thank you good morning everyone judgment asking can you hear and see us and hear you very well i hope you can see me as well to we can and i guess the most important thing is that you can hear and see the lawyers when they argue as to when mr lewis became a resident in new jersey judge the record is clear that and judgment notes this car was purchased his first house all but primarily live in california that's not that's not in the records or record is that judge judge that carl lewis lived in new jersey since two thousand and thought well let's ok let's put your side for the moment he bought his house thousand and five and the record is clear that mr lewis started moving all this property his cars is belongings to new jersey beginning in two thousand and five this isn't a record this is a fact it's been ignored in overlook raise you raise a very important point because in footnote fourteen of his opinion judge hellmann said that it's it would be improper for him to address again reply brief you know you appear to wish to reargue you those matters and so if you could just spend a moment on that as to whether we whether there was properly these matters were properly before judge hel resident again of new jersey after having lived there for thirty or so years of a huge i think i'm sorry sixteen years of his youth manifest his intent to become a resident of new jersey again in three thousand and five that was in iraq even though scant a pension was paid to now this court remanded this matter back to judge home and for an as applied challenge which is extremely facts sensitive that fact having been in the record since the inception of this matter needs to and should be considered by this court in determining whether or not the constitutional provision of new jersey constitution as applied to carl lewis violates his rights we're not asking the court to assume something we're consider something that was not in the record from the outset it was in the record from the outset and the fact that the as applied challenge requires a fax sensitive analysis in particular of all the actions of carlos particularly those in back to two thousand and five makes it clear makes it clear that carl lewis has lived here has manifested his are we not bound by the determination made by the two that he did not satisfy the four year residency requirement or does not fight as the election date in two thousand and eleven but you don't get around fine considering all the facts it is necessary to consider all the facts as they apply to carlos otherwise and has applied challenge would be needs but doesn't that have the effect of the federal court looking over the shoulder of the state court standard yeah but we do that all the time we we review agency decisions our board of immigration appeals decisions for example that under that tha deferential standards of review but no one no court but this court in the district court below has reviewed the constitutional issue even though that constitutional issue was raised at every step of the proceedings in the state court the state court deferred on the constitutional issue kate the state court defer to this court on a constitutional issue the supreme court of new jersey defer when it is like ping pong i mean i think the district court has said as opposed to the as applied provision it was the for going to the state court and then looks like the state court didn't really deal with it it did not judge so we sent it back in april for the federal court to deal with it pending with the option to allow the state court to do something on it the state court punted so the federal court went back and decided just after a period of couple months the state court  respectfully to the district court of the facts one as applied challenge if we read the district court's opinion and pick it to its logical conclusion there can never be an as applied challenge under these circumstances because there is there is there is no factual analysis one as applied to carlos if we look at what carl lewis one can make a pretty good argument that these two that the district court decision really was a facial analysis throughout agreed your honor and that's what what's so critical here because no one ever been as applied challenge i q conception and what i'm trying to figure out what the district court should have done that it did not do and that's been well respectfully i think that the analysis is lacking where applies the facts the actual facts the carlists number one and number two was there a determination that there is anything more than mere words to support the state's reason for ban car was from the ballot there is no factual or evan actually base in this record that anyone can credi y say that cora lewis is not known to the voters and that the vote i call those does not know the issues facing the district so is that the test in a supply challenge wouldn't that then have the federal courts second guessing the proffers therefore we would expect that there be some patient basis for those articulated reasons it's not going to create the slippery slope and a parade of horribles marbles that the state and the interviewer suggest world series ring he lives in south jersey white heads i grew up in south jersey has two super bowl rings but they couldn't put together they couldn't put together the factual basis the carl lewis puts together puts before the court judge who did note that there's a painstaking analysis and presentation of facts that were presented but he didn't analyze them in the context of the state's articulated reasons back in one nine hundred seventy two justice marshall said in the voting rights act case of the right to vote case in done that it would be hard people would be hard pressed in one nine hundred seventy two to say the voters needed a year or three months to learn about the issues here carl lewis has been in the community since two thousand and five he's had his feet on the ground he's participating in the community and he meets he meets the challenge of the states  good law the difference between sununu and carlos is that sununu was not residing in new hampshire while to the seven years carl lewis was residing in new jersey since two thousand five which is in excess of the four years in this state you're saying that those were official challenges they were facial challenges based on a different from actual predicate additionally judge i am pro in this district were  procedures in new jersey that i could find and maybe you could let me know if there are that says that district courts judges try to follow what other just record judges do a lesser is a good reason not to do it right thing like that and that was you got callaway and you got robertson going one way robertson is pretty close to your set of facts in the decision by judge have a voice is there any type of anything akin to internal operating procedures for the district in new the problem lies here or is it enough simply to have it's in the state or you need to have domas i judge that the constitution says resident and citizen of the state of jersey and how the state interpreted interprets that is that why are you domicile clearly carl lewis established residency in two thousand but ordered to vote in california don't you have to be dumb osama california that's what the law says in california that's correct or jam so i mean that it i mean that's the biggest issue he has it seems like the example if congress didn't vote in california we wouldn't be because you can be as you can be a citizen of the state without voting correct and you can be a citizen i'm one once they tell you that that's true but we also have to look at king vs i know you can be a citizen more than one country can you be a citizen of more than one state i believe that you can you can certainly be a resident of more than one state i'm not some certain you couldn't be a citizen of more than one state because that seems to be what king versus low pass us in that case misled has actually paid taxes in florida voted in florida  but the fact of the matter is is that we're fifty six days out from the election we're pressed up against the deadlines the boaters of the eighth district know carl lewis called lewis knows the voters  this point in time we're at the end of the the end of the race so to speak and we need to make sure to be consistent with new jersey democrat committee versus sampson to be consistent in jamey to be consistent with the court's this court's decision and well for that the voters the voters of the eighth district have a meaningful choice if paul lewis is not on the ballot now given the fact that there is no more no evidence of any war attained the age of thirty years have been a citizen or resident of state for four years and of the district for which he shall be elected one year no person shall be a member of the senate when you become a member of the senate if you're elected on november  we're looking at november sixteenth when you buy a house zero seven is there been a finding of fact that as of january tenth two thousand and eight our lewis was not resident of new jersey or was a resident now that that the critical time is as of the time of the election is how we interpret the provision but i have the time of the election how can that happen before you either let me if you're textualist because if for example enforced and if he's not been a citizen and resident of the state assuming for the moment he has not been for four years prior to whatever the magic date is state and do the people who are the citizens of the state do they know about the particular candidate it's pretty hard to say in this case they don't know about the candidate and the question becomes does this particular could you possibly do that when the court said in the spring of this year that it's a strict scrutiny test when this court in wellford as said it's a strict scrutiny test i mean just off the bat that's wrong well you it's a different case there's there's no doubt about it but then what it requires is that the state show compelling interest as to why this particular individual doesn't should not have applied to him determination residence equals domicile aisle and mr lewis did not meet that or your requirement that that is really the bottom line here and we need we as a state how the it should have the priest bottles case in that case ten years ago you say that this was a quote from a judge double as the state argues that in jersey that plentiful sort that only the right to interstate not interstate travel has been burden distinction is an important one because restriction which of course is upon one's right to travel between the states is analyzed under a stricter compelling interest nationally that is a test today or a compelling interest despite what you say about rational basis i think if you would do  appreciate where the court did not have the benefit of sitting back and doing a war allow for you as he now has had the opportunity to do and again there's no fundamental right to candidacy you really can't legitimately argue that the right district there's a particular person that they can not vote for if you rule against the person yes your honor because he's not qualified under our state law he doesn't meet the four year requirement and what's interesting is that if you look at the walker case and the walker case you had someone who had won the primary and was look just if the issue is he's a member this is the eighth legislative district correct yes you are and it is the eighth legislative district that would be this persons who can vote in the eighth legislative district yes and your constitution from the stuart supreme court and sununu and he does not meet our residency requirement and he can run in two thousand and thirteen and that's a critical point to this is not like perhaps a bullock situation where someone would be criminally barred from  there's a constitutional issue that's been raised by this so that's where the point that we know that we need to make here as well is that it's a four year residency requirement is constitutional our state courts have ruled that he needs to be as applied challenge i think at the callaway case for instruction on the as applied challenge where the facts there were so different than here and i will tell you that just did look at it individual situation he did look at that it's clear from his opinion when he was ruling both upon the motion plus motions for summary judgment he did accept you know all the statements that were put forth by mr lewis but he couldn't find and i don't think any could probably find that there's an equal protection violation that no constitutional rights have been impaired for either mr lewis or the voters of the district and in terms of the buddhas the district for the november election they will have could marshal enough resources to win but if you are state when frank lautenberg replaced mr torricelli senate he won in that less than thirty days before the election so i don't think that  come together meet and provide a name to the secretary of state by september fifteenth which is this thursday and if they go you know that's what happened in the d n c versus simpson case they would pass that fifty one day deadline and that's why we ha what was filed yesterday seem to say that the fifty fourth you have to declare a vacancy that would be spare were fifteen so if you have to have a new candidate by the fiftieth day which would be the night then you have to do something by the forty fifth day which is the twenty market with with a legislative district line and then in callaway you had somebody been living off the city for for twenty years he moved thirteen blocks into the new ward you know you're not dealing with a constitution we're vision you're dealing with a local a local provision under you know under respect to the standard of review what is it that distinguishes this case from well for where we said it ought to be strict scrutiny and we think that the fact that we're dealing with the state constitution provision we're dealing with state office makes it distinguishable and i think that if you look again judge hilma did recognize that if a heightened standard is required that he still does not need that hurdle thank you your honesty your time and the other questions  three year residency requirement for the state legislature which case walker versus you know it just got you ok when you and i joe i would i would submit that in the context of this case were dealing with is the constitutional provision in and that they specifically say it would be rational basis they did your honor and in fact the third circuit on mulford purposely a footnote i believe true ok when the when was when it was the walker versus decided seventy two seventy two and welford versus tag he was seventy three seventy three our yes with a note of distinguishing walker in welford indicating that it was a different case and that it was through and there's an argument that no matter what it is you make you may still prevail because it was we said that strict scrutiny here doesn't mean strict scrutiny as we normally understand in a constitutional sense you then the question then becomes you have a compelling state interest and you know if you are you still would prevail you been under strict scrutiny i believe we would still prevail in district attorney but i would tell you the same thing i told you when i was here last time which is whatever the standard is label i let me ask you back to the question that i asked the skelly if at the outset will you look at this particular statute or a constitutional provision why don't you look at state noted on page twelve our opinion but working can you be a citizen a resident of more than one state you cannot you can have one but one doma style in that file as evinced by his voting in california was in california in november of two thousand and nine as a result he cannot meet the for your residency requirement is there ok which which brings us back to if i could the standard of review we talk about strict scrutiny and whether it applies i would submit that there is no fundamental right infringed here you are talked about the right the compelling interest that the state used to give and one of the carpetbagger was take that out and that doesn't work here does the candidate know the local issues and do the voters know the candidate those are the compelling interests here and when you have an as applied challenge you're looking to the individual rather than just to across the board in a facial challenge which is what we dealt with in the spring it's hard to say that this candidate doesn't know the local issues affecting the eighth legislative district and it's hard it's kind of hard to say that the voters don't know who he is because of the fact that he's got a lot of publicity over the years you're i would submit that under it as applied challenge the question is not whether there are sufficient facts regarding mr lewis that he is somewhat unique it's whether those facts result in him being treated differently than someone similarly situated in this case he's not being treated differently than anyone who is similarly feasibility or on the conclusion was that fifty one days didn't mean fifty one days it meant when it was in ministry we feasible and in that context it was twenty nine days in callaway there was an interesting point made by then judge moore last year which is that the durational residency requirement seems to prove too much by precluding otherwise qualified well precluding well qualified candidates from running into little by allowing those who merely have resided in the state for four years but been a vegetable to nonetheless be qualified isn't that the case here to your honor that judgment is left to the voters of the state of new jersey and for one hundred sixty seven years they are required that candidates for the state senate live in the state for four years calloway roberts in this case are also distinguishable on the grounds that when we're talking about local lines local lines move words or redrawn legislative districts or redrawn state lines don't change very often the only time  can recall the new jersey borders have changed i believe was a negotiated settlement with the state of new york over who on the statue of liberty but other than that state lines do not move but what about what about judge point that you proved too much and too little is what it was that you could have somebody who is practically comatose who qualifies and yet have the most invigorated active knowledgeable person not qualified your honor again that is best left to the citizens of the state in new jersey they have exercised their right they've stated their principles there's repeatedly stated their commitment to those principles it is not for the judicia opinion put a stamp on it they did they did your honor which is usually a good thing to do on this one anyway i would agree on if you know nothing further than anything else that could thank you very your thank you i'll be very brief mr shorten said a couple times that it's a judgment left to the voters in response to the jurors questions regard to the judge or laski comments of callaway that's precisely what we were talking about and when we talked about lautenberg and how he got on the on the ballot the supreme court there said that the laws that regarding our elections should be interpreted through allow the greatest scope for public participation in the electoral process to allow candidates to get on the ballot to allow parties to put their candidates on the ballot and most importantly to allow the voters a choice on election day that's what we're  of here is whether carlos knows the voters of the eighth district whether the eighth district voters know carlos he does that has been satisfied there's no evidence the contrary fact we need to keep looking back huge democratic committee party versus sampson and look at that language that allows the candidates to be on about two allows the voters to have the make me choice to allow the parties parties to put the while challenged carl lewis's candidates people from the opposite party that's contrary to what is said by our supreme court new jersey democrat committee versus sampson you don't want to treat carlos any differently than any other person that live in the state carl lewis is live in the state since two thousand and five clearly since two thousand and seven he would be treated differently from people who have lived in new jersey from that part based on what would be a technicality that's what is sought to be done here in order to justify a justified removing someone who knows th those issues in the history the voters know and for whom two thousand four hundred eighteen people cast a ballot in an uncontested primary election more votes than even the running mates that he ran with replaced at this late date fifty six days before the election if there's a very the office is vacated today or give vacant today the successor has to be committee chairman of the counties that two or three counties here have to convene a meeting within seven days on not less than twenty four hours notice simply by complying with the twenty four  not less than twenty four hours notice provision of the statute would be on the september fifteenth deadline is there a provision do i remember from our argument last spring that there's a provision to go into court in the state court even after the the deadline for getting on our am i incorrect on that circuit there's no provision that's the only option in order to get this vacancy feel should a vacancy be declared after september fifteenth after or fifteen you would have to go into court and seek the opportunity to replace to fill the vacancy something that would be left to the discretion of the court and frankly that there at that point in time we're running into fifty some days before the election by the time there's a decision you're taking someone who has campaigned throughout the season someone who has garnered twenty four hundred eighteen votes someone who has you know in an election in the legislative district how many votes normally are there cast you know full well we know we don't we don't know yet what was the last election this is a redistricted yea but when we look at it on contested election in an awful lection you're not presidential you have far fewer the votes are significant that mr lewis scored this is with mr lewis running in a primary with the class out over his head put there by the challenge he still had people come out and exercise your franchise and cast a vote did you ever make the argument that the time that you should look to is january as opposed to no opportunity to argue beyond and we appear before an administrative law judge and two days notice to present this matter so frankly that there was no meaningful opportunity to complete the record until we got to the district court and then when we put the district court record together it was noted by the district court the amount of detail of facts that were there we raised all the issues before the  in the context of the hearings but we never had the opportunity to put that before the ministry launches because we didn't feel that we needed to because we had a closing on a condo in medford in two thousand five and we also had a closing of another condo in two thousand and seven year but if the date was january in the closing of two thousand and seven you have a lay down hand if it's november sixteenth two thousand and seven  but in reality buying a house and then living in the house and we're not quite sure when he lived in them all we have is a gas build from figure that shows that clearly he had four usage from january two thousand and two and a significant amount of usage before that time but conceivably he may have been living there were conceivably he might have been using the gas just to make sure that the pipes didn't freeze testimony before the mystery of what judge was that he was living in january yes early january from the time he purchased into judge judge again we're at the the finish line here we can close to the finish line we have a right for the voters in the eighth district to exercise their vote and have a meaningful choice that's what this is about meaningful choice and for those reasons we believe believe that the district court ruling should be overturned and this court should enter in seven i think what he said was he was in the process of moving furniture and stuff from california and that arrived in january that's what caught my believe the testimony for mr la judge was that he began living in the house during that period of time before the l j word is in the record i would like you good thank you very much case was very well argued by all counsel and that we understand that it's a significant matter certainly to mr lewis and also to the state of new jersey court well move with dispatch on this and take the matter under advisement thank you very much