Kaloshi v. New York City Board of Elections, 02 CV 4762, 2002 WL 31051530 (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 resrtrictions 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

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.