nj special senate election contested

7/27/2019 Nj Special Senate Election Contested

1/54

- 1 -

UNITED STATES SENATE

ELECTION CHALLENGE PETITION

TO: Nancy Erickson

Secretary of the Senate

United States Senate

United States Capitol Building

Room S-312

Washington, D.C. 20510

DATE: October 15, 2013

RE: Election Challenge Petition to the United States Senate contesting the

Constitutionality, legality and validity of the Special General Election

for United States Senate for New Jersey that will be conducted by

New Jersey State Election Officials on October 16, 2013.

The undersigned candidates for United States Senate for New Jersey at the

October 16, 2103 Special General Election for United States Senate for New Jersey

hereby file this United States Senate Election Challenge Petition directly with the United

States Senate for the reasons stated herein, seeking relief by way of a majority vote of the

full United States Senate as follows:

FIRST: Seeking the full United States Senate to find and declare that any resultof the Wednesday October 16, 2013 New Jersey Special General Election to fill theunexpired term of United States Senator Frank Lautenberg, now passed, void and acomplete nullity due to the Special General Election having been held and conducted andadministered by New Jersey State and County Election Officials and others in intentionaland knowing and reckless and negligent violation of the mandatory minimum standardsof the United States Constitution, applicable Federal Statutory Law, the New Jersey StateConstitution, and applicable New Jersey Statutory Law, as is required for the valid andlawful and legitimate election of a United States Senator; and

SECOND: Further specifically seeking the full United States Senate to find anddeclare that United States Senator from New Jersey Jeffrey S. Chiesa shall remain seatedwithout prejudice until such time as the factual and legal claims made in this Election


2/54

- 2 -

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


3/54

- 3 -

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 United

States 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 issuedcredentials 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. A year later, on March 27, 1866, after a thorough investigation of the underlyingfacts and law, Stockton was summarily expelled from the Senate (by a vote of 23 to 20) as having not beenConstitutionally, lawfully and validly elected in the first instance. Specifically it was found that Stocktonwas elected in violation of New Jersey State Law. See United States Senate Election, Expulsion andCensure Cases, 1793-1990, by Anne M. Butler and Wendy Wolff, reprinted in United States SenateDocument 103-55, Government Printing Office, Washington: 1995.


4/54

- 4 -

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 .


5/54

- 5 -

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 /


6/54

- 6 -

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


7/54

- 7 -

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 as

Democratic-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.


8/54

- 8 -

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


9/54

- 9 -

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


10/54


11/54

- 11 -

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

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

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.


12/54


13/54


14/54

- 14 -

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

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


15/54

- 15 -

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.

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. 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

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


16/54


17/54

- 17 -

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 literally destroyed and is gone forever leaving literally no

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

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


18/54

- 18 -

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

up.

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

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


19/54

- 19 -

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.

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).

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

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:


20/54


21/54


22/54


23/54

- 23 -

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

voting devices, but rather as to the efforts made by the

State to mi nimi ze the li keli hood of err or. It is obvious thatbut for the very limited pool of voters involved in theZirkle litigation, the human error that lead to completelyerroneous 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 results

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

litigation performed as it was programmed to do, the pre-LAT failed to reveal the programming error. Ironically,Appel spoke to the limits of a pre-LAT during the trial

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 the

wrong 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 theresults 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 andimplemented mandatory statewide pre-election testing

procedures to provide reasonable assurances thatprogramming errors will not go undetected. We urge the


24/54


25/54

- 25 -

DRE 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.

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


26/54


27/54

- 27 -

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, 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.

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).


28/54


29/54


30/54


31/54


32/54


33/54


34/54


35/54

- 35 -

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).

14. On the return date, the Court quickly and without hesitation ruled in favor of

candidate Eugene Martin LaVergne and ruled that the State and County Officials had

without excuse indeed 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 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. 19:5-1 constitutes both a Criminal and Civil Federal and State


36/54


37/54


38/54


39/54

- 39 -

It understates the case to suggest that thisextraordinary state of affairs should act as a challenge to

anyone 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

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


40/54

- 40 -

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

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


41/54


42/54

- 42 -

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

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

broken apart as removed in one seamless motion, destroying the evidence of tampering.

9. As pointed out, once again, in Essex County (a Democratic County, home of now

deceased County Clerk Caputo, still with a Democratic County Clerk), as is and has

become political tradition, Democratic candidate Corey Booker won the N.J.S.A.

19:14-12 drawing, and defendant candidate Lonegan was then - illegally - placed in his

own party column and given column 2 (or B). Conversely, in Burlington County (a

Republican controlled County with a Republican County Clerk) as is and has become

political tradition, Republican candidate defendant Lonegan who is prohibited by law

from participating in the N.J.S.A. 19:14-12 drawing at all was allowed to participate

nonetheless, and defendant candidate Lonegan actually won the drawing and was


43/54

- 43 -

illegally placed in his own party column and given column 1 (or A). There is simply no

scenario where the Burlington County Special General Election Ballots are legal: The

Ballots all clearly violate the mandatory terms of N.J.S.A. 19:5-1.

10. Perhaps not all of the 21 County Clerks have actually intentionally committed

Federal Criminal and Civil acts. Perhaps some of the 21 County Clerks are just

incompetent in their failing to follow the law when configuring of the Special General

Election Ballots. However, in light of the August 16, 2013 letter from candidate Eugene

Martin LaVergne sent to each of them, and in light of past litigation with these same

parties on the specific legal questions at issue, the sad fact is that it is unlikely that the

culpability ofall 21 County Clerks will in the end be found to be limited simply to utter

incompetence but rather, after a full review to at least in come cases - be the product of

a flagrant and contemptuous disregard for the very Election Laws these public officials

have sworn to abide by.

11. Thirty years ago, after the New Jersey Supreme Court issued the opinion in

Mochary, the opinion was hailed as perhaps the beginning of the end of discriminatory

ballot placement of candidates on the General Election Ballots in New Jersey. See

Court in New Jersey Upholds Equal Odds for All, by Joseph Sullivan (July 23, 1985)

in New York Times Newspaper, abstract at www.nytimes.com/1985/07/23/nyregion/court-in-

jersey-upholds-equal-odds-for-all.html . Yet, 30 years later nothing has really changed.

12. Just last year in 2012 it was revealed (really no surprise to anyone actually

paying attention) that the Monmouth County Clerk an elected office held exclusively

by a Republican since the mid 1970s had drawn Column 1 for the Republican Party

30 out of 33 times over the last 33 years, a mathematical statistic that to be legitimate and


44/54


45/54


46/54


47/54

- 47 -

interpretation of the 47 U.S.C. sec. 315(a)(4) exemption regarding political candidate

debates as announced in Matter of Petitions of Henry Geller and the National

Association of Broadcasters and the Radio-Television News Directors Association to

Change Commission Interpretation of Certain Subsections of the Communications Act,

48 Federal Register 53166-03, 95 F.C.C. 2d 1236, summarily affirmed without opinion

sub nom League of Women Voters v. Federal Communications Commission, 731 F.2d

995 (D.C. Cir. 1984).

3. Candidate Stuart David Meissner also similarly demanded Equal Time and filed

applications with the FCC.

4. The FCC closed because of the Government Shut Down and as such could not

Order that Equal Time be provided to both candidates Eugene Martin LaVergne and

Stuart David Meissner. Under applicable law as applied to the facts of this Broadcast

Network Sponsored Debate, it is clear that the FCC was required to order Equal Time

and that but for the government shut down there would have been Equal Time

provided.

5. The Broadcast Networks ABC and NBC have violated federal law, specifically 47

U.S.C. sec. 315, which has affected the United States Senate Election at issue and,

because of the Federal Government shut down, the candidates are once again left with yet

another clear violation of election law without a meaningful and timely remedy.


48/54


49/54


50/54

- 50 -

Signatur e of Petiti oner :

Eugene Martin LaVergne hereby states and declares as follows:

1. I am a candidate for the Office of United States Senate at the October 16, 2013Special General Election in New Jersey and my name and the name of my political partyto be associated with my name, the Democratic-Republican Party, will appear on all

ballots at that Federal Election.

2. I have read the factual and legal allegations in this United States Senate ElectionChallenge Petition and all information and legal allegations are true to the best of myknowledge, information and belief, and are all brought forward in good faith.

3. It is my factual and legal position under the facts extant that the conduct andadministration of the October 16, 2013 Special General Election by New Jersey State andCounty Election Officials violates the United States Constitution, the New JerseyConstitution, and both Federal and State Laws, and that therefore no candidate maylawfully be declared the winner of the Special General Election for United States Senate,including myself.

4. I am asking the United States Senate by virtue of this United States SenateElection Challenge Petition to declare any result of the Special General Election forUnited States Senate a nullity and void as a matter of law, and I am making this request

beforethe Special General Election even occurs.

5. I am also asking that the United States Senate vote to leave United States Senatorfrom New Jersey Jeffrey S. Chiesa seated so that the citizens of New Jersey will continueto have full representation in the United States Senate until such time as a lawful electionis held to lawfullyselect a successor.

_____________________________________

Eugene Martin LaVergne

Democratic-Republican Candidatefor United States Senate


51/54

- 51 -


Robert DePasqualle hereby states and declares as follows:

1. I am a candidate for the Office of United States Senate at the October 16, 2013Special General Election in New Jersey and my name will appear on all ballots at thatFederal Election.



4. I am asking the United States Senate by virtue of this United States SenateElection Challenge Petition to declare any result of the Special General Election forUnited States Senate a nullity and void as a matter of law, and I am making this requestbeforethe Special General Election even occurs.


____________________________________

Robert DePasqualle

Independent Candidate

for United States Senate


52/54

- 52 -


Stuart David Meisner hereby states and declares as follows:






____________________________________

Stuart David Meisner




53/54


54/54


Pablo Olivera hereby states and declares as follows:






____________________________________

Pablo Olivera



nj special senate election contested

Documents