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
17 Skidmore Trail
Hopatcong, NJ 07843
Plaintiff Civil No.
New Jersey Election Law Enforcement Commission
28 West State Street. 12th floor.
Trenton, New Jersey 08608-1602
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
- 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
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
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.
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.
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.
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.
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:
- an order and declaratory judgment declaring N.J.AC. 19:25-15.49(a)-2 unconstitutional.
- a preliminary and permanent order and injunction restraining Defendant from enforcing N.J.A.C. 19:25-15.49(a)-2.
- Court costs and,
- any other relief as this Court in its discretion deems just and appropriate.