DEMOCRATIC-REPUBLICAN ORGANIZATION OF NEW JERSEY v. KIMBERLY GUADAGNO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DEMOCRATIC-REPUBLICAN ORGANIZATION

OF NEW JERSEY, an unincorporated

association; LEONARD MARSHALL,

individually as a voter and in his

capacity as the Chair of the

Democratic-Republican Organization

of New Jersey; EUGENE MARTIN LaVERGNE,

Democratic-Republican for United States

Senate and individually as a voter;

DONALD LETTON, candidate for U.S. House

(Dist. 1)(Special General Election and

Regular General Election) and individually

as a voter; ALEXANDER SPANO, candidate for

U.S. House (Dist. 2) and individually as a

voter; FREDERICK JOHN LaVERGNE, candidate

for U.S. House (Dist. 3) and individually

as a voter; SCOTT NEUMAN, candidate for

U.S. House (Dist. 4) and individually as a

voter; PABLO OLIVERA, candidate for U.S.

House (Dist. 8) and individually as a voter;

ALLEN J. CANNON, candidate for U.S. House

(Dist. 12) and individually as a voter;

TRACY CAPRIONI, candidate for Ocean County

Freeholder and individually as a voter;

MELISSA TOMLINSON, candidate for Atlantic

County Freeholder and individually as a

voter; GARY C. FRAZIER, candidate for Camden

County Freeholder and individually as a voter;

FERNANDO POWERS, candidate for Camden County

Freeholder and individually as a voter,

Petitioners-Appellants,

v.

KIMBERLY GUADAGNO, New Jersey Lt. Governor/

Secretary of State; EDWARD P. McGETTIGAN,

Atlantic County Clerk; JOHN S. HOGAN,

Bergen County Clerk; TIMOTHY D. TYLER,

Burlington County Clerk; JOSEPH RIPA,

Camden County Clerk; RITA MARIE FULGINITI,

Cape May County Clerk; CELESTE RILEY1,

Cumberland County Clerk; CHRISTOPHER J.

DURKIN, Essex County Clerk; JAMES N. HOGAN,

Gloucester County Clerk; BARBARA A. NETCHERT,

Hudson County Clerk; MARY H. MELFI, Hunterdon

County Clerk; PAULA SOLLAMI-COVELLO, Mercer

County Clerk; ELAINE FLYNN, Middlesex County

Clerk; M. CLAIRE FRENCH, Monmouth County

Clerk; ANN F. GROSSI, Morris County Clerk;

SCOTT M. COLABELLA, Ocean County Clerk;

KRISTIN M. CORRADO, Passaic County Clerk;

GILDA T. GILL, Salem County Clerk; BRETT RADI,

Somerset County Clerk; JEFFREY M. PARROTT,

Sussex County Clerk; JOANNE RAJOPPI, Union County

Clerk; PATRICIA J. KOLB, Warren County Clerk,

Respondents-Respondents,

and

HANK SCHROEDER, candidate for U.S. Senate;

ANTONIO N. SABAS, candidate for U.S. Senate;

JEFF BOSS, candidate for U.S. Senate; JOSEPH

BARATELLI, candidate for U.S. Senate; JEFFREY

BELL, candidate for U.S. Senate; COREY BOOKER,

candidate for U.S. Senate; MARGARET M. CHAPMAN,

candidate for U.S. House (Dist. 1); MIKE

BERMAN, candidate for U.S. House (Dist. 1)

(Special General Election and Regular General

Election); ROBERT SHAPIRO, candidate for U.S.

House (Dist. 1)(Special General Election and

Regular General Election); SCOT JOHN TOMASZEWSKI,

candidate for U.S. House (Dist. 1)(Special General

Election and Regular General Election); GARY W.

COBB, candidate for U.S. House (Dist. 1)(Special

General Election and Regular General Election);

DONALD W. NORCROSS, candidate for U.S. House

(Dist. 1)(Special General Election and Regular

General Election); GARY STEIN, candidate for U.S.

House (Dist. 2); CONSTANTINO ROZZO, candidate for

U.S. House (Dist. 2); FRANK LOBIONDO, candidate

for U.S. House (Dist. 2); WILLIAM J. HUGHES, JR.,

candidate for U.S. House (Dist. 2); EDWARD J.

FORSCHION, candidate for U.S. House (Dist. 3);

TOM MaCARTHUR, candidate for U.S. House

(Dist. 3); AIMEE BELGARD, candidate for U.S.

House (Dist. 3); CHRISTOPHER H. SMITH,

candidate for U.S. House (Dist. 4); RUBEN M.

SCOLAVINO, candidate for U.S. House (Dist. 4);

MARK D. QUICK, candidate for U.S. House (Dist.

5); SCOTT GARRETT, candidate for U.S. House

(Dist. 5); ROY CHO, candidate for U.S. House

(Dist. 5); DORIT GOIKHMAN, candidate for U.S.

House (Dist. 6); ANTHONY WILKINSON, candidate

for U.S. House (Dist. 6); FRANK PALLONE, JR.,

candidate for U.S. House (Dist. 6); JAMES GAWRON,

candidate for U.S. House (Dist. 7); LEONARD

LANCE, candidate for U.S. House (Dist. 7);

JANICE KOVACH, candidate for U.S. House (Dist.

7); HERBERT H. SHAW, candidate for U.S. House

(Dist. 8); ROBERT THORNE, candidate for U.S.

House (Dist. 8); JUDGE ANTHONY TISCORNIA,

candidate for U.S. House (Dist. 8); ALBIO SIRES,

candidate for U.S. House (Dist. 8); NESTOR

MONTILLA, candidate for U.S. House (Dist. 9);

DIEDRE G. PAUL, candidate for U.S. House (Dist.

9); BILL PASCARELL, JR., candidate for U.S. House

(Dist. 9) GWENDOLYN A. FRANKLIN, candidate for U.S.

House (Dist. 10); DARK ANGEL, candidate for U.S.

House (Dist. 10); YOLANDA DENTLEY, candidate for

U.S. House (Dist. 10); DONALD M. PAYNE, JR.,

candidate for U.S. House (Dist. 10); RODNEY P.

FRELINGHUYSEN, candidate for U.S. House (Dist. 11);

RICH VAN GLAHN, candidate for U.S. House (Dist.

11); STEVE WELZER, candidate for U.S. House (Dist.

12); DON DEZARIN, candidate for U.S. House (Dist.

12); JACK FREUDENHEIM, candidate for U.S. House

(Dist. 12); KENNETH J. CODY, candidate for U.S.

House (Dist. 12); ALITA ECK, candidate for U.S.

House (Dist. 12); BONNIE WATSON COLEMAN, candidate

for U.S. House (Dist. 12); REPUBLICAN STATE

COMMITTEE; and DEMOCRATIC STATE COMMITTEE,

Interested Parties.

____________________________________________________________

Before Judges Fuentes, Kennedy, and O'Connor.

On appeal from the New Jersey Department of State, Board of Elections, Election Law Enforcement.

Appellant Eugene Martin LaVergne argued the cause pro se.

Oler, Luzzi & Breslin, attorneys for appellantsDemocratic-Republican Organization of New Jersey, Leonard P. Marshall, Donald Letton, Alexander H. Spano, Frederick John LaVergne, Scott Neuman, Pablo Olivera, AllenJ. Cannon, Tracy Caprioni, Melissa Tomlinson, Gary C. Frazier, and Fernando Powers (Richard T. Luzzi, on the joint brief).

Donna Kelly, Assistant Attorney General, argued the cause for respondent Kimberly Guadagno (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Kelly, on the brief).

William T. Cooper, III, Somerset County Counsel, attorney for respondent Brett Radi (Mr. Cooper and Carl A. Taylor, III, Deputy County Counsel, of counsel and on the brief).

Bell, Shivas & Fasolo, attorneys for respondent Patricia J. Kolb (Joseph J. Bell, on the brief).

Carbone and Faasse, attorneys for respondent James Hogan (John M. Carbone, on the brief).

Genova Burns, attorneys for respondent New Jersey Democratic State Committee (Rajiv D. Parikh, of counsel and on the brief; Maria R. Fruci, on the brief).

Gregg F. Paster & Associates, attorneys for respondent John Hogan (Gregg F. Paster, of counsel and on the brief; Alfred A. Egenhofer, on the brief).

Capehart & Scatchard, attorneys for respondent Timothy D. Tyler; Robert E. Barry, Union County Counsel, attorney for respondent Joanne Rajoppi; James B. Aresenault, Jr., Cape May County Counsel, attorney for respondent Rita Marie Fulginiti; Andrea I. Bazer, Monmouth County Counsel, attorney for respondent M. Claire French; James F. Ferguson, Atlantic County Counsel, attorney for respondent Edward P. McGettigan; Thomas F. Kelso, Middlesex County Counsel, attorney for respondent Elaine Flynn; Arthur R. Sypek, Jr., Mercer County Counsel, attorney for respondent Paula Sollami-Covello; Shana L. Taylor, Hunterdon County Counsel, attorney for respondent Mary H. Melfi; Donato J. Battista, Hudson County Counsel, attorney for respondent Barbara A. Netchert; Theodore E. Baker, Cumberland County Counsel, attorney for respondent Celeste Riley; Christopher A. Orlando, Camden County Counsel, attorney for respondent Joseph Ripa; Dennis R. McConnell, Sussex County Counsel, attorney for respondent Jeffrey M. Parrott; William J. Pascrell, III, Passaic County Counsel, attorney for respondent Kristin M. Corrado; James R. Paganelli, Essex County Counsel, attorney for respondent Christopher J. Durkin; Berry, Sahradnik, Kotzas & Benson, attorneys for respondent Scott M. Colabella; Daniel W. O'Mullan, Morris County Counsel, attorney for respondent Ann F. Grossi; Michael M. Mulligan, attorney for respondent Gilda T. Gill; and John J. Hoffman, Acting Attorney General, attorney for respondent Board of Elections,Election Law Enforcement, join in the brief of respondent Kimberly Guadagno.

PER CURIAM

Plaintiffs, the Democratic-Republican Organization of New Jersey (the DRO), and several individuals identified variously as candidates for elective office in 2014 or as representatives of the DRO, appeal from an August 8, 2014 final decision of the Secretary of State (the Secretary) certifying party columns for the ballot pertaining to the November 2014 general election. The certification allocated Democratic and Republican candidates the first two rows or columns on the ballot.

Plaintiffs argue that the Secretary erred by including all votes cast in the preceding June 2014 primary election in calculating whether a political party met the ten percent threshold to secure a party column under N.J.S.A. 19:5-1. Plaintiffs argue that only votes cast for General Assembly candidates may be counted under the plain terms of the statute, and that if the Secretary had employed that standard, neither the Democratic nor the Republican parties would have met the threshold. Plaintiffs seek an order invalidating the results of the November election because the Secretary violated a "mandatory" election statute, citing In re Smock, 5 N.J. Super. 495 (Law Div. 1949).

The Secretary argues that plaintiffs are not only wrong as a matter of law in their interpretation of N.J.S.A. 19:5-1, but also that plaintiffs are barred from relitigating the issue under the doctrine of res judicata. The Secretary asserts that plaintiffs, and "related parties" have raised these claims unsuccessfully in both New Jersey Conservative Party v. Farmer, 324 N.J. Super. 451 (App. Div. 1999) and in Democratic-Republican Org. v. Guadagno, 900 F. Supp. 2d 447 (D.N.J.) aff'd, 700 F.3d 130 (3rd Cir. 2012) and should be precluded from raising the issue once more.

The facts here are relatively straightforward and uncontested. On December 3, 2013, the Secretary issued a certificate recognizing both the Republican Party and the Democratic Party as a "political party" pursuant to N.J.S.A. 19:12-1. This designation was based on the results of the November 5, 2013, general election at which a total of 3,721,971 votes were cast for members of the General Assembly. Because Republican candidates received 1,907,328 of such votes, and Democratic candidates received 1,793,523 votes, each party far exceeded the ten percent of the total vote (372,197) needed for recognition as a "political party" under the statute.

Thereafter, on June 3, 2014, a statewide primary election was held for various federal, county and local offices. At that election, 431,332 votes were cast for Democratic party candidates, and 405,371 votes were cast for Republican Party candidates. Because each party, and no others, had received at least 372,197 votes, each was entitled to a "party column" on the upcoming November 2014 general election ballot pursuant to N.J.S.A. 19:5-1, and the Secretary, as noted, issued a certification recognizing that right on August 8, 2014.

2 On August 13, 2014, plaintiffs filed a verified complaint for declaratory and injunctive relief claiming that neither the Republican nor Democratic party qualified as a political party entitled to a "party column." Plaintiffs argued that the primary votes credited to the parties were not votes for General Assembly candidates, and therefore, the state's county clerks should be enjoined from drawing separate political party columns for the Democratic and Republican parties on the official ballot for the 2014 general election.

Following oral argument, the Law Division transferred the matter to the Appellate Division, pursuant to R. 1:13-4. Thereafter, the November 2014 General Election proceeded as scheduled, and plaintiffs now pursue this appeal.

2 N.J.S.A. 19:5-1 provides in relevant part

[N]o political party which fails to poll at any primary election for a general election at least ten per centum (10%) of the votes cast in the State for members of the General Assembly at the next preceding general election, held for the election of all of the members of the General Assembly, shall be entitled to have a party column on the official ballot at the general election for which the primary election has been held.

In New Jersey Conservative Party, supra, we held the plain language of N.J.S.A. 19:5-1 in particular, the phrase, "at any primary election for a general election," - "requires that all primary elections for the general election must be considered and not just those for the General Assembly." 324 N.J. Super. at 459-60. Further, we held there is no authority to support the conclusion that N.J.S.A. 19:5-1 applies only to the biannual General Assembly primary. Id. at 460-61. Instead, we held that since there is a primary election for the general election every year, N.J.S.A. 19:23-40, and a general election every year, N.J.S.A. 19:1-1 and 2-3, a political party must qualify for a party column on the official ballot in the general election by satisfying the requirements of N.J.S.A. 19:5-1 each year. This is consistent with our conclusion that the results of all general election primaries are to be used to identify those political parties eligible for a party column.

Further, in Democratic-Republican Org., supra, plaintiffs sought injunctive relief declaring N.J.S.A. 19:5-1 unconstitutional. Plaintiffs argued that the statute confers preferential ballot treatment on candidates of political parties and creates an arbitrary and irrational classification scheme. 900 F. Supp. 2d 447, aff d, 700 F.3d 130. The District Court held and the Court of Appeals affirmed that political candidates have no constitutional right to dictate their ballot placement and when a statute "imposes only a minimal nondiscriminatory burden on minor parties, yet affords reasonable access to the ballot, it generally has been upheld." Id. at 456 (quoting Belitskus v. Pizzingrilli, 343 F.3d 632, 643 (3d Cir. 2003)).

We find the reasoning in both cases to be sound and persuasive, and we hold that these precedents control disposition of this appeal. Accordingly, we need not address whether the doctrine of res judicata precludes plaintiffs from pursuing this action. Finally, we find plaintiffs' remaining arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1).

Affirmed.

1 Replacing Gloria Noti.