United States Servicemen's Fund v

Socialist Workers Party v. Rockefeller, 314 F.Supp. 984 (D.C.N.Y. 1970)

United States District Court, S.D. New York.

SOCIALIST WORKERS PARTY, Clifton DeBerry, Kipp Dawson, Jon Rothschild, Miguel

Padilla, Ruthann Miller, Hedda Garza, Michael Arnall and Jack Wood, Plaintiffs,

Nelson A. ROCKEFELLER, Governor of the State of New York, John P. Lomenzo,

Secretary of State of the State of New York, Louis J. Lefkowitz, Attorney General of the

State of New York, Defendants.

SOCIALIST LABOR PARTY OF AMERICA, an independent political association, John

Emanuel, Walter Steinhilber, Stephen Emery, Bernard Reitzes, Israel Feinberg,

Doris Ballantyne, Freedom & Peace Party of New York State, an independent

political association, Karl Bernard, Nathan Solomon, Andrew Talbutt, David

Dubnau, Jeanne Dubnau, Marjorie Thalheimer, on behalf of each and on

behalf of all other independent political associations in the State of New York wishing

to submit candidates forelection to public office, and their respective

supporters, including, without being limited to, Communist Party (U.S.A.),

Peace & Freedom Party, National Renaissance Party, and Socialist Worker's

Party, Plaintiffs,

Nelson A. ROCKEFELLER, Governor of the State of New York; John P. Lomenzo,

Secretary of State of the State of New York; Louis J. Lefkowitz, Attorney

General of the State of New York; the Board of Elections of the City of New

York, Defendants.

Nos. 70 Civ. 1374, 1642.

June 18, 1970, Judgment Affirmed Oct. 12, 1970, See 91 S.Ct. 65.

Suits were brought attacking constitutionality of various sections of New

York Election Act which governed process to be followed by independent

political parties in nominating candidates for election to statewide and

local public offices. A three-judge District Court, Tenney, J., held,

inter alia, that provision of New York statute requiring that independent

nominating petition be signed by at least 50 voters in each county of

state is invalid because the distribution system overweighed and

overvalued votes of those living in less populated counties.

Judgment in accordance with opinion.

*986

Leonard B. Boudin, Rabinowitz, Bourdin & Standard, New York City, for

Socialist Workers Party, and others, plaintiffs; David M. Rosenberg Dorian

Bowman, New York Civil Liberties Union, Burt Neuborne, David Dretzin, New

York City, of counsel.

Louis J. Lefkowitz, Atty. Gen., State of New York, New York City, for

defendants; Samuel A. Hirshowitz, first Asst. Atty. Gen., Charles A.

LaTorella, Robert S. Hammer, Asst. Attys. Gen., of counsel.

Before FEINBERG, Circuit Judge, and PALMIERI and TENNEY, District judges.

OPINION

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. [n. 1]

n. 1. Plaintiffs in the first of the above two captioned suits challenge

the constitutionality of Section 138(1), (3), (5)(a) and (6), and Section

168 of the New York State Election Law. Plaintiffs in the second of the

above two captioned suits challenge the constitutionality of Section

138(5)(a) and (6), Section 376 and Section 31 of the Election Law.

(a) Section 138(5)(a) of the Election Law, McKinney's Consol.Laws, c. 17,

which provides:

'An independent nominating petition for candidates to be voted for by all

the voters of the state must be signed by at least twelve thousand voters,

of whom at least fifty shall reside in each county of the state, and

counties of Fulton and Hamilton to be considered as one county';

*987

(b) Sections 138(1) and (6) of the Election Law, which provide, respectively:

'Independent nominations for public office may be made by a petition * * *

containing the signatures of qualified voters of the political unit for

which a nomination is made who were registered to vote therein at the last

preceding general election'; and

'The name of a person signing * * * (an independent party nominating)

petition for an election for which voters are required to be registered

shall not be counted if such person was not registered at the time of the

last preceding general election as a qualified voter; or, if such person

voted at a primary election where a candidate was nominated for an office

for which such petition purports to nominate a candidate; or, if the name

of a person who has signed such a petition appears upon another petition

designating or nominating the same of a different person for the same

office';

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 requried number of

signatures on nominating petitions to qualify these candidates for a

position in 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.' [n. 2] Joined with S.W.P. as parties

plaintiff in this suit are its candidates for state-wide and local offices

in the upcoming election, and *988 three New York State citizens who have

become registered voters since the last general election held in November

1969 and who intend to sign nominating petitions for S.W.P. candidates.

Only one of these three plaintiffs had satisfied New York State's residency

requirements at the time of the last general election. [n. 3]

n. 2. Complaint P5 at 5, 70 Civ. 1374 (dated April 3, 1970).

n. 3. By order of the district court dated May 18, 1970, plaintiff S.W.P.'s

unopposed motion to amend its complaint by adding Lee Smith as a named

plaintiff was granted.

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.' [n. 4] Joined with S.L.P. as

parties plaintiff are its 1969 candidates for New York City office, its

1970 candidates for state-wide office, its chief executive officer,

campaign manager and Kings County organizer.

n. 4. Complaint P2 at 2, 70 Civ. 1642 (dated April 22, 1970).

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.' [n. 5] This independent party has not yet officially

designated its candidates for the 1970 general election. However, joined

with F.P.P. as parties plaintiff are named individuals who 'are prepared

to run for public office as candidates of (F.P.P.) and wish to appear

officially upon the ballot in such capacity', [n. 6] its officers and a

qualified voter who had not yet attained the age of 21 years at the time

of the last preceding general election and wishes to sign a nominating

petition on behalf of a minority candidate in connection with the 1970

elections. [n. 7]

n. 5. Id. at 7.

n. 6. Id.

n. 7. Defendant Governor Rockefeller moves to dismiss the within complaint

as to him, alleging that he is not a proper party defendant to the action.

We cannot agree.

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.)

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. The argue that *989 independent candidates are unable to qualify

for positions on the general election ballot without seriously draining their

financial and manpower resources and debilitating the strength of the

independent party to conduct a vigorous election campaign. Additionally, it is

urged that enforcement of these statutory provisions will deprive plaintiffs of

their right to freely associate for the advancement for their political beliefs,

and debase and otherwise impair the right of all registered voters to the

equal opportunity to effectively cast their votes for candidates of their

choice.

DISCUSSION

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 abridgment of the

discrimination or of abridgement of the 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 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).

[6] 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 *990 and proper that a person who wishes to run for statewide

office be required to show a minimal amount of statewide support for his

candidacy' and that this requirement is de minimus differing significantly from the

Illinois statute struck down in Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct.

1493, 23 L.Ed.2d 1 (1969). [n. 8]

n. 8. Memorandum of law for Defendants Rockefeller, Lomenzo and Lefkowitz

at 15-17 (dated May 11, 1970).

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.

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:

'It is no answer to the argument under the Equal Protection Clause that

this law was designed to require state-wide support for launching a new

political party rather than support from a few localities. This law

applies a rigid, arbitrary formula to sparsely settled counties and

populous counties alike, contrary to the constitutional theme of equality

among citizens in the exercise of their political rights. The idea that

one group can be granted greater voting strength than another is hostile

to the one man, one vote basis of our representative government.'

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, [n. 9] it is the right of all qualified voters to equality in

the exercise of their political rights which invalidates this statute.

n. 9. Affid. of Michael B. Arnall at 4 (dated April 10, 1970).

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):

'If a State in a state wide election weighted the male vote more heavily

than the female vote or the white vote more heavily than the Negro vote,

none could successfully contend that that discrimination was allowable.

How then can one person be given twice or ten times the voting power of

another person in a statewide election merely because he lives in a rural

area or because he lives in the smallest rural county? Once the

geographical unit for which a representative is to be chosen is

designated, all who participate in the election are to have an equal

vote-- whatever their race, whatever their sex, whatever their income, and

wherever their home may be in that geographical unit. This is required by

the Equal Protection Clause of the Fourteenth Amendment.'

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, [n. 10] cannot negate the fact that by

overweighting and overvaluing the votes of those living in less populated

counties the votes of the majority of the electorate have been diluted and

undervalued. *991

Reynolds v. Sims, supra, 377 U.S. at 563, 84 S.Ct. 1362.

n. 10. Id. at 5.

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. [n. 11] This is constitutionally

impermissible.

n. 11. The 1970 voter registration figures published by the Attorney

General of the State of New York, annexed to plaintiff S.W.P.'s Exh. A,

attached to Affid. of Victor Rabinowitz (dated April 10, 1970).

We next turn to a discussion of the challenge levelled against Section

138(1) and (6) of the Election Law. [n. 12]

n. 12. The State argues that the S.L.P. and its 'privies' are barred

from maintaining this cause of action by the doctrine of res judicata,

citing Socialist Labor Party v. Board of Elections, 69 Civ. 1269

(E.D.N.Y., filed Oct. 16, 1969) and Emanuel v. Power, 25 N.Y.2d 962, 305

N.Y.S.2d 356 (1969). Again, the Court finds it unnecessary to pass on this

issue since these Sections are similarly challenged by the S.W.P. against

which such a claim has not been raised.

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. [n. 13] Secondly, the

independent party is denied the support of an otherwise qualified voter if

that voter voted at a primary election where a candidate was nominated for

an office for which the independent party petition purports to nominate

another candidate. Thus, a voter who may have voted only for the

gubernatorial candidate in the Democratic Primary, and not for that

Party's candidate for the office of Attorney-General, is barred from

signing a nominating petition for the S.W.P. candidate for

Attorney-General. Thirdly, an otherwise qualified voter will not be

counted on an independent party's nominating petition if such voter's name

appears on another petition designating or nominating he same or a

different person for the same office even though this other designating

petition might have failed to secure the requisite number of signatures or

have been ruled invalid by the Secretary of State for other reasons.

n. 13. In the first such class, that is, voters who were not registered at

the time of the last preceding general election due to inaction, can be

placed those who although eligible to participate in the election failed

to do so through ignorance of their rights, disaffection with the

respective candidates offered, illness or indolence. In the second class,

that is, voters who were not registered at the time of the last preceding

general election due to ineligibility, can be placed those who have

attained their 21st birthday since the preceding election, those who have

since been naturalized as United States citizens and those who had not

satisfied the residency requirements 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

*992 primary, is to publish the list of registered voters before the first day

of March, and, in any other year, before the first day of April. Section

377 of the Election Law. These published enrollment lists show the

registered voters as of January 1. Since, in the interval between the

preceding general election and January 1, registration is not permitted,

these lists indicate only those persons eligible to vote in the last

preceding general election. Beginning, however, in the second week in

January and continuing through August, 'central registration' is permitted

at which 'new' voters may register. [n. 14] These 'new' voters may

thereafter vote in the primaries of parties which have polled at least

50,000 votes for governor at the last general election and may sign these

parties' primary designating petitions. See Sections 135 and 187 of the

Election Law.

n. 14. Letter from Charles A. LaTorella, Assistant Attorney General, to

the statutory three-judge court (dated May 20, 1970).

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 invidious discrimination or classification, 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. [n. 15]

n. 15. Memorandum of Law for Defendants Rockefeller, Lomenzo and

Lefkowitz at 17 (dated May 11, 1970).

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 *993 voters without compelling

justification therefor.

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 135(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 by the courts of New York State on this by the court

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.' 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 *994 would be 'defectively overbroad.' For it would be

impermissible on less than a showing of a compelling state interest to deny a

voter the right to support a candidate of his choice and to deny such support

to that candidate when a prior petition signed by that voter is for some reason

ruled invalid or when a second candidate for whom a petition has been

signed subsequently withdraws from the race or is ruled ineligible for

such office.

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', [n. 16] would appear ill-founded. The Court in Schaller

reversed the finding of the Appellate Division which held that the subscribing

witnesses, who inquired of the signers whether they were residents of the area

and duly qualified voters, but who had no knowledge whatever as to the true

identity or residence of the signers because they were total strangers, did not

'know' the signers as required by Section 135 of the Election Law. This ruling,

which would be applicable to Section 138(3), apparently establishes that the

witness has acted upon information affording him reasonable knowledge as to

the identity of the signers when he simply inquires and is assured that the

signers are residents of the area and duly qualified voters. Under this

interpretation, which plaintiffs are of course content to accept, Section

138(3) is constitutionally valid.

n. 16. Id. at 10-11.

Plaintiffs' fourth challenge is presented against the literacy

requirements embodied in Section 168 of the Election Law. [n. 17] This

statute was last amended in 1965, prior to the decision of the Supreme

Court in Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828

(1966). Therein, the Court sustained the constitutionality of Section 4(e)

of the Voting Rights Act of 1965, 42 U.S.C. § 1973b(e), as a permissible

exercise of Congressional power under the Fourteenth Amendment. By virtue

of the Supremacy Clause, Article IV of the Constitution, the states are

now prohibited from conditioning the right to vote upon a showing of

literacy in the English language to those persons who have successfully

completed the sixth primary grade in any public or private school

accredited by any State or territory or by the Commonwealth of Puerto Rico

in which the predominant classroom language was other than English. In

accord with Morgan, the State has assured the Court that the Voting Rights

Act of 1965 is directly implemented in New York, so that anyone educated

through the sixth grade in an American flag school is permitted to

and is eligible to sign petitions of all kinds, including independent

nominating petitions. [n. 18]

n. 17. Defendants challenge the standing of plaintiffs to attack the

State's English literacy prerequisite for voting. Moore v. Ogilvie, 394

U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), however, makes it clear that

at least those plaintiffs who have been designated candidates for

state-wide office may champion the right to vote of their respective

supporters. Indeed, it would appear that political parties are proper

groups to present such issues to the courts.

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.

n. 18. Supra note 14.

Plaintiffs nevertheless seek a ruling that it is constitutionally impermissible to

condition the right to vote *995 upon a showing of literacy in the English

language. We decline to do so. 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 inanother 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. [n. 19]

n. 19. We note, however, that distinguished authority argues 'that the

right to vote is so fundamental that no citizen of this country should be

deprived of this right on the ground that he fails to satisfy a literacy

requirement. The right to vote is a vital aspect of citizenship which

guarantees to every citizen that his interests will be taken into account.

Those who cannot pass a literacy test can still participate intelligently

in the operations of their government, for media besides the printed

word-- such as radio, television, oral communication and foreign language

newspapers-- are available to supply information to potential voters.'

Committee Report, Extension of the Voting Rights Act of 1965 and the

Administrator's Alternative, The Record of the Association f the Bar of

the City of New York at 253 (April 1970).

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 'one can readily

imagine the heavy burden and *996 expense that would be placed upon

the State if it were required to provide every group, of whatever size, that

purported to be a political party, free copies of voting lists. [n. 20] This,

however, overlooks one fact and misconstrues another. Firstly, plaintiffs

have acknowledged that these lists should not be furnished indiscriminately

at government expense to anyone requesting them. What they seek bestowed

upon any party which complies with State requirements for placing its

candidates before the electorate, is the same benefit granted to major political

parties of not having to purchase such lists at considerable expense. [n. 21]

Secondly, constitutional strictures merely require that the State treat all groups

similarly situated alike. The State is not required to provide such lists

free of charge, but when it does so it may not provide them only for the

large political parties and deny them to those parties which can least

afford to purchase them.

n. 20. Supra note 15 at 20.

n. 21. Affid. of Bernard Reitzes at 4 (dated April 24, 1970).

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). [n. 22] However, plaintiffs attack the manner

in which commissioners of election are appointed. This is the substance

of Section 31, and in this respect the statute clearly has statewide

application. Accordingly, we hold that Section 31 is a statute of

statewide application and that the three-judge court may properly

consider the attack upon it made by plaintiffs in the S.L.P. action.

n. 22. Defendants go on to argue that pendent jurisdiction in the

three-judge court would also be inappropriate under United Mine Workers

of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218

(1966) and Hurn v. Oursler, 289 U.S. 238, 246, 53 S.Ct. 586, 77 L.Ed.

1148 (1933). With this branch of their argument we agree.

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 *997

the three of us on that question, explicitly joined in by the single judge

before whom the matter first came, is a wiser course than returning the

issue to him. The latter procedure might result in the entry of 'an

invalid order if the return was erroneous, whereas the only consequence of

erroneous retention of jurisdiction by the three-judge court is that the

appeal should be taken to the Court of Appeals rather than to the Supreme

Court, an uncertainty against which the plaintiffs may protect themselves

by timely appeals to both courts.' Swift & Co. v. Wickham, supra, 230

F.Supp. at 410; accord, Law Students Civil Rights Research Council, Inc.

v. Wadmond, supra, 299 F.Supp. at 129.

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. [n. 23]

n. 23. Plaintiffs also included a conclusory allegation in their complaint

that they are being denied the equal protection of the law. Since this

point was not developed any further, we regard it as abandoned and do not

deal with it.

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.