On August 14, an unqualified party in New Jersey, the D-R Party, filed a lawsuit in state court in Trenton called D-R Political Organization v Guadagno. The lawsuit argues that the Secretary of State and county election officials are unlawfully ignoring New Jersey election law 19:5-1, which says, “No political party which fails to poll 10% of the votes cast in the State for members of the General Assembly at the next preceding general election, held for the election of all the members of the General Assembly, shall be entitled to have a party column on the official ballot at the general election for which the primary election has been held.”

At the June 2014 primary, the turnout in the Democratic and Republican Parties was so low, neither major party passed the 10% test, unless the law is interpreted to mean that every vote cast for every office should be added up for the calculation. A neutral, reasonable reader would read the law to interpret “votes cast” as the number of voters who participated in the party’s primary, because the context of the law is that a party with very bad primary turnout should be deprived of its own party column on the upcoming general election.

The case was filed with a request for emergency consideration. However, after the judge who received the case had had it a day, she transferred it to a Criminal Court Judge, Mark Fleming. Attorneys for the D-R Party investigated and learned that Judge Fleming had been an attorney on the side of the state government in a similar case filed by the Conservative Party in 1999. The D-R group then asked Judge Fleming to recuse himself, which he did on August 19. By now the case has been delayed five days, and it still doesn’t have a case number, or an assigned judge.