Judgment Affirmed October 12, 1970. See 91 S.Ct. 65.
TENNEY, District Judge.
The above two captioned suits, consolidated without opposition by order of the district court dated May 11, 1970, and submitted to a statutory three-judge court by orders of Chief Judge J. Edward Lumbard of the Court of Appeals dated May 4, and 14, 1970, place in issue the constitutionality of various sections of the New York State Election Law (McKinney's 1964) (hereinafter referred to as the "Election Law") which govern and affect the process to be followed by independent political parties in nominating candidates for election to state-wide and local public offices in the next-scheduled general election to be held in November 1970.
Basing jurisdiction of the court upon 28 U.S.C. §§ 1331, 1343(3) and 42 U.S.C. § 1983, plaintiffs seek to redress the alleged deprivation, under color of State law or statute, of rights, privileges and immunities secured to them by Article IV, Section 2 of the Constitution of the United States and by the First, Ninth, Fourteenth and Fifteenth Amendments thereto. A declaratory judgment pursuant to 28 U.S.C. §§ 2201, 2202 and permanent injunctive relief are sought to invalidate and restrain defendants from enforcing and implementing the following sections of the Election Law.
(a) Section 138(5) (a) of the Election Law, McKinney's Consol.Laws, c. 17, which provides:
(c) Section 138(3) of the Election Law, which provides that petitions for independent nominations for public office be "authenticated by witnesses" who must aver on a separate form that the witness "know each of the voters whose names are subscribed to this petition";
(d) Section 168 of the Election Law, which provides that "The board of regents of the state of New York shall make provisions for the giving of literacy tests" which shall ascertain whether the voter "is able to read and write English, or is able to read and write English save for physical disability only." A new voter may be registered without having taken such literacy test by presenting evidence of the fact or completing an affidavit to the effect that the voter has completed the work up to and including the sixth grade of an approved elementary school in which English is the language of instruction or of a public or private school accredited by the Commonwealth of Puerto Rico in which school instruction is carried on predominantly in the English language;
(e) Section 376 of the Election Law, which provides that the compilation of current names, residence addresses and registration serial numbers of the registered voters in each election district be sent free of charge to those parties which polled more than 50,000 votes in the last gubernatorial election, that at least twelve copies be kept for public inspection at each main office of the board of elections and that surplus copies at not exceeding the cost of reproduction be sold to anyone who may apply therefor; and
(f) Section 31 of the Election Law, which provides that the respective chairmen of the New York and Kings County Republican and Democratic Parties shall recommend or nominate qualified persons for appointment as commissioners of elections.
In the first of the above two captioned suits, plaintiff Socialist Workers Party of New York (hereinafter referred to as the "S.W.P."), an independent political party as defined by Section 2 of the Election Law (having polled less than 50,000 votes for governor at the last preceding election), has selected a slate of candidates for election to state-wide and local public offices and seeks to obtain the required number of signatures on nominating petitions to qualify these candidates for a position on the ballot in the November 1970 general election. Charging that the established political parties in New York support a capitalist system in which all real power is invested in a tiny minority, the very rich, the S.W.P. seeks to present an alternate program to the electorate of "working people, Afro-Americans, Puerto Ricans, women, and students winning control over their own lives."
Plaintiff Socialist Labor Party of America (hereinafter referred to as the "S.L.P."), named in the second of the above two captioned suits, seeks to achieve a "classless society based upon collective ownership of all industry, to be administered by a government composed of democratically elected representatives of each industry."
Plaintiff Freedom and Peace Party of New York (hereinafter referred to as the "F.P.P."), joined with S.L.P. in the second of the above two captioned suits, describes itself as an affiliate of a national organization "dedicated to the elimination of racism and militarism from American life."
In substance, plaintiffs charge that the threatened enforcement of the provisions of the Election Law set forth above discriminates against and imposes unreasonably burdensome procedures upon independent or minority parties which impede their full and equal participation in the electoral process. They argue that
The right of individuals to organize and associate for the advancement of their political beliefs and the right of all qualified voters, regardless of political persuasion, to cast their votes effectively for candidates of their choice have been firmly established among our precious freedoms. Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). So long as these rights are held inviolate, minority and dissident political views can be aired in the public forum to serve as alternate solutions to contemporary problems and checks on the representation provided by the established or traditional political parties. It is this competition in ideas, approaches and governmental policies which is at the core of our electoral process, representative democracy and First Amendment freedoms. Sweezy v. New Hampshire, 354 U.S. 234, 250-251, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957).
Of course, the State is not powerless to fix reasonable standards or requirements for a position on the ballot so that multifarious political associations with little or no popular support do not bemuse the electoral process. The use of nominating petitions by independent political parties to obtain a place on the ballot has long been recognized as an example of such a reasonable requirement for obtaining a ballot position and as an integral part of the elective process. But, as such, when charges are made of discrimination or of abridgement of the right to vote or associate, these procedures must be carefully scrutinized by the courts. Smith v. Allwright, 321 U.S. 649, 664, 64 S.Ct. 757, 88 L.Ed. 987 (1944); United States v. Classic, 313 U.S. 299, 314-318, 61 S.Ct. 1031, 85 L. Ed. 1368 (1941).
The power of the State to, in effect, limit the number of candidates placed on the ballot may not be exercised in a way that violates specific provisions of the Constitution. The right to vote freely for the candidate of one's choice, which manifestly encompasses the right of the candidate to a position on the ballot, lies at the essence of democratic society and "any restrictions on that right strike at the heart of representative government." Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964).
If when the Election Laws are viewed in their totality it be found that independent parties have been denied an equal opportunity to win the vote of the electorate or that the right to vote has been diluted or debased, then only a showing of a compelling state interest therefor can justify such restraints on First Amendment freedoms. Kramer v. Union Free School District, 395 U.S. 621, 626-627, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 704, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); William v. Rhodes, supra, 393 U.S. at 31, 89 S.Ct. 5; NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).
Now, turning to the challenge raised in both suits with respect to Section 138(5) (a), it should first be noted that the requirement that an independent nominating petition be signed by at least twelve thousand voters is not contested; in issue is only the distributive requirement that at least 50 of these 12,000 voters reside in each county of the State, the counties of Fulton and Hamilton to be considered as one.
In opposition to this challenge, the State argues, inter alia, that "it is reasonable
Without passing upon the question of whether it is constitutionally permissible for the State to require an absolute showing of "statewide" support as opposed or in addition to a showing of "numerical" support, the Court's holding in Moore, supra at 818-819, 89 S.Ct. at 1496 is particularly applicable here:
The rigid distribution formula established by Section 138(5) (a) of the Election Law invests voters in each rural, less-populous county with an absolute equal veto power over the nomination of any candidate regardless of that candidate's possible overwhelming popularity with a majority of the voters of the State. While such unqualified power is undoubtedly particularly perilous to plaintiffs independent parties which are principally oriented to the myriad problems faced by the urban population of the State,
Further, such a distributive requirement cannot be justified by arguing that the S.W.P. has attained a place on the general election ballot in the past. For as the Court noted in Gray v. Sanders, 372 U.S. 368, 379, 83 S.Ct. 801, 808, 9 L.Ed.2d 821 (1963):
The fact that this unconstitutional burden has been hurdled before, and not, it should be noted, without considerable drain on the limited resources available to new parties,
The Illinois statute in Moore required that the necessary 25,000 signatures include at least 200 from each of 50 of that State's 102 counties, while Section 158 of the Election Law requires 12,000 voters of whom 50 shall reside in each county of the State. Whatever differences may be discerned, the New York statute is as constitutionally indistinguishable from the Illinois statute as a Michigan statute was recently held to be in Socialist Workers Party v. Hare, 304 F.Supp. 534 (E.D.Mich.1969). Indeed, a comparison of the distributive requirements in the New York and Illinois statutes may well reveal the former to be even more objectionable.
New York has given the 7,161 registered voters in Schuyler County, who comprise approximately .09 of one per cent of the total State enrollment of 7,438,008 voters, the same absolute veto power as the 920,024 registered voters in Kings County, who comprise approximately 12.4 per cent of the total State electorate.
We next turn to a discussion of the challenge levelled against Section 138(1) and (6) of the Election Law.
The effect of these provisions on independent parties which seek a place on the ballot is threefold. Firstly, they are denied the support of an otherwise qualified voter if that voter was not registered at the time of the last preceding general election due either to his inaction or his ineligibility to qualify to register at that time.
Of course, what must be considered in addition to any possible abridgement of associational freedoms protected by the First Amendment is the effect these regulations have on the right of otherwise qualified voters to effectively cast their votes for candidates of their choice.
The present procedure in New York, in a year in which there is a spring
From this, it can be seen that the State has established procedures whereby persons who become eligible or register to vote after the preceding general election may support candidates of their choice in major party primaries and sign designating petitions for primary election candidates, but may not sign independent nominating petitions. In justification for this apparent invidious discrimination or classification, the State argues that the two situations are not at all analogous since new voters are permitted to support major party candidates only if they first make an ideological declaration of support for such party whereas no such declaration is required of those voters who, in effect, may constitute the constituency of independent political parties. In the Court's opinion, it is frivolous to attempt to justify the disenfranchisement of a substantial number of voters and the denial of associational rights upon this basis.
Further, the State attempts to justify the denial of support for independent parties by those qualified voters who were not registered at the time of the last general election on the grounds of clerical necessity.
This year's voter registration will not be completed until October 10, 1970. Independent nominating petitions must be filed by August 21, 1970, and any objections thereto must be lodged with the Board of Elections within three days thereafter.
In view of the fact that the system of permanent personal registration, now in effect throughout the State of New York pursuant to Section 350 et seq. of the Election Law, could be supplemented by, for example, the circulation of mimeographed lists of newly registered voters which would allow independent nominating petitions to be checked against both these permanent files and the supplements thereto, the Court can find no compelling State interest or a likelihood of "clerical chaos" to justify this grave infringement of First Amendment rights. Procedures whereby qualified voters would be brought into the electoral process at a time subsequent to the last election but prior to the final date for filing independent nominating petitions, which would permit ample time for the verification of such petitions, can easily be envisioned.
Under these circumstances, the provisions of Section 138, which limit signatories of independent nominating petitions to persons who had been registered to vote in the last general election, create arbitrary classifications with respect to new voters who may sign major party primary designating petitions, deny otherwise qualified voters the opportunity to support candidates of their choice and bar minority parties from seeking the support of these new
The Court is not unmindful of the decisions in Socialist Labor Party v. Board of Elections, 69 Civ. 1269 (E.D. N.Y., filed Oct. 16, 1969), Emanuel v. Power, 25 N.Y.2d 962, 305 N.Y.S.2d 356 (1969) and Davis v. Board of Elections, 5 N.Y.2d 66, 179 N.Y.S.2d 513, 153 N.E.2d 879 (1958), but where these cases are indistinguishable from the instant suit we respectfully disagree.
On the other hand, that portion of Section 138 which discounts the signature of a voter who has voted at a primary election where a candidate was nominated for an office for which the nominating petition purports to nominate another candidate, can be justified by the compelling State interest to preserve inviolate the sanctity and secrecy of the ballot. Since the State cannot determine which candidate a particular voter selects in the primary or whether he has in fact selected only some of the proffered candidates, this provision can be justified under the present teachings of the Supreme Court.
Additionally, it should be noted that any attack on this provision as being defectively overbroad is without merit since voting in a primary election which involves no contest for and provides no means whereby a preference can be indicated for a candidate for a particular office would not bar that voter from signing an independent party nominating petition on behalf of a candidate for that office. Hooper v. Power, 17 A.D.2d 816, 233 N.Y.S.2d 392, aff'd, 12 N.Y.2d 764, 234 N.Y.S.2d 716, 186 N.E.2d 565 (1962).
In turn, plaintiffs attack as defectively overbroad that provision of Section 138(6) which discounts the signature of a voter on a nominating petition if that voter's name appears upon another petition designating or nominating the same or different person for the same office. While plaintiffs' claims may at first blush appear well taken, they find little support when viewed in light of the interpretation placed by the courts of New York State on this provision.
The purpose of Section 138(6) is to limit each voter to but a single choice for office, Hooper v. Power, supra—a permissible State interest in assuring that each independent party is supported by 12,000 different qualified voters. The long standing policy of the State has been to liberally construe those provisions of the Election Law which affect nominating petitions for independent parties so as to promote and not hinder voter independence at public elections. In re Independence League, 51 Misc. 486, 100 N.Y.S. 760 (Sup.Ct.1906); see McDonnell v. Cohen, 58 N.Y.S.2d 605, 607 (Sup.Ct.1937); In re McCloskey, 21 Misc. 365, 47 N.Y.S. 294 (Sup.Ct.1897). In this regard, where the same name and address has appeared upon two petitions nominating different candidates for the same office, only one of these signatures was discounted. Application of Tani, 32 Misc.2d 53, 221 N.Y.S.2d 314 (Sup.Ct.1961); In re Commissioner of Elections, 64 Misc. 620, 120 N.Y.S. 580 (Sup.Ct.1909); In re Smith, 41 Misc. 501, 85 N.Y.S. 14 (Sup.Ct.1903); In re Bialis, 92 N.Y.S.2d 450, 453 (County Ct. 1949); Cf. Biehler v. Barbuscia, 26 N.Y.S.2d 992 (Sup.Ct.1941). It is therefore likely that the state courts would continue to construe this provision to mean, as this Court does, that the name of a person signing a petition "shall not be counted" on a second valid and effective petition nominating the same or a different candidate for the same office. As was noted in In re Commissioner of Elections, supra, in construing a predecessor section to that in issue, "The signature on one or the other of such petitions is unauthorized and must be rejected." (Emphasis added.) As so construed, this provision would be constitutionally permissible. Of course, should this approach not be adopted by the State, then the provision in question
Plaintiffs' challenge to the "knowledge" requirement of Section 138 (3) presents no difficulty. In view of the New York Court of Appeals holding in Schaller v. McNab, 16 N.Y.2d 976, 265 N.Y.S.2d 290, 212 N.E.2d 776 (1965), defendants' position that "it would be necessary, in the case of an individual not already known to * * * [the witness] to make inquiry as to his identity and to request identification"
Plaintiffs' fourth challenge is presented against the literacy requirements embodied in Section 168 of the Election Law.
Plaintiffs nevertheless seek a ruling that it is constitutionally impermissible to condition the right to vote
In Lassiter v. Northampton County Election Bd., 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959), the Supreme Court directly upheld the constitutionality of a North Carolina requirement that voters be literate in the English language. In so doing, the Court noted the wide scope in which a state can exercise its jurisdiction over voter qualifications, subject only to constitutional limitations. The question of literacy in another language was not, however, raised therein. It must also be noted that in sanctioning this requirement, the Court applied the "rationality" test which was subsequently revised in voting rights suits which present equal protection arguments to a "compelling state interest" test. Kramer v. Union Free School District, supra; Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965).
While the adoption of the compelling state interest test places the continued viability of Lassiter in question, in view of the fact that the Court failed to rule the New York literacy test unconstitutional in both Morgan and Cardona v. Power, 384 U.S. 672, 86 S.Ct. 1728, 16 L.Ed.2d 848 (1966), and that the Court presently has pending before it an appeal from a decision of a three-judge statutory court which upheld a state English language literacy requirement, Mexican-American Federation-Washington State v. Naff, 299 F.Supp. 587 (E.D.Wash. 1969), prob. juris. noted, sub nom. Jimenez v. Naff, 397 U.S. 1005, 90 S.Ct. 1245, 25 L.Ed.2d 418 (U.S., March 31, 1970), we do not feel justified in holding the New York test unconstitutional until the Supreme Court instructs us that Lassiter is no longer the law.
We next consider the contention by plaintiffs in the S.L.P. action that Section 376(5) of the Election Law violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution.
Sections 376(5) and 2(4), when taken together, provide that lists of registered voters be delivered free of charge to the county chairmen of each political party polling at least 50,000 votes for governor in the last preceding gubernatorial election. Section 376(5) further requires that at least twelve copies of these lists be available for public inspection at each main or branch office of the board of elections, and that surplus copies be sold to anyone requesting them at a price not to exceed the cost of reproduction.
It is clear that the effect of these provisions, when considered with other sections of the Election Law, is to deny independent or minority parties which have succeeded in gaining a position on the ballot but which have not polled 50,000 votes for governor in the last preceding gubernatorial election an equal opportunity to win the votes of the electorate. The State has shown no compelling state interest nor even a justifiable purpose for granting what, in effect, is a significant subsidy only to those parties which have least need therefor. See Madole v. Barnes, 20 N.Y.2d 169, 282 N.Y.S.2d 225, 229 N.E.2d 20 (1967).
In opposition to plaintiffs' contention, the State argues that "[o]ne can readily imagine the heavy burden and
Finally, plaintiffs in the second captioned action challenge the constitutionality of that part of Section 31 of the Election Law which, in effect, provides for the appointment of the New York City Board of Elections by the County Chairmen of the New York and Kings County Democratic and Republican parties. It is urged that this provision unconstitutionally deprives minority parties of due process and equal protection of law, insofar as it purports to vest control of the New York City electoral process in the hands of the County Chairmen of the two large political parties. It should be noted that Section 31 also provides that members of the Board of Elections in every other county in the State be appointed in the same manner.
Defendants argue that this three-judge court does not have jurisdiction over the attack on Section 31, since plaintiffs specifically challenge only that portion of the statute which applies to New York City, and the attack, therefore, is upon a statute which does not have "statewide application." Moody v. Flowers, 387 U.S. 97, 101, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967).
However, even if we are incorrect in this holding, sound policy nevertheless requires that the three-judge court decide the Section 31 issue. It is clear, in any event, that a federal district court would have jurisdiction under the Civil Rights Act over this aspect of the complaint. Therefore, the matter is properly cognizable by a federal district court, whether it is heard by one federal judge or three. Moreover, it is well established that even though "a single district judge is without power to act in a case requiring three judges, the opposite is not true." Swift & Co. v. Wickham, 230 F.Supp. 398, 410 (S.D. N.Y.1964), appeal dismissed for want of jurisdiction, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965), aff'd, 364 F.2d 241 (2d Cir. 1966), cert. denied, 385 U.S. 1036, 87 S.Ct. 776, 17 L.Ed.2d 683 (1967); accord, Law Students Civil Rights Research Council, Inc. v. Wadmond, 299 F.Supp. 117, 129 (S.D.N.Y. 1969). Since we all agree on the proper resolution on the merits of the issue of the validity of Section 31, a decision by
Turning to the merits, plaintiffs' only argument made in the brief is that allowing the partisan members of the Board of Elections to judge the petitions of minority parties is violative of due process, relying upon Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927). However, the tasks delegated to the election commissioners are basically ministerial and subject to judicial review by an impartial court. Moreover, plaintiffs tender no specific examples of abuse.
Accordingly, this three-judge court finds the distributive requirement of Section 138(5) (a) of the Election Law, those portions of Sections 138(1) and (6) which prohibit an otherwise qualified voter from signing an independent nominating petition for public office if such voter was not registered at the time of the last preceding general election as a qualified voter, and that portion of Section 376 which provides that the compilation of current registered voters be sent free of charge only to those parties which polled more than 50,000 votes for governor in the last gubernatorial election constitutionally invalid. Further, we find that portion of Section 138(6) which prohibits an otherwise qualified voter from signing such an independent nominating petition if that voter's name appears upon another petition designating or nominating the same or a different person for the same office constitutionally permissible only when construed to mean that the name of the voter shall not be counted on a second valid and effective petition nominating the same or a different candidate for the same office. Similarly, we find the "knowledge" requirement of Section 138(3) constitutionally valid when interpreted to mean that the authenticating witness has acted upon information affording him reasonable knowledge as to the identity of the signers of petitions for independent nominations for public office when he simply inquires and is assured that the signers are residents of the area and duly qualified voters. However, we find that portion of Section 138(6) which discounts the signature of a voter who has voted at a primary election where a candidate was nominated for an office for which the nominating petition purports to nominate another candidate, the literacy requirements embodied in Section 168, as supplemented by the Voting Rights Act of 1965, and that part of Section 31 which provides for the appointment of the members of the Board of Elections constitutionally valid.
Submit order on notice in accordance herewith.
Although there has been no showing that defendant Rockefeller has any "special relation" to the enforcement of the statutes under attack, a requirement first noted in Fitts v. McGhee, 172 U.S. 516, 530, 19 S.Ct. 269, 43 L.Ed. 535 (1899) and more recently in Oliver v. Board of Educ., 306 F.Supp. 1286, 1288 (S.D.N.Y. 1969) and Camacho v. Rogers, 199 F.Supp. 155 (S.D.N.Y.1961), it would appear that the effect of Ex parte Young, 209 U.S. 123, 156-158, 28 S.Ct. 441, 52 L.Ed. 714 (1908) is to permit a state officer to be named as a party defendant so long as such officer has "some connection" with the enforcement of the statute in question, which may be declared or specially created by such statute or which may arise out of the "general law". As noted in Ex parte Young, supra at 157, 28 S.Ct. 441, the important and material fact is simply the existence of some connection with the enforcement of the act by virtue of the office held by the party defendant.
By virtue of the office held by defendant Rockefeller he is specially authorized to "take care that the laws are faithfully executed." N.Y.Const. Art. IV, § 3 (1964). This would appear sufficient "connection with the enforcement of the act" under Ex parte Young. City of Altus, Okl., v. Carr, 255 F.Supp. 828, 834-835 (W.D.Tex.), aff'd per curiam, 385 U.S. 35, 87 S.Ct. 240, 17 L.Ed.2d 34 (1966). (It should be noted that Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969) and Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed. 2d 24 (1968) all named governor party defendants. Admittedly, the Court never addressed itself to this issue since motions by these defendants to dismiss the complaint as to them were not made below.)
The State has challenged the standing of the S.L.P. and the F.P.P. on the grounds that neither party, with one exception, has designated candidates for a state-wide political office affected by Section 138(5) (a). The Court finds it unnecessary to pass on this issue since this Section is similarly challenged by S.W.P. whose standing is uncontested by the State.
Additionally, although plaintiffs' challenge is levelled against Section 168 of the Election Law, the actual prohibition against those illiterate in the English language is contained in Article II, Section 1 of the New York State Constitution and in Sections 150 and 168 of the Election Law.