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Default Kaloshi v. New York City Board of Elections, 02 CV 4762, 2002 WL31051530 (E.D.N.Y. Sept. 6, 2002) Constitutional Issues

Kaloshi v. New York City Board of Elections, 02 CV 4762, 2002 WL 31051530 (E.D.N.Y. Sept. 6, 2002) Constitutional Issues

VII Constitutionality of New York Election Law Section 6-132(2) Witness Party Membership Requirement

The voter Plaintiffs also seek an order declaring Section 6-132(2) of New York Election Law unconstitutional. Specifically, Plaintiffs claim that Section 6-132(2)'s requirement that a witness to the designating petition signatures be a registered member of the party for whose primary the petition signatures are being gathered violates the First and Fourteenth Amendments to the Constitution.

A Burden on First amendment Rights and Degree of Scrutiny to be Applied

In accessing the burden on First Amendment rights and the degree of scrutiny to be applied to Section 6-132(2) this courts takes direction from the Second Circuits decision, Lerman v. Board of elections, 232 F.3rd 135, 145 (2d Cir. 2000), in which the court held that the requirement under Section 6-132(2) that witnesses to ballot access designating petitions be residents of the political subdivision in which the office is to be toted violates the First amendment on its face.

State laws regulating the electoral process, such as the law at issue here, necessarily implicate rights that lie at the core of our constitution, including the right to vote, to engage in free speech and association, and to enjoy the equal protection of the laws. The Green Party of the State of New York v. Weiner, 2002 U.S. Dist. LEXIS 2179, at 21 (SDNY February 8, 2002). Federal Courts have long recognized the right to vote as a fundamental interest protected by the Constitution. Id. At 22; Reynolds vs. Simms, 377 US 533, 554-55, 84 S. Ct. 1362, 12 L.Ed.2d 506 (1964). Voting also directly implicates the First Amendment (as applied to the states through the Fourteenth Amendment) which protects the right to form political parties for the advancement of common political goals and ideas and the corresponding right to associate with candidates of those parties through the ballot. Id

“It does not follow however that the right to vote in any manner and the right to associate for political purposes through the ballot are absolute.” (quoting Burdick v. Takushi, 504 US 428, 433, 112 S.Ct. 2059, 119 L. Ed.. 2D 245 (1992). (citation omitted)). Since every state law invariable imposes some burden upon the right to vote and attendant First and Fourteenth Amendment associational rights, subjecting every voting regulation to strict scrutiny “would tie the hands of States seeking to assure that elections operate equitably and efficiently.” Id. (quoting Burdick, 505 US at 433)..

Challenges to state electoral regulations based on First Amendment and Fourteenth Amendment associational rights and the right to vote are analyzed under a balancing test that “modulates the degree of scrutiny to the severity of the burned imposed.” When state laws subject speech, association, or the right to vote to severe restrictions, the regulations must be narrowly drawn to advance a state interest of compelling importance.” Lerman, 232 F3d at 145. (citations omitted). The severity of the burden imposed depends on both the character of the restrictions themselves, and on the nature of the right burdened. Weiner 2002 US Dist. LEXIS 2179 at 21. “For Example, even the smallest restriction may be regarded as severe if it burdens “core Political speech” by inhibiting communication with voters about proposed political change.” Id. (quoting Buckley v. American Constitutional Law Found. Inc. 525 US 182 , 192 & n. 12, 119 S.Ct.636, 142 L. Ed. 2d 599)).

Lesser restrictions on First and Fourteenth Amendment rights and the right to vote necessitate a less exacting review. When a state law imposes only reasonable, non-discriminatory restrictions on First and Fourteenth Amendment rights, then the state's important regulatory interests are generally sufficient to justify the restrictions. Weiner, 2002 US Dist. LEXIS 2179 at 26, Buckley, 525 US at 196 n. 17 (citation omitted) (“Registration requirements for primary election voters and candidates for political office are 'classical' examples of permissible regulations.”) The Second Circuit has noted, “policing this distinction between legitimate ballot access regulations and improper restrictions on interactive political speech does not lend itself to a bright line or 'litmus-paper test', but instead requires a particularized assessment of the nature of the restriction. And the degree to which it burdens those who challenge it.” Lerman, 232 F.3d at 145-46 (internal citations omitted).

In determining what level of scrutiny to apply, the Second Circuit has cautioned, however, that “in those cases in which the regulation clearly and directly restricts 'core political speech', as opposed to the 'mechanics of the electoral process', it may make little difference whether we determine the burden first, since restrictions on core political activity so plainly impose a severe burden that application of strict scrutiny will be necessary.” Id. At 146 (citations omitted). In Lerman, the Second Circuit found that the “petition circulation activity ….., while part of the ballot access process, clearly constituted core political speech subject to exacting scrutiny,” Id. It reasoned that petition circulation “of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change.” Id. (citations omitted). Nevertheless, the second circuit did conduct an inquiry into the severity of the burden on political speech and association posed by the regulation before concluding that it would apply strict scrutiny in its review of Section 6-132(2).

While this Court acknowledges the Second Circuit's pronouncement that restrictions on core political speech may so plainly impose a severe burden that application or strict scrutiny will be necessary, it is clear that an evaluation of the severity of the burden on political speech and association posed by the regulation in the instant case also leads to the conclusion that strict scrutiny should be applied in review of Section 6-132(2).

Section 6-132(2) burdens the candidates' and others' code freedoms of political expression and association. See Buckley, 526 US at 183; see also Morrill v. Weaver, 2002 US Dist. LEXIS 6919 at 45 (EDNY April 19, 2002). That is, candidates do not have a right to associate for purposes of political expression by organizing nominating petitions signature drives with whomever they wish. See Meyer vs. Grant, 486 US 414, 424 (1988). (”The First Amendment protects appellees' right not only to advocate their cause but also to select what they believe to be the most effective means of so doing.”) Meanwhile, millions of registered Democrats and unregistered New Yorkers are deprived of their right to associate with candidates in this manner, and cannot express themselves politically by serving as witnesses to candidates signature petitions. “Burdening the citizens' right of petition circulation burdens the most effective, fundamental and perhaps economical avenue of political discourse, direct one-on-one communication.” Meyer 486 US at 424.

The Attorney General of the State of New York argues that the party enrollment requirement at issue here is far less burdensome upon Plaintiffs' speech and associational rights than was the residency requirement the court struck down in Lerman. In Lerman, the residency requirement forced an independent party candidate to find petition carriers from a pool of 760 enrolled independent voters in his political subdivision to collect the 38 signatures he needed to make the ballot. In the present case, the voter and party registration restrictions would allow a democratic candidate to select from a statewide pool of more than 5,000,000 registered Democrats, a pool far greater, both in absolute numbers and proportionality to the number of signatures required for ballot access, than that seen in Lerman.

While it is true that the court in Lerman focused on the burden the statute imposed on the candidate and that in the instant case the candidates have a far greater pool of potential witnesses from which to choose, the Attorney General's argument misses the crux of the Supreme Court's holding in Buckley, which stressed the converse. The Attorney General emphasizes that due to the number of registered Democrats in the State, there should have been plenty or people to act as witnesses for the petition signature list. However, in Buckley the Court focused primarily on the number of individuals who inhibited by the statute in question, not the number who could still their political views and associate with candidates. Buckley, 525 US at 194-195; see Morrill 2002 US Dist. LEXIS at 47. Here, the enrollment requirement impacts millions of unregistered New Yorkers as well as those registered voters who are not members of the Democratic Party.

Furthermore, although there are are over five million registered Democrats in the state of New York, in reality, the pool of registered Democratic voters any one candidate can assess as potential witnesses to petition signatures is restricted by geographical and temporal limitations. For these reasons, this court will apply a strict scrutiny standard in its review of Section 6-132(6).

B Application of Strict Scrutiny to the Section 6-132 Witness Party Enrollment Requirement

Since the Section 6-132(2) registered party membership requirement imposes a severe burden on political speech, the requirement must therefore be narrowly tailored to advance a compelling state interest to pass constitutional muster. Lerman 232 F.2d at 149; see California Democratic Party. Jones, 530 US 567 (2002). Here, the state interest asserted by the Attorney General – ensuring integrity and preventing fraud in the electoral process – is unquestionable compelling. Lerman 232 F.2d at 149. The court in Lerman noted however:

Were the defendants able to establish a demonstrable threat to the integrity of the signature collection process, [this Court] would be obliged to give greater weight to their argument. However, the fact that the defendants' asserted interests are “important in the abstract” does not necessarily mean that its chosen means of regulation “will in fact advance those interests.” And, in general, the potential dangers to the integrity of the electoral process are more remote during the signature collection process than at the time of actual balloting on election day. Accordingly, we cannot uphold a statutory provision that substantially burdens political speech and association at the petition stage of the electoral without insisting that the defendants “do more than simply 'posit the existence of the disease sought to be cured.” ' Id. (citations omitted).

The Attorney General argues that the voter party requirement at issue here is more clearly tailored toward legitimately protecting against abuses in the ballot access process than was the requirement in Lerman. The Court in Lerman admitted as much, stating in footnote fourteen of its opinion that the other requirements of Section 6-132(2) not under review at the time, “are more narrowly tailored to the states interest in insuring the integrity of the ballot access process than the witness residence requirement.” Lerman, 232 F.3d at 150 n. 14. The question before this court then, is whether the provision in question is sufficiently narrowly tailored to advance the state's interest in protecting against abuses in the ballot process. This Court finds that it is not.

Defendants argue that two benefits flow from the party membership requirement. First they argue that limiting the pool of potential circulators to partisan qualified voters decreases the likelihood of party outsiders attempting to sabotage the process for political gain. Second, defendants argue that the law increases the likelihood that witnesses will be invested in seeing that the process is conducted appropriately, both because of partisan loyalty toward their candidate, as well as their personal interest in the democratic process, as manifested by their registration as voters.

This Court is not persuaded by Defendant's arguments. Defendant's claim that party outsiders are more likely to attempt to sabotage the process for political gain is conclusory and unsubstantiated. While it is imaginable that one outside the party (either as a registered voter or another party or an unregistered individual) might possess animosity toward the democratic party and the will to engage in machinations to harm the Democratic Party primary, it is no less imaginable that a Democratic party member, with loyal ties to candidates of his choice within the party, would possess a similar feeling of animosity toward another potentially Democratic rival and act intentionally to harm this particular candidate in a misguided attempt to aid the candidate of his choice. Furthermore, Defendants' argument that the requirement increases the likelihood that the witness will be invested in insuring that the democratic process is conducted appropriately is uncompelling. Rather than act as insurance that one will attempt to preserve democratic principles, partisan loyalty toward one's candidate can sometimes blind one to his civic duty to ensure the integrity of the electoral process. History is replete with episodes of misdeeds performed in the name of partisan politics. At the very least, one's loyalty to a candidate does not make one any more immune to activities inimical to the preservation of integrity and prevention of fraud in the electoral process.

Furthermore, neither party membership nor registration to vote it the litmus test of one's investment in the democratic process. The supreme court has noted that while “there are individuals who fail to register out of ignorance or apathy ….. there are also individuals for whom, . . . , the choice not to register implicates political thought and expression,” both qualities that implicate personal investment in the democratic process. Buckley 525 US 195. Lastly there are sufficient safeguards within Section 6-132 apart from the party membership requirement to avoid confusion deception and frustration of the democratic process. Specifically, if the authenticity of signatures on a petition is challenged, the petition witnesses may be subpoenaed to verify his witnessing of the signatures. See Lerman 232 F.2d at 150. (“Since the local boards of Election in New York have statewide subpoena power . . . the state's purpose is already served by the less burdensome requirements in 6-132(2) that petition witnesses (1) live anywhere within the state of New York, and (2) provide their residence address in an affidavit filed together with the petitions.”)

Since the party membership requirement, and its implicit exclusion of those who are not registered, bears minimal relationship to the asserted state interests, this court concludes that the requirement under Section 6-132(2) of the New York election Law that witnesses to ballot access designating petitions be registered members of the party for whose primary the petition signatures are being gathered violates the Constitution on its face.

C Application to Kaloshi's and Lareche's signature petitions.

The State Supreme Court found that Kaloshi gathered three hundred and fifty (350) valid signatures. According to the Board of Elections' Clerk's Reports on Demas' objections, which represent the findings of the Board of Election, the Board invalidated five hundred and twenty two (522) signatures because the witness observing the signatures was not enrolled in the Democratic party, and one hundred fourty four (144) signatures because the witness observing the signature was not registered. In addition, of these six hundred sixty-six (666) votes, which were stricken in accordance with the Section 6-132(2) party membership requirement by the board of elections decision to exclude unregistered witnesses would give Kaloshi over one thousand (1,000) signatures, the minimum number he needs to gain access to the ballot. Thus, the court finds that Kaloshi should be placed on the primary ballot.

. . . .


It is hereby ORDERED that:

The Board of Elections place Kaloshi on the ballot of the September 10, 2002 Democratic Party primary election for the office of the New York State Senator for the 21st Senatorial District.

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