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LAROUCHE v. BURGIO

October 1, 1984

LYNDON H. LaROUCHE, Jr., BILLY M. DAVIS, ELLIOT GREENSPAN, JAMES CLEARY, and BRUCE DIRECTOR, Plaintiffs,
v.
JANE BURGIO, New Jersey Secretary of State, ATLANTIC COUNTY CLERK, BERGEN COUNTY CLERK, BURLINGTON COUNTY CLERK, CAMDEN COUNTY CLERK, CAPE MAY COUNTY CLERK, CUMBERLAND COUNTY CLERK, ESSEX COUNTY CLERK, GLOUCESTER COUNTY CLERK, HUDSON COUNTY CLERK, HUNTERDON COUNTY CLERK, MERCER COUNTY CLERK, MIDDLESEX COUNTY CLERK, MONMOUTH COUNTY CLERK, MORRIS COUNTY CLERK, OCEAN COUNTY CLERK, PASSAIC COUNTY CLERK, SALEM COUNTY CLERK, SOMERSET COUNTY CLERK, SUSSEX COUNTY CLERK, UNION COUNTY CLERK, WARREN COUNTY CLERK, ATLANTIC COUNTY BOARD OF ELECTIONS, SUPERINTENDENT, BERGEN COUNTY BOARD OF ELECTIONS, BURLINGTON COUNTY BOARD OF ELECTIONS, CAMDEN COUNTY BOARD OF ELECTIONS, CAPE MAY COUNTY BOARD OF ELECTIONS, CUMBERLAND COUNTY BOARD OF ELECTIONS, SUPERINTENDENT, ESSEX COUNTY BOARD OF ELECTIONS, GLOUCESTER COUNTY BOARD OF ELECTIONS, SUPERINTENDENT, HUDSON COUNTY BOARD OF ELECTIONS, HUNTERDON COUNTY BOARD OF ELECTIONS, SUPERINTENDENT, MERCER COUNTY BOARD OF ELECTIONS, MIDDLESEX COUNTY BOARD OF ELECTIONS, SUPERINTENDENT, MONMOUTH COUNTY BOARD OF ELECTIONS, SUPERINTENDENT, MORRIS COUNTY BOARD OF ELECTIONS, OCEAN COUNTY BOARD OF ELECTIONS, SUPERINTENDENT, PASSAIC COUNTY BOARD OF ELECTIONS, SALEM SALEM COUNTY BOARD OF ELECTIONS, SOMERSET COUNTY BOARD OF ELECTIONS, SUSSEX COUNTY BOARD OF ELECTIONS, UNION COUNTY BOARD OF ELECTIONS, and WARREN COUNTY BOARD OF ELECTIONS, Defendants



The opinion of the court was delivered by: DEBEVOISE

 Jurisdiction is asserted under 28 U.S.C. Sections 1331 and 1343(3) and (4). A cause of action is asserted under 42 U.S.C. Section 1983 and under the First and Fourteenth amendments of the United States Constitution.

 The original defendant was Jane Burgio, Secretary of State of New Jersey. After the hearing on denial of a Temporary Restraining Order the various County Clerks and Superintendents of Elections were named as additional defendants.

 A hearing on plaintiffs' application for a preliminary injunction has been held.

 The Facts

 On June 5th, 1984, the Democratic primary election was held in New Jersey. Plaintiff LaRouche was one of the candidates listed for the office of President of the United States. In July, 1984 the Democratic Party held its National Convention at which its candidates for President and Vice President were nominated. In early August the Republican Party held its National Convention at which its candidates for President and Vice President were selected.

 According to the complaint, LaRouche and Davis will be on the ballots in 19 states and are making efforts to qualify elsewhere. An exhibit referred to in the complaint did not accompany it. Therefore, it cannot be ascertained when these plaintiffs took steps to get on the various state ballots.

 James F. Schoener, Esquire, plaintiffs' counsel, wrote to the New Jersey Secretary of State asking that LaRouche's name be placed on the New Jersey ballot as an independent candidate for President. The letter is undated but it appears to have been written in early September. In a September 6, 1984, letter the Secretary of State refused to list the name because New Jersey statutes required that independent candidates for statewide office file nominating petitions no later than 40 days prior to the primary election, in this case April 26, 1984.

 On September 6, 1984, LaRouche's National Ballot Access Coordinator, Mary Jane Freeman, asked a representative of the Secretary of State how to go about obtaining a petition to enable LaRouche to appear on the ballot. She was told that even if she acquired the necessary number of qualifying signatures the name could not be listed on the ballot because the petition would be out of time.

 This suit followed. Title 19 of the New Jersey Statutes govern the conduct of general and primary elections. The provisions pertinent to this case are the following:

 Nominating petition for election of independent candidates for President and Vice President of the United States must be filed with the Secretary of State. N.J.S.A. 19:13-3 and 4. The petitions must be signed by at least 800 voters who have not signed other nominating petitions for those offices. N.J.S.A. 19:13-4 and 5.

 The deadline for filing of the petitions is 40 days prior to the primary election for the General Election N.J.S.A. 19:13-9. This year the filing deadline was April 26 and the primary was held on June 5, 1984.

 Not more than 86 days before the General Election the Secretary of State must certify to the 21 County Clerks the names of all the candidates nominated by direct petition, N.J.S.A. 19:13-22. That deadline date this year was August 13th, 1984. The Secretary of State, in fact, certified on July 31, 1984 and forwarded to the County Clerks the names of seven independent ...


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