Dekom et al v. New York et al
Filing
66
MEMORANDUM AND ORDER granting 26 Motion to Dismiss for Lack of Jurisdiction; granting 27 Motion to Dismiss for Lack of Jurisdiction; granting 27 Motion to Dismiss for Failure to State a Claim; denying 34 Motion for Recusal & Three Judge Panel; denying 54 Motion to Strike; denying 59 Motion to Strike. For the reasons set forth herein, the motions to dismiss are GRANTED, and all of Plaintiffs' motions are DENIED. This Memorandum and Order will also address Plaintiffs' ; request for default (Docket Entry 40), which, although already properly denied by the Clerk of the Court, Plaintiffs still believe is pending (Docket Entry 48). The Clerk of the Court is directed to mail a copy of this Memorandum and Order to each of the pro se Plaintiffs and to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 6/18/2013. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
MARTIN DEKOM, KENNETH JACOBY, and
ROBERT PENDLETON,
Plaintiffs,
-againstNEW YORK, ANDREW CUOMO, Governor,
ERIC SCHNEIDERMAN, Attorney General,
NEW YORK STATE BOARD OF ELECTIONS,
JAMES WALSH, Commissioner, EVELYN
AQUILA, Commissioner, DOUGLAS KELLNER,
Commissioner, GREGORY P. PETERSON,
Commissioner, NASSAU COUNTY BOARD OF
ELECTIONS, LOUIS SAVINETTI, Republican
Commissioner, and WILLIAM BIAMONTE,
Democratic Commissioner,
MEMORANDUM & ORDER
12-CV-1318(JS)(ARL)
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Martin Dekom
Martin Dekom, pro se
34 High Street
Manhasset, NY 11030
Kenneth Jacoby
Kenneth Jacoby, pro se
3016 Roxbury Road
Oceanside, NY 11572
Robert Pendleton
Robert Pendleton, pro se
2895 Charlotte Drive
Merrick, NY 11566
For Defendants:
State Defendants
County Defendants
Ralph Pernick, Esq.
N.Y. State Attorney General’s Office
200 Old Country Road, Suite 240
Mineola, NY 11501
Peter Laserna, Esq.
Nassau County Attorney’s Office
One West Street
Mineola, NY 11501
SEYBERT, District Judge:
Plaintiffs
Martin
Dekom,
Kenneth
Jacoby,
and
Robert
Pendleton (“Plaintiffs”) commenced this action pro se on March
16, 2012 against the State of New York, Andrew Cuomo as Governor
of the State of New York, Eric Schneiderman as Attorney General
of the State of New York, the New York State Board of Elections,
and Commissioners James Walsh, Evelyn Aquila, Douglas Kellner,
and Gregory P. Peterson (the “State Defendants”), and the Nassau
County Board of Elections, Louis Savinetti as its Republican
Commissioner,
Commissioner
State
and
(the
William
“County
Defendants,
Biamonte
Defendants,”
“Defendants”),
as
and
asserting
its
Democratic
together
claims
with
the
under
the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et
seq., the Rehabilitation Act, 29 U.S.C. § 701, et seq., the
Voting Rights Act, 42 U.S.C. § 1973, et seq., the Uniformed and
Overseas
Citizens
Absentee
Voting
(“MOVE”)
Act,
42
U.S.C.
§ 1973ff-1, and the First, Fourteenth, and Fifteenth Amendments
to the U.S. Constitution under 42 U.S.C. § 1983 arising out of
provisions
of
New
York
State’s
Election
Law
designation of candidates for political office.
related
to
the
(Docket Entry
1.)
Pending before the Court are the following motions:
(1) a motion to dismiss filed by the State Defendants (Docket
Entry
26);
(2)
a
motion
to
dismiss
2
filed
by
the
County
Defendants (Docket Entry 27); (3) Plaintiffs’ motion seeking the
undersigned’s
recusal
and
the
referral
of
this
action
to
a
three-judge panel (Docket Entry 34); (4) Plaintiffs’ motion to
“strike”
the
County
Defendant’s
untimely
opposition
to
Plaintiffs’ recusal/three-judge panel motion (Docket Entry 54);
and
(5)
Plaintiffs’
motion
to
“strike”
the
State
and
County
Defendants’ reply briefs in support of their respective motions
to dismiss (Docket Entry 59).
For the following reasons, the motions to dismiss are
both GRANTED, and all of Plaintiffs’ motions are DENIED.
This
Memorandum and Order will also address Plaintiffs’ request for
default
(Docket
Entry
40),
which,
although
already
properly
denied by the Clerk of the Court, Plaintiffs still believe is
pending (Docket Entry 48).
BACKGROUND
I.
Statutory Framework
Article
6
of
New
York’s
Election
Law
governs
how
political parties select the candidates that will represent them
See N.Y. ELEC. LAW § 6-100.
in a general election.
party’s
candidate
in
a
general
election,
the
To run as a
candidate
must
first be nominated by the party via a primary election.
Id.
§ 6-110; see also id. § 1-104(9) (defining “primary election” as
the “mandated election at which enrolled members of a party may
3
vote for the purpose of nominating party candidates”). 1
With
limited exceptions, in order to run in a primary election, an
individual
nomination
must
via
be
a
designated
“designating
as
a
candidate
for
Id.
6-118.
petition.”
§
party
An
individual may be designated only if he: (1) is a member of the
political party seeking to designate him; (2) is a citizen of
the State of New York; (3) is eligible to be elected to public
office;
and
(4)
meets
all
statutory
and
qualifications for the particular position.
constitutional
Id. §§ 6-120, 6-
122.
A designating petition must contain a certain number
of
signatures
from
enrolled
party
members.
The
number
of
signatures needed varies depending on the public office to be
filled.
Id. § 6-136.
For example, petitions for potential
candidates for the U.S. House of Representatives must be signed
by the lesser of 5% of the enrolled voters of the party residing
in the congressional district or 1,250 individuals, id. § 6136(g), and petitions for potential candidates for the New York
State
Assembly
must
be
signed
by
the
lesser
of
5%
of
the
enrolled voters of the party residing in the assembly district
1
Generally, members of the party may vote in the primary
election via absentee ballot. Id. § 8-400(1). An individual
may not vote via absentee ballot, however, in primary elections
for party positions. Id. § 8-400(9). This restriction applies
to military personnel as well. Id. § 10-108(1)(a).
4
or 500 people, id. § 6-136(i). 2
Each signature must be witnessed
by an enrolled party member or a notary public or commissioner
N.Y. ELEC. LAW § 6-132. 3
of deeds.
Voters may not sign more than
one petition for the same office or position.
N.Y. ELEC. LAW § 6-
134(3). 4
Each petition must contain: (1) the name and residence
of the potential candidate as well as the public office for
which he is being designated; (2) each signer’s name, residence,
town or city, and the date of his or her signature; and (3)
either a witness statement or the signature of a notary public
or a commissioner of deeds.
designating
Section
petition
6-132
is
that
available
Id. §§ 6-130, 6-132.
complies
on
the
with
the
New
York
A sample
requirements
of
State
of
Board
Elections website at http://www.elections.ny.gov/NYSBOE/download
2
For the 2012 election, in order to comply with the MOVE Act,
the period for filing designating petitions was reduced from 38
days to 28 days and the number of signatures required was
reduced by 25%. (See Laserna Decl., Docket Entry 27-2, Ex. B.)
The petitioning period for the 2012 election ran from March 20,
2012 through April 16, 2012. (Am. Compl. ¶ 8.)
3
Section 6-132(2) requires that the witness be a resident of the
political subdivision in which the office or position is to be
voted. However, this residency requirement has been declared
unconstitutional by the Second Circuit. See Lerman v. N.Y.C.
Bd. of Elections, 232 F.3d 135 (2d Cir. 2000).
4
If a voter does sign more than one petition, then if the
signatures “bear the same date, [they] shall not be counted upon
any petition, and if they bear different dates[, they] shall be
counted in the order of their priority of date.” N.Y. ELEC. LAW §
6-134(3).
5
/law/DesignatingPetitionNoLines.pdf. 5
Any petition for public office or a party position
submitted to a local board of elections 6 is “presumptively valid”
so
long
as
it
is
in
“proper
form”
and
appears
requisite number of authenticated signatures.
154(1).
to
bear
the
N.Y. ELEC. LAW § 6-
Any voter registered to vote for such public office or
party position may submit written objections to a designating
petition.
within
Id. § 6-154(2).
three
days
Any such objections must be received
after
the
petition
is
filed,
and
specifications of the grounds for those objections must be filed
within six days thereafter.
reviews
the
objections;
Id.
The local board of elections
however,
its
authority
is
strictly
ministerial--i.e., it has “no power to deal with questions of
fact or with objections involving matters not appearing upon the
face of the petition.”
Schwartz v. Heffernan, 304 N.Y. 474,
480, 109 N.E.2d 68, 69 (1952); see also In re Wicksel v. Cohen,
262 N.Y. 446, 449, 187 N.E. 634 (1933) (distinguishing between
ministerial
and
judicial
acts
as
follows:
“where
the
law
prescribes the rule to be followed so as to leave nothing to the
exercise of judgment or discretion, the act is a ministerial
5
The sample is only provided in English.
6
In New York, there is a board of elections for each county.
N.Y. ELEC. LAW § 3-200(1). Typically, each board consists of two
election commissioners, id. § 3-200(2), who are appointed by the
county legislative body, id. § 3-204(4), upon recommendation by
each of the major political parties, id. §§ 3-200(2), 3-204(2).
6
act” whereas “where the act involves the exercise of judgment or
discretion in determining whether the duty exists, the act is
judicial”).
If a board determines that a petition is invalid,
it must notify the objector and the candidate, N.Y. ELEC. LAW § 6154(3),
who
may
then
contest
the
board’s
determination
in
a
special proceeding in state court, id. §§ 16-100, 16-102.
II.
Factual Background
The
Amended
Complaint
is
comprised
largely
of
descriptions of the applicable law and conclusory allegations,
which are “not entitled to the assumption of truth” in deciding
a motion to dismiss.
Ashcroft v. Iqbal, 556 U.S. 662, 679, 129
S.
Ed.
Ct.
1937,
173
L.
2d
868
(2009).
The
Supreme
Court
instructs that such conclusions, although potentially helpful in
“provid[ing] the framework of a complaint,” “must be supported
by factual allegations.”
Id.
discussion
limited
herein
to
the
Thus, the Court will limit its
factual
allegations
in
the
Amended Complaint.
A.
The Plaintiffs
1.
Martin Dekom
Plaintiff Dekom is a registered Republican residing in
Manhasset, New York, which is located in Nassau County.
(Am.
Compl. at 1-2.) 7
(Am.
He is White and a practicing Catholic.
7
The first five pages of the Amended Complaint do not contain
numbered paragraphs. The Court’s citations to the “Am. Compl.
7
Compl. ¶¶ 10-11.)
He considers himself fat or obese and suffers
from “congenitally defective ankles” which significantly impairs
his mobility.
(Am. Compl. ¶¶ 2, 6.)
He was a candidate for the
Nassau County Republican Committee in 2011 (Am. Compl. at 1),
and,
when
would
not
gathering
sign
his
signatures,
designating
projects would open the door.”
run
in
the
invalidated.
primary
(Am.
a
petition
¶
and
“no
(Am. Compl. ¶ 11.)
election
Compl.
Spanish-speaking
because
17.)
He
his
did
not
one
neighbor
in
the
He did not
petition
run
was
for
any
political office or party position in 2012, but he “would have
been” a candidate for the House of Representatives for the Third
Congressional District but for the “obstacles” in the New York
Election Law.
(Am. Compl. at 2.)
He “reasonably expect[ed]” to
be absent for the 2012 primary election.
(Am. Compl. ¶ 47.)
It
is unclear whether he was, in fact, absent for that election.
2.
Kenneth Jacoby
Plaintiff Jacoby is a registered Republican residing
in Oceanside, New York, which is located in Nassau County.
(Am.
Compl. at 2.)
He is a practicing Catholic and considers himself
fat or obese.
(Am. Compl. ¶¶ 6, 10.)
He is approximately sixty
percent deaf and has a “corresponding speech impediment, which
significantly impairs his ability to communicate.”
(Am. Compl.
at ___” refer to page numbers, whereas the Court’s citations to
“Am. Compl. ¶ ___” refer to paragraph numbers.
8
¶
2.)
In
2011,
he
was
a
candidate
for
the
Nassau
County
Republican Committee, but he did not run in the primary election
because his petition was invalidated.
(Am. Compl. at 2 & ¶ 17.)
He did not run for any political office or party position in
2012, but he “would have been” a candidate for the twentieth
Assembly
seat
for
New
York
State
Assembly
“obstacles” in the New York Election Law.
but
for
the
(Am. Compl. at 2.)
He “reasonably expect[ed]” to be absent for the 2012 primary
election.
(Am. Compl. ¶ 47.)
It is unclear whether he was, in
fact, absent for that election.
3.
Robert Pendleton
Plaintiff
Pendleton
residing
in
County.
(Am. Compl. at 2.)
senior
Merrick,
citizen.
advanced
(Am.
stenosis,
(Am. Compl. ¶ 2.)
New
is
York,
which
registered
is
Conservative
located
in
¶¶
7,
significantly
10.)
He
impairs
suffers
his
from
mobility.
At some prior undisclosed time, he was a
candidate for the Nassau County Conservative Committee.
Compl. at 2.)
Nassau
He is a practicing Catholic and a
Compl.
which
a
(Am.
He did not run for any political office or party
position in 2012, but he “would have been” a candidate for the
House of Representatives for the Fourth Congressional District
but for the “obstacles” in the New York Election Law.
Compl. at 2.)
(Am.
He “reasonably expect[ed]” to be absent for the
9
2012
primary
election.
(Am.
Compl.
¶
47.)
It
is
unclear
whether he was, in fact, absent for that election.
B.
Nassau County
The
Amended
Complaint
statistics about Nassau County:
also
contains
the
following
14.6% of the County is Hispanic
(Am. Compl. ¶ 1); 15.3% of the County is over the age of 65 (Am.
Compl. ¶ 7); 15.5% of the County is Jewish (Am. Compl. ¶ 8); and
19.8%
of
Plaintiff
Dekom’s
election
district
is
White
(Am.
Compl. ¶ 11).
The Amended Complaint also asserts that 22% of the
national voting age population is disabled (Am. Compl. ¶ 4) and
that 68% of the national voting age population is either fat or
obese (Am. Compl. ¶ 6).
III. Procedural History
Plaintiffs commenced this action on March 16, 2012 and
simultaneously
filed
a
motion
for
a
preliminary
injunction,
seeking, among other things, an order enjoining the New York
State and Nassau County Boards of Elections from enforcing the
allegedly unlawful portions of the New York Election Law and
implementing and mandating the enforcement of a new law prior to
the
commencement
of
the
petitioning
period
for
the
election, which was set to begin on March 20, 2012.
Entries
2-3.)
Plaintiffs
suffer
irreparable
harm
asserted
that
because
the
10
they
were
allegedly
federal
(Docket
likely
to
unlawful
provisions of the New York Election Law effectively prohibited
them
from
running
for
office.
The
Court
denied
Plaintiffs’
request, and, due to the time-sensitive nature of Plaintiff’s
Complaint, ordered expedited service of process.
(Docket Entry
5.)
Plaintiffs
filed
an
Amended
Complaint
on
June
12,
2012, after the petitioning period for the federal election had
ended and the “prospective harm ha[d] become an actual one.”
(Docket
Entries
21,
23.)
The
allegations
in
the
Amended
Complaint were substantially similar to the allegations in the
original Complaint.
Generally, the Amended Complaint asserts
that New York Election Law’s designating petition requirements
violate the ADA, the Rehabilitation Act, the First, Fourteenth,
and Fifteenth Amendments to the U.S. Constitution pursuant to 42
U.S.C. § 1983, and the Voting Rights Act.
The Amended Complaint
also asserts claims under Section 1983 and the MOVE Act arising
out New York Election Law’s prohibition on absentee ballots for
party position primary elections, and a claim under Section 1983
related to the composition of the county boards of election.
Plaintiffs seek $1,000,000 each in compensatory relief and the
following
injunctive
relief:
an
order
(1)
eliminating
the
signature requirement altogether and replacing it with either a
single-page petition that contains the candidate’s name, office
11
sought,
residence,
and
signature 8
or,
in
the
alternative,
a
filing fee; (2) requiring Defendants to provide such petitions
in
Spanish
Defendants
and
to
making
provide
them
available
absentee
online;
ballots
for
(3)
requiring
party
primary
elections; (4) requiring Defendants to prepare, print, and make
available online a “running for office” handbook, not to exceed
twenty pages, that contains the language “RUNNING FOR OFFICE IS
NOW EASIER THAN EVER!” (Am. Compl. at 31); (5) requiring the New
York
State
Board
of
Elections
to
“compile
a
list
of
public
offices and party positions for which it receives registration
and publish it on its website, along with incumbent and term”
(Am.
Compl.
at
31);
and
(6)
removing
all
state
and
county
election commissioners and replacing them with publicly-elected
commissioners.
On August 13, 2012, the State and County Defendants
filed
motions
to
dismiss.
(Docket
Entries
26,
27.)
After
extensions of time and of the applicable page limit, Plaintiffs
8
The Amended Complaint describes content of the proposed
petition in detail. (See Am. Compl. at 30-31.) Upon receipt of
such a petition, Plaintiffs want the local board of elections to
“verify the geographic eligibility of the candidate by means of
the ‘NYSVoter’ database or the state website at
voterlookup.elections.state.ny.us, and relate those findings to
the candidate by the fastest means at its disposal, and post
same to its website, within 24 hours.” (Am. Compl. at 29.)
12
filed their opposition on October 1, 2012 (Docket Entry 33), 9 and
the State and County Defendants filed their replies on December
3, 2012 (Docket Entries 51, 52).
In the interim, on October 9, 2012, Plaintiffs moved
for the undersigned’s recusal and reassignment to a three-judge
panel.
(Docket Entry 34.)
The County Defendants opposed this
request on November 8, 2012 (Docket Entry 41), and Plaintiffs
submitted
a
reply
on
November
19,
2012
(Docket
Entry
47).
Plaintiffs also filed a request for a certificate of default and
a partial default judgment on the grounds that the State and
County
Defendants
Amended
Complaint
(Docket
Entry
40.)
failed
in
to
their
This
address
two
respective
request
was
paragraphs
motions
opposed
to
by
on
the
dismiss.
the
State
Defendants (Docket Entry 39) and was ultimately denied by the
Clerk of the Court on November 8, 2012. 10
Notwithstanding the
Clerk of the Court’s denial of their request, Plaintiffs filed a
reply brief in support of their request for default on November
19, 2012.
(Docket Entry 48.)
On November 28, 2012, the County
9
Plaintiffs had requested permission to file a 100-page
opposition brief. Although the Court granted an extension of
the page limit, it limited Plaintiffs’ opposition to 60 pages.
10
The denial of the request for a certificate of default
terminated the request for default judgment, because the entry
of default is a prerequisite to a default judgment. See LOCAL
CIVIL R. 55.2(b) (stating that a party must append the Clerk’s
certificate of default to its application for default judgment).
13
Defendants
filed
a
sur-reply
to
both
the
panel motion and the request for default.
On
“strike”
the
unauthorized
Plaintiffs
December
5,
County
(Docket
filed
a
2012,
motion
filed
sur-reply
54),
to
(Docket Entry 46.)
Plaintiffs
Defendants
Entry
recusal/three-judge
and
on
“strike”
as
a
untimely
December
the
motion
State
17,
and
to
and
2012,
County
Defendants reply briefs in support of their motions to dismiss
for allegedly presenting arguments not raised in their moving
papers (Docket Entry 59).
On
January
4,
2013,
Plaintiffs
supplemented
their
request for recusal after the undersigned barred Plaintiff Dekom
from
communicating
with
chambers
via
telephone
or
facsimile.
(Docket Entry 64.)
The
motions
to
dismiss,
the
motion
for
recusal/reassignment to a three-judge panel, and the motions to
strike are presently before the Court.
DISCUSSION
The Court will briefly address Plaintiffs’ request for
the entry of default and default judgment before discussing the
pending motions.
I.
Default
A party is entitled to an entry of default when the
party against whom judgment is sought “has failed to plead or
otherwise
defend.”
FED. R. CIV. P. 55(a).
14
Here,
Plaintiffs
sought
the
entry
of
default
because
Defendants’
motions
to
dismiss failed to specifically address two paragraphs of the
Amended Complaint asserting claims under the Voting Rights Act.
The
Clerk
of
the
Court
properly
denied
this
request
because
“[t]imely serving and filing a motion to dismiss under FED. R.
CIV. P. 12(b), precludes entry of default.”
Davis v. Corr. Med.
Sys., 480 F. Supp. 2d 754, 757 (D. Del. 2007).
That the motions
to dismiss may not have addressed every single claim purportedly
raised by Plaintiffs in their Amended Complaint is irrelevant.
A party may file a motion to dismiss only certain claims--i.e.,
a partial motion to dismiss--and the filing of any motion under
Rule 12 postpones a defendant’s time to answer until fourteen
days after the motion is decided.
FED. R. CIV. P. 12(a)(4)(A);
see also Barbagallo v. Marcum LLP, 820 F. Supp. 2d 429, 443
(E.D.N.Y.
2011)
(stating
that
“in
the
interest
of
judicial
economy and avoiding piecemeal answers, ‘a partial motion to
dismiss
will
counterclaims
suspend
Gortat
v.
2009)).
that
Capala
the
are
time
Bros.,
not
to
answer
subject
Inc.,
257
to
the
F.R.D.
those
claims
motion’”
353,
366
or
(quoting
(E.D.N.Y.
Further, a party may not obtain a default judgment
unless and until the Clerk of the Court has entered the default.
See FED. R. CIV. P. 55(a), (b); Torres v. Exec. Officer BFI Waste
Sys., No. 95-CV-1068, 1996 WL 328214, at *1 (W.D.N.Y. June 11,
1996)
(denying
a
motion
for
default
15
judgment
as
“premature”
because there had been no entry of default); see also supra note
10.
Accordingly,
to
the
extent
that
Plaintiffs
are
still
seeking a default judgment, their request is DENIED.
II.
Motions to Strike
Plaintiffs have filed two motions to strike:
strike
a
letter-brief
submitted
by
the
County
(1) to
Defendants
in
opposition to Plaintiffs’ requests for default and a three-judge
panel as untimely and/or as an unauthorized sur-reply and (2) to
strike both the County and State Defendants’ reply briefs in
support of their motions to dismiss for raising arguments not
addressed
in
their
moving
papers.
(Docket
Entries
54,
59.)
Both motions are entirely without merit.
Motions to strike are governed by Rule 12(f) of the
Federal Rules of Civil Procedure, which provides, in relevant
part,
that
“[t]he
court
may
strike
from
a
pleading
an
insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter.”
Rules
define
a
FED. R. CIV. P. 12(f).
“pleading”
as
a
v.
Gill
(S.D.N.Y.
2008).
pleadings,
but
Abstract
DENIED.
allows
As
rather
complaint,
Corp.,
566
F.
Plaintiffs
are
not
briefs,
an
answer,
a
FED. R. CIV. P. 7(a); see also
counterclaim, or a cross claim.
Granger
The Federal
Supp.
2d
seeking
Plaintiffs’
323,
to
motions
335
strike
must
be
See Granger, 566 F. Supp. 2d at 334-35 (“Rule 12(f)
a
court
to
strike
pleadings
16
only.”);
see
also,
e.g.,
Sierra v. United States, No. 97-CV-9329, 1998 WL 599715, at *9
(S.D.N.Y. Sept. 10, 1998) (denying a request to strike a motion
to dismiss because “Rule 12(f) does not authorize this court to
strike documents other than pleadings”); Burns v. Bank of Am.,
No. 03-CV-1685, 2007 WL 1589437, at *11 (S.D.N.Y. June 4, 2007)
(“[T]he
reply
brief
and
accompanying
materials
of
which
the
plaintiffs complain is not a pleading, and thus is not properly
the subject of a motion under Rule 12(f).”); Latino QuimicaAmtex S.A. v. Akzo Nobal Chems. B.V., No. 03-CV-10312, 2005 WL
2207017, at *10 n.6 (S.D.N.Y. Sept. 8, 2005) (denying motion to
strike an opposition brief because the motion, “[wa]s directed
to a brief rather than a pleading”). 11
III. Motion to Recuse / Request for a Three-Judge Panel
Plaintiffs filed a single motion requesting that the
undersigned recuse herself and reassign this action to a threejudge panel.
A.
The Court will address each request separately.
Motion to Recuse
The Court will first discuss the standard applicable
to
motions
for
recusal
before
addressing
the
merits
of
Plaintiffs’ request.
11
The Court notes that it may, but is not required to, disregard
(as opposed to “strike”) untimely or unauthorized submissions.
To the extent that they are relevant to the Court’s analysis,
the Court will address whether to disregard them infra.
17
1.
Legal Standard
The recusal of federal judges is governed by 28 U.S.C.
§ 455.
Section 455 provides, in relevant part, that “[a]ny
justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned,” or “[w]here he has a personal
bias or prejudice concerning a party, or personal knowledge of
disputed
evidentiary
facts
U.S.C. § 455(a), (b)(1).
relevant
inquiry
observer
fully
is
concerning
the
proceeding.”
28
The Second Circuit has held that the
“whether
informed
of
an
the
objective,
underlying
disinterested
facts,
[would]
entertain significant doubt that justice would be done absent
recusal, or alternatively, whether a reasonable person, knowing
all the facts, would question the judge’s impartiality.”
United
States v. Yousef, 327 F.3d 56, 169 (2d Cir. 2003) (alteration in
original) (internal quotation marks and citation omitted); see
also United States v. Carlton, 534 F.3d 97, 100 (2d Cir. 2008).
“To
establish
a
basis
for
recusal,
‘[m]ovants
must
overcome a presumption of impartiality, and the burden for doing
so is substantial.’”
Da Silva Moore v. Publicic Groupe, 868 F.
Supp. 2d 137, 150 (S.D.N.Y. 2012) (quoting Metro. Opera Ass’n,
Inc. v. Local 100, Hotel Emps. Int’l Union, 332 F. Supp. 2d 667,
670
(S.D.N.Y.
2004)).
“[W]here
the
standards
governing
disqualification have not been met, recusal is not optional;
18
rather,
it
is
prohibited.”
Aguinda
v.
Texaco,
Inc.
(In
re
Aguinda), 241 F.3d 194, 201 (2d Cir. 2001); see also Thorpe v.
Zimmer, Inc., 590 F. Supp. 2d 492, 494 (S.D.N.Y. 2008) (“The
Court
has
an
affirmative
duty
not
to
disqualify
itself
unnecessarily.”).
A court’s decision not to recuse itself is
reviewed
Second
by
the
Circuit
for
abuse
of
discretion.
LoCascio v. United States, 473 F.3d 493, 495 (2d Cir. 2007).
2.
Analysis
Plaintiffs
herself because:
been
made
to
argue
that
the
undersigned
should
recuse
(1) they disagree with the decisions that have
date--specifically,
the
Court’s
denial
of
Plaintiff’s motion for a preliminary injunction, the imposition
of
an
expedited
timetable
for
service
of
process,
and
the
Court’s barring communications with chambers via telephone or
fax;
and
(2)
they
believe
that,
due
to
the
fact
that
the
undersigned was elected to the state bench in Nassau County as a
member of the Republican Party, “Judge Seybert can be expected
to be particularly loyal to the machine which made her” (Pl.
Recusal Mot. 4).
Neither argument is of any merit.
First, “judicial rulings alone almost never constitute
a valid basis for a bias or partiality motion.”
LoCascio v.
United States, 372 F. Supp. 2d 304, 315 (E.D.N.Y. 2005), aff’d,
473 F.3d 493 (2d Cir. 2007); accord Liteky v. United States, 510
U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994); see
19
also
United
States
v.
El-Gabrowny,
844
F.
Supp.
955,
959
(S.D.N.Y. 1994) (“[B]ecause it is in the nature of a judge’s job
to rule, and any ruling must favor one side and disfavor the
other, rulings during the course of a case generally are not
regarded as evidence of bias, even if it is alleged that a
disproportionate number favor one side.”).
Rather, “opinions
formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality
motion
unless
they
display
a
deep-seated
favoritism
antagonism that would make fair judgment impossible.”
or
Liteky,
510 U.S. at 555.
Here, contrary to Plaintiffs’ allegations, the docket
reflects that the Court has been lenient and accommodating to
Plaintiffs on multiple occasions.
For example, although the
Court did not grant Plaintiffs access to file documents via ECF,
the Court indicated that it would permit Plaintiffs to receive
electronic
Plaintiffs
notifications
have,
to
date,
of
filings
been
via
permitted
ECF.
to
Further,
file
numerous
frivolous motions--such as the repeated requests for the entry
of default and the motions to strike--without consequence.
the
Court
granted
Plaintiffs’
request
to
submit
an
And
enlarged
brief, but limited such brief to sixty pages--more than double
the applicable page limit.
An objective, disinterested observer
20
would not view the Court’s adverse rulings as indicative of a
“deep-seated . . . antagonism” towards Plaintiffs “that would
make fair judgment impossible.”
perceived
some
of
these
Id.
adverse
That Plaintiffs may have
rulings
to
be
“critical
or
disapproving of, or even hostile to” them and their case does
not warrant recusal.
Id. at 555-56 (“Not establishing bias or
partiality . . . are expressions of impatience, dissatisfaction,
annoyance and even anger, that are within the bounds of what
imperfect men and women, even after having been confirmed as
federal judges, sometimes display.
at
courtroom
judge’s
administration--even
ordinary
efforts
at
A judge’s ordinary efforts
a
stern
courtroom
and
short-tempered
administration--remain
immune.”).
Second,
Election
Law
the
and
undersigned’s
the
Nassau
familiarity
County
with
Republican
New
Party
York
due
to
personal experiences running for office in Nassau County over
twenty-five years ago does not warrant recusal.
“[I]t is rare
that recusal is granted based only on a question of impartiality
because
RWDSU
of
v.
the
Trade
(E.D.N.Y. 2006).
judge’s
Fair
former
affiliation.”
Supermarkets,
455
F.
See
Supp.
Local
2d
As the Court of Appeals has explained:
[A] judge is not impartial solely because an
attorney is embroiled in a controversy with
the administration that appointed the judge.
Judges generally have political backgrounds
to one degree or another but must be
21
143,
338,
144
presumed, absent more, to be impartial.
At
least in the federal system, judges separate
themselves from politics when going on the
bench, and their life tenure reduces any
felt reliance on political patrons.
MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 138 F.3d 33, 38 (2d
Cir. 1998); see also United States v. Corbin, No. 09-CR-0354,
2009 WL 2611315, at *3 (E.D.N.Y. Aug. 25, 2009). 12
notwithstanding
Plaintiffs’
speculation
to
the
Further,
contrary,
the
Court has no “longstanding personal relationships” with any of
the defendants in this action.
(See Pls. Recusal Mot. 4.)
such, recusal under these circumstances would be improper.
As
See
In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir.
1988)
(“[W]here
an
interest
is
not
direct,
but
is
remote,
contingent, or speculative, it is not the kind of interest which
reasonably brings into question a judge’s impartiality.”).
Accordingly, Plaintiffs’ request that the Court recuse
itself is DENIED.
12
The case cited by Plaintiffs, In re Aguinda, 241 F.3d 194, 206
(2d Cir. 2001), in which the Circuit found that recusal was not
required, is inapposite. That case involved a judge who
attended an expense-paid seminar sponsored by a non-profit
organization that had received some funding from a party to an
action pending before that judge. Although the Circuit noted,
in dicta, that recusal may be required if the non-profit had
received a substantial portion of its funding from a litigant,
the Court fails to see how this is relevant to the present
circumstances.
22
B.
Request for a Three-Judge Panel
Plaintiffs also ask that this action be referred to a
three-judge panel pursuant to 42 U.S.C. § 1973aa-2.
Section
1973aa-2 provides that any “action under this subsection shall
be heard and determined by a court of three judges.”
However,
Section 1973aa-2, by its express terms, only permits suits by
the
Attorney
General.
Id.
(stating,
in
relevant
part,
that
“[w]henever the Attorney General has reason to believe” that
Sections 1973aa, 1973aa-1, or 1973aa-1a are being violated, “he
may institute for the United States, or in the name of the
United
States,
States”).
an
action
in
a
district
court
of
the
United
Thus this provision is inapplicable to the present
case.
Although
brought
by
section
relates
a
private
to
three-judge
citizens
private
panel
under
is
42
actions
required
U.S.C.
seeking
§
to
for
1973c,
enjoin
suits
this
the
implementation of a change in a voting standard, practice, or
procedure that was not precleared by the U.S. District Court for
the District of Columbia or the Attorney General.
See Arizona
v. Holder, 839 F. Supp. 2d 36, 38 (D.D.C. 2012) (listing the
“types of voting rights suits [that] are heard by three-judge
courts”).
As this is not what Plaintiffs allege in the present
case, this section is also inapplicable.
See 10B FED. PROC., L.
Ed. § 28:117 (“Other than in private suits brought under the
23
preclearance requirements provision, a three-judge court is not
required in private suits to enforce voting rights . . . .”);
cf. Allen v. State Bd. of Elections, 393 U.S. 544, 561, 89 S.
Ct. 817, 22 L. Ed. 2d 1 (1969) (stating that statutes providing
for
adjudication
by
a
three-judge
panel
“must
be
strictly
construed”).
Accordingly, Plaintiffs’ request is DENIED.
IV.
Motions to Dismiss
Both the State and County Defendants have moved to
dismiss Plaintiffs' Amended Complaint in its entirety for lack
of subject matter jurisdiction and for failure to state a claim.
The Court will discuss their arguments pertaining to subject
matter jurisdiction first.
A.
Lack of Subject Matter Jurisdiction
Defendants
raise
two
arguments
in
support
dismissing for lack of subject matter jurisdiction.
of
The State
and County Defendants argue that Plaintiffs lack standing to
bring the claims asserted herein because they did not attempt to
submit designating petitions for the 2012 election.
The State
Defendants
sovereign
also
argue
that
they
are
immunity under the Eleventh Amendment.
entitled
to
The Court will first
discuss the applicable standard of review before addressing the
merits of each argument.
24
1.
“A
Standard of Review under Rule 12(b)(1)
case
is
properly
dismissed
for
lack
of
subject
matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); see
also Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d
Cir. 2008), aff’d, ––– U.S. ––––, 130 S. Ct. 2869, 177 L. Ed. 2d
535
(2010).
In
resolving
a
motion
to
dismiss
for
lack
of
subject matter jurisdiction, the Court may consider affidavits
and
other
materials
jurisdictional questions.
beyond
the
pleadings
to
resolve
See Makarova, 201 F.3d at 113.
The
Court must accept as true the factual allegations contained in
the complaint, but it will not draw argumentative inferences in
favor of the plaintiff because subject matter jurisdiction must
be shown affirmatively.
See Morrison, 547 F.3d at 170; Atl.
Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 198
(2d Cir. 1992).
The plaintiff bears the burden of establishing
subject matter jurisdiction by a preponderance of the evidence.
Morrison, 547 F.3d at 170.
2.
Standing
Under Article III of the United States Constitution,
federal courts are confined “to adjudicating actual ‘cases’ and
‘controversies.’”
Allen v. Wright, 468 U.S. 737, 750, 104 S.
Ct. 3315, 82 L. Ed. 2d 556 (1984); see also U.S. CONST., art. III,
25
§ 2.
“This limitation is effectuated through the requirement of
standing.”
Cooper v. U.S. Postal Serv., 577 F.3d 479, 489 (2d
Cir. 2009) (citing Valley Forge Christian Coll. v. Ams. United
for Separation of Church & State, Inc., 454 U.S. 464, 471-72,
102 S. Ct. 752, 70 L. Ed. 2d 700 (1982)); see also United States
v. Grundhoefer, 916 F.2d 788, 791 (2d Cir. 1990).
There are
three requirements to establish Article III standing:
“(1) the
plaintiff must have suffered an injury-in-fact; (2) there must
be a causal connection between the injury and the conduct at
issue; and (3) the injury must be likely to be redressed by a
favorable decision.”
Cooper, 577 F.3d at 489; see also Allen,
468 U.S. at 751 (“A plaintiff must allege personal injury fairly
traceable
to
the
likely
be
redressed
to
defendant’s
by
allegedly
the
unlawful
requested
conduct
relief.”);
and
Lujan
v.
Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119
L.
Ed.
2d
351
(1992).
The
County
Defendants
argue
that
Plaintiffs lack standing because they did not attempt to run for
political
office
election.
There
or
are
a
party
two
position
issues
with
in
the
the
2012
County
primary
Defendants’
argument.
First, although Plaintiffs did not seek to run for
political office or a party position in 2012, Plaintiffs Dekom
and Jacoby circulated petitions for party positions in 2011 (and
Plaintiff Pendleton in some other year) and had their petitions
26
invalidated,
in
part,
because
they
failed
to
obtain
the
requisite number of signatures from registered voters in the
applicable political subdivision. 13
Further, that the 2011 and
2012 primary elections are over does not moot Plaintiffs Dekom
and Jacoby’s claims in their entirety because they are seeking
both monetary and injunctive relief.
See Van Wie v. Pataki, 267
F.3d 109, 115 n.4 (2d Cir. 2001). 14
13
Mr. Dekom was unable to obtain the requisite number of
signatures, and Mr. Jacoby obtained signatures from voters in
the wrong assembly district. See Dekom v. Nassau Cnty., No. 12CV-3473 (E.D.N.Y.) (exhibits attached to Complaint at Docket
Entry 1).
14
The Court questions, without deciding, whether Plaintiffs’
claims for injunctive relief are moot. An exception to the
mootness doctrine exists where a claim is “capable of
repetition, yet evading review.” See Lerman, 232 F.3d at 141
(quoting Meyer v. Grant, 486 U.S. 414, 417-18 n.2, 108 S. Ct.
1886, 100 L. Ed. 2d 425 (1988)); accord Fulani v. League of
Women Voters Educ. Fund, 882 F.2d 621, 628 (2d Cir. 1989).
Here, Plaintiffs’ claims arising out of the 2012 primary
election have evaded review, as “the challenged action was too
short to be fully litigated prior to its expiration.” Lerman,
232 F.3d at 141. It is less clear, however, whether the claim
is capable of repetition--i.e., whether “the same complaining
party ha[s] a reasonable expectation that [he] will face the
same action again.” Van Wie, 267 F.3d at 114. Here, the
Amended Complaint alleges that Plaintiffs “would” run again.
(Am. Compl. at 2.) Whether this assertion establishes a
“reasonable expectation” that they will again be subjected to
the same dispute is questionable. See Van Wie, 267 F.3d at 115
(finding claims for injunctive relief moot where, in the absence
of a class action, there was only a “mere theoretical
possibility” that the controversy was capable of repetition).
The Court, however, need not decide this issue because, even if
the claims for injunctive relief are not moot, Plaintiffs have
failed to state a claim. See infra pages 32-55.
27
Second,
several
courts
have
held
that
potential
candidates need-not have complied with election law provisions
in order to have standing to challenge the constitutionality of
those laws.
See, e.g., Bergland v. Harris, 767 F.2d 1551, 1555-
56 (11th Cir. 1985) (that potential candidates only made “token
attempts” at meeting the election law’s signature requirement
did not deprive them of standing); Stevenson v. State Bd. of
Elections, 638 F. Supp. 547, 549 (N.D. Ill. 1986) (holding that
plaintiffs
did
constitutionality
not
lack
of
the
standing
election
law
to
challenge
because
they
the
never
submitted petitions and had them rejected, finding that “this
gesture of formality is unnecessary”); cf. McLain v. Meier, 851
F.2d
1045,
1048
distinguished
(8th
from
Cir.
1988)
potential
(finding
that
candidates--had
voters--as
standing
to
challenge laws restricting candidates’ access to the ballot).
But see Van Allen v. Pataki, 9 F. App’x 41, 42 (2d Cir. 2001)
(finding
that
plaintiffs
lacked
standing
to
challenge
constitutionality of election law because they did not allege
that
they
had
circulated
or
intended
to
submit
a
nominating
petition for any elected office).
Accordingly, to the extent Defendants seek to dismiss
for lack of standing, their motions are DENIED.
28
3.
The
against
Sovereign Immunity
State
the
individual
Defendants
State
argue
the
State,
also
Board
of
their
official
State
Defendants
in
barred by the Eleventh Amendment.
that
the
Elections,
claims
and
the
capacities
are
“The Eleventh Amendment to
the Constitution bars suits against a state in federal court
unless that state has consented to the litigation or Congress
has permissibly enacted legislation specifically overriding the
state's immunity.”
Cir. 1990)
Russell v. Dunston, 896 F.2d 664, 667 (2d
(citations
omitted);
see
also
Bd.
of
Trustees
of
Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S. Ct. 955, 148
L. Ed. 2d 866 (2001).
This bar also applies to claims against
State agencies and State officials in their official capacities
and, with limited exception, it bars both monetary and equitable
relief. 15
See Edelman v. Jordan, 415 U.S. 651, 667–69, 94 S. Ct.
1347, 39 L. Ed. 2d 662 (1974); Puerto Rico Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S. Ct.
684, 121 L. Ed. 2d 605 (1993).
Thus, Plaintiffs’ claims under
Section 1983 against the State, the State Board of Elections,
15
Under Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed.
714 (1908), a party may seek injunctive relief in federal court
against a state official for a violation of federal law. See
Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 166
(2d Cir. 2013). Thus to the extent that Plaintiffs are seeking
injunctive relief against the individual State Defendants in
their official capacities, those claims are not barred by
sovereign immunity.
29
and the State Board of Election Commissioners in their official
capacities are barred by the Eleventh Amendment.
See Feingold
v. New York, 366 F.3d 138, 149 (2d Cir. 2004); see also, e.g.,
Iwachiw v. N.Y.C. Bd. of Elections, 217 F. Supp. 2d 374, 379
(E.D.N.Y. 2002) (dismissing claims brought pursuant to Section
1983 against the State Board of Elections as barred by sovereign
immunity), aff'd, 126 F. App'x 27 (2d Cir. 2005); McMillan v.
N.Y. State Bd. of Elections, No. 10-CV-2502, 2010 WL 4065434, at
*3 (E.D.N.Y. Oct. 15, 2010) (same), aff'd, 449 F. App'x 79 (2d
Cir. 2011); cf. Will v. Mich. Dep’t of State Police, 491 U.S.
58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989) (holding that
“neither
a
State
nor
its
officials
acting
capacities are ‘persons’ under § 1983”).
in
their
official
But see supra note 15.
However, Congress has abrogated the States’ sovereign immunity
on claims arising under the Voting Rights Act, see, e.g., Mixon
v. State of Ohio, 193 F.3d 389, 398-99 (6th Cir. 1999), New York
has waived sovereign immunity for damages suits brought under
the Rehabilitation Act, see Alexander v. State Univ. of N.Y. at
Buffalo, --- F. Supp. 2d ----, 2013 WL 750133, at *5 (W.D.N.Y.
2013) (citing Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn,
280
F.3d
98,
114-15
(2d
Cir.
2001)),
and
whether
sovereign
immunity bars Plaintiffs’ claims under the ADA is unclear, see
Bolmer v. Oliveira, 594 F.3d 134, 146-49 (2d Cir. 2010).
None
of these issues were raised by the State Defendants--let alone
30
adequately briefed--and, accordingly, the Court will not dismiss
those
claims
against
the
State
Defendants
as
barred
by
the
the
claims
in
the
Eleventh Amendment at this time.
B.
Failure to State a Claim
Defendants
also
move
to
dismiss
Amended Complaint for failure to state a claim.
claims fall into three categories:
Plaintiffs'
(1) discrimination claims
under the ADA and the Rehabilitation Act, (2) constitutional
claims under 42 U.S.C. § 1983, and (3) claims under the Voting
Rights Act.
The Court will summarize the applicable standard of
review before addressing each category of claims separately.
1.
In
failure
to
Standard of Review under Rule 12(b)(6)
deciding
a
which
standard,”
state
is
Rule
claim,
12(b)(6)
the
guided
motions
Court
by
applies
“[t]wo
to
dismiss
for
a
“plausibility
working
principles.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.
Ed. 2d 868 (2009); accord Harris v. Mills, 572 F.3d 66, 71-72
(2d
Cir.
2009).
allegations
as
First,
true,
this
although
the
Court
must
accept
“tenet”
is
“inapplicable
to
all
legal
conclusions;” thus, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.”
Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, S. Ct. 1955, 167 L. Ed. 2d 929
(2007)); accord Harris, 572 F.3d at 72.
31
Second, only complaints
that state a “plausible claim for relief” can survive a Rule
12(b)(6) motion to dismiss.
Twombly, 550 U.S. at 556).
Iqbal, 556 U.S. at 679 (citing
Determining whether a complaint does
so is “a context-specific task that requires the reviewing court
to
draw
on
its
judicial
experience
and
common
sense.”
Id.
(citation omitted); accord Harris, 572 F.3d at 72.
While pro se plaintiffs enjoy a somewhat more liberal
pleading standard, see Erickson v. Pardus, 551 U.S. 89, 94, 127
S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (“[A] pro se complaint,
however
inartfully
pleaded,
must
be
held
to
less
stringent
standards than formal pleadings drafted by lawyers.” (internal
quotation marks and citation omitted)), they must still comport
with
the
procedural
and
substantive
rules
of
law,
see
Colo.
Capital v. Owens, 227 F.R.D. 181, 186 (E.D.N.Y. 2005).
2.
ADA and Rehabilitation Act Claims
Plaintiffs
argue
that
the
signature
requirements
of
Section 6-136 of New York’s Election Law violate Title II of the
ADA and the Rehabilitation Act because such requirements favor
candidates who are not disabled and can complete the “physically
demanding” task of “going door-to-door” to obtain the requisite
number of signatures.
(Am. Compl. ¶¶ 2-3.)
To establish a
violation of either Title II of the ADA or the Rehabilitation
Act,
Plaintiffs
individuals’
with
must
a
show
that:
disability;
32
“(1)
(2)
they
that
the
are
‘qualified
defendants
are
subject to the ADA [and/or the Rehabilitation Act]; and (3) that
plaintiffs
were
denied
the
opportunity
to
participate
in
or
benefit from defendants’ services, programs, or activities, or
were otherwise discriminated against by defendants, by reason of
plaintiffs’ disabilities.”
Henrietta D. v. Bloomberg, 331 F.3d
261, 272 (2d Cir. 2003); see also Rodriguez v. City of N.Y., 197
F.3d 611, 618 (2d Cir. 1999) (stating that the ADA and the
Rehabilitation Act “impose identical requirements”).
Here,
subject
to
the
Defendants
ADA
appear
and
the
to
concede
that
they
Rehabilitation
Act
and
Plaintiffs are “qualified individuals” with disabilities.
are
that
Thus,
the issue is whether Plaintiffs have adequately pled that they
were discriminated against or excluded from participating in the
petitioning
process
on
account
Defendants assert that they have not.
Plaintiffs
signatures
and
are
in
submitting
no
way
of
their
disabilities.
The Court agrees.
excluded
designating
from
petitions.
obtaining
Although
Plaintiffs’ disabilities may make it more difficult for them to
individually canvas neighborhoods to obtain signatures, Section
6-136
does
signatures.
not
require
candidates
to
personally
collect
In fact, it is expected that volunteers will assist
candidates in obtaining signatures.
See Am. Party of Tex. v.
White, 415 U.S. 767, 787, 94 S. Ct. 1296, 39 L. Ed. 2d 744
(1974) (“Hard work and sacrifice by dedicated volunteers is the
33
lifeblood of any political organization.”); see also LaRouche v.
Kezer, 990 F.2d 36, 41 (2d Cir. 1993) (stating that the “very
purpose” of the petitioning process is to “separate candidates
on the basis of their support,” which includes the support of
volunteers needed to gather the requisite number of signatures).
Accordingly,
the
Court
finds
that
Plaintiffs
have
failed
to
plead that they were denied the opportunity to participate in
the
2011
or
2012
primary
elections
on
account
of
their
disabilities, and their ADA and Rehabilitation Act claims are
hereby DISMISSED.
3.
Claims Pursuant to 42 U.S.C. § 1983
Before
under
Section
addressing
1983,
there
the
is
one
raised by the State Defendants.
Plaintiffs
name
eight
merits
of
Plaintiffs’
preliminary
issue
claims
that
was
(See State Defs. Mot. 6 n.4.)
individuals
as
Defendants:
Governor
Cuomo, Attorney General Eric Schneiderman, New York State Board
of Election Commissioners Walsh, Aquila, Kellner, and Peterson,
and Nassau County Board of Election Commissioners Savinetti and
Biamonte.
However,
none
of
these
individual
mentioned in the body of the Amended Complaint.
Defendants
are
“‘It is well
settled in this Circuit that personal involvement of defendants
in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.’”
Colon v. Coughlin, 58 F.3d
865, 873 (2d Cir. 1995) (quoting Wright v. Smith, 21 F.3d 496,
34
501 (2d Cir. 1994)).
Government-official
Thus, “a plaintiff must plead that each
defendant,
through
the
official’s
individual actions, has violated the Constitution.”
U.S. at 676.
own
Iqbal, 556
As the Amended Complaint fails to do that, the
Section 1983 claims for monetary relief against the individual
Defendants are hereby DISMISSED.
The only remaining Section 1983 claims are those for
injunctive relief against the individual State and County Boards
of Elections’ Commissioners and for both monetary and injunctive
relief against
the
claims
fall
broadly
Nassau
into
County
two
Board
of
categories:
Elections.
claims
Those
asserting
violations of the Equal Protection Clause and claims asserting
violations
of
Plaintiffs’
right
to
First and Fourteenth Amendments. 16
vote
as
protected
by
the
The Court will address each
separately.
a.
Equal Protection
Plaintiffs claim that the designating petition process
as outlined in the New York Election Law violates the Equal
16
Plaintiffs also appear to assert a claim under the MOVE Act
(Am. Compl. ¶¶ 48-49)--namely, that Section 10-108(1)(a) of New
York’s Election Law, which prohibits absentee ballots for
military personnel seeking to vote in primary elections for
party positions, violates 42 U.S.C. § 1973ff-1, which requires
the State to “permit absent uniformed services voters and
overseas voters to . . . vote by absentee ballot in general,
special, primary, and runoff elections for Federal office.”
However, party positions are not Federal. Cf. N.Y. ELEC. LAW § 1104(4). Therefore, the MOVE Act is inapplicable here, and this
claim is hereby DISMISSED.
35
Protection
Clause
of
the
Constitution
because
the
process
favors: (1) nondisabled candidates, who can more easily do the
“physically demanding” task of “going door-to-door” to obtain
the requisite number of signatures (Am. Compl. ¶¶ 2, 6); (2)
non-religious
candidates
and
voters,
who
will
be
unavailable
during a portion of the petitioning period, which for the 2012
primaries included both Passover and Holy Week (Am. Comp. ¶¶ 810);
(3)
Hispanic
candidates,
as
Plaintiff
Dekom
lives
in
a
largely Hispanic neighborhood (Am. Compl. ¶ 11); (4) candidates
with less registered voters in their party in their political
subdivision,
because
those
candidates
are
required
to
obtain
less signatures than candidates with more registered voters in
their party in their political subdivision (Am. Compl. ¶ 28);
(5) Democrats, as New York is “heavily Democratic” (Am. Compl.
¶ 30); and (6) candidates running for “higher office,” because
“the
lesser
the
position,
the
greater
the
actual
percent
signature burden” (Am. Compl. ¶ 31 (emphasis in original); see
also Am. Compl. ¶ 32). 17
These claims are entirely without merit
and must be dismissed.
17
Plaintiffs seem to think that each individual paragraph
constitutes a separate “claim” entitling them to relief. (See
Request for Default, Docket Entry 40 (seeking the entry of
default on certain paragraphs of the Amended Complaint that
Defendants failed to address in their motions to dismiss).)
This, however, is not the purpose of the paragraph structure of
pleadings in federal court. Further, given the long, often
multi-sentence paragraphs in the Amended Complaint, the lack of
36
There are several ways in which a statute can violate
the Equal Protection Clause:
if it expressly classifies persons
on the basis of race, gender, national origin, or some other
suspect classification, see Hayden v. Cnty. of Nassau, 180 F.3d
42, 48 (2d Cir. 1999); Adarand Constructors, Inc. v. Pena, 515
U.S.
200,
(1995),
if
213,
it
227-29,
is
115
S.
facially
Ct.
2097,
neutral
132
but
L.
is
Ed.
2d
applied
158
in
a
discriminatory fashion, see Hayden, 180 F.3d at 48; Yick Wo v.
Hopkins, 118 U.S. 356, 373-74, 6 S. Ct. 1064, 30 L. Ed. 220
(1886),
or
if
it
is
facially
neutral
but
is
motivated
by
discriminatory animus and it adversely affects a suspect class,
see Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 264-65, 97 S. Ct. 555, 563, 50 L. Ed. 2d 450 (1977);
Johnson v. Wing, 178 F.3d 611, 615 (2d Cir. 1999).
Plaintiffs
here have failed to state a claim because the provisions of New
York’s
Election
Law
at
issue
are
facially
neutral
and
the
Amended Complaint does not allege that they were enacted with
discriminatory intent or applied in a discriminatory fashion.
See, e.g., Hewes v. Abrams, 718 F. Supp. 163, 167 (S.D.N.Y.
1989) (collecting cases that “have recognized that varying the
a list of distinct causes of action, and the fact that many of
the allegations in different paragraphs significantly overlap
with one another, it is very difficult for the Court to
articulate Plaintiffs’ purported claims for relief. Thus, this
list is meant to be a summary of Plaintiffs’ purported claims-not necessarily an exhaustive list.
37
size of the signature requirements based on the size of the
relevant voter base is rational and thus perfectly consistent
with
the
process
equal
may,
difficult
candidates
party’s
for
for
does
“constitutional
protection
clause”).
non-discriminatory
Plaintiffs
not
right
to
violate
to
nomination.”
get
N.Y.
a
the
reasons,
on
equal
have
That
the
‘fair
State
Bd.
make
ballot
protection
as
shot’
of
petitioning
it
than
there
more
other
is
at
winning
Elections
v.
no
the
López
Torres, 552 U.S. 196, 205, 128 S. Ct. 791, 169 L. Ed. 2d 665
(2008). 18
Accordingly,
Defendants’
motions
to
dismiss
these
claims are GRANTED, and these claims are hereby DISMISSED.
18
To the extent that Plaintiffs attempt to plead a selective
enforcement claim under the Equal Protection Clause, their claim
also fails. To plead a claim for selective enforcement, a
plaintiff must allege that: (1) he was “treated differently from
other similarly situated individuals,” and (2) “such
differential treatment was based on ‘impermissible
considerations such as race, religion, intent to inhibit or
punish the exercise of constitutional rights, or malicious or
bad faith intent to injure a person.’” Harlen Assocs. v. Inc.
Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (quoting
LaTrieste Rest. & Cabaret v. Vill. of Port Chester, 40 F.3d 587,
590 (2d Cir. 1994)); accord Cobb v. Ponzi, 363 F.3d 89, 110 (2d
Cir. 2004). Further, as with any claim under Section 1983, the
challenged conduct must be attributable to a person acting under
color of state law. See Snider v. Dylag, 188 F.3d 51, 53 (2d
Cir. 1999). Here, Plaintiffs argue that the process by which
voters object to designating petitions is “subjective” because
voters disproportionately object to insurgents’ petitions.
Plaintiffs, however, do not allege that the County Board of
Elections’ treatment of objections is subjective or
inconsistent--only that, as insurgents, Plaintiffs’ petitions
are more likely to be objected to and consequently invalidated.
Thus, the alleged “differential treatment” and subjectivity is
38
b.
Right to Vote
Plaintiffs’
appear
to
assert
four
distinct
claims
related to their fundamental rights as protected by the First
and Fourteenth Amendments:
as
outlined
in
New
(1) the designating petition process
York’s
Election
Law
unduly
burdens
Plaintiffs’ right to vote, (2) the bipartisan structure of the
County
Board
of
Elections
violates
Plaintiffs’
freedom
of
association, (3) the signature requirement violates Plaintiffs’
right to “anonymous political speech” (Am. Compl. ¶ 13), and (4)
New
York
Election
Law’s
prohibition
of
absentee
ballots
for
party position primaries infringes Plaintiffs’ right to vote.
The Court will address each separately.
i.
Ballot-Access Restrictions
Ballot-access restrictions, like those at issue here,
affect “two different, although overlapping, kinds of rights-the right of individuals to associate for the advancement of
political beliefs, and the right of qualified voters, regardless
of their political persuasion, to cast their votes effectively.”
Anderson v. Celebrezze, 460 U.S. 780, 787, 103 S. Ct. 1564, 75
L.
Ed.
2d
omitted);
547
see
(1983)
also
(internal
López
Torres,
quotation
552
U.S.
marks
at
and
204
citation
(“We
have
indeed acknowledged an individual’s associational right to vote
caused by the voters who file objections, not by Defendants or
some other state actor.
39
in a party primary without undue state-imposed impediment.”).
To determine whether the burden imposed by a particular ballotaccess law rises to the level of a constitutional violation, the
Court must “weigh the ‘character and magnitude’ of a plaintiff’s
injury against the state’s interests supporting the regulation.”
Maslow v. N.Y.C. Bd. of Elections, 658 F.3d 291, 296 (2d Cir.
2011) (quoting Burdick v. Takushi, 504 U.S. 428, 433, 112 S. Ct.
2059,
119
L.
Ed.
2d
245
(1992)).
The
Second
Circuit
has
described the applicable test as follows:
When state election laws subject speech,
association,
or
the
right
to
vote
to
“‘severe’ restrictions, the regulation must
be ‘narrowly drawn to advance a state
interest of compelling importance.’”
By
contrast, when a state election law “imposes
only
reasonable,
nondiscriminatory
restrictions”
upon
First
and
Fourteenth
Amendment
rights,
then
“the
State’s
important regulatory interests are generally
sufficient to justify the restrictions.”
Lerman, 232 F.3d at 145 (quoting Burdick, 504 U.S. at 434); see
also Prestia v. O’Connor, 178 F.3d 86, 88 (2d Cir. 1999).
Plaintiffs
here
argue
that
the
designating
petition
process--specifically, the requirement that candidates obtain a
certain number of signatures within 38 days to appear on the
ballot for the primary election (or 25% less signatures in 28
days for the 2012 primary election), N.Y. ELEC. LAW § 6-136--is
unduly burdensome because:
(1) it requires “going door-to-door”
which can be “physically demanding” (Am. Compl. ¶ 2), as opposed
40
to
allowing
voters
to
sign
petitions
via
affidavit,
email,
telephone, or fax (Am. Compl. ¶ 37); (2) the petitioning period
takes place in the spring when there is limited daylight and
inclement weather and includes both Passover and Holy Week (Am.
Compl. ¶¶ 8, 24); (3) a candidate can be accused of forgery if a
voter’s signature on a designating petition does not match the
signature
on
the
voter’s
buff
card
(Am.
Compl.
¶
25);
(4)
candidates can collect more signatures than is needed but voters
are limited to signing one designating petition per position,
which limits the pool of voters available to sign Plaintiffs’
petitions
(Am.
Compl.
¶¶
26,
33);
(5)
the
list
of
eligible
voters often includes the names of people who have died or moved
within the past year, which affects the number of signatures
that candidates will be required to obtain (Am. Compl. ¶¶ 3435); (6) certain election districts contain gated communities,
nursing homes, and apartment buildings that are inaccessible to
the
public,
designating
so
those
petitions
residents
(Am.
Compl.
will
¶
36);
be
and
unable
(7)
to
sign
people
are
unwilling to open their doors to strangers or to affix their
name and signature on a public document due to increased crime
rates (Am. Compl. ¶¶ 38-41). 19
The Court disagrees.
19
Plaintiffs also argue that the rules governing the content of
designating petitions--i.e., the possible objections to
petitions--are too complicated and take particular issue with
what they call the “town/city trap.” This refers to the
41
“States have an important interest in ‘requiring some
preliminary showing of a significant modicum of support’ before
printing a candidate’s name on the ballot, so as to ‘avoid[]
confusion,
deception,
and
even
frustration
process at the general election.’”
of
the
democratic
Prestia, 178 F.3d at 88
(alteration in original) (quoting Jenness v. Fortson, 403 U.S.
431, 442, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971)).
And the
Second Circuit has repeatedly upheld Section 6-136’s signature
requirements as constitutional, finding that “a requirement that
ballot access petitions be signed by at least 5% of the relevant
requirement under Section 6-132(1) of New York’s Election Law
that signers list their city or town of residence in addition to
their street address. According to Eastern District Judge
Edward R. Korman, this becomes a “trap” because voters “often
believe that the village that they use as their mailing address
is the ‘town’ or ‘city’ called for by the Election Law, when in
fact the statute requires them to list the larger town/city unit
within which their village of residence is located.” Molinari
v. Powers, 82 F. Supp. 2d 57, 63 (E.D.N.Y. 2000). In Molinari
signatures were being invalidated because the signer designated
his village of residence instead of his town. Judge Korman held
that this practice was unconstitutional because it was not
rationally related to a legitimate government interest. Id. at
72-73. This, however, does not invalidate Section 6-132, nor
does it invalidate the designating petition process as a whole.
Further, Plaintiffs do not allege that their own petitions were
invalidated due to this “trap,” or that their signatures on
petitions in support of other candidates were invalidated due to
this “trap.”
To the extent that Plaintiffs oppose the objection process more
generally, “[l]imiting the choice of candidates to those who
have complied with state election law requirements is the
prototypical example of a regulation that, while it affects the
right to vote, is eminently reasonable.” Burdick, 504 U.S. at
440 n.10; see also Rivera-Powell v. N.Y.C. Bd. of Elections, 470
F.3d 458, 469 (2d Cir. 2006).
42
voter
pool
is
generally
valid,
despite
any
burden
on
voter
choice that results when such a petition is unable to meet the
requirement.”
Id. (collecting cases); see also Hewes v. Abrams,
884
75
F.2d
74,
(2d
Cir.
1989);
McMillan
v.
N.Y.
Bd.
of
Elections, 234 F.3d 1262, 2000 WL 1728050, at *1 (2d Cir. Nov.
17,
2000);
cf.
Rivera-Powell,
470
F.3d
at
469
n.15
(“Many
restrictions, such as signature requirements, not only do not
burden voters’ constitutional rights to associate, but are, as a
practical matter, necessary to ensure the orderly functioning of
elections.”).
Although, as Plaintiffs suggest, going door-to-
door to collect signatures may seem archaic in light of the
technological
advancements
of
the
last
decade,
there
is
“distinction between constitutionality and wise policy.”
Torres,
552
U.S.
at
209
(Stevens,
J.,
concurring)
a
López
(quoting
Thurgood Marshall as saying that “[t]he Constitution does not
prohibit
extent
legislatures
that
Plaintiffs
from
are
enacting
unhappy
stupid
with
laws”).
the
current
To
the
ballot-
access laws, the proper recourse is with the legislature--not
the courts.
Cf. Powell v. Power, 436 F.2d 84, 86 (2d Cir. 1970)
(warning against federal courts “be[ing] thrust into the details
of virtually every election, tinkering with the state’s election
machinery,
reviewing
petitions,
registration
cards,
vote
tallies, and certificates of election for all manner of error
and insufficiency under state and federal law”).
43
Accordingly,
Plaintiffs’ claims arising out of the signature requirement are
hereby DISMISSED.
ii.
Bipartisan Board of Elections
The Amended Complaint also asserts that the bipartisan
structure of the County Board of Elections violates Democrats
and Republicans’ freedom of association because the Democratic
Commissioner
is
involved
in
adjudicating
objections
to
Republican designating petitions and, thus, has a say in which
candidates get to run in the Republican primary election (and
vice versa).
The Court disagrees.
Although the Supreme Court
has held that “[a] political party has a First Amendment right
to limit its membership as it wishes, and to choose a candidateselection process that will in its view produce the nominee who
best represents its political platform,” López Torres, 552 U.S.
at 202, a party’s freedom of association is not absolute, see
id. at 203.
bipartisan
As the Court explained above, the burden that the
County
Board
of
Elections
places
on
the
parties’
freedom of association must be weighed against the government’s
interest in imposing such a burden.
See supra pages 39-40.
The
Court finds Eastern District Judge Arthur D. Spatt’s decision in
Queens County Republican Committee ex rel. Maltese v. New York
State Board of Elections, 222 F. Supp. 2d 341 (E.D.N.Y. 2002),
to be directly on point.
In Maltese, Judge Spatt held that
Section 6-154 of New York’s Election Law--which allows voters
44
from any party to file objections to designating petitions--did
not violate the parties’ freedom of association.
Id. at 349.
Judge Spatt explained as follows:
First, the law[] appl[ies] equally to all
parties, both major and minor.
Second, the
law[] do[es] not allow a non-party member to
alter or influence the views of another
political party.
Third, the law[] do[es]
not force a party to associate with other
parties. Fourth, the law[] do[es] not allow
non-party members to determine the nominees
of another party.
In sum, the law[]
allow[s] a non-party member to ensure a
candidate has validly, properly and legally
complied with the signature ballot access
requirement for the primary election.
The
challenged candidate has either met the
lawful requirements or she has not.
Id.
at
349.
The
Court
rationale apply here:
finds
that
the
same
analysis
and
the State’s interest in ensuring that all
nominees have fully complied with the ballot-access requirements
outweighs
the
associational
minimal
rights.
burden
See
placed
Burdick,
504
on
U.S.
the
at
parties’
440
n.10
(“Limiting the choice of candidates to those who have complied
with state election law requirements is the prototypical example
of a regulation that, while it affects the right to vote, is
eminently
reasonable.”).
Accordingly,
Plaintiffs’
claims
arising out of the bipartisan structure of the County Board of
Elections are DISMISSED.
45
iii. Public Access to Designating Petitions
Plaintiffs also argue that the signature requirements
violates the signers’ right to a secret ballot.
United
States
Supreme
voting
as
constitutionally
practice's
a
prevalence
Court
in
has
However, “[t]he
never
recognized
guaranteed
right,
our
nation's
secrecy
despite
electoral
in
the
system.”
Thompson v. Dorchester Cnty. Sheriff’s Dep’t, No. 06-CV-0968,
2007 WL 5681972, at *8 (D.S.C. May 4, 2007), aff’d, 280 F. App’x
328 (4th Cir. June 9, 2008).
Accordingly, this claim is without
merit and must be DISMISSED.
iv.
Absentee Ballots for Party Position
Primaries
Finally, Plaintiffs argue that Section 8-400(9) of New
York’s Election Law, which prohibits absentee voting in primary
elections for party positions on ward, town, city, or county
committees,
Plaintiffs'
is
unconstitutional
right
to
vote.
on
its
face
However,
constitutional right to an absentee ballot.”
as
it
“[t]here
violates
is
no
Obama for Am. v.
Husted, 697 F.3d 423, 439 (6th Cir. 2012) (citing McDonald v.
Bd. of Election Comm’rs, 394 U.S. 802, 89 S. Ct. 1404, 22 L. Ed.
2d 739 (1969)); see also Price v. N.Y. State Bd. of Elections,
540 F.3d 101, 112 (2d Cir. 2008).
Rather, the burden that the
lack of an absentee ballot imposes on the right to vote must be
46
weighed
against
restriction.
the
government’s
justification
for
the
See Price, 540 F.3d at 109.
Here,
the
burden
on
Plaintiffs’
right
to
vote
is
minimal, at best, as the Amended Complaint merely alleges that
they “reasonably expect to be absent” on election day without
explaining why.
(Am. Compl. ¶ 47.)
The County Defendants argue
that this burden is outweighed by what it would cost the County
to provide absentee ballots for party position primaries.
Court
agrees.
County
and
There
six
are
1,175
election
parties
Independence,
Conservative,
political
Working
districts
(Republican,
Families,
and
in
The
Nassau
Democratic,
the
Green
Party); thus, the County would have to provide 7,050 different
absentee
ballots
for
the
primary
election.
Such
an
extraordinary administrative expense far outweighs the minimal
burden that the lack of absentee ballots places on Plaintiffs’
right to vote.
dicta,
that
See Price, 540 F.3d at 110 (opining, albeit in
“the
administrative
expenses
associated
with
absentee balloting” might constitute a “plausible reason[] why a
state
might
election”). 20
choose
not
to
provide
absentee
ballots
in
an
Accordingly, Plaintiffs’ claims arising out of the
20
Although the Second Circuit in Price upheld an as-applied
challenge to the Election Law’s prohibition on absentee ballots
in party primary elections, the Circuit qualified its holding:
The fact pattern here is unusual, and our
holding in this case is necessarily narrow.
47
Election
Law's
prohibition
on
absentee
ballots
for
party
position primaries are hereby DISMISSED.
4.
Claims under the Voting Rights Act
Plaintiffs purport to assert three claims under the
Voting
Rights
Act:
(1)
that
Defendants
violated
Sections
1973b(f)(4) and 1973aa-1a(c) by failing to provide copies of the
designating
petition
in
Spanish
(Am.
Compl.
¶
1);
(2)
that
We do not hold that there is a general
constitutional
right
to
obtain
absentee
ballots.
Nor do we hold that there is a
constitutional
right
to
obtain
absentee
ballots in all county committee races in New
York State.
Instead, after applying a
deferential standard of review, and after
examining the record in this as-applied
challenge, we conclude that the arguments
proffered
by
the
State
are
so
extraordinarily
weak
that
they
cannot
justify the burdens imposed by [the Election
Law’s prohibition on absentee ballots in
party position primaries].
540 F.3d at 112. The facts of Price are easily distinguishable
from the case at hand. The State in Price put forward “no
substantive justifications for the restrictions imposed” and
instead made a “contrived argument that tabulating absentee
ballots could cause a delay in finalizing election results,
which could interfere with the [Albany County Republican
Committee’s] ability to nominate a candidate in situations where
quick action was required.” Id. at 110. However, the Albany
County Republican Committee was a party in Price, and the
Circuit found that “a state does not have a compelling interest
in sav[ing] a political party from pursuing self-destructive
acts because the state cannot substitut[e] its judgment for that
of the party.” Id. (internal quotation marks and citation
omitted). In the present case, on the other hand, the Nassau
County Republican Committee is not a party, and the County has
put forward a valid reason for the restriction. Accordingly,
the Court finds that the narrow holding in Price is inapplicable
to the present case.
48
Sections 6-134 and 6-154 of New York’s Election Law--i.e., the
sections regarding the rules governing designating petitions and
objections
to
designating
§ 1971(a)(2)(A)-(B)
because
petitions--violate
such
provisions
are
42
U.S.C.
selectively
enforced, vague, and overly broad (Am. Compl. ¶ 21); and (3)
that the overall petitioning process is so burdensome that it
constitutes
a
“test
or
device,”
which
is
prohibited
under
Section 1973aa of the Voting Rights Act (Am. Compl. ¶¶ 12, 18).
The Court will address each claim separately.
a.
Lack of Bilingual Petitions
Section 1973b(f)(4) of the Voting Rights Act provides,
in relevant part, as follows:
Whenever any State or political subdivision
subject to the prohibitions of the second
sentence of subsection (a) of this section
provides any registration or voting notices,
forms, instructions, assistance, or other
materials or information relating to the
electoral process, including ballots, it
shall provide them in the language of the
applicable language minority group as well
as in the English language . . . .
42 U.S.C. § 1973b(f)(4) (emphasis added); accord id. § 1973aa1a(c).
Defendants
argue,
inter
alia,
that
this
section
is
inapplicable to the designating petitions because the petitions
are
not
“provided”
Elections,
but
by
rather
individual candidates.
the
are
State
or
prepared
Nassau
and
The Court agrees.
49
County
provided
Boards
of
by
the
Unlike a ballot or a
sample ballot, which is drafted, printed, and disseminated by
and
at
the
expense
of
county
boards
of
elections,
the
designating petitions are drafted, printed, and circulated by
and at the expense of the candidates.
New
York’s
designating
Election
Law
petitions
details
and
Although Section 6-132 of
the
provides
necessary
a
components
of
format,
id.
suggested
(“Each sheet of a designating petition shall . . . contain the
following
information
and
shall
be
in
substantially
the
following form . . . .”), such regulation is not the equivalent
of Defendants “providing” the petitions within the meaning of
the Voting Rights Act.
See Padilla v. Lever, 463 F.3d 1046,
1051 (9th Cir. 2006) (finding that California was not obligated
to provide recall petitions in Spanish because “[t]he fact that,
under CAL. ELEC. CODE § 11041(a), the Secretary of State ‘provides’
the format does not mean that the State ‘provides’ the petitions
themselves within the meaning of the Voting Rights Act”); cf.
Gerena-Valentin v. Koch, 523 F. Supp. 176, 177 (S.D.N.Y. 1981)
(dismissing claims under the Voting Rights Act and 42 U.S.C.
§ 1983
arising
out
of
the
government’s
failure
to
provide
bilingual petitions); Montero v. Meyer, 861 F.2d 603, 609 (10th
Cir. 1988) (finding that the petition process is not subject to
the
requirements
of
Section
1973b(f)(4)
because
it
is
not
related to the “electoral process”); Delgado v. Smith, 861 F.2d
1489, 1493 (11th Cir. 1988) (similar).
50
Accordingly,
Plaintiffs’
claims
under
42
U.S.C.
§§ 1973b(f)(4), 1973aa-1a(c) are DISMISSED.
b.
Section
Selectively Enforced, Vague, and Overbroad
1971(a)(2)
provides,
in
relevant
part,
as
follows:
No person acting under color of law shall:
(A)
in determining whether any individual
is qualified under State law or laws to
vote
in
any
election,
apply
any
standard,
practice,
or
procedure
different
from
the
standards,
practices, or procedures applied under
such law or laws to other individuals
within the same county, parish, or
similar political subdivision who have
been found by State officials to be
qualified to vote; [and]
(B)
deny the right of any individual to
vote in any election because of an
error or omission on any record or
paper
relating
to
any
application,
registration, or other act requisite to
voting, if such error or omission is
not material in determining whether
such
individual
is
qualified
under
State law to vote in such election
. . . .
42 U.S.C. § 1971(a)(2).
Law--specifically
the
Plaintiffs argue the New York Election
sections
regulating
the
content
of
designating petitions and objections thereto, N.Y. ELEC. LAW §§ 6134, 6-152--violates the Voting Rights Act because such sections
51
are vague, overly broad, and selectively enforced. 21
many issues with Plaintiffs’ argument.
There are
First, Section 1971 is
not a provision of the Voting Rights Act, but rather a provision
of the Civil Rights Acts of 1957 and 1960.
See, e.g., Thrasher
v. Ill. Republican Party, No. 12-CV-4071, 2013 WL 442832, at *3
(C.D.
Ill.
Feb.
5,
2013).
Second,
the
weight
of
authority
suggests that there is no private right of action under Section
1971.
See
42
U.S.C.
§ 1971(c)
(providing
for
suit
by
the
Attorney General); Gilmore v. Amityville Union Free Sch. Dist.,
305 F. Supp. 2d 271, 279 (E.D.N.Y. 2004) (“1971 does not provide
for
a
private
right
of
action
by
individuals.”);
Hayden
v.
Pataki, No. 00-CV-8586, 2004 WL 1335921, at *5 (S.D.N.Y. June
14, 2004) (“[T]his section does not provide for a private right
of action and is only enforceable by the United States in an
action brought by the Attorney General.”), aff’d, ; see also
Cartagena v. Crew, No. 96-CV-3399, 1996 WL 524394, at *3 n.8
(E.D.N.Y. Sept. 5, 1996); McKay v. Thompson, 226 F.3d 752, 756
(6th Cir. 2000).
But see Schwier v. Cox, 340 F.3d 1284, 1297
(11th Cir. 2003).
Finally, even if this Court implied a private
right of action, Plaintiffs have failed to state a claim because
21
Although not specifically pled in the Amended Complaint, to
the extent that Plaintiffs are also arguing that these
provisions are unconstitutionally vague, the Second Circuit has
explicitly held otherwise. Tarpley v. Salerno, 803 F.2d 57, 61
(2d Cir. 1986) (citing Pecoraro v. Mahoney, 65 N.Y.2d 1026, 494
N.Y.S.2d 289, 484 N.E.2d 652 (1985)).
52
the sections of New York’s Election Law at issue do not qualify
or limit an individual’s ability to vote in any election 22--thus
Section 1971 is inapplicable here.
Accordingly,
Plaintiffs’
claims
under
42
U.S.C.
§ 1971(a)(2)(A)-(B) are DISMISSED.
c.
Finally,
Prohibited Test or Device
Plaintiffs
argue
that
designating
petition
process is so burdensome that it constitutes a “test or device”
prohibited
by
the
Voting
Rights
Act.
The
County
Defendants
argue that this claim must be dismissed because, inter alia, the
sections of New York’s Election Law at issue do not create a
“test or device” as defined by the Voting Rights Act.
The Court
agrees. 23
22
Plaintiffs make a convoluted and misguided argument that the
designating petition process impairs an individual’s right to
vote for election commissioners because only elected party
committee members can vote for election commissioners. (Am.
Compl. ¶ 12.) In other words, if one cannot complete the
designating petition process, one cannot get elected to a party
position and consequently cannot “vote” for the election
commissioners. However, as the Court previously stated,
election commissioners are appointed by the county legislature
not elected by party committee members, see N.Y. ELEC. LAW § 3204, and although party committee members “vote” on which
individual the party will recommend to the legislature, the
Court finds that such “voting” does not constitute an election
within the meaning of Section 1971.
23
Although this argument was raised for the first time in the
County Defendants’ reply brief, it is within the Court’s
discretion to consider it. See Ruggiero v. Warner-Lambert, 424
F.3d 249, 252 (2d Cir. 2005). The Court exercises its
discretion here because Plaintiffs preemptively discussed this
53
Section 1973aa provides that:
(a)
No citizen shall be denied, because of his
failure to comply with any test or device,
the right to vote in any Federal, State,
or local election conducted in any State
or political subdivision of a State.
(b)
As used in this section, the term “test or
device” means any requirement that a
person as a prerequisite for voting or
registration for voting (1) demonstrate
the ability to read, write, understand, or
interpret any matter, (2) demonstrate any
educational achievement or his knowledge
of any particular subject, (3) possess
good moral character, or (4) prove his
qualifications
by
the
voucher
of
registered voters or members of any other
class.
42 U.S.C. § 1973aa; see also id. § 1973b.
Thus, a “test or
device” is defined as a “prerequisite for voting or registration
for voting.”
Sections 6-134 and 6-154 of the Election Law,
however, do not prevent anyone from voting or registering to
vote, see Gould v. Schneider, No. 10-CV-3265, 2011 WL 777897, at
*4 (C.D. Ill. Feb. 28, 2011) (finding that a statute requiring
would-be
candidates
to
submit
a
petition
containing
25,000
signatures in order to be placed on the ballot does not violate
42 U.S.C. § 1973aa because “that section deals with the denial
of the right to vote, not the right to be a candidate on the
argument in their opposition brief and it is patently frivolous.
See Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d
362, 364 (2d Cir. 2000) (“[D]istrict courts may dismiss a
frivolous complaint sua sponte even when the plaintiff has paid
the required filing fee.”).
54
ballot”),
aff’d,
448
F.
App’x
615
(7th
Cir.
2011),
nor
do
Plaintiffs allege that these sections prevent them from voting,
but see supra note 22.
Accordingly,
Plaintiffs’
claims
under
42
U.S.C.
§ 1973aa are DISMISSED.
V.
Leave to Replead
Although
Plaintiffs
have
not
requested
leave
to
replead, the Second Circuit has stated that “[w]hen a motion to
dismiss is granted, the usual practice is to grant leave to
amend the complaint.”
Hayden v. Cnty. of Nassau, 180 F.3d 42,
53 (2d Cir. 1999); see also FED. R. CIV. P. 15(a)(2) (“The court
should freely give leave [to amend] when justice so requires.”).
“However, a district court has the discretion to deny leave to
amend where there is no indication from a liberal reading of the
complaint
that
a
valid
claim
might
be
stated.”
Perri
v.
Bloomberg, No. 11-CV-2646, 2012 WL 3307013, at *4 (E.D.N.Y. Aug.
13, 2012) (citing Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.
2010)).
Because, as explained above, all of Plaintiffs’ claims
fail as a matter of law, leave to replead would be futile.
Accordingly,
leave
to
replead
is
DENIED,
and
the
Amended
Complaint is DISMISSED WITH PREJUDICE.
CONCLUSION
For the foregoing reasons, the motions to dismiss are
GRANTED and all other motions are DENIED.
55
The Clerk of the
Court is directed to mail a copy of this Memorandum and Order to
each of the pro se Plaintiffs and to mark this matter CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
June 18, 2013
Central Islip, NY
56
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