United States of America v. State of New York et al

Filing 64

MEMORANDUM-DECISION and ORDER - That the court adopts the Aquila-Kellner calendar (Dkt. No. 61 at 10-16). That the parties shall file a status report on or before March 9, 2012, and every thirty (30) days thereafter, which, among other things, informs the court of New York's progress in complying with the court's orders. Signed by Chief Judge Gary L. Sharpe on 2/9/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________
UNITED STATES OF AMERICA,
Plaintiff,

1:10-cv-1214
(GLS/RFT)

v.
STATE OF NEW YORK and NEW YORK
STATE BOARD OF ELECTIONS,
Defendants.
_________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
HON. RICHARD J. HARTUNIAN
United States Attorney
445 Broadway
218 James T. Foley U.S. Courthouse
Albany, NY 12207-2924
United States Dept. of Justice
Civil Rights Division
950 Pennsylvania Ave. NW
Washington, D.C. 20530
FOR THE DEFENDANTS:
State of New York
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Albany Department of Law
The Capitol
Albany, NY 12224
Board of Elections
New York State Bd. of Elections
Office of Special Counsel

BARBARA D. COTTRELL
THOMAS SPINA, JR.
Assistant U.S. Attorneys

RICHARD A. DELLHEIM, ESQ.
RISA A. BERKOWER, ESQ.

JEFFREY M. DVORIN
BRUCE J. BOIVIN
Assistant Attorney Generals

KIMBERLY A. GALVIN, ESQ.
PAUL M. COLLINS, ESQ.

40 Steuben Street
Albany, NY 12207-1650
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
New York has once again demonstrated its intransigent refusal to
comply with a federal mandate protecting the federal voting rights of those
serving in the military overseas and those otherwise living on foreign soil.
Responding to the court’s prior Memorandum-Decision and Order, see
United States v. New York, No. 1:10-cv-1214, 2012 WL 254263 (N.D.N.Y.
Jan. 27, 2012), the sole-ordered defendant—the New York State Board of
Elections (NYSBOE)—acting through lead and co-counsel, have filed two
competing submissions in contravention of the court’s order. Indeed, these
submissions remind the court of Strother Martin’s (Captain, Florida Road
Prison 36) admonition to Paul Newman (Prisoner Luke): “What we’ve got
here is a failure to communicate.” Cool Hand Luke (Jalem Productions
1967.)
On behalf of Commissioners James Walsh and Gregory Peterson
and Co-Executive Director Todd Valentine, lead counsel has filed the
“Walsh-Peterson submission,” which erroneously interprets the prior order.
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(See Dkt. No. 60.) Specifically, the Walsh-Peterson submission asserts
that “we have not interpreted [the] order to mean that in promulgating said
calendar that you are either requiring or expecting the NYSBOE to make
wholesale changes to those statutes in an effort to cure any possible
infirmities therein.” (Id. at 1.) Furthermore, the submission provides only a
partial calendar applying current State law electoral deadlines to the new
primary date, but suggests that the NYSBOE lacks authority to recommend
any necessary modifications to the resulting calendar. (See id.)
On the other hand, and on behalf of Commissioners Evelyn Aquila
and Douglas Kellner and Co-Executive Director Robert Brehm, co-counsel
has filed the “Aquila-Kellner submission,” which includes a completely
modified election calendar based on the court’s prior order, which
established the primary date as the fourth Tuesday in June. (See Dkt. No.
61 at 10-16.)
The court is aware of the public and political outcry caused by its
having selected a June primary date and it is also aware of the adverse
economic consequences that may result if New York feels constrained to
hold multiple primaries. However, the court has not ordered multiple
primaries and the public deserves to know the history of this litigation.
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By virtue of the Uniformed and Overseas Citizens Absentee Voting
Act (UOCAVA), 42 U.S.C. §§ 1973ff to 1973ff-7, as amended by Congress
in 2009 as part of the Military and Overseas Voter Empowerment (MOVE)
Act, Pub. L. No. 111-84, subtitle H, §§ 575-589, 123 Stat. 2190, 2318-2335
(2009), overseas military personnel and other overseas voters cannot be
disenfranchised. Indisputably, the Supremacy Clause of the United States
Constitution requires that “any state law, however clearly within a State’s
acknowledged power, which interferes with or is contrary to federal law,
must yield. ” Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 108
(1992) (internal quotation marks omitted). Since the MOVE Act
amendment more than two years ago, New York has failed to comply with
federal law, and continues to disenfranchise military and overseas voters.
After the 2009 amendment, New York applied for a hardship waiver
from the Secretary of Defense, citing many of the road blocks to
compliance it continues to argue now. Following its promise of future
compliance, New York was granted the waiver for the November 2, 2010
federal general election, which resulted in the disenfranchisement of
federally protected voters. When subsequent federal-state negotiations
failed to remedy New York’s violations, the United States Department of
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Justice filed suit on October 12, 2010. In a Consent Decree executed
seven days later—now almost sixteen months ago—New York agreed to
take certain steps to ensure that absentee ballots cast in the 2010 election
would be counted and that New York’s primary date would be changed to
guarantee UOCAVA compliance. Yet, New York failed to honor its
commitment. And it was this failure—which demonstrated New York’s
inability to resolve its political differences in order to comply with federal
law—that forced the court’s hand two weeks ago. While New York may
now confront new issues as it seeks a primary solution, the fact remains
that it has squandered over two years in its attempts to solve the problem.
Once again, the court is left with no choice since the NYSBOE
Commissioners have failed to agree, and only the Aquila-Kellner
submission complies with the court’s prior order. Therefore, the court
adopts the Aquila-Kellner calendar. Furthermore, the court observes that
while the NYSBOE filed the calendar, New York State is also a defendant.
The court expects full compliance by all defendants, regardless of how they
choose to effectuate such compliance.
Lastly, the court paraphrases the admonition from its last decision:
This decision by no means precludes New York from reconciling their
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differences and selecting a different primary date, or a different modified
election calendar, all of which is UOCAVA compliant.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the court adopts the Aquila-Kellner calendar (Dkt.
No. 61 at 10-16); and it is further
ORDERED that the parties shall file a status report on or before
March 9, 2012, and every thirty (30) days thereafter, which, among other
things, informs the court of New York’s progress in complying with the
court’s orders; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
February 9, 2012
Albany, New York

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