefit and preference) makesit easier for voters to quickly identify, find on the GeneralElection Ballot, and vote for the major political partycandidates! Indeed, this is, by the States own admission,specifically whythe State confers this benefit and preferenceon the major political parties and their candidates.

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and invalid the State must articulate a valid and recognized

State interest. They have not done so, nor can they. As

such, plaintiffs have demonstrated a clear probability of

success on the merits and as such this Court should enter

the declaratory and injunctive relief requested.11

11 Applications for injunctive relief are governed by Rule65 of the Federal Rules of Civil Procedure (F.R.Civ.P. 65).

The standards governing an application for injunctive reliefin the Third Circuit are well established:

To satisfy the injunction standard, themoving party must demonstrate theclassic four elements: (1) a reasonableprobability of success on the merits; (2)that denial of injunctive relief will resultin irreparable harm; (3) that grantinginjunctive relief will non result in evengreater harm to the non-moving party;

and (4) that granting injunctive relief willbe in the public interest.

[Saudi Basic Industry, Corp. v. Exxon Corp., 364 F.3d 106,112 (3d Cir. 2004), citingAllegheny Energy, Inc. v. DQE, Inc.,171 F.3d 153, 158 (3d Cir. 1999)].

In this case, the District Court below assumed that allstandards were met except the probability of success onthe merits prong. When the proper level of judicial

scrutiny Strict Judicial Scrutiny is applied toAppellants actual claims, it is submitted that Appellantshave in fact demonstrated a probability of success on themerits and are entitled to the declaratory and injunctiverelief requested.

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POINT II:THE CIRCUIT COURT SHOULD, IF EVEN NECESSARY,TAKE JUDICIAL NOTICE OF THE FACT THAT BALLOTLOCATION HAS AN EFFECT ON ELECTIONS:

The State openly concedes that placement of the major

political parties and their candidates in the first two columns

on the left and at the top of the General Election ballot is a

preference and a benefit. Moreover, not only is this fact

conceded, but the State literally argues that it is expressly

because this placement confers a preference and benefit

that the State has an interest in specifically conferring this

benefit and preference on the major political parties and

their candidates to the specific exclusion of all minor political

parties and their candidates. That is literally the States

position and argument. See Point I, supra.

Despite this reality, the District Court still found that at

this preliminary stage of the proceedings plaintiffs had not

demonstrated a likelihood of success on the merits. This

finding by the District Court was specifically and only -

because the Court took the position that there was no

evidence yetbefore the Court that demonstrated that any

benefit or burden existed by the placement of the major

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political parties in the first two columns on the left and top of

the General Election Ballot. This finding by the District

Court was made in the face of the reality that the State

conceded the fact of positional bias to exist. The District

Court stated as follows:

Thus, Plaintiffs, at the very least, shouldhave presented the Court with sometype of evidence demonstrating abenefit and/or burden that stems from

ballot placement. Without any suchevidence, the Court is unable to make adetermination that Plaintiffs havesuffered any cognizable, constitutionalharm in this case. In other words,Plaintiffs have failed to establish alikelihood of success on the merits thatwould allow a preliminary injunction toissue.

[Amended Opinion at page 16].

Under the facts of this case plaintiffs do not or should

not - need to present any further evidence, even at this early

stage of the litigation, on an issue of fact that the State

openly concedes is true. Therefore, in the actual context of

this case, the District Courts position that [w]ithout any

such evidence, the Court is unable to make a determination

that Plaintiffs have suffered any cognizable, constitutional

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harm in this case ..., Id., with all due deference, literally

makes no logical sense. With the concessions made by the

State here, there simply is no disputed issue or question of

fact on the issue of positional bias on the General Election

Ballot: The State concedes the issue of fact.12 Moreover, on

the facts of this case in the context of plaintiffs actual

constitutional claims, as a threshold matter plaintiffs are not

required to prove positional bias on the General Election

Ballot but rather as a threshold matter are only required to

demonstrate different treatment from others similarly

situated, which plaintiffs have undisputedly done. Once

plaintiffs have demonstrated different treatment by the

12 14 years ago in New Jersey Conservative Party v.Farmer, 324 N.J.Super. 451, 735A.2d 1189 (App. Div. 1999),leave to appeal denied ___N.J.___ (1999), on remand to thetrial court at 332 N.J.Super. 278, 753 A.2d 192 (Ch. Div.1999), the State of New Jersey took the literal contraryposition, arguing that there was no evidence that had beenpresented yet in that case that demonstrated that there isany bias or preference created by ballot position. Now, theState not only concedes what all have always understood to

be true, that there is unquestionably indeed a bias andtherefore a preference in ballot position, but the Stateargues that it is because of this bias and preference thatthey have conferred the first two columns on the left of theGeneral Election Ballot to the major political parties and theircandidates to the exclusion of all minor political parties andtheir candidates.

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State of some candidates on the General Election Ballot from

other candidates on the General Election Ballot as plaintiffs

have clearly done, the burden then shifts to the State to

show that there is NOT positional bias of a constitutional

magnitude. See Citizens United, supra. and Wellford v.

Battaglia, supra. Whether this case is properly evaluated

under a strict scrutiny or compelling state interest

standard, Id., in either event the burden is on the State to

demonstrate that the different treatment of candidates on

the General Election Ballot does notcreate a positional bias.

The District Court applied the incorrect standard of judicial

scrutiny, and in do doing, improperly stated the burden of

proof as if plaintiffs had to demonstrate bias. This is

incorrect, as under either of the two possible correct

standards of review, the burden is on the State to

demonstrate that there is not positional bias, whereas the

District Court (in applying the incorrect standard of Judicial

Scrutiny) incorrectly ruled that the burden was on plaintiff to

demonstrate that there is positional bias.

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However, least there be any question on the issue that

could affect this Court from granting the declaratory and

injunctive relief requested, plaintiffs hereby formally request

that this Court take judicial notice under F.R.Evid. 201 of

the adjudicatory fact that providing the two left columns at

the top of the General Election Ballot to the major political

parties to the exclusion of the minor political parties created

and causes a positional bias. For more than 70 years courts

at various times and under various circumstances have

acknowledged the fact that a candidates placement at the

preferred locations on the General Election Ballot (top of

ballot, to the left of the ballot) provide a substantial benefit.

It is a commonly known andaccepted fact that in an election,either primary or general, where anumber of candidates or nominees forthe same office are before theelectorate, those whose name appear atthe head of the list have a distinctadvantage. (emphasis added).

[Elliott v. Secretary of State, 295 Mich. 245, 294 N.W. 171,173 (Mich. 1940).]

Today, in year 2012, 72 years after the Michigan State

Courts statement that positional bias on the General

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Election Ballot is a commonly known and accepted fact,

there is no longer any reasonable dispute that all empirical

evidence and date support the factual conclusion that the

first two columns on the left and the top locations of a

General Election Ballot confer a benefit and operate as a

preference for any candidate as this location makes it easier

for voters to identify and find a candidate. While studies

may differ as to degree of effect, there is no reasonable

question now in year 2012 that there is a significant effect.

See eg. The Impact of Candidate Name Order on Election

Outcomes, by Joanne M. Miller & Jon A. Krosnick, 62

Pub.OpinionQ, Vol.62, No. 3, 291, 293-294, 308-308 (1998);

Election by Lottery: Ballot Order, Equal Protection, and the

Irrational Voter, by Laura Miller, 13 N.Y.U.J.Legis.&Pub.Poly

373, 405 (2010) (collecting empirical social science studies).

Further, countless Federal and State Courts have

acknowledged and struck down as unconstitutional statutes

that grant ballot placement preferences to the major political

parties and their candidates, all finding as fact that position

on the ballot makes a difference. See e.g. McLain v. Meier,

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637 F.2d 1159, 1167 (8th Cir. 1980) (Such favoritism

burdens the fundamental right to vote possessed by

supporters of the last-listed candidates, in violation of the

fourteenth amendment.); Emmons v. Hooper, CIV-78-404

(D.N.M. July 6, 1979) ([C]itizens voting for an unfavorably

positioned candidate would lose their power of their vote to

a group of equal strength whose candidate appears in top

positions.); Graves v. McElderry, 946 F.Supp. 1569

(W.D.Okla. 1996) (Striking Democratic-first statute.); Rosen

v. Brown, 970 F.2d 169 (6th Cir. 1992); Weisberg v. Powell,

417 F.2d 388, 392-393 (7th Cir. 1969) (Policy of granting

priority ballot placement to candidates of major parties held

to be unconstitutional.); Cullition v. Board of Election

Commissioners of the County of DuPage, 419 F.Supp. 126

(N.D. Ill. 1976) (holding that Republican-first provision

violated equal protection clause.); Sangmeister v. Woodard,

565 F.2d 460, 465-467 (7th Cir. 1977) (Affirming District

Courts finding that ballot positioning practices favoring

certain parties are unconstitutional.); Atkins v. New

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

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(N.H. 2006) (Listing candidates from the party that receive

the most votes in the previous election and alphabetizing the

names of the remaining candidates held unconstitutional.);

Holtzman v. Power, 313 N.Y.S.2d 904, 62 Misc.2d 1020, affd

mem. 34 App.Div.2d 917, 311 N.Y.S.2d 824, affd mem. 27

N.Y.2d 628, 313 N.Y.S.2d 760, 261 N.E.2d 666 (1970)

(Statute requiring name of incumbent to appear first on the

ballot held to be unconstitutional.)

Most recently, on February 3, 2012, in Green Party of

Tennessee v. Hargett, Case No. 3:11-00692 (Mid.D.Tenn.

2012) (Document 45) the Honorable William J. Haynes of the

Middle District of Tennessee took judicial notice of social

statistics that confirm ballot position bias by including in his

opinion social science studies not relied upon by either party

when concluding the adjudicative fact of positional bias.

Plaintiffs are asking this Court, to the extent even necessary,

to do the same here.

Notwithstanding the fact that the State concedes this

that there is positional bias and a preference and a benefit

that is derived from being located to the top and left of the

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general election ballot, to the extent necessary, plaintiffs ask

this Court to take Judicial Notice under F.R.Evid. 201 of the

well known and commonly accepted fact that a

candidates location at the preferred locations on the

General Election Ballot (top of ballot, to the left of the ballot)

provide a substantial benefit. As such, there plaintiffs

submit that they have demonstrated a probability of success

on the merits.

POINT III:EXPEDITED REVIEW IS APPROPRIATE TO PROTECT THECONSTITUTIONAL RIGHTS OF APPELLANTS AND OFALL VOTERS IN THE ENTIRE STATE OF NEW JERSEY:

There is more than ample precedent for an Article III Court

to Order expedited review in election matters when

constitutional rights are at stake and the constitutional

validity of a State Election Statute is called into question in a

Federal election. Under such circumstances expedited

review may be granted on the application of a party or even

Ordered sua sponte. See Norman v. Reed, 502 U.S. 279, 287

(1992) (Expediting review and Supreme Court Ordering

Election Ballots to be changed to comply with Constitution

less than 2 weeks before the Election); Bush v. Gore, 531

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U.S. 98 (2000) and Bush v. Palm Beach County Canvassing

Board, 531 U.S. 70 (2000) (expedited review of

Constitutionality of Florida State Election Laws in context of

a Federal Election). Article III Courts have not hesitated to

conduct expedited review and enter appropriate preliminary

injunctive relief when the Constitutionality of a law or the

actions of a government official are at issue. See

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

(1952) (expedited review of constitutionality of actions of

Article II President in the so called steel seizure cases);

United States v. Nixon, 418 U.S. 683 (1983) (expedited

review in the Nixon Tapes Case); New York Times Co. v.

United States, 403 U.S. 713 (1971) (expedited review in the

Pentagon Papers Case); Bowsher v. Synar, 478 U.S. 714

(1986) (expedited review of the constitutionality of the

Gram-Rudman Act); Dames & Moore v. Regan, 453 U.S.

654 (1981) (expedited review on the constitutionality of

seizure of Iranian Assets); Raines v. Byrd, 521 U.S. 811

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(1997) (expedited review of the constitutionality of the line

item veto).13

13 Although the Article III Courts heard Raines v. Byrd in

an expedited case, ultimately the Supreme Court dismissedthe case finding that the plaintiffs there lacked Article IIIstanding to bring the legal challenge. Thereafter, in a casewhich was not heard on an expedited basis but where theplaintiffs were found to have Article III standing, the line itemveto was declared unconstitutional. See Clinton v. NewYork, 524 U.S. 417 (1998).

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CONCLUSION:

For the foregoing reasons and authorities cited in

support thereof, it is respectfully requested that Appellants

Motions be GRANTED.

____/s/ RichardLuzzi_________________

By: Richard Luzzi, Esq.

Attorney for Appellants Democratic-Republican Organization of NewJersey, Frederick John LaVergne,Leonard P. Marshall, Tracy M.Caprioni, Kimberly Sue Johnson andDonald E. LettonDated: October 19, 2012

____/s/ Eugene MartinLaVergne_______

Eugene Martin LaVergneAppellant Pro SeDated: October 19, 2012

PROOF OF SERVICE AND COMBINED CERTIFICATIONS:

[ADD]

dr final appellate motion

Documents