Brown v. New York City Board of Elections et al

Filing 21

MEMORANDUM, ORDER, & JUDGMENT: Excluded for a place on the ballot in 2011, plaintiff, prose, alleges that the requirements to run for District Attorney in Queens County violate both the New York State Constitution and the U.S. Constitution. He see ks declaratory judgment and damages. Defendants move to dismiss on the merits and for failure to prosecute. On two occasions on which this motion to dismiss on the merits was to be heard, plaintiff failed to appear. The case is not mooted because th e issue may arise again and again. See Storer v. Brown, 415 U.S. 724, 737 (1974) (finding that challenges to election laws may avoid mootness because they are "capable of repetition, yet evading review"). The case is dismissed. No costs or disbursements are awarded. Ordered by Judge Jack B. Weinstein, on 12/2/2013. (Barrett, C)

FiLl:D
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N )"

* DEC 0 3 2013 *

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

BROOKLYN OFFICE

EVERLY D. BROWN,

MEMORANDUM, ORDER,
&JUDGEMENT

Plaintiff,
13-CV-2729
-againstNYC BOARD OF ELECTIONS, JUAN CARLOS
POLANCO, JOSE ARAUJO-Queens County
Democratic Commissioner, STEVEN RICHMANGeneral Counsel, RICHARD BROWN-Queens
County District Attorney, NEW YORK STATE
ATTORNY GENERAL,
Defendants.

JACK B. WEINSTEIN, Senior United States District Judge:

Appearances
For Petitioner:
Everly D. Brown
249-22 14th Ave.
Rosedale, NY 11422
PROSE

For Defendants:
Stephen Edward Kitzinger
New York City Law Department
100 Church St.
Room 2-126
New York, NY 10007

J

I.

Introduction
Excluded for a place on the ballot in 2011, plaintiff, prose, alleges that the requirements

to run for District Attorney in Queens County violate both the New York State Constitution and
the U.S. Constitution. He seeks declaratory judgment and damages.
Defendants move to dismiss on the merits and for failure to prosecute.
On two occasions on which this motion to dismiss on the merits was to be heard, plaintiff
failed to appear.
The case is not mooted because the issue may arise again and again. See Storer v.

Brown, 415 U.S. 724, 737 (1974) (finding that challenges to election laws may avoid mootness
because they are "capable of repetition, yet evading review").
The case is dismissed.

II.

Facts
Plaintiff intended to stand as a candidate for District Attorney in Queens County in the

2011 election. On August 2, 2011, the Board of Elections denied his petition for candidacy
because he is not an attorney and did not gather the minimum number of signatures required to
be placed on the ballot. See Am. Compl. at 2-3. He instituted a proceeding in the New York
Supreme Court to have his petition declared valid. See N.Y. Elec. Law§ 16-102. The petition
was denied on August 9, 2011. The Appellate Division affirmed on September 7, 2011. Brown

v. Bd. of Elections, 87 A.D.3d 947 (2d Dep't 2011).
Alleging that the method for electing the district attorney violate the New York State
Constitution and the United States Constitution, he claims that the individual defendants are
liable because they enforced these procedures.

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The elements for a position on the ballot are: first, a candidate for District Attorney must
be an attorney; second, a candidate for District Attorney must gather at least 4,000 signatures
from members ofthe candidate's party, see N.Y. Elec. Law§ 6-136(2)(b); third, the signatures
must be witnessed by a member ofthe candidate's party, see N.Y. Elec. Law§ 6-132(2); fourth,
decisions on the validity of signature and other requirements are decided by the Board of
Electors, composed of Democrats and Republicans to the exclusion of minor parties, see N.Y.
Elec. Law§ 3-200; and fifth, election inspectors are appointed by the Democratic and
Republican parties to the exclusion of minor parties, see N.Y. Elec. Law§ 3-400.

III.

Law
A.

Standard on Motion to Dismiss

Rule 12(b)( 6) of the Federal Rules of Civil Procedure allows claims to be dismissed when
the pleading party has failed "to state a claim upon which relief can be granted." In adjudicating
a 12(b)(6) motion, a court is required to "accept all factual allegations in the complaint as true
and draw all reasonable inferences" in favor ofthe plaintiff. Hayden v. Paterson, 594 F.3d 150,
160 (2d Cir. 201 0). "[T]he defendant has the burden of demonstrating 'beyond doubt that the
plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief.'"
Weber v. Computer Credit, Inc., 259 F.R.D. 33, 36 (E.D.N.Y. 2009) (quoting Conley v. Gibson,

355 U.S. 41 (1957) (footnote omitted)). "The issue is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974).

In ruling on a motion to dismiss, the court's duty "is merely to assess the legal feasibility
of the complaint, not to assay the weight of the evidence which might be offered in support

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thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). "Analysis is confined to the
allegations contained within the four comers of the complaint, though the court may examine
any written instrument attached to the complaint or any statements or documents incorporated in
it by reference." Weber, 259 F.R.D. at 37 (internal quotation marks, punctuation, and citation
omitted). The court may consider matters of which judicial notice may be taken pursuant to
Federal Rule of Evidence 201. Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991).
B.

Administration of Elections

The right to vote in any manner and the right to associate for political purposes through
the ballot are not absolute. See Burdickv. Takushi, 504 U.S. 428 (1992). As the Supreme Court
instructs, "[ c]omrnon sense, as well as constitutional law, compels the conclusion that
government must play an active role in structuring elections." See id.
Constitutionality of petition requirements depends upon the extent to which they burden
individuals' rights to vote, to run as a candidate, and to associate with others for political ends.

See id. at 434. As a practical matter, an election code, whether governing "the registration and
qualifications of voters, the selection and eligibility of candidates, or the voting process itself,
inevitably affects" these rights. ld. at 433. So long as the petition requirements "impose[] only
'reasonable, nondiscriminatory restrictions,"' id. at 434, the state's important interest in
restricting ballot access to avoid "confusion, deception, and even frustration of the democratic
process" are generally sufficient to justify the restrictions. LaRouche v. Kezer, 990 F.2d 36, 39
(2d Cir. 1993) (citation omitted).

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IV.

Application of Facts to Law
A.

Claims against the Attorney General

Plaintiff makes no allegations regarding the Attorney General. Claims against him are
dismissed.
B.

Claims against Individuals

Plaintiff makes no allegations to support a claim of wrongdoing by defendants Juan
Carlos Polanco, Jose Araujo, Steven Richman, or Richard Brown in either their personal or
official capacity. All claims against these individuals are dismissed. These individuals either
performed their duties under New York statutes or were not involved in the election process.
C.

Requirement to be an Attorney

Based on the New York Constitution and statutes, the New York Court of Appeals has
ruled: "[T]he nature of the District Attorney's duties and responsibilities to the public require the
officeholder to be an attorney." Matter ofCurry v. Hosley, 86 NY2d 470,475 (1995). No
provision of the United States Constitution prohibits a state from enforcing this reasonable
requirement.
D.

Requirement for 4,000 Signatures
Section 6-136(2)(b)'s limitation requiring a minimum of 4,000 signatures does

not impose a severe burden on plaintiff in gaining access to the ballot. "Unlimited access to the
ballot would inevitably produce confusion, and states may thus limit the number of candidates
that appear on the ballot." LaRouche at 39. One way states may institute limitations is by
"requiring candidates to produce evidence of public support" through ballot petition
requirements. !d. at 40.

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Queens County had 702,466 voters registered with the Democratic Party in 2011, see

NYSVoter Enrollment by County, Party Affiliation and Status: Voters Registered as ofApril],
2011, http://www.elections.ny.gov/NYSBOE/enrollment/county/county_aprl1.pdf. The
signature requirement can be met by a prospective candidate with "a significant modicum of
support," see Jenness v. Fortson, 403 U.S. 431,442 (1971). See Prestia v. O'Connor, 178 F.3d
86, 88 (2d Cir. 1999) ("[A] requirement that ballot access petitions be signed by at least 5% of
the relevant voter pool is generally valid, despite any burden on voter choice that results when
such a petition is unable to meet the requirement." (citations omitted)).
The Equal Protection Clause of the United States Constitution is not violated by the
disparity in signatures required by the relatively highly and densely populated Queens County on
the one hand, and the relatively sparsely populated Nassau, Suffolk, and Westchester counties on
the other. "Gearing the required number of signatures to the population density of the relevant
electoral area is a rational method of protecting the public's interest, the candidates' interests,
and the voters' interests." McGee v. Bd of Elections, 669 F.Supp. 73 (S.D.N.Y 1987). Queens
County has over twice as many registered Democratic voters and is over four times as densely
populated as Nassau County, Suffolk County, or Westchester County. See NYSVoter

Enrollment; see US. Census Bureau, State & County QuickFacts: Queens County (Queens
Borough), New York (201 0), http://quickfacts.census.gov/qfd/states/36/36081.html; US. Census
Bureau, State & County QuickFacts: Nassau County, New York (20 10),
http://quickfacts.census.gov/qfd/states/36/36059.html; US. Census Bureau, State & County

QuickFacts: Suffolk County, New York, (2010),
http://quickfacts.census.gov/qfd/states/36/36103.html; US. Census Bureau, State & County

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QuickFacts: Westchester County, New York, (2010),

http://quickfacts.census.gov/qfd/states/36/36119 .html.
The required number of signatures satisfies constitutional standards.

E.

Party Witness Rule

The United States Court of Appeals for the Second Circuit recently has upheld the Party
Witness Rule. See Maslow v. Bd. of Elections, 658 F.3d 291(2d Cir. 2011). The Rule "imposes
little or no burden on Plaintiffs' First Amendment rights," id. at 296, and is rationally related to
the State's "legitimate interest in protecting its political parties from party raiding," id. at 298
(citations omitted). This conclusion is also supported by the First Amendment rights of political
parties. "Because political parties have a strong associational right to exclude non-members
from their candidate nomination process, Plaintiffs have no constitutional right pursuant to which
such participation may be effected." Id. at 298.

F.

Appointment of Commissioners and Inspectors

Plaintiff argues that the appointment of commissioners on the Board is unconstitutional
because it is evenly composed of Democratic and Republicans, thus depriving independents namely Shadai Mears, the witness to his signatures- of "representation" on the Board. See
Compl. at 7. Plaintiff attempted to run as a Democratic candidate. He makes no allegations
regarding how the composition of commissioners affects his ability to receive fair treatment
before the Board. He lacks standing to bring his fourth and fifth causes of action. See Lehner v.
O'Rourke, 339 F. Supp. 309,314 (S.D.N.Y 1091) ("Plaintiff claims that this statutory scheme

unfairly discriminates against persons who do not belong to either of the two major political
parties. Without passing on the merits of his claim, I find that plaintiff had no standing to raise it
because he is, and ran in the election as, a Democrat").
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-,

The United States District Court for the Southern District of New York has fully
considered the merits of this issue. See Green Party ofState of New York v. Weiner, 216 F.
Supp. 2d 176. "[T]his exclusion of minority parties from the administration of elections does not
by itself unconstitutionally burden fundamental voting or associational rights." /d. at 193. New
York's statutory scheme is rationally related to the State's legitimate to provide "stability and
avoid political contention over electoral mechanics." /d., at 195. "Nothing about this goal
would require the State to include representatives of all of New York's many minor parties in the
allocation ofthat responsibility." /d. See also Lehner v. O'Rourke, 339 F. Supp. 309 (S.D.N.Y.
1971) (upholding procedure for appointing inspectors against a challenge by a member of a
major party).

V.

Sanctions Motion or Frivolous Proceeding
The complaint and failure to appear mark this proceeding as perilously close to frivolous.

Yet, since the court has 1) had no opportunity to hear the plaintiff, and 2) courts should be freely
open to those wishing to participate in an election as candidates, and 3) sanctions against pro se
plaintiffs might unduly inhibit people from becoming candidates, the motion for sanctions is
denied.

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;.

VI.

Conclusion
The complaint is dismissed. No costs or disbursements are awarded.

SO ORDERED.

ack . Weinstein
Senior United States District Judge
Date: December 2, 2013
Brooklyn, New York

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