Opinion
Civil Action No. CV-04-3247 (DGT).
March 22, 2005
MEMORANDUM ORDER
Plaintiffs Andre Ramon Soleil ("Soleil") and Ebony Carrero ("Carrero"), as voter representative, (collectively "plaintiffs") have brought this suit against the State of New York ("state"), the New York City Board of Elections ("board of elections"), Ramona Frazier ("Frazier") and Arthur Haywoode ("Haywoode") (collectively, "defendants"). Plaintiffs complain of the state law that allows written objections to a nominating or designating petition for public office to be filed by any voter registered to vote for such public office, pursuant to N.Y. Elec. Law § 6-154(2) (McKinney 1998). Soleil had sought to have his name listed on the ballot for the 2004 Democratic primary for the office of New York State Senate in the 18th Senatorial District when Frazier and Haywoode (the "individual objectors"), acting pursuant to § 6-154(2), objected to Soleil's petition on the grounds that Soleil's petition did not bear the legally required minimum of one thousand signatures as set forth in N.Y. Elec. Law § 6-136(2)(h) (McKinney 1998). The board of elections invalidated Soleil's petition upon the objections of Frazier and Haywoode.
Plaintiffs allege that Frazier and Haywoode's ability to file objections to Soleil's designating petition violates plaintiffs' civil rights under 42 U.S.C. § 1983, their First Amendment right to free speech, and their Fourteenth Amendment right to due process. Plaintiffs argue that only another candidate for the same nomination or public office, or the state itself, should have standing to object to a candidate's petition. Plaintiffs further allege that § 6-154(2) is neither narrowly tailored nor reasonably suited to meet any compelling or legitimate state interest in the ballot contents and is, therefore, unconstitutional and constitutionally unenforceable. Plaintiffs request that N.Y. Elec. Law § 6-154(2) be declared unconstitutionally broad and unenforceable and that the board of elections be enjoined from accepting, considering or acting on any objections brought by a non-candidate. Plaintiffs also move for class certification on behalf of those voters who signed the petition supporting Soleil's candidacy.
On August 12, 2004, one day before defendants filed their motions to dismiss, plaintiffs filed an amended complaint. The amended complaint differs from the original complaint only in that it details the specifications of errors of the board of elections. Because the complaint and the amended complaint both make the same substantive allegations, defendants' motions — although addressed to the original complaint — apply equally to the amended complaint, and references herein to the complaint also apply to the amended complaint.
Each of the defendants has moved to dismiss the plaintiffs' claims under Fed.R.Civ.P. 12(b)(6) on the grounds that § 6-154(2) is constitutional for the reasons set forth in Queens County Republican Committee v. New York Bd. of Elections, 222 F. Supp. 2d 341 (E.D.N.Y. 2002) (Spatt, J.). According to the board, § 6-154(2) is reasonable, non-discriminatory, non-burdensome, and contributes to a more open electoral process, and is therefore constitutionally sound.
The state moves to dismiss plaintiffs' complaint on the grounds that (1) plaintiffs' claims against the state are barred by the Eleventh Amendment, which prohibits federal courts from exercising subject matter jurisdiction over claims against states absent their consent to such suit or an express statutory waiver of sovereign immunity, and (2) § 6-154(2) cannot be deemed unconstitutional, for the reasons set forth in Queens County and because all registered voters have a valid interest in the qualifications of any candidate seeking public office. Plaintiffs concede that the state is immune from suit based on the Eleventh Amendment, and have voluntarily withdrawn their claim against the state. Accordingly, there are no further issues to resolve as to this defendant.
Individual objectors Frazier and Haywoode are obligatory and necessary parties to this action. See Matter of Butler v. Hayduk, 37 N.Y.2d 497, 498, 373 N.Y.S.2d 863, 864 (1975) ("An objector of whom the candidate has notice is a necessary party to subsequent judicial proceedings brought by the candidate to validate his stricken designating petition."). They move to dismiss on the grounds that (1) plaintiffs, who initially commenced a post-board determination action in state court, cannot subsequently forum shop in federal court due to their dissatisfaction with the outcome in state court and (2) plaintiffs' federal court action is barred by the doctrines of res judicata and collateral estoppel, based on the state court's dismissal of plaintiffs' complaint.
Principally for the reasons given by Judge Spatt in Queens County, section 6-154(2) is constitutionally sound and the board's motion to dismiss is, therefore, granted. Because Frazier and Haywoode are nominal defendants who filed their objections to Soleil's candidacy pursuant to § 6-154(2), a valid provision of New York's Election Law, and there are no further issues as to these individual objectors, plaintiffs' complaint as to them is also dismissed.
Background and Procedural History
Pro se plaintiff, Andre Ramon Soleil, sought candidacy as State Senator for the 18th State Senate District of New York State. Am. Comp. ¶ 1. On July 9, 2004, Soleil filed a petition signed by 1,274 voters with the board of elections designating him as a candidate for nomination at the Democratic Party primary on September 14, 2004. Id. at ¶ 1.On July 19, 2004, defendants Ramona Frazier and Arthur Haywoode, voters registered with the Democratic Party, challenged the validity of many of the signatures on Soleil's petition pursuant to N.Y. Elec. § 6-154(2). Id. at ¶ 16. This section, entitled "Nominations and designations; objections to," states that certain voters can file objections to a candidate seeking to be placed on the ballot for public office. Specifically it reads, in part:
Any petition filed with the officer or board charged with the duty of receiving it [i.e., the Board of Elections] shall be presumptively valid if it is in proper form and appears to bear the requisite number of signatures, authenticated in a manner prescribed by this chapter.
Written objections to any certificate of designation or nomination or to a nominating or designating petition . . . may be filed by any voter registered to vote for such public office. . . .
When such an objection is filed, specifications on the grounds of the objections shall be filed within six days thereafter with the same officer or board and if specifications are not timely filed, the objection shall be null and void.
N.Y. Elec. Law § 6-154(2) (emphasis added).
In their specifications of objections, defendants Frazier and Haywoode asserted that 1065 of the signatures on Soleil's designating petition were invalid and that the petition, therefore, lacked the required minimum one thousand signatures.Id. at ¶ 17.
On July 29, 2004, plaintiffs commenced the instant action, challenging Frazier and Haywoode's right as non-candidate voters to object to Soleil's designating petition.
Upon receiving notification that the board of elections had scheduled a hearing on Frazier and Haywoode's objections for August 4, 2004, on August 3, 2004, plaintiffs filed an order to show cause seeking a temporary restraining order and a preliminary injunction to enjoin the state and the board of elections from enforcing § 6-154(2). On August 3, 2004, Judge Allyne R. Ross, who was on miscellaneous duty that week, denied plaintiffs' request for a temporary restraining order for failure to show immediate irreparable harm or likelihood of success on the merits.
On August 4, 2004, the board of elections held the hearing as scheduled to determine whether Soleil's designating petition complied with the requirements of New York Election Law. During the hearing, the board of elections determined that 453 of the signatures on Soleil's designating petition were invalid, and the petition, therefore, did not have the required number of valid signatures to comply with New York's Election Law.
On August 6, 2004, Soleil again appeared before Judge Ross, with a second request for a temporary restraining order to enjoin the state and the board of elections from enforcing § 6-154(2). Judge Ross, after hearing arguments from the plaintiff and the board of elections, ruled on the record that plaintiffs' second request for a temporary restraining order was denied on the grounds that the matter was more appropriately considered in state court.
Subsequently, on August 9, 2004, Soleil commenced an action pursuant to N.Y. Elec. Law § 16-102(2) in Kings County Supreme Court to force the board of elections to approve his designating petition and place him on the ballot for the September primary. This action was brought within the three business days allotted by § 16-102(2), entitled "A post-board determination action to validate," which authorized Soleil to commence such a proceeding through August 9, 2004. By decision dated August 10, 2004, Justice Joseph S. Levine dismissed the proceeding for Soleil's failure to timely file proofs of service in accordance with the Rules of the Special Election Part and for failing to properly file the executed order to show cause.
On August 12, 2004, plaintiffs amended their federal court complaint. Their amended complaint not only challenged the constitutionality of § 6-154(2), but also sought another post-board determination to validate Soleil's designating petition pursuant to § 16-102(2).
On September 2, 2004, a hearing was held to determine whether the board should be directed to include Soleil's name on the ballot. Notwithstanding the fact that Soleil may have garnered enough valid signatures to be placed on the ballot, I ruled that plaintiffs did not meet the test of likelihood of success on the merits, and thus denied the motion for preliminary injunction.
On September 14, 2004 the Democratic primary went forward without Soleil's name on the ballot.
Discussion (1)
As a threshold matter, the issue of whether this case is moot needs to be addressed. A court should only consider those cases in which plaintiffs show "'an injury in fact' — a requirement that helps assure that courts will not 'pass upon . . . abstract, intellectual problems,' but adjudicate 'concrete, living contest[s] between adversaries.'" Federal Election Commission v. Akins, 524 U.S. 11, 20 (1998) (citing Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J., dissenting)). Therefore, "[a] case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Freedom Party of New York v. New York State Board of Elections, 77 F.3d 660, 662 (2d Cir. 1996) (quotingNew York City Employee's Retirement System v. Dole Food Co., 969 F.2d 1430, 1433 (2d Cir. 1992)). However, an election law controversy is not rendered moot merely because plaintiffs have brought their suit after the primary election has passed. See Norman v. Reed, 502 U.S. 279, 287-288 (1992); Storer v. Brown, 415 U.S. 724, 737, n. 8 (1974) (holding that the passage of an election does not necessarily render an election-related case moot). Rather, to determine whether a controversy is moot, a court must examine whether the issue presented before it is one that is "capable of repetition, yet evading review." See Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5 (1973).
Here, it cannot be said that plaintiffs' action is moot. For example, in Lerman v. Board of Elections in the City of New York, 232 F.3d 135, 141 (2d Cir. 2000), the plaintiff claimed that New York's Election Law requirement that witnesses to ballot access designating petitions be residents of the political subdivision for which the election is to be held violated the First Amendment. The Second Circuit determined that the problems plaintiff encountered and the issues she presented with respect to New York's statutory requirement would persist. Id. Therefore, plaintiff's claim fell within the exception to the mootness doctrine for issues capable of repetition, yet evading review. Id.
Similarly, in the instant case, plaintiffs allege that New York Election Law § 6-154(2) is unconstitutional. Statutes such as § 6-154(2), which regulates ballot access, are applicable to future elections and therefore "fall under [the] 'capable of repetition yet evading review' exception to mootness doctrine." Krislov v. Rednour, 226 F.3d 851, 858 (7th Cir. 2000). Here, there is a reasonable expectation that the plaintiff will encounter the same procedural problems in the event he files a designating petition naming himself as a candidate for the 18th State Senate District of New York State in a future primary election. In addition, plaintiffs have alleged a violation of 42 U.S.C. § 1983, which, if proved, would entitle them to at least nominal damages. Sugarman v. Village of Chester, 192 F. Supp. 2d 282, 290 (S.D.N.Y. 2002). As such, this action presents a live controversy even though the primary election has passed. Id. at 290-291. Moreover, the constitutionality of § 6-154(2) is an issue that is capable of evading review. Therefore, plaintiffs' action is not moot.
The parties were not focused on the mootness issue in their briefing (as briefing was submitted prior to the primary election). It is, therefore, not surprising that Soleil did not specifically state whether he intended to run for office in the future. However, this court is aware that Soleil has sought to run for public office in the past, and it is not unlikely he would seek to do so again in the future.
(2)
Because plaintiffs' action is not moot, the constitutionality of New York Election Law § 6-154(2) must be resolved. New York's election statutes are afforded a "strong presumption of constitutionality." New Alliance Party v. New York State Bd. of Elections, 861 F. Supp. 282, 292 (S.D.N.Y. 1994). New York's constitutional power to regulate elections is justified as a way to ensure orderly, rather than chaotic, operation of the democratic process. Id. at 294. In analyzing the constitutionality of a state election law, a court must
[B]alance the regulation's burden on the First and Fourteenth Amendment rights of voters against the state interests advanced by the regulation, taking into consideration the extent to which the burden is necessary to the advancement of those interests. When the regulation severely restricts the relevant rights [i.e., speech, association or right to vote], it must be narrowly drawn to advance a compelling state interest, but where the regulation imposes only reasonable, nondiscriminatory restrictions on those rights, the State's important regulatory interests are generally sufficient to justify the restrictions.Queens County, 222 F. Supp. 2d at 347-48 (E.D.N.Y. 2002) (quoting Prestia v. O'Connor, 178 F.3d 86, 88 (2d Cir. 1999) (internal quotation marks and citations omitted)).
The issue presented by this case is largely indistinguishable from the basic principles outlined in Queens County, where a non-candidate, non-party member filed an objection pursuant to § 6-154(2) with the board of elections regarding the plaintiff's petition for candidacy. The would-be candidate in Queens County was a Republican who would have run unopposed in the Queens County primary election for United States House of Representatives from New York's Fifth Congressional District had his designating petition not been invalidated on the objections of the Democrat incumbent in the United States House of Representatives from New York's Fifth Congressional District and one of the incumbent's supporters. Queens County, 222 F. Supp. 2d at 343-44. The would-be candidate and the Queens County Republican Committee claimed that § 6-154 was unconstitutional because it allowed anyone, including non-party, non-candidate members, to challenge the designating petitions of another party's candidate. Id. at 347. According to the would-be candidate, allowing these objectors to challenge petitions violated his constitutional rights to speech, to assemble and to vote, which are protected by the First and Fourteenth Amendments.Id. at 344-348.
The district court, however, upheld § 6-154(2), reasoning that the law assists the state in preventing fraud in the election process. Id. at 351. The district court also held that § 6-154(2) advances the important state interest of ensuring that each candidate "make[s] a preliminary showing of a significant modicum of support before having her name placed on the primary ballot." Id. at 348 (quoting Jenness v. Forton, 403 U.S. 431, 442 (1971). Clearly, if the signatures on a candidate's petition are fraudulent, the candidate has failed to show the bona fide modicum of support required by the law. According to the Queens County court, the challenges allowed under § 6-154 are a necessary component to the fair democratic election process and justify the minimal burdens imposed by the statute. Id. at 349. Even if the statute restricts speech, association or the right to vote, it is narrowly tailored to advance this compelling state interest because it applies evenly to all candidates, poses a minimal burden and does not allow challengers to alter the views of another party. Id. Consequently, the Queens County court held that § 6-154 was reasonable, minimally burdensome, nondiscriminatory and constitutionally sound. Id. at 347-349.
Here, too, non-candidate voters, acting pursuant to § 6-154(2), filed objections with the board of elections regarding a candidate's petition. The facts in the instant case differ from those in Queens County, in that the non-candidate objectors were members of Soleil's political party as opposed to the non-candidate, non-party members who filed objections inQueens County. But the same compelling state interest — preventing against fraud by ensuring that candidates show a valid and significant modicum of support — is at issue. The Queens County plaintiffs argued that non-party members should not have standing to object to a designating petition, but the court rejected plaintiffs' arguments, reasoning that non-party challenges may at times be necessary to reveal election fraud.Id. at 351 ("[T]o permit only party members to object to their own candidates allows parties to avoid the signature ballot access requirements when it conveniences them to do so."). Thus, party members may not be solely relied on to police their own member candidates' petitions, and non-party members should not be excluded from the process, because they can assist in preventing against fraud. A fortiori, it would make no sense to exclude a candidate's own party members from the process. They certainly have a direct interest in seeing that the person who is representing their party be legitimately on the ballot.
Specifically, New York has a regulatory interest in ensuring that a candidate's designating petition demonstrates a "fair and honest" level of support needed for that candidate to appear on the ballot. Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) ("[A]s a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.") (quoting Storer v. Brown, 415 U.S. 724, 730 (1954)). Moreover, New York has a substantial and compelling interest in the "preservation of the integrity of the electoral process," which includes allowing for an open electoral process whereby all registered voters, whether or not they are formally affiliated with a candidate, are encouraged to object to the candidacy of any person appearing on the primary ballot on the ground that he or she failed to satisfy ballot access requirements. Eccles v. Gargiulo, 497 F. Supp. 419, 423 (E.D.N.Y. 1980). Although New York's election law governing the selection and eligibility of candidates affects the individual's right to associate with others for political ends, these important regulatory interests are sufficient to justify the reasonable, nondiscriminatory and minimal restrictions placed on the plaintiff. See Anderson v. Celebrezze, 460 U.S. at 788.
Plaintiffs' argument that only another candidate for the same nomination or public office, or the state itself, should be able to object to a candidate's petition would limit the participatory rights of literally thousands of voters, such as defendants Frazier and Haywoode. Such individuals would be prevented from scrutinizing and challenging the designating petitions of candidates who would subsequently seek their votes. Such a result is in direct conflict with the legitimate goals of the New York Election Law, which is intended to contribute to a more open electoral process and cannot be construed to restrict voter participation. Consequently, New York Election Law § 6-154(2) is not unconstitutionally broad and unenforceable on the grounds advanced by plaintiffs, nor can the board of elections be enjoined from accepting, considering or acting on any objections brought by a non-candidate.
Conclusion
Because New York Election Law § 6-154(2) imposes only minimal and reasonable restrictions on plaintiffs' First and Fourteenth Amendment rights, the state's important regulatory interest in ensuring that a candidate has a valid and significant modicum of support is sufficient to justify the restrictions. Burdick v. Takushi, 504 U.S. 428, 434 (citing Anderson v. Celebrezze, 460 U.S. at 788). For the foregoing reasons, the board of elections' motion to dismiss the complaint is granted. Furthermore, plaintiffs' complaint is dismissed in its entirety and there is no further need to address plaintiffs' motion for class certification.The Clerk of the Court is directed to close this case.
SO ORDERED.