State Opp to Mtn for Recon, 10.7.13

7/27/2019 State Opp to Mtn for Recon, 10.7.13

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StateofNew erseyCHRISCHRISTI OPPIC~ P' 'H~ ATTORNEYGENERAL ~TOHN J.HOFFMAN

Gouer~ia DrPARTM~NTOP.AWANDPUBLIC Ab'~TY Ac tingAttorney G e ~ i e r a

D r v r s i o N orLewKIMGUADAUNO 25aRIiETSTRUT CHRISTOPHERS.ORRIL t . G o u e r r i . o r POox 112 D i a ~ e c t o r

TxENTON, NJ8625-0112

October 7, 2013

The HonorableMary C. Jacobson, A..S. .Mercer County Criminal Courthouse400S. Warren StreetP.O. Box 8068Trenton, NewJersey 08650-0068

Re: Lavergnev. Lonegan,et al.DocketNo. MER-L-1933-13State Defendants'Opposition to Plaintiff's Motionfor Reconsideration

DearJudgeJacobson:

Kindlyacceptthis letter andaccompanyingCertification on

behalf of GovernorChristie and Lt. Governor Guadagno("State

Defendants") in opposition to plaintiff's motion for

reconsideration ofthecourt's order of October3,2013denying

plaintiff's applicationforinjunctiverelief anddismissing the

complaint.

Plaintiff's application is both procedurally andsubstantively flawedand should besummarily rejected.

To begin, plaintiff's reconsideration motion is

procedurally improper. Reconsideration is only appropriateif~,

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October 7, 2013Page 2

there are "matters or controlling decisions which the

courthas overlookedor as towhichit has erred." R.4:49-2.

If the motion forreconsideration is -basedonfactsthat were

either knownby or knowable to themoving party before the court

rendered the challenged decision, then there is no basis for

reconsideration.ee DelVecchio v. Hemberger,88.J. Super.179, 189(App.Div. 2006) (denyingreconsiderationwhere there

was "no reason" why additional facts in support of

reconsideration motion could not have been gathered earlier);

Pressler& Verniero,urrent N.J. Court Rules,omment2 onR.4:49-2 (2013) ("the motion is properly denied if based on

unraised facts known to the movant prior to entry of the

judgment")

In his motion, plaintiff relies upon the June 2013certification of Robert Giles, Director of the New Jersey

Division of Elections, which was filed in the State Supreme

Court by the State in the matter of Grillo v. Christie,

September Term 2012, Docket No. 072773. Thisfiling has been a

matterof publicrecordforquite sometime. Nothing prevented

plaintiff from searching the Internet -- where,headmits, the

document still remains long before he filed the instant

lawsuit. Hisdecisionnot toincludediscoverable factsin his

earlier papers providesno basis forreconsideration.


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October 7, 2013Page 3

Independent of its procedural impropriety, plaintiff's

application is wholly without merit. The motion evidences a

fundamentalmisunderstanding both of election lawingeneral and

of the specificfactual assertions made and issues raisedin the

twoseparate law suits.

Here, the State opposed plaintiff's application for

injunctive relief because he soughtan orderfora new ballot

draw for the October 16 special general election by the twenty-

onecounty clerks. Suchrelief would have required reprinting

of allof the ballots and would have placed the State outof

compliance withfederal law requiring the transmittal of ballots

to the military and overseas voters forty-five days before a

federal election. See 42 U.S.C.A. ~ 1973ff-1(a)(8) In a

nutshell, plaintiff was asking for theelection officials to goback to squareone for electoral preparations, fewer thantwo

weeks before the October 16 election. Before thiscourt, the

State explained that there simply was not sufficient time to

restarttheprocess from theballot phase.

Bycontrast, the Certification ofMr. Gilesinthe Grillo

matteraddressed whollydifferent issues. Plaintiff'sreliance

on that Certification to dispute the State's position, or to

implythat the State misled thecourt, misses the mark.


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October 7,2013Page 4

TheGrilloCertificationfocusedonlyonthe voting machinephase of electoral preparations, which comes after the ballot

draw, ballot printing, and ballot programming.eeOct. 7,2013 Certification of Robert Giles at 19) Mr. Gilescertified in June 2013 that, with sufficient resources, the

voting machines used for the October 16 election could be

readied for the November 5 election within a three-week time

frame. (Ibid.)hat time frame,however, did notinclude thetime needed for the ballot draw, ballot printing, and ballot

programming for each voting machine. (Ibid.)

As the attachedOctober 7, 2013Certification of Mr. Giles

explains, the State will be able to prepare the voting machines

after October 16 and in time for the November 5 election

precisely because the ballot design and programming was donewellin advanceoftheNovember election. (Id.t 20.) AsMr. Giles states, thevoting machine programming hadtobe done

before the mail-in ballots could be generated and the

transmittal of those ballots had to commence on September21 --

forty-five days before the November 5 election. (Ibid.); see

N.J.S.A.9:63-9 (governing time for forwarding of mail-inballots). Unlike the scenario envisioned by plaintiff for the

October 16 election, where the county clerks would have to

redraw, redesign,and reprogram the ballot, andthen the voting


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October7,2013Page5

machines couldbe prepared,those ballot steps have already been

completed forthe November5election. (Ibid.)

Plaintiff is simply misinformed about theelectionprocess

in New Jersey. His reliance on Mr. Giles's June 2013

Certificationis misplacedand provides no basis forthiscourt

to reconsiderits earlierdecision.

For the foregoingreasons,the court should denythe motion

for reconsideration.

Respectfullysubmitted,

JOHN J.HOFFMANACTINGATTORNEY GENERALOF NEWJERSEY

AssistantAttorn~vGeneral

c:EugeneLavergneSteveLoneganCounty Counsel


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JOHN J. HOFFMANActing Attorney General ofNewJerseyAttorneyfor Respondents GovernorChrisChristie andLt.Governor KimberlyGuadagnoRichard J.Hughes Justice ComplexP.O. Box112Trenton,New Jersey08625

BY: DONNAKELLYAssistant Attorney GeneralAttorney ID#025791978(609) 984-9504

LAVERGNE,

SUPERIOR COURT OFNEW JERSEYLAW DIVISION- CIVIL PARTMERCER COUNTY

DOCKETNO.MER-L-1933-13

Civil Action

Plaintiff,

v.CERTIFICATION

OFROBERTGILES

LONEGAN, etals.

Defendants.

I,RobertF.Giles,being of full age,hereby certify:

1. Iamthe Director oftheNewJersey DivisionofElections

("DOE"),inthe NewJersey DepartmentofState, for which the

Secretaryof State ("Secretary")is the agency head. I have held

thisposition since May 2008.Prior toMay2008,I served as the

Executive Supervisor of the OceanCounty BoardofElectionfor

eight years.I am thoroughlyfamiliar with the State'selectoral

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process andtheduties and responsibilitiesimposed on thevarious

county electionofficials,with whom I interact onaregularbasis.

2. The Secretary is the Chief Election Official in New

Jersey, charged by federal and state laws with specific electoral

responsibilities,for which DOE is theadministrative arm. Onesuch

federallaw isthe MOVE Act,42U.S.C.A.~ 1973ff-1 (a) (8)(A),

whichrequires eachState to commence the mailingofballots to

military andoverseas voters no later than45daysbefore a federal

election.3. UnderTitle19,Election Laws ofNew Jersey,eachcounty

clerk is mandated to print all the ballots for an upcoming

election. For the October 16 special general election forthe

office ofUnited States Senator, thecountyclerks have completed

ballot printing.

4. Byway ofsubmissions filedin this matter prior to the

October 3 hearing, 16ofthe 21 county clerks informed the trial

courtthat 3,941,130 sample ballots,194,867vote by mail ballots,

7,532 machine ballots, 132,120 emergency ballots, and 100,547

provisionalballots hadbeen printed.

5. TheStatewide VoterRegistration System("SVRS"),which

is overseen by the Secretary, is theofficial repository for the

State's electionrecords,including thenumber ofmail-in ballots

issuedbythecountyclerks foran upcoming election, aswellas

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the number ofvoted mail-in ballots returned to the county boards

of election.

6. For the October 16, 2013 election, the SVRS records

indicate that asof October 7, 159,436 mail-in ballotshave been

issued by the county clerksstatewide. Of thatnumber,955 were

issued to military and overseascivilian voters.

7. Furthermore, as of October 7, 77,889 voted mail-in

ballots have already been returned to the county boards of

election. In other words, 77,889 New Jersey voters have already

cast their vote for theOctober 16,2013 election. Of thatnumber,

309 ballots have been returnedby military and overseasvoters.

8. Ifthecourtwere to order a redrawing,reprinting and

reissuance of the ballots for the October 16 election, itwouldbe

asignificant undertaking forthe countyclerks in an extremely

compressed time frame.

9. In addition, if the county clerks were now toreissue

ballots to military and overseas voters,theState wouldbeout of

compliancewith the MOVE Act's firm 45-day deadline to mail ballots

to military andoverseas voters, as the reprinted ballots wouldbe

sent well within 45 days of the election. Also, the reprinted

ballots may not reach themilitary and overseas voters inatimely

manner to assure the returned voted ballots are received bythe

county boards of election bythe deadline of 8:00p.m. onelection


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includes the programming of the ballot for eachelectiondistrict,

burningthe ballot definition onto the respectivevotingmachine

cartridge (which stores therecordedvotes),testingthe machines,

and certifying them with eventual transport to the respective

pollingplaces.

13. Allballot information is entered into the voting machine

byway ofacartridge created by the appropriate electionoffice

based on theballotsdesignedbythe countyclerk and set upbythe

printer on a griddedformat. On the printer's grid, each office and

candidate isassigned a switchposition as coordinatesonagraph.

This ballot informationis entered intoadatabase byway of the

applicable program designed for thevoting machine.Any change in

theballot position for acandidate, afterthe initial designation,

would require the county to re-do the ballotprogrammingforeach

machine.

14. Once theballotinformationfor each election district is

created, it must be downloadedonto a cartridge, whichisuniquely

identifiedby serial number and associated with aparticular voting

machine.

15. Votingmachine preparation alsoincludesthe following

steps. A Set-Up Diagnostics,which tests the functionalityof the

variouscomponents of each machine, is performed. The ballot face

mustbe placed on the machine withthe protective mylar cover

securedover it. The machine cartridge is inserted and thePre-


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logic and Accuracy (Pre-Lat) test is performed.For this test,the

technician willcast voteson each machine, inpre-election mode,

to assure that voteswillbe accurately recorded. The emergency

ballot box attachedtoeach machine mustalsobe filled with the

appropriatenumber of paper ballots.

16. It is my understanding that a significant number of

voting machines for the October 16 have already beenprepared and

readied for the election. Atleast one county, Middlesex, started

shipping the October 16 machines and expects to haveat least25

percent done bythe end of thedayon October 7,2013.

17. At this pointin time,any redoing of the ballot would

force the counties to redo the votingmachines. Overall,itis my

view that anydisruption of thecurrent election process could well

defeatthe fundamental goal of the electoral process-- thefull

participation of the electorate.

18. Plaintiff hasalleged thatthe factsI provided inmy

initial Certification in this matter are directly contradictedby

myCertification thatthe State provided to theSupremeCourt of

New Jersey in opposition to a petition forcertification inGrillo

v. Christie,upreme Court of New Jersey, September Term 2012,Docket No. 072773. However, there is no contradiction betweenmy

certifications.

19. In my Grillo Certification, I discussed the voting

machine phase of electoral preparations, whichcomes after the


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ballot draw, ballot printing, and ballot programming, and I

detailedtheefforts that would be madewell in advance of the

November 5, 2013 general election to assure that the voting

machines wouldbe ready inthe compressed time frame following the

October 16, 2013 special general election. There are 20 days

between the October 16, 2013 special general electionand the

November 5, 2013 general election. The preparations to be

completed in that20-day time frame do not include the ballot draw,

ballotprinting, andballot programmingfor each voting machine.

20. An important componentfor thesuccess of the November 5

election was the ballotdesign and programming being completed well

in advance ofthe election. For example, inOceanCounty the voting

machine program had to be completed before the mail-in ballots

could be generated. Asdiscussed earlier these ballots must be

available not fewer than45 days before theelection. Asaresult

of thispreparation well in advance, therewill not be any ballot

draw,design,or printingnecessary between theOctober 16, 2013

and November 5, 2013 elections because that has already been

completed. Therefore, it will onlybe necessary to burn the

cartridges and reset the voting machinesso they can betested,

certified, anddelivered for theNovember 5, 2013 election.

21. In addition, expedited schedules for the pick-up and

delivery of thevoting machines were developed well in advance to

assure the voting machines will be readyfor theNovember 5, 2013

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general election. In many cases this required special arrangements

to be made with the municipal clerks and the owners of the polling

place facilities.

22. In this matter, plaintiff requeststhat this Court order

thecounty election officials to start the entireelection process

for the October 16, 2013 special general election from the very

beginning, i.e.,the ballot draw, design,and printing.

23. Thereare a mere9 days between October 7, 2013 and

October 16, 2013, ascompared tothe 20 daysbetweentheOctober

16, 2013 and November 5, 2013 elections.

24. Nine days isnot enough time to, as plaintiff requests,

conduct a ballot draw, design the ballot,re-print and mailthe

ballots, reprogram and retest the voting machines with a new

ballot, and deliver the voting machines to thepollingplaces to

conduct an orderlyelection on October16, 2013.

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Z certify ~ha~ the foregoing statements made by me axe

true. I am aware that if any o~ the foregoing statements made by

me are willfu~~y false, I am subject of punishment.

~~~~i~~Robext Giles

Date jv~~~~


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JOHN J. HOFFMANActingAttorneyGeneralof New JerseyAttorney for Respondents Governor ChrisChristie andLt. Governor KimberlyGuadagnoRichard J. Hughes Justice ComplexP.O. Box 112Trenton, New Jersey 08625

BY: DONNA KELLYAssistant Attorney GeneralAttorney ID # 025791978(609)984-9504

LAVERGNE,

SUPERIOR COURT OFNEWJERSEYLAW DIVISION- CIVIL PARTMERCER COUNTY

DOCKET NO. MER-L-1933-13

Civil Action

Plaintiff,

u CERTIFICATIONOFDONNA KELLY

LONEGAN, et als.

Defendants

DONNA KELLY, being of fullage, byway of certification, says:

1. I am an AssistantAttorney General in theDivision

of Law, Department of Law and Public Safety, State of New Jersey.

2. The facsimile signature on the October 7, 2013

certification ofRobert Gilesis genuine. The document or a copy

with anoriginal signature affixed will be filed if requested by

the Court or a party.

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I hereby certify that theforegoing statements madeby

meare true. I am awarethat if anyof the foregoing statements

madebymeare willfully false, I am subject to punishment.

Dated: October 7,2013

Documents

State Opp to Mtn for Recon, 10.7.13