Andrea Dealmagro VS. N.J. Election Law Enforcement Commission

The opening salvo in this campaign was my lawsuit against the New Jersey Election Law Enforcement Commission. I filed the complaint at that moment because I knew the government would try to protract the case for as long as possible in order to render any possibility of success moot after the debates had occurred. With my limited knowledge of law, perhaps somewhat naively, I expected that the U.S. court would find that time was of essence in this case. Obviously I was wrong. The judge dismissed the complaint for lack of standing.

Had I waited to have standing (becoming a certified candidate) to file, any decision would have come after the debates and the election itself, and the judge would have ruled the case moot. The system is engineered to keep independents and third party candidates at bay.

The complaint, as I filed it in August 2010, is below. I have added a link at the end with the ruling by judge Cooper and another with a legal discussion about the case.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

__________________________________________

Andrea Dealmagro

17 Skidmore Trail

Hopatcong, NJ 07843

Plaintiff                                                       Civil No.

Pro se

V.                                                                                      COMPLAINT

New Jersey Election Law Enforcement Commission

28 West State Street. 12th floor.

Trenton, New Jersey 08608-1602

Defendant

­­­­­­­­­­­­­­­­__________________________________________

PARTIES

     The Plaintiff: Andrea Dealmagro, retired chemist and resident of 17 Skidmore Trail,

Hopatcong, N.J. 07843 has been a resident of the state of New Jersey since 1979. I intend to run

for governor of New Jersey in 2013 and to expend less than $3,000 of my own money in the

campaign.  As a political position, I shall not accept financial contributions.

The Defendant: The Election Law Enforcement Commission, 28 West State Street, 12th floor.

Trenton, N.J. 08608-1602, is empowered by the Legislature of the state of New Jersey with the

administration and enforcement of the provisions, among others, of laws providing for public

disclosure of campaign contributions and expenditures, public matching funding, and

gubernatorial public debates in New Jersey.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

     I, Andrea Dealmagro, a tentative independent candidate for governor of the state of New

Jersey in the Election of 2013, bring this action for declaratory and injunctive relief alleging

as follows:

INTRODUCTION

  1. The New Jersey Election Law Enforcement Commission (ELEC) enforces the rules in

elections for public office in the state of New Jersey, which are embodied in the New Jersey

Administrative Code (N.J.A.C.)

2.   This is an action challenging the provision which deals with gubernatorial candidates who

have not applied for public matching funds by September 1 of the year of the general election.

3.   Furthermore, the provision challenged is 19:25-15.49(a)-2 which sets a qualification

threshold of $340,000 for candidates to be allowed to participate in the public debates of the

general election. The Plaintiff challenges the provision for it abridges my freedom of speech

and my ability to assemble and run an effective electoral campaign, depriving me of my rights

and privileges afforded to me by the First and Fourteenth Amendments of the Constitution of

the United States.

4.   The paragraph challenged is N.J.A.C. 19:25-15.49(a)-2 as in:

19:25-15.49 Statement of candidates electing to participate in debates

(a) A candidate who has not by September 1 preceding a general election applied to the

Commission for public matching funds may elect to participate in the series of interactive

gubernatorial general election debates by:

1. Notifying the Commission in writing no later than September 1 preceding the

general election for the office of Governor of his or her intent to participate in

the series of gubernatorial general election debates; and

2. Filing a statement of qualification containing evidence that $340,000 has been

deposited and expended pursuant to N.J.S.A. 19:44A-32 for gubernatorial

general election expenses. The statement of qualification shall contain the

same information, as that required at N.J.A.C. 19:25-15.48(a).

(a)-2 places a restriction on free speech which is unduly burdensome and inhibits the free flow

of ideas in the Forum of the People during the election for the highest office of the state. The

provision literally forces me to raise funds in order to qualify for public debates. However,

non-fundraising is a fundamental part of my political message.  Openly renouncing to all fund-

raising is a form of political speech. The challenged provision forces me to either betraying my

own political agenda or not communicating my agenda to the People through the most

effective form of campaigning; public debates.

5.   The threshold provision does not in any manner benefit the state of New Jersey nor the

citizens of the state of New Jersey. With this provision, the N.J. legislature has carved out the

immense majority of the citizens of the state from the candidates’ pool and blatantly abridged

their rights and privileges – mine among them.

6.   The provision acts as a barrier to isolate independent candidates with modest wealth or

limited fund-raising capabilities from the People, regardless of the quality of their political

platform. Furthermore, the provision is blatantly prejudiced against candidates, such as me,

who chose not to raise funds as a matter of content in a political program and who do not

have wealth of their own.

7.   The challenged provision de facto tilts the legal playing field and assures the supremacy

of the two predominant political parties, of the candidates chosen in their primary

elections, and the continuity of the two-party monopoly on power by abridging the speech of

the opposition.

8.   The provision is a hegemonic artifice which is willfully preserved by the two dominant

parties for their own advantage and abridges speech and the right to assembly guaranteed by

the First Amendment of the Constitution of the United States.

9.   The Plaintiff maintains that public debates are the principal venue to address the People

in the gubernatorial election in New Jersey in lieu of direct assembly.

10.  Furthermore, the provision abridges the inherent rights and privileges (to run for

public office) and the canon of equal protection under the law of the Plaintiff.  Accordingly, it is

in conflict with the Fourteenth Amendment of the Constitution of the United States.

JURISDICTION AND VENUE

11.  This court has jurisdiction over this case pursuant to 28 U.S.C. § 1331, because it arises

under the First and Fourteenth Amendments of the Constitution of the United States as well as

28 U.S.C § 2201 because it concerns a declaratory judgment et alia. Venue is proper pursuant to

28 U.S.C. § 1391, and this is a New Jersey statute.

LEGAL AND FACTUAL ALLEGATIONS

United States Supreme Court Jurisprudence has ruled that restrictions on speech

and assembly violate the First Amendment of the Bill of Rights. 

12.  The provision at issue offends the pillars of campaign finance law articulated by

the Supreme Court. The Supreme Court spelled that “any restraint on personal expenditures

by candidates on their own behalf . . . imposes a substantial restraint on the ability of persons

to engage in protected First Amendment expression.” Buckley v. Valeo, 424 U.S. 1, 52 (1976).

Although the ruling in question dealt with the upper bounds of financial contributions, the

ruling does not restrict itself to the upper bounds and it says what it says. The position of the

Court here is clearly that any restraints of self-funding, of high or low bounds, are

unconstitutional.

13.  The Supreme Court reaffirmed Buckley in Randall v. Sorrell, 2006 Lexis 5161, 548 U.S. _.

No. 04-1528, slip op. (June 26, 2006). Rejecting restrictive contribution limits imposed by the

state of Vermont, the Court not only declined to limit Buckley’s First Amendment grounds,

Randall at *22-35, 6-8, but also based its decision in part on the fact that the limits would

significantly limit the challengers’ ability to run competitive campaigns against incumbents,

Randall at *80-97, 19-22. For the scope and purpose of this complaint, the incumbents are the

two dominant political parties, the democratic and the republican parties, which, with the ELEC

as enforcer,  insidiously exclude most other opponents from speaking in televised popular

assembly by setting a financial threshold as a qualifier for public debates.

14.  Similarly, in Citizens United v. Federal Election Commission, 558 U.S. 50 (2010), the

Supreme Court has updated the width of the protections granted to speech by the First

Amendment with: “Because speech itself is of primary importance to the integrity of the

election process, any speech within the reach of rules created for regulating political speech is

chilled.” The Court goes on: “Because speech is an essential mechanism of democracy—it is the

means to hold officials accountable to the people—political speech must prevail against laws

that would suppress it by design or inadvertence. Laws burdening such speech are subject to

strict scrutiny, which requires the Government to prove that the restriction “furthers a

compelling interest and is narrowly tailored to achieve that interest . . .  Premised on mistrust

of governmental power, the First Amendment stands against attempts to disfavor certain

subjects or viewpoints or to distinguish among different speakers, which may be a means to

control content.” I am respectfully asking this Court to apply such a “strict scrutiny” to the

financial threshold required for public debating by the New Jersey Election Law Enforcement

Commission and its rule, N.J.A.C. 19:25-15.49a-2.

15.  A wounded democracy is very difficult to heal. The N.J. finance threshold exclusion in

public debates injures our democracy every single day it remains in force. The threshold

provision acts like a filter, attempts to lead the electorate into the false belief that only the two

dominant parties and their primary-elected candidates have legitimacy, and muffles the speech

of third-party and independent candidates for the governorship, I being one of them.

                                                                                          Count I

16.  The Plaintiff incorporates herein by reference paragraphs 1 through 15, both inclusive.

17.  The First Amendment of the Constitution of the United States guarantees protection of

a person’s freedoms of speech and association. Included in these protections is the right to

participate freely in political activities and elections.  And as the Court noted in Buckley: “The

candidate, no less than any other person, has a First Amendment right to engage in the

discussion of public issues and vigorously and tirelessly advocate his (her) own election and the

election of other candidates.” Free speech is priceless and because political fund-raising has

always been a political activity, my position of refusing all financial contributions is a political 

stand and therefore an action of speech in itself. Accordingly, I allege that the threshold

provision, N.J.A.C. 19:25-15.49(a)-2, is unconstitutional and that by enforcing it, the ELEC

violates, in modus as-applied, the First Amendment of the Constitution of the United States.

                                                                                          Count II

18.  The Plaintiff incorporates herein by reference paragraphs 1 through 17, both inclusive.

19.  Nevertheless the New Jersey Legislature and its enforcer, the Election Law Enforcement

Commission, have persisted in imposing a restricting financial threshold as a qualifier for the

public debates in the gubernatorial general election. This threshold chills the speech of and,

for all practical purposes, bans third party and independent candidates who are underfunded,

willfully or not, from holding assembly with the People. Accordingly, I allege that the threshold

provision, N.J.A.C. 19:25-15.49(a)-2, is unconstitutional and that by enforcing it, the ELEC

violates, in modus facial, the First Amendment of the Constitution of the United States.

                                                                                           Count III 

20.  Plaintiff incorporates herein by reference paragraphs 1 through 19 above, both inclusive.

21.  The Fourteenth Amendment binds the states to the U.S. Constitution and − central to

this complaint − the most fundamental canons of the First Amendment: Speech and assembly.

Therefore, the state of New Jersey has run afoul of the Fourteenth Amendment with the

threshold provision denying equal privileges – entering the Forum of the People −  to

underfunded political candidates – I among them.

22.  The Supreme Court in Buckley, 424 U.S. at 94: “A restriction can be sustained only if it

furthers a vital government interest that is achieved by a means that does not unfairly or

unnecessarily burden either a minority party’s or an individual candidate’s equally important

interest in the continued availability of political opportunity.”

23.  The threshold imposed by 19:25-15.49(a)-2 does not protect the government’s 

interest. It simply secures the supremacy of the two established political parties. This complaint

is not about promoting equality among candidates for all candidates are distinct and they

resources varied. This complaint is not about public matching funds. This complaint is very

narrow in scope: it is about pursuing equality under the law and only in matters relevant to the

First Amendment, regardless of the candidates’ distinctiveness and varied wealth.

24.  Equality under the law is at the core of the Fourteenth Amendment. So is the

subordination of the states to the Bill of Rights. The Defendant has insidiously trampled with

these principles. Accordingly, I allege that the Defendant, ELEC, abridges my rights and violates

the Fourteenth Amendment of the Constitution of the United States, in modus as- 

applied, and that as such the provision in N.J.A.C. 19:25-15.49(a)-2 is unconstitutional.

                                                                                           Count IV 

25.  The Plaintiff incorporates herein by reference paragraphs 1 through 24, both inclusive.

26.  Accordingly, I allege that the Defendant, ELEC, enforces a law which violates the

Fourteenth Amendment of the Constitution of the United States, in modus facial, and that as

such the provision in N.J.A.C. 19:25-15.49(a)-2 is unconstitutional.

PRAYER FOR RELIEF

WHEREFORE, relying on the allegations in the complaint, Plaintiff prays for the following relief:

  1. an order and declaratory judgment declaring N.J.AC. 19:25-15.49(a)-2 unconstitutional.
  1. a preliminary and permanent order and injunction restraining Defendant from enforcing N.J.A.C. 19:25-15.49(a)-2.
  1. Court costs and,
  1. any other relief as this Court in its discretion deems just and appropriate.

Respectfully Submitted,

_____________________________

Andrea Dealmagro

Plainttif.

http://docs.justia.com/cases/federal/district-courts/new-jersey/njdce/3:2010cv04149/245338/8/0.pdf

http://nj.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20110125_0000167.DNJ.htm/qx

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