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State of New Jersey



Lt. Governor




PO Box 112 TRENTON. NJ 08625·0112

July 19, 2012 Mark Neary, Clerk Supreme Court of New Jersey R. J. Hughes Justice Complex PO Box 970 Trenton, NJ 08625 Re: Purpura et al v. Barack Docket No. 68,194 Obama

On Petition for Certification to the Superior Court, Appellate Division Sat Below: Honorable Honorable Honorable Clarkson S. Fisher, Jr., P.J.A.D Linda G. Baxter, J.A.D. Philip S. Carchman, J.A.D to Petition for

Letter In Opposition Certification Dear Mr. Neary: Please Guadagno, accept

this letter on behalf as Secretary

of respondent of State,


M. to

in her capacity

in opposition Respondent submitted

the petition

for certification

in the above matter.

will in the

rely upon the enclosed Appellate public Division.

copies of the letter briefs

Respondents is presented

submit that no general here. Rather, this

question of


is a case where credible

the Secretary

of State


based upon sufficient


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New Jersey Is An Equal Opportunity


Printed on Recycled Paper and Recyclable

July 19, 2012 Page 2 evidence in the record, rejected as substantially without merit petitioner's challenge to the nomination petition of respondent

President Barack Obama in the June 5, 2012 Democratic Presidential Primary Election under Title 19, New Jersey's Election Laws. Pursuant to


2:12-4, a petition for certification will be

granted only if the appeal presents a question of general public importance which the Court has not addressed, but which should be settled by the Supreme Court. Moreover, certification will not be allowed on final judgments of the Appellate Division except for special reasons. See Mahony v. Danis,




(1983) (Handler, J., concurring). There is no reason for the Supreme


to review

the present

case. This matter

simply presents

straightforward issues of the standard of review to be applied in an appeal from an administrative determination and the application of well-settled State election laws to the particular facts of this case. Here, the reGord contains ample support for the determination below rejecting petitioners' challenge to President Obama's

nomination petition. N.J.S.A. 19:25-3; N.J.S.A. 19:25-4. This matter involves a challenge by petitioners Nicholas E. Purpura and Theodore T. Moran (Appellants) to the validity of

President Obama's nomination petition as a candidate for President of the United States in the June
5, 2012




19, 2012 Page 3 of was of

Election Elections

(Ra1).1 Appellants on AprilS, by the

filed a challenge and


the Division the the matter Office

2012, Division

thereafter, to

transmi tted Administrative 1 to-15

Director proceeding

Law as a contested

under N.J.S.A.


(Ral-Ra2). argued Obama's ballot before name the Administrative be removed Law Judge (ALJ)

Petitioners that President election


from the Democratic born

Primary citizen United

on the ground not eligible States

that he is not a natural to serve as President Constitution. the challenge More

and is therefore States under

of the

the United

In a decision and, on April than one month appeal

dated April 12, 2012, passed

10, 2012,

the ALJ rejected affirmed

the Secretary on May

(Ra1-Ra11). filed


18, 2012, appellants The appeal

an emergent

in the Appellate the court affirmed the reasons Obama


was accelerated.

On May 31, for

the decision

of the Secretary,


set forth in the ALJ's decision. in the primary election.



prevailed Before

the ALJ, appellants

argued that President requirements

Obama had not for the Office citizen" Obama


that he met the Constitutional specifically States

of President, of the United

that he was not a "natural-born claimed

(Ra2). Appellant

that President

respondent Secretary of State filed

1 "Ra" refers

to the appendix

included with the brief of in the Appellate Division.

July 19, 2012 Page 4 had not filed with the Secretary of State a birth certificate to establish his "purported" birth in Hawaii. Ibid. not objecting to the validity of President Appellants were Obama's birth

certificate because it was not before the Secretary (Ra3). Rather, appellants argued that he was obliged to prove that he was a for the


citizen to demonstrate his qualification

Presidency, and the failure to produce such proof was fatal to his nomination. to ...proffer Ibid. Appellants asserted that "the failure

to the Secretary a birth certificate

[was] legally

conclusive of the lack of qualification to stand for the Office."

The ALJ cited Article II, Section 1, Clause 4 of the United States Constitution listing the qualifications of the Office of

President which include that the person must be 1) 35 years of agej 2) a natural-born citizen of the United States and 3) a United

States citizen for at least fourteen years. The ALJ further cited N.J.S.A. 19:25-3, which lists the requirements for a political

party petition for the Office of President. Ibid. The section reads in part that "it shall not be necessary to have the consent of such candidate for President endorsed on the petition" The particular ALJ found that "a nominating (Ra4). endorsing a the



for the Presidency

can be

filed without

consent of the person endorsed." Ibid. The ALJ also found "at least

·July 19, 2012 Page 5 at the time that the petition is filed with the Secretary of State, there is no obligation upon the person indorsed to prove his or her qualification N.J.S.A. for the office. authorizes

Ibid. The ALJ further noted that a person who is indorsed in a


Presidential petition without consent to decline the nomination by filing a request with the Secretary of State, and the Secretary will not certify the person's name to appear on the primary

election ballot. Ibid. The ALJ thus concluded that there was "no affirmative requirement that a person indorsed in a nominating

petition for the Presidency present to the Secretary of State any certification or other proof that he is qualified for the Office, at least not at the time when nominating petitions are to be

accepted or rejected by the Secretary." The ALJ concluded that as petitioners' objection was that President Obama had not provided

the Secretary with proof of the place of his birth by means of a birth certificate or otherwise, the lack of any obligation on his part to do so meant he had not failed to act in accordance with the applicable law. [Ra5]. Finally, the ALJ pointed out that the citizenship status of President Obama had been extensively litigated and that no federal or state court or admini strative agency that has addressed the issue has ever held that the President citizen" is not a "natural born

(Ra7). Citing the United States Supreme Court's decision

July 19, 2012 Page 6 in u.s. v. Wong Kim Ark, 169 U.S. 649, 18 S. Ct. 456, 42 L. Ed. 890 (1898) and a recent decision from an Indiana Appellate Court, the ALJ concluded that since President Obama was born in Hawaii, he is a '"natural born Citizen" regardless of the status of the father." (Ra7). The ALJ thus concluded that "petitioners ...failed to meet their burden to establish that Barack Obama failed in any

obligation to prove to the Secretary of State that he is qualified to hold the Presidency and that he is a 'natural born Citizen' of the United States of America, Constitution." (Ibid). as required by the United States

The matter was argued before the Appellate Division on May 30, 2012, less than one week before the June 5, 2012 primary election. Given the impending election, among other points, the Secretary argued that petitioners had failed to act in timely fashion and the appeal should be dismissed on the ground of laches. At argument before the court, petitioners conceded that it was far too late to disrupt the primary election machinery--then well in place- -by

attempting to remove the President's name from the primary election ballot. Petitioners further claimed, however, that there was

sufficient time to prevent President's Obama name from appearing on the November 2012 general election ballot. Petitioners claims are baseless and without merit. As noted, President Obama prevailed in the June 5, 2012

July 19, 2012 Page 7 Presidential primary election and presumably has agreed to accept the nomination. See N.J.S.A. 19:23-15. N.J.S.A. 19:13-18 provides that " [w]hen a person so declines his nomination or if a petition or certificate of nomination, or if any nomination, be insufficient or inoperative, or if a nominee shall die, or for any reason vacate his nomination, manner the vacancy so occasioned may be filled in the In that regard, petitioners presented no

outlined ..."

evidence before the Secretary that President Obama's nomination was "insufficient or inoperative," that is, he is not a 'natural born Citizen' or otherwise not qualified to hold the Presidency of the United States as required by the United States Constitution. U.S. Const. art. II, §1 cl. 4, Thus, unless President Obama declines

the nomination, which would create a vacancy, the Secretary has no authority to remove the President's name from the ballot for the general election. N.J.S.A. 19:13-18, N.J.S.A. 19:13-20. Petitioners cite no case or authority authorizing the

Secretary to remove the name of a sitting President of the United States from the ballot for the general election whose party has again nominated him as a candidate for that office. Furthermore, should candidate or Obama prevail regarding in the his general election, or any





qualifications for the Office of President of the United States may be properly addressed by the Presidential Electors of the Electoral

July 19, 2012 Page 8 College. See u.s. The Appellate this matter on that Const. art. II, §1 cl. I, cl. 2, cl. 4.

Division and the Secretary correctly decided basis of the did record not below which firmly of was


established establishing





that President Obama' s petition

of nomination

legally deficient under Title 19 and that he was not qualified as a candidate in the June 5, 2012 Presidential N.J.S.A. 43:19-25-3, N.J.S.A. 43:19-25-4. The petition in all respects raises no novel or important Primary Election.

questions of law; hence, there is no sufficient cause for the Court to review this matter. The Secretary's decision below constituted an appropriate exercise of fact-finding and decision making. See Clowes v. Terminex, Metals, 86 N.J. there 109 N.J. 575, 589 (1988); Goodman v. London (1981); see also grounds

19, 28-29 are no

2:11-3(e) (1)(D). the granting of




certification in this case. This matter involves a straightforward application of state election laws to the facts of this particular case. There is no broad question of general public importance which should be settled by the Supreme Court. The petition in all

respects raises no novel or important questions of law; hence, there is no basis for further review by the Court.



July In conclusion certification and for the foregoing be denied. Respectfully submitted, reasons,

19, 2012 Page 9 for

the petition



Lewis A. Scheindlin Assistant Attorney General Of Counsel ACS Enclosure c: Mario Apuzzo, Esq. Angelo Genova, Esq.