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Party for President of the United States, and Plaintiff Gray received the nomination of
the Libertarian Party for Vice President of the United States. (Declaration of Gray at {
5.) The Libertarian Party, which was founded in 1971, is the third-largest political
party in the United States. (Declaration of Gray at § 5.) In the 30 states of the union
where voters are allowed to register by party, over 282,000 are currently registered
Libertarians. (Declaration of Gray at § 5.) Hundreds of Libertarians have won election
throughout the country at the state and local levels, and thousands of candidates have
appeared on ballots seeking election. (Declaration of Gray at § 5.) Its nominees for
President and Vice President have appeared on ballots in every presidential election
from 1972 onwards. (Declaration of Gray at § 5.) Millions of votes have been cast for
these candidates. (Declaration of Gray at § 5.)

The scheme for pre-general election funding for third party candidates is set
forth in 26 U.S.C.§9004 (a)(2)(A)! which provides, in its entirety, that, “[t]he eligible
candidates of a minor party in a presidential election shall be entitled to payments
under section 9006 equal in the aggregate to an amount which bears the same ratio to
the amount allowed under paragraph (1) for a major party as the number of popular
votes received by the candidate for President of the minor party, as such candidate, in
the preceding presidential election bears to the average number of popular votes
received by the candidates for President of the major parties in the preceding
presidential election.” (Declaration of Gray at § 6.) Plaintiff Johnson is an “eligible
candidate” within the ambit of this section, as that term is defined in §9002(4) and
§9003(a) and (c). (Declaration of Gray at § 6.) For the same reason, we aver that the
definition of §9002(7) of “minor party” is only relevant to §9004(a)(2)(B) and not
relevant to (a)(2)(A). (Declaration of Gray at § 6.)

On May 8, 2012, through counsel, Plaintiffs applied by letter to Defendant for

‘All further statutory references are to 26 U.S.C., unless otherwise noted.

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and no amount of money could adequately compensate them. Accordingly, Plaintiffs
are entitled to a mandatory injunction directing the immediate payment of the pre-
election funds for which they have applied, such that payment be received in advance

of the general election this November.

IV.

CONCLUSION

As enumerated above, Defendant wrongfully determined that Plaintiffs are

ineligible for statutorily proscribed pre-general election campaign funding. As such,

Plaintiffs respectfully request a judicial declaration that they are entitled to pre-

general election campaign funding, and for a mandatory injunction, or in the

alternative a writ of mandate, or other appropriate relief directing the FEC to

immediately disburse to Plaintiffs the sum of $747,115.34.

Dated: September 26, 2012

Respectfully submitted,

JENSEN & ASSOCIATES, APC
Trial Lawyers

Bot (ley ue

By: H

Attorneys for Plainti

PAUL ROLF JEN mi

o

EX PARTE APPLICATION - PAGE 8



than two months before the general election, Defendant released its Final
Determination on Eligibility and Entitlement, which echoed its earlier conclusion that
Plaintiffs do not meet the eligibility requirements to qualify for the requested funding.
(Declaration of Gray at J 12, Exhibit 5.)

Officially determined by Defendant on September 18, 2012, to be ineligible for
pre-general election campaign funding just weeks before the general election,
Plaintiffs filed suit in this court to obtain a judicial determination of the dispute
between the parties, and to direct Defendant to disburse the requested funds.
(Declaration of Gray at § 13.) Due to the exigency of Plaintiffs’ situation, this ex

parte application is brought.

UL
COMPELLING REASONS JUSTIFY PLAINTIFFS’ REQUEST FOR THE
INSTANT RELIEF AS DEFENDANT HAS WRONGFULLY DENIED
PLAINTIFFS PRE ELECTION FUNDING TO WHICH THEY ARE
STATUTORILY ENTITLED.
The Presidential Election Fund Act (“the Act”) was enacted in the late-1960's

to provide for federal funding of presidential general election campaigns.
(Declaration of Gray at § 4.) The Act provides for funding for not only the two
major-party candidates, but for third party candidates as well. (Declaration of Gray at
4.) Funding is available, under specified circumstances, both prior to the general
election and, separately, after the general election. (Declaration of Gray at { 4.) In the
instant case, Plaintiffs have applied to receive the former, which is referred to herein
as “pre-general election funding,” (or simply “pre-election funding.”) (Declaration of
Gray at {| 4.)

On May 5, 2012, Plaintiff Johnson received the nomination of the Libertarian

EX PARTE APPLICATION - PAGE 4



public funds for the general election, asserting their entitlement to such funding under
§9004(a)(2)(A). (Declaration of Gray at § 10.) It should be noted that this provision

imposes no additional requirement relating to the same presidential candidate having

run in the presidential election four years earlier. It should also be noted that the
following section, §9004 (a)(2)(B), as distinct from subsection (A), provides funding
to candidates who do meet such an additional criteria. The funding provided in
subsection (B) is derived from an entirely different mathematical calculation than the
funding authorized by subsection (A), and would necessarily result in much greater
funding~a much larger amount — than under subsection (A).

On June 11, 2012, at Defendant’s request, Plaintiffs sent a separate letter, again
requesting pre-general election campaign funding. (Declaration of Gray at § 11,
Exhibit 2.) Subsequently, on June 27, 2012, also at the FEC’s request, Plaintiffs sent
Defendant a Letter Agreement in connection with their application. (Declaration of
Gray at § 11, Exhibit 3.) The request made by Plaintiffs included a request for an
extension of time, and subsequently Defendant granted this time extension.
(Declaration of Gray at § 11.) On August 6, 2012, Defendant notified Plaintiff of its
Initial Determination on Eligibility and Entitlement, which concluded that Plaintiffs
were not entitled to pre-election public funds. (Declaration of Gray at §] 12, Exhibit
4.) Not until September 18, 2012, less than two months before the general election,
did Defendant release its Final Determination on Eligibility and Entitlement, which
echoed its earlier conclusion that Plaintiffs do not meet the eligibility requirements to
qualify for the requested funding. (Declaration of Gray at § 12, Exhibit 5.)

In 2008, the Democrat nominee for president received 69,498,215 votes; the
Republican nominee for president received 59,498,240; the Libertarian nominee for
president received 523,713 votes. (Declaration of Gray at 7.) The average of the
two major party votes is 64,498,228. (Declaration of Gray at § 7.) The Libertarian

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Paul Rolf Jensen, CSB #154013

Erin Boeck, CSB #273463

JENSEN & ASSOCIATES, APC
Trial Lawyers .

650 Town Center Drive, Twelfth Floor
Costa Mesa, California 92626

(714) 662-5528

Attorneys for Plaintiffs

United States District Court
Central District of California
GARY E. JOHNSON; JAMES P, GRAY ) Civil Action #
and GARY JOHNSON 2012, INC.,
ORAL ARGUMENT REQUESTED
Plaintiff
EX PARTE APPLICATION FOR
vs. MANDATORY INJUNCTION, OR IN
THE ALTERNATIVE WRIT OF

FEDERAL ELECTION COMMISSION, ) MANDATE, OR OTHER
APPROPRIATE RELIEF; POINTS AND
Defendant. AUTHORITIES IN SUPPORT
THEREOF

THREE-JUDGE COURT

Date:

Time:

Department:

Pursuant to 26 U.S.C. §9001, et seg. and 28 U.S.C. §1651, Plaintiffs Gary E.

Johnson, James P. Gray and Gary Johnson 2012, Inc. respectfully file the following

application for a mandatory injunction, writ of mandate, or other appropriate relief
directing Defendant to immediately disburse to Plaintiffs $747,115.34 in pre-general
election campaign funding to which Plaintiffs are statutorily entitled.

Plaintiffs file the present application on an ex parte basis on the grounds that
the funding to which Plaintiffs are entitled is only available prior to the general
election, which is scheduled to take place in mere weeks’ time, on November 6, 2012.

Defendant disputes Plaintiffs’ eligibility to receive said funds, rendering the necessity



nominee thus received 523,713/64,498,228, or .81% of the average vote of the major
party candidates. (Declaration of Gray at § 7.) This election cycle, the major party
candidates will each receive $92,241,400.00. (Declaration of Gray at § 8.) Based on
these figures, Plaintiffs are entitled to receive .81% of that number, which is
$747,115.34. (Declaration of Gray at J 8.) Defendant has failed to distribute any
funds to Plaintiffs, and has taken the position that Plaintiffs are ineligible for funding,
notwithstanding the plain language of §9004(a)(2)(A). (Declaration of Gray at § 8.)

Pre-election funding and post-election funding serve entirely different
purposes, and unless Plaintiffs receive their pre-election entitlement before the
general election, it is of little use, as the election will have already taken place.
(Declaration of Gray at { 9.) The amount of the funding to which Plaintiffs are
presently entitled is so significant that it could make the difference between winning
and losing. (Declaration of Gray at § 9.) Even more likely is the impact the receipt by
Plaintiffs before the general election of pre-election funding would have on Plaintiffs’
subsequent entitlement to post-general election funding. (Declaration of Gray at § 9.)
Post general-election funding requires that the Johnson/Gray ticket receive a certain
threshold percentage of votes in the general election, and the likelihood of Plaintiffs
meeting this threshold is dramatically greater if they receive the pre-election funding,
to which they are entitled, in time to spend it to support their candidacy. (Declaration
of Gray at ¥ 9.)

Thus, an actual dispute exists between Plaintiffs and Defendant, in that
Plaintiffs claim they are entitled to pre-general election funding as set forth above,
while Defendant claims that Plaintiffs are ineligible for such funding, and a judicial
determination on this issue is necessary. (Declaration of Gray at § 9.) Unless an
injunction issues mandating that Defendant disburse the pre-general election funding

to which Plaintiffs are statutorily entitled, they will be gravely and irreparably harmed

EX PARTE APPLICATION - PAGE 7



ie)

Row

oem NO

of judicial determination on the issue, and thus the relief that Plaintiffs seek requires

immediate review. An accompanying hearing is also requested.

MEMORANDUM OF POINTS AND AUTHORITIES
L
INTRODUCTION

Plaintiffs seek the appropriate relief that would direct Defendant to
immediately disburse to Plaintiffs pre-general election campaign funding in the
amount of $747,115.34, to which Plaintiffs are statutorily entitled. Specifically,
Plaintiffs Johnson and Gray, as the respective Presidential and Vice-Presidential
nominees of the Libertarian party, qualify as third party candidates to receive a
certain amount of pre-general election funding under 26 U.S.C. §9004(a)(2)(A).
Without regard to the plain language of this statute, Defendant has refused to provide
said funding to Plaintiffs. An immediate judicial determination of this dispute is thus
necessary, as the funds to which Plaintiffs are entitled apply only to pre-election
activity, and the general election is scheduled for November 6, 2012.

For these and other reasons set forth more fully below, Plaintiffs request the
issuance of a mandatory injunction or in the alternative, a writ of mandate, or other
appropriate relief directing Defendant to immediately disburse to Plaintiffs the
statutorily proscribed amount of pre-general election funding to which Plaintiffs are

entitled.

IL.
STATEMENT OF FACTS
Plaintiff Gary E. Johnson is the former Governor of the State of New Mexico, a

resident of that state, and the nominee of the Libertarian Party for the office of

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President of the United States. (Declaration of Gray at 3.) Plaintiff James P. Gray
is a retired judge of the Superior Court of the State of California for the County of
Orange, and is the nominee of the Libertarian Party for Vice President of the United
States. (Declaration of Gray at J 3.) Their campaign committee is Plaintiff Gary
Johnson 2012, Inc., and it is based in Salt Lake City, Utah. (Declaration of Gray at
3.) The names of Johnson and Gray will appear this November as candidates for
President and Vice President on the ballots of not less than 47 states, and
confirmation of the same has been received from those states, and from the District of
Columbia. (Declaration of Gray at § 3.) These jurisdictions have 495 combined votes
in the electoral college. (Declaration of Gray at 3.)

Defendant Federal Election Committee is the government agency with the
obligation under the Presidential Election Campaign Fund Act, 26. U.S.C. §9001, et
seq. to disburse pre-general election federal funds to candidates. (Declaration of Gray
at § 2.)

The general election for the offices of President and Vice President of the
United States is scheduled to take place on November 6, 2012. (Declaration of Gray
at § 10.) On May 8, 2012, in order to further their campaign efforts, Plaintiffs applied
via letter to Defendant for public pre-general election funding, as eligible third party
candidates under 26 U.S.C. §9004(a)(2)(A). (Declaration of Gray at §j 10, Exhibit 1.)
At Defendant’s request, Plaintiffs applied for the same funding under cover of a
separate letter on June 11, 2012. (Declaration of Gray at § 11, Exhibit 2.) Also at
Defendant’s request, Plaintiffs subsequently sent Defendant a Letter Agreement in
connection with their funding applications. (Declaration of Gray at {| 11, Exhibit 3.)

On August 6, 2012, Defendant notified Plaintiff of its Initial Determination on
Eligibility and Entitlement, concluding that Plaintiffs were not entitled to pre-election
public funds. (Declaration of Gray at 12, Exhibit 4.) On September 18, 2012, less

EX PARTE APPLICATION - PAGE 3