united states senate filing - re nj special senate election contested

7/27/2019 United States Senate filing - RE NJ SPECIAL SENATE ELECTION CONTESTED

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Challenge Petition are duly investigated and decided on the merits by a majority vote ofthe full United States Senate.

* * * * * * * * * * * * *

Jur isdiction of the Senate:

The Constitutional Authority and Jurisdiction of the United States Senate to Ruleon the Constitutionality, Legality and Validity of the Results of the October 16, 2013

New Jersey State Special Election for United States Senate:

1. Article I, sec. 5, cl. 1 of the United States Constitution provides as follows:

Each House shall be the Judge of the Elections, Returns,and Qualifications of its own Members, and a Majority ofeach shall constitute a Quorum to do business; (Emphasis added).

[United States Constitution, Article I, sec. 5, cl. 1]

2. Since the beginning of our government under the United States Constitution,

Article I, sec. 5, cl. 1 has made clear the absolute and unchallengeable Constitutional

Authority of the United States Senate itself to be the sole final arbiter and judge of the

Constitutionality, legality and ultimate overall validity of each election of a Senator to the

United States Senate. This authority exists by virtue of the express delegation of power

from the people to the Senate and to no other Legislative, Executive, or Judicial Body -

to be the Judge of the Elections of its own Members . Id.

3. Under the Constitution as originally enacted, members of the United States Senate

were elected by the Legislatures in each State. From the first meeting of the United

States Senate and thereafter, the United States Senate throughout history has routinely


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exercised its delegated authority to judge the Constitutionality, legality and validity of the

election of each of its own members. To this end, whenever a Petition is brought by

anyone (whether a candidate or citizen) challenging the Constitutionality, legality and

validity of any election of any person to the United States Senate, the full United States

Senate has on each and every occasion accepted the Petition and independently inquired

into whether the election of the challenged Senator was in fact Constitutional, legal and

valid.1

4. The [Seventeenth Amendment] to the United States Constitution, proposed by a

two thirds vote in the Senate and House of Representatives of the sixty second Congress

to the then State Legislatures for ratification under the Constitutions Article V process,

was thereafter fully ratified and consummated as permanent Constitutional law on April

8, 1912, and then administratively promulgated and published as permanent

Constitutional law by the United States Secretary of State on May 13, 1912 in a

Proclamation issued by the Secretary pursuant to ministerial authority delegated in a

Federal Statute first enacted in 1818. The [Seventeenth Amendment] provides as

follows:

1 The State of New Jersey has already once had a United States Senator expelled by the full UnitedStates Senate after it was determined by a majority vote that the election of that Senator was indeedUnconstitutional, illegal and invalid. Specifically, on March 4, 1865, John P. Stockton was issued

credentials from the State of New Jersey claiming that he had been chosen as a United States Senator in avalid election held by the New Jersey State Legislature, which credentials Stockton presented to the Senate,and was then seated. Contemporaneous to Stockton presenting his credentials a formal Petition challengingthe Constitutionality, legality and validity of Stocktons election to the Senate was also filed with the fullUnited States Senate. The Senate voted to seat Stockton without prejudice to the consideration of themerits of the Petition so that the State of New Jersey would not be without representation in the Senatewhile the Petition was investigated and a final vote taken. A year later, on March 27, 1866, after athorough investigation of the underlying facts and law, Stockton was summarily expelled from the Senate(by a vote of 23 to 20) as having not been Constitutionally, lawfully and validly elected in the first instance.Specifically it was found that Stockton was elected in violation of New Jersey State Law. See United StatesSenate Election, Expulsion and Censure Cases, 1793-1990, by Anne M. Butler and Wendy Wolff, reprintedin United States Senate Document 103-55, Government Printing Office, Washington: 1995.


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The Senate of the United States shall be composed of twoSenators from each State, elected by the people thereof, for

six years; and each Senator shall have one vote. The electorsin each State shall have the qualifications requisite forelectors of the most numerous branch of the StateLegislatures.2

When vacancies happen in the representation of any Statein the Senate, the Executive authority of such State shallissue writs of election to fill such vacancies: Provided, Thatthe legislature of any State may empower the executivethereof to make temporary appointments until the people fi ll

the vacancies by election as the legislature may dir ect.

This amendment shall not be so construed as to affect the

election or term of any Senator chosen before it becomesvalid as part of the Constitution.

[United States Constitution, [Seventeenth Amendment]].

5. The [Seventeenth Amendment] further specifically confirms that each member of

the Senate shall be chosen in an election by the people of each State. The published

precedents of the United States Senate state as follows:

An election must authoritatively express the will of thepeople. This can be accomplished only by an electoralsystem which clearly identifies those who are qualified tovote, established conditions under which the voter canfreely express his choice, and creates standards toaccurately record the results of the election. Although thesystem is important, the exercise of the electoral franchisedepends not alone upon procedures but equally upon itshonest and efficient administration. * * * The degree towhich free choice is exercised within a government is themeasure of freedom of the people of that government. This

is the very principle upon which American government isfounded. Our Declaration of Independence proclaimed thatgovernments derive * * * their just powers from theconsent of the governed * * * . The consent of thegoverned is obtained through elections. When an electionis held under such conditions that the citizen cannot freely

2 The standard for qualifications of voters as found in the [Seventeenth Amendment] was altered in1971 by the [Twenty Sixth Amendment] which provides that henceforth anyone eighteen years or oldershall be eligible to vote in an election held by a State for the office of United States Senate .


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vote his choice then the election has failed, for the free willof the people has not been expressed.

[See page 3 in The Election Case of Patrick J. Hurley v. Dennis Chavez of New Mexico(1954), reported in detail in Senate Rules and Administration Committee ReportSENATOR FROM NEW MEXICO Report of the Committee on Rules and

Administration, United States Senate, Eighty Third Congress, Second Session, Pursuant

to Sen. Res. 333 (82d Congress, Second Session) and Senate Resolutions 106 & 137 (83d

Congress, First Session) Relative to the New Mexico Senatorial Election of 1952 (March

16, 1954), Senate Report No. 1081, Eighty Third Congress, Second Session (CalendarNo. 1083)].

6. The proper and Constitutional standard for admission of United States Senator to

the national Legislative Body is not whether some person shows up at the Senate with

paperwork issued by some State Election Official that purports as credentials, but

rather is whether, taken as a whole, the underlying election by the people in the State

from which the Senator comes, which election process preceded the issuance of any

purported credentials, was itself conducted in conformance with the Federal and State

Constitutions and all applicable Federal and State Election Laws such that the election

procedure does not violate the United States Constitutions Article I, sec. 5, cl. 1 and

[Seventeenth Amendment] or any other provision of the Federal or State Constitution or

Federal or State Statutes.

Factual Background Regarding the October 16, 2013 Special Election for United

States Senate:

7. On December 12, 2012, New Jersey Lt. Governor / Secretary of State Kim

Guadagno in her capacity as the Chief Election Official of the State of New Jersey issued

a formal and statutory required Certificate of Political Parties pursuant to N.J.S.A.

19:12-1 in accordance with New Jersey State Election Law. In the statutorily required

Certificate of Political Parties pursuant to N.J.S.A. 19:12-1 New Jersey Lt. Governor /


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Secretary of State Kim Guadagno specifically found and declared (a) that 2,597,725 total

votes were cast at the November 8, 2011 General Election for the office of New Jersey

State General Assembly, (b) that 10% of that number equaled 259,773 votes, (c) that the

Republican Political Partys candidates received in excess of 259,773 votes total and was

therefore declared a statutory political party in New Jersey pursuant to N.J.S.A.19:12-1,

(c) that that the Democratic Political Partys candidates received in excess of 259,773

votes total and was therefore declared a statutory political party in New Jersey pursuant

to N.J.S.A.19:12-1, and (d) that no other political group met the 10% threshold

requirement so as to achieve statutory political party designation in New Jersey

pursuant to N.J.S.A. 19:12-1.

8. On June 3, 2013 United States Senator Frank Lautenberg from New Jersey passed

leaving a vacancy for the remainder of his term as a Class 2 Senator in the United

States Senate.

9. The next day, June 4, 2013, New Jersey Governor Chris Christie, in accordance

with his Constitutional and New Jersey Statutory authority, and in the proper and lawful

exercise of his discretion, issued a formal Writ of Election calling a Special General

Election for Wednesday October 16, 2013 to fill the vacancy for the remainder of

Senator Frank Lautenbergs unexpired term. The same Writ of Election fixed August

13, 2013 as the day that the two statutory political parties (Democratic and Republican)

in New Jersey were required to hold a Special Statutory Political Party Primary

Election at which each statutory political party would elect a candidate to stand for

election for the unexpired term in the United States Senate on the October 16, 2013

Special General Election Ballot. The same Writ of Election fixed August 13, 2013 as


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the day that the candidate from any political party that had not yet achieved statutory

political party status (commonly referred to as an alternative political party), or any

wholly independent candidate, to file a Nominating Petition in accordance with New

Jersey Election State Laws to obtain access to the October 16, 2013 Special General

Election Ballot as a candidate for United States Senate.

10. At present there are at least six alternative political party political organizations

that are active in New Jersey elective politics: The New Jersey Democratic-Republican

Party, the Conservative Party, the Green Party, the Libertarian Party, the Natural

Law Party, the Reform Party, and the Constitution Party. As circumstances

ultimately developed, out of all of the existing alternative political parties presently active

in New Jersey elective politics, only the New Jersey Democratic-Republican Party3

3 The Democratic-Republican Party was the first recognized political party in the United States,initially formed by Thomas Jefferson and James Madison, both of the State of Virginia, in the mid 1790s asa way to organize political opposition to the Federal banking and Federal government financial policiesadvocated by then Secretary of the Treasury Alexander Hamilton of New York. Four former United StatesPresidents (Thomas Jefferson, James Madison and James Monroe, all of the State of Virginia, and JohnQuincy Adams of the State of Massachusetts), 5 former Vice Presidents (Aaron Burr of the State of NewYork, George Clinton of the State of New York, Elbridge Gerry of the State of Massachusetts, DanielThompkins of the State of New York, and John C. Calhoun of the State of South Carolina), and literallythousands of United States Senators and Members of the United States House of Representatives, StateGovernors, and members of branches of the various State Legislatures, as well as countless elected Countyand Local Offices, were all members of the Democratic-Republican Party and were all elected asDemocratic-Republican Candidates. The Democratic-Republican Organization of New Jersey is themodern counterpart of the Jefferson and Madison formed Democratic-Republican Party, consisting ofregistered voters who were and/or are still registered as Independents (ie. unaffiliated voters),Democrats, Republicans, and members of the original and real and legitimate modern New JerseyConservative Party. The members have many diverse political views, but all share at a minimum thefollowing three common political views: (1) that the present so called two party system and campaignfinance laws are broken; (2) That the way to fix the political process in the United States is byacknowledging that Article the First has been fully ratified and is law, and that Article the First must beacknowledged as law and promulgated and the size of the House of Representatives must be increasedaccordingly, and (3) that no candidate who refuses or declines to sign the Change the Rules Pledgeshould be supported in any election for public office.


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endorsed and ran a candidate at the October 16, 2013 Special General Election for United

States Senate, that being Eugene Martin LaVergne.

11. As the people of the State of New Jersey would not have full Constitutional

representation in the United States Senate until such time as a new Senator was lawfully

elected and lawfully seated in the United States Senate for the remainder of the unexpired

term of now passed Senator Frank Lautenberg, on June 6, 2013 New Jersey Governor

Chris Christie further exercised his Constitutional and New Jersey State statutory powers

and lawfully and properly exercised his discretion and issued a Certificate of

Appointment wherein he unilaterally appointed Jeffrey S. Chiesa from New Jersey a

Senator from said State in the Senate of the United States until the vacancy therein

caused by the passing of the Honorable Frank R. Lautenberg is filled by election as

provided by law. (Emphasis added). On June 10, 2013 Jeffrey S. Chiesa presented the

Certificate of Appointment to Vice President and President of the Senate Joseph Biden

who received the document, and after various welcoming remarks, Vice President Biden

administered the oath of office to now United States Senator Jeffrey S. Chiesa. See June

6, 2013 Certificate of Appointment and proceedings in the United States Senate on

June 10, 2013 at Congressional Record Senate (June 10, 2013) at pages S-4040 to S-

4041.

12. According to the express terms of the Certificate of Appointment, United States

Senator Jeffrey S. Chiesa shall remain in office until such time as a Senator is duly

elected at the scheduled October 16, 2013 Special General Election as long as that

Special General Election is conducted by election officials as provided by law. Stated

otherwise, in the event that the Special General Election is or was somehow conducted in


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violation of Federal Constitutional or statutory law or New Jersey State Constitutional or

statutory law and is therefore not conducted as provided by l aw - then United

States Senator Jeffrey S. Chiesa shall remain in office. The terms of the Certificate of

Appointment clearly contemplate and indeed specifically require that a lawful election

must occur as a condition of the expiration of the appointment.

The Existing Conflict in New Jersey Election Laws Regarding the Correct Time

Frame for the Holding of a Statutory Political Party Special Primary Election in

Time Relation to a Special General Election:

13. Under New Jersey Election Laws, any statutory political party (at present only the

Republican and Democratic Parties) is required to select the statutory political partys

candidate who will appear on any General Election Ballot (including any Special

General Election Ballot) at a state financed and regulated statutory Political Party

Primary Election. The Writ of Election signed by New Jersey Governor Chris Christie

fixed Wednesday October 16, 2013 as the day for the Special General Election. As such,

each of the statutory political parties were required to choose a candidate whose name

would appear on the October 16, 2013 Special General Election Ballot for United States

Senate at a Special Statutory Political Party Primary Election.

14. The first question is therefore, exactly when in timemust the Statutory Political

Special Party Primary Elections be held in relation to the October 16, 2013 Special

General Election date? The answer is not so clear, despite the time frame declared in the

Writ of Election. This is because there is a direct conflict that exists in New Jersey

Election Laws regarding the mandatory timing of when such a Statutory Political Party

Special Primary Election to choose a statutory political partys candidate must be held in


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time relation to any Special General Election. Firstly, there is N.J.S.A. 19:2-1, which by

specific and mandatory non discretionary statutory terms applicable to al l Special

Elections (of which this is one) provides in relevant part that Primary elections for

special elections shall be held not earlier than 30 nor later than 20 days prior to the

special elections. (Emphasis added). Id. Secondly and conversely, N.J.S.A. 19:27-6, the

statute specifically relied upon in the June 4, 2013 Writ of Election, which statute

specifically references a Special Election for United States Senate, states that the Special

General Election shall be not less than 64 nor more than 70 days following the day of

the special primary election. Id. This conflict in New Jersey Election Laws is NOT a

direct part of the factual and legal claims asserted in this Petition as a basis for voiding

any result in the October 16, 2013 Special General Election 4, but rather is noted herein to

confirm that both conflicting statutes nevertheless dictate and require a timeframe for the

holding of a Statutory Political Party Special Primary Election that is in a time frame that

is well after a date of 85 days before the Special General Election.

The Nominating Petitions of Alternative Political Party Candidate Eugene Martin

LaVergne, Democratic-Republican for United States Senate, are filed before the

deadline of August 13, 2013:

15. Eugene Martin LaVergne, Democratic-Republican for United States Senate, the

only alternative political party candidate on the ballot at the October 16, 2013 Special

General Election, filed his Nominating Petitions with the Office of the New Jersey

4 Indeed, clearly New Jersey Governor Chris Christie had to choose one of the two statutes, and it isan elementary principle of statutory construction that when you have two conflicting statutes which arespecific to circumstances, one must rely upon the terms of the more specific statute if there is one. AsN.J.S.A. 19:27-6 specifically referred to a special election for United States Senate, and N.J.S.A. 19:2-1only referred to all special elections generally, it was manifestly appropriate and legally correct - forGovernor Christie to rely upon N.J.S.A. 19:27-6 rather than N.J.S.A. 19:2-1 when scheduling the SpecialStatutory Political Party Primary Elections.


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Secretary of State, Division of Elections, before the deadline of August 13, 2013 as

required by law. On Eugene Martin LaVergnes Nominating Petitions it was

specifically requested that the slogan Democratic-Republican be printed and associated

with his name on the General Election Ballots in all of New Jerseys 21 Counties. The

Office of the New Jersey Secretary of State, Division of Elections, rejected Eugene

Martin LaVergnes formal and otherwise valid request to use the slogan Democratic-

Republican but then allowed Eugene Martin LaVergne to use the alternatively requested

slogan of D-R Party.

The Nominating Petitions of the five other wholly Independent Candidates for

United States Senate are filed before the deadline of August 13, 2013:

16. Robert DePasquale filed Nominating Petitions with the Office of the New

Jersey Secretary of State, Division of Elections, before the deadline of August 13, 2013

as required by law. In his Nominating Petitions Robert DePasqualle requested to use

various slogans associated and printed with his name on the different Special General

Election Ballots in all twenty one Counties in the State of New Jersey, including No

Amnesty Period, American Citizens First, Jobs for Americans, and Vote Robert

DePasquale.

17. Stuart David Meissner filed Nominating Petitions with the Office of the New


as required by law. In his Nominating Petitions Stuart David Meissner requested to use

the slogan Alimony Reform Now associated and printed with his name on the different

Special General Election Ballots in all twenty one Counties in the State of New Jersey.


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18. Antonio Nico Sabas filed Nominating Petitions with the Office of the New


as required by law. In his Nominating Petitions Antonio Nico Sabas requested to use

the slogan Freedom of Choice associated and printed with his name on the different

Special General Election Ballots in all twenty one Counties in the State of New Jersey.

19. Pablo Olivera filed Nominating Petitions with the Office of the New Jersey

Secretary of State, Division of Elections, before the deadline of August 13, 2013 as

required by law. In his Nominating Petitions Pablo Olivera requested to use the slogan

Unity is Strength associated and printed with his name on the different Special General

Election Ballots in all twenty one Counties in the State of New Jersey.

20. Edward C. Stackhouse, Jr. filed Nominating Petitions with the Office of the

New Jersey Secretary of State, Division of Elections, before the deadline of August 13,

2013 as required by law. In his Nominating Petitions Edward C. Stackhouse, Jr.

requested to use the slogan Ed the Barber associated and printed with his name on the

different Special General Election Ballots in all twenty one Counties in the State of New

Jersey.

The Special Statutory Political Primary Elections of August 13, 2013:

21. On August 13, 2013 the Democratic Party held their Statutory Political Party

Special Primary Election. There were four candidates on the Ballot in the Democratic

Statutory Political Party Special Primary Election. Candidate Corey Booker won the

election. A total of 367,778 Ballots were cast among the four candidates at the August

13, 2013 Democratic Statutory Political Party Special Primary Election. The number of

367,778 total ballots cast clearl y exceedsthe number of 259,775.


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22. On August 13, 2013 the Republican Party held their Statutory Political Party

Special Primary Election. There were two candidates on the Ballot in the Republican

Statutory Political Party Special Primary Election. Candidate Steven M. Lonegan won the

election. A total of 130,340 Ballots were cast among the two candidates at the August

13, 2013 Republican Statutory Political Party Special Primary Election. The number of

130,340 total ballots cast clearl y does not exceedthe number of 259,775.

The Certification of Candidates by the Secretary of State on August 22, 2013:

23. On August 22, 2013, New Jersey Secretary of State / Lt. Governor Kimberly

Guadagno certified the following persons as the only candidates for the office of United

States Senate whose names and accompanying slogan / party affiliation will appear on all

October 16, 2013 Special General Election Ballots in all of New Jerseys 21 Counties:

Candidate Name: Candidate Slogan(s) / Party Affiliation:

Eugene Martin LaVergne D-R Party (All 21 Counties)

Robert DePasqualle No Amnesty Period, American

Citizens First, Jobs for Americans,

Vote for Robert DePasqualle (as

specifically allocated by the candidate to

different Counties)

Stuart David Meissner Alimony Reform Now (All 21 Counties)

Antonio Nico Sabas Freedom of Choice (All 21 Counties)

Pablo Olivera Unity is Strength (All 21 Counties)

Edward Stackhouse Ed the Barber (All 21 Counties)


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Corey Booker Democrat (All 21 Counties)

Steven M. Lonegan Republican (All 21 Counties)

24. The State of New Jersey had a 2010 census population of 8,807,501 persons,

which today in calendar year 2013 is now actually closer to if not now in excess of - 9

Million persons. Of a census population of approximately 9 Million people, there are a

total of only eight candidates who have managed to lawfully obtain access to the October

16, 2013 Special General Election Ballot seeking the office of United States Senate, or

otherwise stated, one candidate on average for each more than 1 million persons residing

in the State. Of the approximately 9 Million persons residing in the State, there are at

least 5,475,727 persons who are lawfully registered and qualified to vote at the October

13 ,2013 Special General Election for United States Senate. It should be noted that at the

August 13, 2013 Special Primary Election, statutory political party candidate Corey

Booker received votes equal to only 3.78% of the registered voters in New Jersey,

whereas statutory political party candidate Steven M. Lonegan received votes equal to

1.8% of the registered voters in New Jersey. Neither showing equates with a statistic or

numerically significant showing of public support, either for each person as a candidate,

or for the statutory political party under whose name they each seek to run. In fact the

actual turn out at the August 13, 2013 Republican Special Statutory Political Party

Primary Election was so minimal that each vote cast by a participant at that Special

Primary Election cost the taxpayers of New Jersey $48.oo!

25. What is a factual and legal certainty, is that as long as the Special General

Election is held in accordance with Law, one of the eight persons whose name will


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appear on the ballots Eugene Martin LaVergne, Robert DePasqualle, Stuart David

Meissner, Antonio Nico Sabas, Pablo Olivera, Edward Stackhouse, Corey Booker, or

Steven M. Lonegan will be elected as the next United States Senator from New Jersey.

26. Each of the eight candidates whose name and slogan / party designation will

appear on the Special General Election Ballots is required by Constitutional and Statutory

law to be treated equally and fairly in the election process, and no one or more candidates

may be given arbitrary preferential treatment over any of the other candidate by State or

County Election Officials. Moreover, the Federal and State Constitution and laws

requires that the each vote cast be counted, and that each vote cast be counted by the

same uniform standards.

27. However, as this Special Election process has developed in the short time at issue,

New Jersey State and County Election Officials and others have conducted and

administered this Special General Election in intentional and knowing and reckless and

negligent violation of the mandatory minimum standards of the United States

Constitution, applicable Federal Statutory Law, the New Jersey State Constitution, and

applicable New Jersey Statutory Law, as is required for the valid and lawful and

legitimate election of a United States Senator. Moreover, the electronic voting machines

that will be used are on judicial record as inaccurately counting and tabulating votes cast

by the voters resulting in a losing candidate being declared the winner of an election. No

measures have been taken to guard against this. As such, for the following specific

reasons, the undersigned candidates are hereby taking what we each believe to be an

unprecedented and extraordinary but nevertheless necessary and honorable step of asking

the full United States Senate by formal Petition, befor e th e actual Special Gener al


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Election even occurs, to rule and declare that any result of the October 13, 2013 Special

General Election that may be declared by New Jersey State Election Officials whatever

that may be, including any decision that may declare any of the undersigned the winners

of such Special Election be declared void and a complete nullity, and that the United

States Senate decline to seat any person declared by New Jersey State Election Officials

as the winner of the October 16, 2013 Special Election. Moreover, since whatever the

result, the October 16, 2013 Special General Election will not have taken places as

provided by law, that the United States Senate further leave New Jersey Senator Jeffrey

S. Chiesa seated until such time as a successor is filled by election as provided by

law ..., as it is clear that a legal election is specifically required by the Governors June

10, 2013 Certificate of Appointment as a pre-condition to the expiration of the

Governors appointment, and a lawful election will nottake place on October 16, 2013

in New Jersey.

Specification No. 1:

On September 16, 2013 a New Jersey State Appellate Court ruled that the very

same Electronic Voting Machines that will be used by New Jersey State and County

Election Officials in 20 of New Jerseys 21 Counties at the October 16, 2013 Special

General Election for United States Senate are prima facieunreliable and therefore

may not be trusted and can not be presumed, without further protective proceduresand measures, to have accurately and correctly recorded the votes that are cast by

the voters. In short, the Electronic Voting Machines that will be used may not be

relied upon by Election Officials to have accurately recorded and accurately

tabulated the actual votes cast by voters and therefore, as a threshold matter, the

accuracy and validity of any result lacks sufficient Constitutional and statutory

integrity:


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1. In 2004, the New Jersey State Legislature passed legislation to change from

mechanical voting machines to a new form of electronic voting machine commonly

referred to as a direct recording electronic voting machine, or DRE voting machine.

DRE voting machines are essentially low tech computers that, operating in accordance

with dedicated software programming, electronically record a voters votes on a

computer hard drive or tape cartridge and then automatically tabulate all votes cast for

each candidate on each voting machine, while temporarily electronically storing the

results of all votes cast at that election on that DRE voting machine on the DRE voting

machines hard drive or tape cartridge.

2. After the passage of a variety of mandatory statutory and Constitutionally

required time waiting periods after each election (the shortest of which is 15 days), the

DRE voting machines computer hard drive or tape cartridge is then at some point

completely erased leaving no record or evidence whatsoever of the votes cast at the

election last used, with the now blank hard drive or tape cartridge able to be re-used

at the next election in which the DRE voting machine is used.

3. The DRE voting machines approved by the legislature for use in 2004 operate in a

completely paperless manner, and do not generate any separate paper trail of the votes

or any other permanent or semi-permanent record: All information is only temporarily

electronically stored on the hard drive or tape cartridge. Once the hard drives or tape

cartridges are cleared or erased, the only information regarding voting that actually

occurred at the last election is literally destroyed and is gone forever leaving literally no

record whatsoever in the event that there is an election challenge or contest.


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4. Even in 2004 (which was a full three years before the release of the First

Generation IPhone) there was readily available technology that would have easily

allowed a permanent paper trail of the votes cast on each DRE voting machine through

implementation of simple technology referred to as a verified paper audit tool, or

VVPAT. For reasons that are unclear and will not be speculated upon, the New Jersey

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

purchased also have a VVPAT and therefore a separate corresponding paper trail. As

such, the new election machines purchased starting in 2004 through New Jersey State

government contracts were indeed DRE voting machines without a VVPAT paper back

up. And as noted, the DRE voting machines that will be used, while purchased starting

in 2004, contain 1990 computer technology.

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

election results, in 2004 New Jersey State Assemblyman Reed Gusciora and others filed

suit against then Governor James McGreevy and the State Election Officials alleging, on

a variety of theories, that the States approval of the new DRE voting machines without

an accompanying VVPAT paper back up violated New Jersey Election Laws and various

Federal and State Constitutional provisions.

6. While the Gusciora court case proceeded in the State Court system, the New

Jersey State Legislature (where Reed Gusciora was an elected Member) on its own

without any Court Order shortly thereafter legislatively concluded that there was no valid

reason not to require that all the new DRE voting machines that were to be purchased and

used in New Jersey Elections be required to have VVPAT technology so that a permanent

and verifiable paper record would be created and readily available so that all election


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results could be memorialized for history and also available to use as a basis for

candidates or voters to determine wither to bring an application for a statutory re-count or

an application for a statutory election contest (or any other form of lawful challenge) to

the results of any election. In 2005, the New Jersey State Legislature enacted, and the

Governor approved, a specific legal requirement that after January 1, 2008 any and all

DRE voting machines were either required to be retrofitted with a VVPAT paper back

up, or replaced with new DRE voting machines with a VVPAT paper back up, as after

January 1, 2008, it would be illegal for any State or County Election Official to use DRE

voting machine in any election in New Jersey if the DRE voting machine did not also

have a VVPAT paper back up. See L. 2005, c. 137.

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

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

the Legislature indefinitely suspended implementation of the VVPAT paper backup

requirement until the unspecified time when federal or state funds might be appropriated.

See L. 2009, c. 17, now codified at N.J.S.A. 19:48-1(b)(2) and N.J.S.A. 19:53A-3(i)(2).

That was four years ago, and to date, the DRE voting machines that are still being used

throughout New Jersey have neither been retrofitted with VVPAT paper back up

technology or replaced with new DRE voting machines that have VVPAT paper back up

technology, and operate with 1990 computer technology.

8. At the October 16, 2013 Special Election for United States Senate in New Jersey,

the State and County Election Officials in 20 of New Jerseys 21 Counties will use DRE

voting machines without a VVPAT paper back up (which paper back up has actually

been required by law since 2005, but never actually been implemented).


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9. New Jersey State Election Laws N.J.S.A. 19:48-1.a(h)5 and N.J.S.A. 19:53A-3(h)6

require that any voting machine that is used at any election in New Jersey shall be

required to at all times accurately and correctly register and tabulate the votes as cast by

the voters.

10. Article II, Section I of the New Jersey State Constitution (1947), as amended,

operates so as to require that any voting machine that is used at any election in New

Jersey shall at all times accurately and correctly register and tabulate the votes as cast by

the voters. Moreover, this Article of the New Jersey Constitution has been clarified

to mean, in essence, the right to participate in an electoral process that is necessarily

structured to maintain the integrity of the democratic system. New Jersey Conservative

Party v. Farmer, 332 N.J.Super. 278, 287 (citing in part Burdick v. Takushi, 504 U.S.

428, 433 (1992)).

11. The Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution further has been construed to require that all votes cast at a federal election

5 N.J.S.A. 19:48-1.a(h) provides as follows:a. Any thoroughly tested and reliable voting machine may be adopted,rented, purchased or used, which shall be so constructed as to fulfill thefollowing requirements:

* * *(h) It shall correctly register or record and accurately count all votescast for any and all persons, and for or against any and all questions.

* * *6

N.J.S.A. 19:53A-3(h) provides as follows:

Every electronic voting system, consisting of a voting device incombination with automatic tabulation equipment, acquired or usedin accordance with this act, shall:(h) When properly operated, record correctly and count accurately

every vote cast, including all over votes or under votes and allaffirmative votes or negative votes on all public questions orreferenda; * * *


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be counted and tabulated by the same uniform standards. See Bush v. Gore, 531 U.S. 981

(2000).

12. Less than 1 month ago, on September 16, 2013 in Gusciora v. Christie, A-5608-

10T37, the New Jersey Superior Court Appellate Division upheld in most parts but in a

limited ruling significant to and directly applicable to this election in part reversed trial

courts ruling regarding the reliability of DRE Voting Machines in the ongoing court case

started by Assemblyman Gusciora in 2004. The three New Jersey State Appellate Court

Judges without reservation called into question the integrity of any election that uses a

DRE voting machine without a VVPAT paper backup because there are not yet any

adequate procedures that have been established and put into place by New Jersey

Election Officials to ensure that the software used in a DRE voting machine has in fact

been properly loaded and properly configured in the DRE voting machine by the election

officials in the first instance. In short, the State Appellate Court ruled that there are not

or not yet - adequate procedures in place to ensure that when a voter actually casts a vote

for a given candidate that the DRE voting machine software will have been properly

installed, and therefore there is not adequate assurances that the votes cast will in fact be

accurately and correctly recorded rather than erroneously record as a vote cast for some

other candidate. Th is concer n fr om the State Appell ate Cour t is based u pon an actual

case i n New Jersey where a DRE voting machine incorr ectly recorded votes whi ch

ul timately r esul ted i n the wrong person bein g declared the winner of an election!

7 The recent Gusciora v. Christie Appellate Division opinion is found at:http://scholar.google.com/scholar_case?case=11615146553337169370&hl=en&as_sdt=2&as_vis=1&oi=scholarr


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13. Specifically, while the Gusciora case was proceeding through the Court system,

there was a separate case in Cumberland County New Jersey where a candidate named

Zirkle was running for county committee from his local election district in a Statutory

Political Party Primary Election where a DRE voting machine without a VVPAT paper

back up was being used. In such elections (where the candidate for office of County

Committee is only on the ballot in 1 election district in 1 town) it is not uncommon for

less than 40 votes total to be cast, and with a person receiving much less than 40 votes

actually winning the election.

14. After the election was concluded, Zirkle was listed as receiving only 8 votes and

was declared the loser, yet Zirkle knew that he should have received at least 28 votes

based upon friends who specifically went to the polls to vote for him. Either Zirkles

friends and neighbors who all specifically went to the polls to vote for Zirkle were either

lying and had for some reason voted for someone else, or the DRE voting machine was

not accurately tabulating votes cast for Zirkle, either erroneously allocating votes for

Zirkle to some other candidate, or simply not recording the votes cast for Zirkle.

15. After a court challenge and an objective diagnostic evaluation of the DRE voting

machine (without VVPAT paper back up) that was used in the election, it was discovered

that in fact at least 28 people had indeed voted for Zirkle, but that somehow (this is

New Jersey, remember) the software had somehow mysteriously erroneously recorded

20 of those votes more than 2/3 of the votes for another, and the wrong, candidate.

This error was only able to be discovered due to the unique circumstances of such a

small universe of voters participating in an election for a seat on a political partys county

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


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erroneously recorded for another candidate, has this election been a statewide election

for United States Senate such as at issue here, and had Zirkle actually received 900,000

votes for example, the DRE voting machine by proportion would have erroneously

recorded only 300,000 of those votes case for Zirkle and erroneously recorded more

than 600,000 of Zirkles votes for another candidate or candidates! Otherwise stated, the

DRE voting machines would report the wrong winner, and once the hard drive or tape

cartridge was erased, since there was no VVPAT paper backup, there would be no record

or evidence to check to ever discover this!

16. Literally stunned by this revelation that DRE voting machines without VVPAT

paper back up are now without factual or historical or legal question on Court record as

erroneously recording votes and now on factual and historical and legal record as

actually also erroneously reporting the incorrect person as winning an election, the

Appellate Division was moved to state the obvious: In a free society this is intolerable.

As stated by the Appellate Division:

* * *We express deep concern as a result of the Zirkle

litigation, not as to the fallibility of DREs relative to other

voting devices, but rather as to the efforts made by theState to mi nimi ze the li keli hood of err or. It is obvious that

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

erroneous election results would never have been detected.In other words, has the election involved 10,000 votes, thefact that the DREs were erroneously programmed wouldnever have been discovered, because it is highly unlikelythat a challenger could have been established the resultswere wrong through affidavits of voters or other proof.

Even though the DRE involved in the Zirklelitigation performed as it was programmed to do, the pre-LAT failed to reveal the programming error. Ironically,Appel spoke to the limits of a pre-LAT during the trial


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before Judge Feinberg. T he Z ir k le L i ti gat ion

demonstrates how a pre-LAT performed in an inattentive

or otherwise non-thorough manner can result in thewrong candidate winni ng.

Whether a lack of sufficient, mandatory pre-

election testing of all DREs without a VVPAT amounts to

a violation of Title 19 is a legitimate issue, based on the

results of the Zir kle litigation.

We do not believe we can exercise our originaljurisdiction on the record provided from the Zirklelitigation itself. R. 2:10-5. We are compelled to remandthe matter to the Law Division for a further hearing, thatshall focus on whether the State has devised and

implemented mandatory statewide pre-election testingprocedures to provide reasonable assurances thatprogramming errors will not go undetected. We urge the

L aw D ivision to conduct i ts review with due speed, but we

leave the conduct of the remand to the sound discretion of

the judge. (Emphasis added).

17. The due speed in the Gusciora case on remand to the trial Court is as follows:

The unreliable and untrustworthy DRE voting machines (without VVPAT and therefore

without paper back up) will be used at the October 16, 2013 Special General Election for

United States Senate notwithstanding the Appellate Division decision. And the first time

that the New Jersey Trial Court will take up on remand and consider the issues of the

unreliability of the DRE voting machines on remand from the Appellate Division? At a

status conference conveniently scheduled for October 17, 2013, literally the day after

the untrustworthy machines will be used at this statewide election for United States

Senate!

18. As a threshold matter, Petitioners assert that the use of DRE voting machines

without a VVPAT paper back up violate the candidates and voters rights as guaranteed by

the United States Constitution, Article I, sec. 5, cl. 1, Fourteenth Amendment,

[Seventeenth Amendment], the New Jersey State Constitution (1947), as amended,


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Article II, Section I, and by New Jersey Election Laws 19:48-1.a(h) and N.J.S.A. 19:53A-

3(h). I t gets worse if that can be beli eved.


In violation of New Jersey State Election Laws, and only 16 hours after of the

closing of the election polls for the October 16, 2013 Special General Election, at

noon on September 17, 2013 New Jersey State and County Election Officials will

immediately start to erase all date from the hard drives and tape cartridges in everyDRE voting machines in New Jersey and therefore will irretrievably destroy all

evidence of the votes actually cast by the voters:

1. After using compromised DRE voting machines (all without a VVPAT and

therefore without paper back up) at the statewide Senate Election in the first instance, in a

situation where there still will not be any VVPAT paper back up, which paper back up

has been required by New Jersey State Election Law for Five years but which

requirement has not been implemented due to failure to appropriate the necessary

funding, the only actual evidence to determine whether the votes were correctly counted

and tabulated by each individual DRE voting machine will be contained on the hard drive

or the tape cartridges in the DRE. Under a variety of New Jersey Election Laws the DRE

voting machines and the hard drives and tape cartridges with the information and data

from the election ordinarily are without exception required to be impounded and locked

down and not be allowed to be touched for at least a minimum of 15 days. This is so that

there will be adequate evidence in the event of an election challenge in the way of a

demand for a recount or an election contest brought on some other grounds.


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2. However, relative to the October 16, 2013 Special General Election for United

States Senate, on September 24, 2013, the New Jersey Attorney General filed an

emergent action in New Jersey State Court on behalf of 20 of New Jerseys 21 County

Election Officials entitled In the Matter of the Application to Recheck the Voting

Machines to be Used in the October 16, 2013 Special General Election for the Office of

United States Senator, Docket No. MER-L-2013-13, filed in the Superior Court of New

Jersey, Mercer County. This case was brought because the Attorney General and the

State and County Election officials claimed that they had suddenly just realized that

they will have to use every single existing DRE voting machine in the entire State of New

Jersey at the October 16, 2013 Special General Election for United States Senate, and

they will also need to use those same machines again at the November 5, 2013 Regular

New Jersey Statewide General Election less than three weeks later.

3. In that Court application the New Jersey Attorney General and the 20 County

Election officials propose that they conduct an immediate and free Election Recount

of the a total of 7,942 separate DRE machines in all 20 Counties, starting on Thursday

October 17, 2013 at 12 noon (the day after the election, 16 hours after the polls close,

when the unofficial result of the Special Election may not even be known yet) in

Northfield in Atlantic County, and ending six days later on Tuesday October 22, 2013 in

Cape May County. Moreover, they propose that after this free process is completed on

Tuesday October 22, 2013, only 6 days after the Special Senate Election, that each of the

7,942 DRE voting machines shall then be released immediately from impoundment

so that it may be prepared for the November 5 General Election and that the

cartridges for all the voting machines shall be released to the custody of the County


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Commissioner of Registration, upon the commencement of the recheck, of such

cartridges are in the possession of the County Clerk. In short, otherwise and more

accurately described, the Attorney General and 20 County Election Officials were

seeking an Order to interfere with the existing election process and within 6 days of the

Special Senate Election (and by Court Order) receive immediate and unconditional

permission to release from impoundment of all of the 7,942 separate DRE voting

machines all without a VVPAT paper back up back to the custody and control of the

State and County Election Officials so that they can then in turn immediately erase the

hard drives and tape cartridges and thereby destroy the only actual record of the voting

at the October 16 Senate Election! This, so that these same DRE machines - and their

hard drives and tape cartridges - can then be erased and reconfigured and prepared and

then used at the November 5 statewide General Election.

4. The State Attorney General was specifically Ordered to serve each of the

candidates and other persons as listed in the Order to Show Cause issued by the Court so

that the Court would have jurisdiction over the request and so the parties and the voting

public would know what was being requested, and so that the candidates and the public

would know the implications of what was being requested in the event that the

application was granted. As a matter of uncontested fact, as circumstances developed,

the State Attorney General failed to serve anyone and failed to even attempt to serve

anyone. Almost by happenstance candidate Eugene Martin LaVergne found out about

this application and opposed the application on both procedural grounds and substantive

grounds.


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5. Notwithstanding the failure of service on anyone(a prerequisite to the State Court

having jurisdiction in the first instance) the State Court, after candidate Eugene Martin

LaVergne formally objected to the lack of service on anyone or notice to the public at

large as to what was occurring with the Election, the State Court simply verbally and

without any explanation modified the requirement of service in the Order to Show

Cause to notice, and viewed the circumstances (where the only opposition or

appearance was from candidate Eugene Martin LaVergne) as if there was somehow

sufficient notice to most(but not all parties).

6. Eugene Martin LaVergne further substantively opposed the application of the

State Attorney General, noting that State Election Officials had specifically and in detail

certified as fact to the New Jersey Supreme Court on June 18, 2013 that all the time that

would be needed to prepared the DRE voting machines for the November 5, 2013

Regular General Election after the October 16, 2013 Special General Election was 48

hours for all of the more than 7,000 DRE voting machines in the States. That being the

case, the 15 day statutory lock down period required by New Jersey Election Law statutes

would still give more than adequate time to the State Election Officials. Eugene Martin

LaVergne argued that mere convenience without any actual need was not a basis

upon which a Court could judicially re-write a mandatory statute. The Court ignored the

arguments of candidate Eugene Martin LaVergne, and without even so much as

articulating any legal standard that was being relied upon, and without any Court finding

of need, the State Court simply and without issue and without any notice to the public

at large - arbitrarily, and in violation of the New Jersey State Separation of Powers

Doctrine, judicially removed by Judicial Order what was and is a mandatory legislatively


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imposed minimum period of 15 days time period where all DRE voting machines were

required to be locked down, unilaterally changing the time for the impoundment and lock

down from a statutory 15 daysto a Judicial 16 hours! After which 16 hours the State and

County Election Officials will start to destroy all evidence of actual voting, with all

evidence completely destroyed within a period of only 6 days. Therefore, absent an

Order from the United States Senate imposing a lock down or impoundment period while

this United States Senate Election Challenge Petition is being considered, there will not

be any evidence left to review.


On October 3, 2013 the New Jersey Court ruled that New Jersey State and County

Election Officials directly and without legal excuse knowingly violated Election

Laws When placing Candidates on the Special General Election Ballots which StateCourt finding as a matter of law confirms what is also factually Federal and State

criminal and civil wrongful conduct by State and County Election Officials in the

Administration of the Special General Election for United States Senate:

1. Ordinarily at Regular General Elections New Jersey Elections Laws by legislative

design specifically confer preferred ballot placement treatment to the candidates of the

statutory political parties (here, the Democratic and Republican Parties) by statute,

specifically N.J.S.A. 19:14-12. The statute at issue, N.J.S.A. 19:14-12, requires the

County Clerk in each County to hold a drawing 85 days before an election at 3:00 p.m.

to determine candidate ballot location, directing that the first and second columns be

reserved for the statutory political parties, and the other candidates be placed elsewhere

as outlined in the statute. However, N.J.S.A. 19:27-1, provides as follows:


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

nominated and the special election shall be conducted andthe results thereof ascertained and certified in the samemanner and under the same conditions, restrictions and

penalties as herein provided for primary and general

elections. (Emphasis added).

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

2. As noted earlier, the time frame for the statutory political parties to select their

candidate for a Special Election at a Special Primary Election under New Jersey

Election Laws is either N.J.S.A. 19:2-1, which by specific and mandatory non

discretionary statutory terms applicable to al l Special Elections (of which this is one)

provides in relevant part that Primary elections for special elections shall be heldnot

earlier than 30 nor later than 20 days prior to the special elections. (Emphasis added),

Id., or N.J.S.A. 19:27-6, the statute specifically relied upon in the June 4, 2013 Writ of

Election, which statute specifically references a Special Election for United States

Senate, and in so doing states that the Special General Election shall be not less than

64 nor more than 70 days following the day of the special primary election . Id.

3. Under basic application of N.J.S.A. 19:27-1 (Except as herein otherwise

provided) to N.J.S.A. 19:14-12 (requiring a Clerks drawing 85 days before an election

at 3:00 p.m.), under application of either N.J.S.A. 19:2-1 or N.J.S.A. 19:27-6 fixing the

time for a statutory political party Special Primary Election, the clear and elementary fact

is that both time frames require Special Primary Elections to be held well after the

mandatory 85 day time frame in N.J.S.A. 19:14-12. Therefore, as a threshold matter, it

appears that there is NO statutory ballot location preference and Clerks drawing that


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applies to Special Elections in New Jersey as N.J.S.A. 19:14-12 by its clear numerical

terms can not apply to Special Elections.

4. Separate and aside from the questionable applicability of N.J.S.A. 19:14-12 to

Special Elections in the first instance, there is no question that I F S O ME HO W the

statutory candidate ballot location preference in N.J.S.A. 19:14-12 applies to Special

Elections (despite the impossibility created by the numbers), N.J.S.A. 19:5-1 contains an

express and clear caveat to the preferred placement of statutory political party candidates

in N.J.S.A. 19:14-12.

5. N.J.S.A. 19:5-1 provides as follows:

A political party may nominate candidates for public officeat primary elections provided for in this Title, electcommittees for the party within the State, County orMunicipality, as the case may be, and in every other respectmay exercise the rights and shall be subject to therestrictions herein provided for political parties; except that

no pol i t ical party which fai ls to pol l at any primaryelection for a general election at least ten per centum

(10%) of the votes cast in the State for members of the

General Assembly at the next preceding general election,

held for the election of all the members of the General

Assembly, shall be enti tled to have a party colu mn on the

official ballot at the general election for which the

prim ary election has been held. I n such case the names

of the candidates so nominated at the primary election

shal l be pr i nted i n the col umn or col umns not ed

Nomination by Petition on the official ballot under the

respective titles of office for which the nominations havebeen made, foll owed by the designation of the poli tical

part of which the candidates ar e m embers. (Emphasisadded).

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

6. As applies to this case, for a statutory political party and their candidate (here the

Republican and Democratic candidates for United States Senate) to be entitled (or


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required) to be placed in the preferred and advantageous position by placement by the

County Clerks in a separate political party column on the Special General Election

Ballot and to be entitled (or required) to participate in a drawing by the County Clerk

underN.J.S.A. 19:14-12 (assuming the applicability of that statute to Special Elections)

for the most preferred and advantageous positions on the Special General Election Ballot

in the two top left columns, the statutory political party must have met or exceeded the

10% threshold in N.J.S.A. 19:5-1 at the August 13, 2013 Special Primary Election. Stated

simply, for the statutory preferences to apply here and for the October 16, 2013 Special

General Election, at least 259,775 persons must have cast ballots at the August 13, 2013

Special Primary Election for each statutory political party. The Democratic Party met the

N.J.S.A. 19:5-1 statutory 10% threshold with 367,778 total ballots cast. The Republican

Party failed to meet the N.J.S.A. 19:5-1 statutory 10% threshold with only 130,340 total

ballots cast.

7. Therefore, only Democratic candidate Corey Booker is entitled (and indeed, if

N.J.S.A. 19:14-12 applies to Special Elections is required) to be placed in a separate

political party column and is the only candidate entitled (and indeed required) to

participate in the N.J.S.A. 19:14-12 drawing. Stated somewhat more simply, there is no

technical need for any actual Clerks drawing between the statutory political parties for

the preferred ballot positions as by operation of New Jersey Elections Laws to the facts

extant, as Democratic candidate Booker, the only candidate of the only statutory political

party to meet the 10% threshold in N.J.S.A. 19:5-1, is required to be placed by all 21

County Clerks in a separate party column in column 1 (or column A) at the top left

of the Special General Election Ballot. This is because, conversely, Republican


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candidate Lonegan, by virtue of the failure of the Republican Party to meet the 10%

threshold at the August 13, 2013 Special Primary Election, is specifically required to be

placed by all 21 County Clerks in the same identical single Nomination by Petition

column as the other 6 candidates (all but Booker), with the County Clerks (or a Special

Master) having to re-draw for column positions (or line) 1 through 7 in the

Nomination by Petition column. This is the case whether the County Clerk in their

statutory discretion uses a vertical or horizontal Special General Election ballot

format.

8. Aware that - notwithstanding the clear law - the 21 County Clerks would absent

intervention knowingly and intentionally ignore the New Jersey Elections Laws and

still give defendant Republican candidate Lonegan his own separate political party

column on the Special General Election Ballot, and also then allow defendant

Republican candidate Lonegan to participate in the N.J.S.A. 19:14-12 drawing (which all

6 other candidates including Plaintiff were excluded from) Plaintiff sent a formal letter on

August 16, 2013 to defendant Lt. Governor / Secretary of State Guadagno, to defendant

Acting Attorney General Hoffman, and to all 21 County Clerk defendants, demanding

that they comply with N.J.S.A. 19:5-1 if there was to be an N.J.S.A. 19:14-12 drawing.

9. Plaintiff Eugene Martin LaVergne thereafter confirmed that each party to whom

the letter was addressed actually received the August 16, 2013 letter before August 23,

2013. Plaintiff Eugene Martin LaVergne therefore exhausted any possible administrative

remedies that might have been available to him to have these New Jersey State and

County Election Officials comply with the law absent Court Intervention.


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10. On August 23, 2013, despite the law (N.J.S.A. 19:5-1) and despite actual

knowledge by each of the 21 respective County Clerks that they were violating the law

(N.J.S.A. 19:5-1) by virtue of the fact that each of the 21 County Clerks had actually

received the August 16, 2013 letter from candidate Eugene Martin LaVergne, each of the

21 County Clerks gave candidates Booker and Lonegan their own political party

column in violation of law, and then held a N.J.S.A. 19:14-12 drawing between

candidates Booker and Lonegan for column 1 and column 2 (or A & B) also in clear

violation of law. For example, in Democratic controlled Essex County (where vertical

format Ballots are being used), candidate Booker won Column 1 in the Clerks

drawing, and in Republican controlled Burlington County (where horizontal format

Ballots are being used), candidate Lonegan won Column 1. Under no circumstances is

it legal for candidate Lonegan to appear in a separate party column, and under no

circumstances is it legal for candidate Lonegan to appear in Column 1 by himself.

11. The reality is that the Clerks drawing conducted by the 21 County Clerks under

the purported authority of N.J.S.A. 19:14-12 which statute clearly specifies a Clerks

drawing that takes place 85 days before a General Election at 3:00 p.m. was

nevertheless held 45 days before the Special General Election at 10:00 a.m., was held

without any advance notice to any of the Candidates that such a Clerks drawing would

even be taking place, and was held including Republican candidate Steven M. Lonegan

who was clearly not entitled to participate, and was held after each of the 21 County

Clerks had received the August 16, 2013 letter from candidate Eugene Martin LaVergne

which they read and simply ignored.


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12. After discovering that a Clerks drawing had already taken place, and only after

candidate Eugene Martin LaVergne complained repeatedly to State Election Officials at

the Division of Elections, suddenly a Chart that had been allegedly prepared on July

11, 2013 but never before posted suddenly appeared on the New Jersey Division of

Elections Web Site, this being well after the events just described. This Chart, not

certified and without attributed authorship, declares that a drawing for the two statutory

political parties will take place by each of the 21 County Clerks 45 days before the

Special General Election at 10:00 a.m. under the purported authority of N.J.S.A. 19:14-

12, which again states 85 days before an election at 3:00 p.m. When candidate Eugene

Martin LaVergne asked State Election Officials upon what authority a Chart made by

someone could lawfully re-write an existing mandatory State Election Law, there was

no response. County Officials refused to provide copies of the results of the Clerks

Drawings, and ultimately demands and requests under the New Jersey Open Public

Records Act had to be filed to obtain this public information.

13. On September 13, 2013 candidate Eugene Martin LaVergne filed an emergent

lawsuit against State and County Election Officials for violating State Election Laws and

demanding that the Special General Election Ballots be reconfigured in accordance with

existing and applicable New Jersey Election laws. That case was entitled LaVergne v.

Lonegan, and was assigned Docket No. MER-L-1933-13. On September 16, 2013 the

Court signed an Order to Show Cause, but despite the case being filed as an emergent

election matter, the Court fixed the return date for October 3, 2013, which was

approximately 3 weeks after the case was filed (rather than 10 days as is customary in

such emergent election cases).


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14. On the return date, the Court quickly (albeit 21 days after the action was filed)

and without hesitation ruled in favor of candidate Eugene Martin LaVergne and ruled that

the State and County Officials had indeed without excuse clearly violated New Jersey

State Election Laws and placed the names of the candidates on the Special General

Election Ballots illegally and in clear violation of existing Federal and State election

laws. Based upon the finding of the State Court Judge, the affirmative actions and willful

and intentional inactions of the 21 County Clerks or their assistants at issue in this case in

knowingly and intentionally violating the mandatory requirements of N.J.S.A. 19:14-12

and N.J.S.A. 19:5-1 constitutes both a Criminal and Civil Federal and State Offenses. See

18 U.S.C. sec. 5958; 5 U.S.C. sec. 1502(a)(1)9; N.J.S.A. 19:34-4810 and N.J.S.A. 2C:30-

211; A separate complaint is also being filed with the Office of United States Special

8 18 U.S.C. sec. 595 of the United States Criminal Code provides as follows:

Whoever, being a person employed in any administrative position by any State or any political subdivision, municipality, or agencythereof uses his official authority for purposes of interfering with,

or affecting, the election of any candidate for the office of Member of the Senate shall be fined under this title or imprisonednot more than one year, or both. (Emphasis added).

9 5 U.S.C. sec. 1502(a)(1) of the Hatch Act provides in relevant part as follows:(a) A State or local officer or employee may not

(1) Use his official authority or influence for the purpose ofinterfering with or affecting the result of an election or anomination for office; Id.

10 N.J.S.A. 19:34-48 provides as follows:Every person charged with the performance of any duty under the

provisions of any law of this State relating to elections who willfullyneglects or refuses to perform it, or who, in his official capacity,knowingly and fraudulently acts in contravention or violation of any ofthe provisions of such laws, shall be guilt of a crime of the third degree.

11 N.J.S.A. 2C:30-2 provides as follows:A public servant is guilty of official misconduct when, with purpose toobtain a benefit for himself or another or to injure or deprive another ofa benefit:

(a) He commits an act relating to his office butconstituting an unauthorized exercise of his official functions, knowingthat such is unauthorized or he is committing such act in anunauthorized manner; or


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Counsel under 5 U.S.C. sec. 1504. The State and County Election Officials should be

held accountable.

15. However, after the State Court made a finding that the State and County Election

Officials had without excuse violated mandatory directives in State Election Laws, the

Court turned to the question of remedy. The Attorney General and the County Election

Officials stated as fact to the Court that it would take at least 14 days to reconfigure

the DRE voting machines , and that there simply was no time to remedy the violation

of State Election Laws. The Court ruled that since it was then October 3, 2013, and the

Special General Election for United States Senate was October 16, 2013 13 days in the

future that there could be no timely remedy Ordered by the Court, this being based

upon the express representations from the Attorney General and the State and County

Election Officials that it would take at least 14 days to reconfigure the DRE voting

machines .


The August 23, 2013 County Clerks Drawings that were held without the

candidates knowledge were also conducted illegally by certain County Clerks with

certain County Clerks cheating in the process12

:

(b) He knowingly refrains from performing a duty whichis imposed upon him by law as is clearly inherent in the nature of hisoffice.

12 This issue was specifically raised in detail to the trial court in LaVergne v. Lonegan, and the TrialCourt simply refused to address or allow any further inquiry into these very serious factual allegations ofcriminal conduct on the part of certain New Jersey County Election Officials.


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1. Almost 30 years ago the New Jersey Supreme Court in Mochary v. Caputo, 100

N.J. 119 (1985) essentially took judicial notice of the advantages in ballot location on the

General Election Ballot in a United States Senate Election. In an election for United

States Senate in 1984, it was recognized that somehow the Democratic Party had

managed to draw the first column at the top of the ballot (under the exact same process

in N.J.S.A. 19:14-12 at issue here) 40 out of 41 years in a row over the Republican Party

in Essex County, New Jersey. Essex County was and is a predominantly Democratic

County, and the elected County Clerk was a Democrat. A lawsuit was brought by the

Republican Party bringing an as applied [First Amendment] and Fourteenth

Amendment Equal Protection challenge, where it was argued that for such an occurrence

to be natural in nature and not the result of some tampering or fraud would have to

overcome statistical odds - based upon simple math ofin excess of 50 Bil li on to 1!

2. While no relief was granted in time for the United States Senate election and

ballot placement in 1984, the New Jersey Supreme Court in a per curium opinion issued

nine months after the election still addressed the merits of the claim. In so doing the

Court stated in relevant part as follows:

The issue in this appeal concerns the manner in whichvoters should be assured of absolute fairness in the choiceof ballot positions for candidates of political parties. The

controversy is moot because a general election includingthe candidates has already occurred. Nevertheless, we

believe that the issues are recurrent and warrantconsideration. * * * I f the issues had arisen in a way that

would have permitted the court to fashion a timely

remedy, the r esults of this suit would undoubtedly have

been different. (Emphasis added).

[Mochary v. Caputo, 100 N.J. 119, 120-121 (1985)].


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3. In the Mochary v. Caputo case, then (now retired) State Supreme Court Justice

Robert Clifford was not so impassive to what had occurred (to that point) over a 41 year

period of time in fixing and placing the position of candidates on the General Election

Ballot in Essex County, New Jersey as were other members who made up the per curium

opinion. Justice Clifford wrote a separate concurrence noting the following:

* * * But despite the County Clerks apparent compliancewith the statute in this instance, one can not help beingstruck by the marvel, the otherworldly coincidence, of any

party winning the drawing forty out of forty-one times.That the record supports this numerical result is not open toquestion. Nor is it open to any doubt whatsoever thatassuming a fair and random selection of one item out of a

possibility of two, the odds of drawing line A forty timesout of forty-one draws are about one in fifty billion. Getthat? ONE in FIFTY BILLION!

It understates the case to suggest that thisextraordinary state of affairs should act as a challenge toanyone and everyone concerned with the preservation ofvoter confidence. The finger does not point to Mr. Caputo,

who did not conduct all of the forty-one drawings himself it points at the system. And a system that produces theresults noted above has to excite some skepticism aboutwhether it is on the up-and-up. That kind of skepticismis a symptom of a diseased system, one that should nolonger be tolerated.

If such a system is not to be suffered henceforth,corrective measures must be imposed.

[Mochary v. Caputo, supra., 100 N.J. at 128-129 (Clifford, J., concurring)].

4. Once again, on August 23, 2013 when the County Clerk in Essex County (a

Democratic controlled County) held the drawing for ballot position (illegally including

defendant candidate Lonegan in the drawing for column 1 & 2 with Democrat Booker),

surprise of all surprises, once again, the Democratic candidate won column 1. And

when the County Clerk in Burlington County (a Republican controlled County) held the


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drawing for ballot position (illegally including defendant candidate Lonegan in the

drawing for column 1 & 2 with Democrat Booker) on August 23, 2013, surprise of all

surprises, once again, the Republican candidate won column 1. So once again, the

same statute at issue 30 years ago in a United States Senate Election in Mochary, N.J.S.A.

19:14-12, still today in a United States Senate Election has resulted in a very predictable

and mathematically impossible result, in two Counties (it is essentially the same in all

the other 19 Counties).

5. However, here and today, United States Senate Candidate Eugene Martin

LaVergne knows something that Justice Clifford and the New Jersey Supreme Court did

not know 30 years ago. He now knows how this trick is accomplished

The Grammar School Magician Trick and the N.J.S.A. 19:14-12 Clerks Drawing:

6. The last part ofN.J.S.A. 19:14-12 specifies the manner in which the County Clerk

is required to draw lots. Specifically, slips of paper with the name of each statutory

political party (since at least 1929 only Republican and Democrat) are put in plastic

capsules, and then each plastic capsule is put into a box, the box is shaken, and the

County Clerk then reaches into the box and picks a capsule, and then removes and tears

opens the capsule. The name of the political party on the slip of paper removed from the

now opened capsule first removed dictates which party receives the first column on the

top left of the ballot, and the remaining party receives the second column from the top

left (whether vertical or horizontal ballots). This so called fair process has fostered a

level of guaranteed rigging of the ballot placement for a preferred party by the use of a

simple third graders magic trick. This secret method is actually informally passed

on from Clerk to Clerk in select Counties who retain long time single political party


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control and is oddly, not even really a secret anymore but has in some counties evolved

into something informally recognized as more of a political tradition than recognized as

the flagrant and blatant criminal and civil violation of Federal and State Law that it is.

7. For example, as noted, Essex County is a so called long time Democratic

stronghold, and long time Essex County Clerk Nicholas Caputo, an elected Democrat, or

his assistant, has in 1984 miraculously pulled the capsule of the Democratic Party first

each and every time except once almost 40 years in a row, thereby conferring by statute,

the preferred position of the first column on the left to the Democratic Party, this being

for almost 40 years in a row. That was 30 years ago. As noted, Math actuaries and

statisticians wrote in the media and reported as witnesses in Court cases that this

occurrence was literally a statistic impossibility not a statistic improbability, but a

statistic impossibility. And yet it occurred, without explanation, for 40 years to that point,

and now almost 70 years to date.

8. Point in fact, the actual explanation for how this statistic impossibility actually

occurred is really quite simple, and candidate Eugene Martin LaVergne will now explain

the process of how in certain Counties the Clerk or their designee cheat in the N.J.S.A.

19:14-12 candidate ballot location drawing. The capsules used by Democratic County

Clerk Caputo were always made out of a plastic/gel composite, either of the sort used to

hold medicine in pills (a 2 piece plastic pill casing), or of the sort slightly larger used to

hold small toys in vending machines (also 2 pieces) often (or once often) found outside

supermarkets alongside gumball machines. Indeed, this oddly is what the New Jersey

Election Laws have specifically required since the mid 1940s. Democratic County Clerk

Caputo or his assistant indeed always took two plastic capsules and put a piece of paper


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with the name Republican and Democrat in each capsule. This is where the fairness

stopped and a County Clerk s mini steri al action then became a F eder al Cri me and a

Federal Civil Offense and an act of corruption by an elected public official. Caputo

(or his assistant) would next then place the plastic capsules inside the box, and while

doing so, would slightly squeeze and crush or crimp the plastic capsule with the word

Democrat inside. Caputo (or his assistant) would then, as required by the statute, shake

the box to mix up the two plastic capsules to give the illusion that the process was

arbitrary and left to chance. This was indeed all part of a literal magic trick show

conducted right in front of any witnesses who may have appeared. Usually there are no

witnesses. Then, as required by statute, Caputo himself (or his assistant) would reach

inside the box to pick one plastic capsule, and he (or his assistant) could quickly identify

by touch the crushed or crimped plastic capsule of the Democrats, which would be the

plastic capsule he (or his assistant) removed. As he (or his assistant) was removing the

plastic capsule he (or his assistant) would simultaneously rip the plastic capsule in half to

open it, and in so doing would damage the plastic capsule, which would immediately be

throw away as he simultaneously pronounced the winner of the draw as the Democrats

by showing the paper. Were one to bother to check the contents of the garbage can,

indeed the plastic capsule would evidence damage, but damage thought to have initially

occurred when breaking the plastic capsule open into two pieces. A variant on this

procedure is where the capsule of the opposite party of the County Clerk would be

crushed or crimped, and the smooth capsule (containing the name of the political party

of the County Clerk performing the N.J.S.A. 19:14-12 drawing) would be felt for and


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taken first. After this, the second crushed or crimped capsule would be taken out and

broken apart as removed in one seamless motion, destroying th

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