Conservative Party Of New York State et al v. New York State Board of Elections et al

Filing 85

OPINION re: 45 MOTION to Dismiss filed by Robert A. Brehm, Gregory P. Peterson, Douglas A. Kellner, Todd D. Valentine, James A. Walsh, New York State Board of Elections, Evelyn J. Aquila. Accordingly, the Court, for the foregoing reasons, denied defendants' renewed motion to dismiss. (Signed by Judge Jed S. Rakoff on 5/9/2011) (tro)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-- -- -- -------- --- -------- ----x
CONSERVATIVE PARTY, by MIKE LONG,
its Chairman, and PAUL ATANASIO,
its Treasurer; WORKING FAMILIES
PARTY, by ROBERT P. MASTER, its
Chairperson, DANIEL CANTOR, its
Executive Director, and DOROTHY
SIEGEL, its Treasurer; and
TAXPAYERS PARTY, by DAVID NEZELEK
and RUS THOMPSON,
10 Civ. 6923

Plaintiffs,

(JSR)

OPINION

v.
JAMES A. WALSH, DOUGLAS A. KELLNER,:

EVELYN J. AQUILA, and GREGORY P.

PETERSON, in their official

capacities as Commissioners of the

New York State Board of Elections;

TODD D. VALENTINE and ROBERT A.

BREHM, in their official

capacities as Co-Executive

Directors of the New York State

Board of Elections,

Defendants.

-- -- -x
JED S. RAKOFF, U.S.D.J.
On February 3, 2011, plaintiffs the Conservative Party, the
Working Families Party, and the Taxpayers Party filed a Second
Amended Complaint pursuant to 42 U.S.C.

§

constitutionality of New York Election Law

1983 challenging the
§

9-112(4)1 (the

1 See N. Y. Elec. Law § 9-112 (4) ("If, in the case of a candidate whose
name appears on the ballot more than once for the same office, the
voter shall make a cross X mark or a check V mark in each of two or
more voting squares before the candidate's name, or fill in such
voting squares or punch out the hole in two or more voting squares
of a ballot intended to be counted by machine, only the first vote

"Statute") and its corresponding regulation,
6210.13 (A) (7)

2

9 N.Y.C.R.R. §

The Statute and Regulation

(the "Regulation")

together codify the State's policy and practice with respect to
so called "double-voting," a problem that arises when a candidate
accepts the nomination of multiple political parties and the voter
improperly votes for that candidate on more than one party line.
While it is clear in such a situation which candidate the voter
intended to support, it is not clear which party should be credited
with the vote.

As detailed in the Statute and Regulation, the State

of New York has chosen to resolve this ambiguity by counting the vote
towards the "first" party on the ballot
major political parties.
and one "independent body,

- almost invariably one of

Plaintiffs, two minor political parties
1/

allege that this policy and practice as

embodied in the Statute and Regulation violates the First and
Fourteenth Amendments of the United States Constitution.
On January 10, 2011, defendants, who are Commissioners and
Co-Executive Directors of the New York State Board of Elections sued

shall be counted for such candidate.
If such vote was cast for the
office of governor such vote shall not be recorded in the tally sheet
or returns in a separate place on the tally sheet as a vote not for
any particular party or independent body.") .
I

See 9 N.Y.C.R.R. § 62l0.l3(A) (7) ("If a ballot is marked in each
of two or more target areas or sensitive areas for a candidate whose
name appears on the ballot more than once for the same office .
. , only the first vote for such candidate with multiple markings
shall be counted for such candidate.") .
2

2

in their official capacities, moved to dismiss the complaint on
various grounds, including, inter alia, that plaintiffs failed to
state a claim upon which relief can be granted and failed to allege
a violation of plaintiffs' constitutional rights.

See Defendants'

Memorandum of Law in Support of Their Motion to Dismiss the First
Amended Complaint Pursuant to Federal Rules of Civil Procedure Rule
12(b) (1) and (6)

("Defs.' Mem.") at 8-19.

On February 9, 2011 the

Court issued a "bottom-line" Order denying the motion.

This Opinion

sets forth the reasons for that decision.
By way of background, two of the plaintiffs, the Conservative
Party of New York State and the Working Families Party, filed the
initial complaint in this action on September 14, 2010, seeking both
preliminary and permanent injunctive relief.

On October IS, 2010,

after careful consideration of the briefing submitted by both sides,
the Court denied the application for a preliminary injunction
affecting the November 2010 election.

Among other things, the Court

found that plaintiffs had slept on their rights by waiting until a
mere six weeks before the November 2010 election to file their
Complaint, and that it would be inequitable for the Court to grant
the extraordinary relief sought on such short notice.
Memorandum Order.

See 10/15/10

The Court therefore denied the motion for a

3

preliminary injunction so far as the November 2010 election was
concerned.
Defendants then moved to dismiss the Complaint on November 9,
2010.

Following full briefing and oral argument, the Court found

that the Complaint lacked sufficient precision and granted
plaintiffs leave to replead.

See 12/06/10 transcript.

On December

20, 2010, plaintiffs filed a First Amended Complaint that clarified

plaintiffs' claims and added the "New York Taxpayers Party" as an
additional plaintiff.
on January 10, 2011.

Defendants then filed a new motion to dismiss
After another full round of briefing and oral

argument on January 31, 2011, the Court, as noted, denied the motion
by "bottom line" Order on February 9, 2011, thereby allowing
discovery to proceed.
Defendants' renewed motion to dismiss, in addition to attacking
the legal merits of the plaintiffs' claims, raised two threshold
issues that the Court dealt with at oral argument on January 31, 201l.
First, defendants argued that plaintiffs lacked capacity to bring
the action.

Although the First Amended Complaint described the

Conservative Party and the Working Families Party as "domestic
not-for-profit corporations," defendants asked the Court to take
notice of the public records showing that the entities bearing those
names that filed rules with the State Board of Elections and nominated

4

candidates in the 2010 election were unincorporated associations,
see Defs.' Mem. at 3-4.

The Taxpayers Party, if it exists at all,

is also an unincorporated association.
18-23.

See Second Am. Compl. "

Section 12 of the New York General Association Law confers

the capacity to sue on behalf of an unincorporated association on
its president or treasurer.

Defendants argued, therefore, that only

a president, treasurer, or an elected or de facto officer performing
equivalent functions could bring suit on behalf of each of the
plaintiffs here.

See Locke Assocs., Inc. v. Fdn. for Support of

United Nations, 661 N.Y.S.2d 691, 693

(Sup. Ct. N.Y. Co. 1997).

Finding this to be a hyper-technical flaw, the Court allowed
plaintiffs to file a Second Amended Complaint that modified the First
Amended Complaint in this limited respect only, while otherwise
proceeding with the motion to dismiss.

Plaintiffs filed a Second

Amended Complaint in accordance with the Court's instructions on
February 3, 2011. 3

The Second Amended Complaint now names the following parties as
plaintiffs: (1) the Conservative Party, by Mike Long, its Chairman,
and Paul Atanasio, its Treasurerj (2) the Working Families Party,
by Robert P. Master, its Chairperson, Daniel Cantor, its Executive
Director, and Dorothy Siegel, its Treasurerj and (3) the Taxpayers
Party, by David Nezelek and Rus Thompson.
The Second Amended
Complaint is otherwise identical to the First, and the remainder of
the parties' arguments concerning the merits of the First Amended
Complaint apply equally to the now operative Second Amended
Complaint.
3

5

Defendants' second threshold issue was that, even if plaintiffs
had the capacity to sue, they lacked standing to do so.

The Court

dismissed this argument from the bench for the reasons explained
during oral argument.

See 01/31/11 transcript at 10 16.

Briefly

stated, although defendants maintained that plaintiffs had failed
to allege any actual injury to themselves (as opposed to other minor
parties) resulting from the alleged infirmities of the Statute and
Regulation, the case law makes clear that the "injury in fact" in
an equal protection case is the denial of equal treatment resulting
from the imposition of a barrier, not the ultimate ability to obtain
benefits if that barrier is eliminated.
F.3d 1367, 1375-76 (2d Cir. 1995)
that, absent the current rule,

Rockefeller v. Powers, 74

("[Plaintiffs] need not establish

they necessarily would see more

candidates on their ballot. Their claim that the rule decreases the
likelihood that they will have choices among delegates amounts to
a sufficient pleading of 'injury in fact' and a
connection.'ff)

'causal

(emphasis removed).

With these threshold issues resolved, the Court turned to
defendants' substantive attacks.

In their Second Amended

Complaint, as to which the defendants' renewed motion to dismiss
ultimately applied, plaintiffs allege that under New York Election
Law

§

9-112(4) and 9 N.Y.C.R.R.

§

6210.13(A) (7), double votes are

6

automatically counted towards the "first" party on the ballot.
Second Am. Compl. , 3.

Pursuant to N.Y. Election Law

§

7 116,

however, the "first" party on the ballot will be the party that
received the greatest number of votes in the prior gubernatorial
election.

The combination of these laws thus ensures that

double-votes

- technically although improperly cast for multiple

parties -- will almost always be counted as a vote for one of the
major parties, rather than for a minor party.4

Plaintiffs allege

that this violates their "core constitutional right to have all votes
cast in their favor counted and reported fairly and accurately."
Second Am. Compl. , 4.
The practical consequences of this constitutional violation
are, plaintiffs allege, substantial and deleterious.

This,

plaintiffs allege, is because it is "critical for political parties
to be able to measure the support that they receive at the ballot
box in order to attract new candidates and members, to raise money
effectively, to facilitate their ability to strategize for future

4 Plaintiffs note that the State's treatment of double-votes stands
in stark contrast to its treatment of so-called "over-votes": votes
for more than one candidate for a given office.
Second Am. Compl.
, 9.
The ballot instructions specifically warn voters against
over-voting, see N. Y. Election Law § 7 -1 0 6 (5) (6) , and when an optical
scanner machine detects an over-vote it provides the voter with a
warning and an opportunity to correct the ballot, see New York
Election Law § 7 202(1) (d).
No such warnings are given to voters
who double vote.
Second Am. Compl. ,~ 58-64.
7

elections, and to advance the issues they care about.

It is equally

critical for voters to be able to count on the fact that their
expressed support of minor political parties will be credited.

11

Id.

Moreover, accurately counting votes in the New York gubernatorial
election is particularly important because those tallies are used
to determine ballot access and order for the next four years.
~

5; N.Y. Election Law

§

7-116.

rd.

Parties that do not reach the 50,000

vote threshold in the most recent gubernatorial race are considered
only "independent bodies," see N.Y. Election Law

§

1-104, and are

required to submit nominating petitions to place candidates on the
ballot.

rd.

~

42; N.Y. Election Law

§

6 138.

Thus, plaintiffs

allege, the Statute and Regulation, by causing double-votes to be
assigned only to the major party and not to the minor party,
discriminate against minor parties and" impose [] a variety of burdens
that, both independently and collectively, severely restrict the
ability of minor parties to compete with major parties in the
political marketplace./I

Second Am. Compl.

~

35.

Plaintiffs further allege that, although the State's policy of
crediting all double votes to the first party on the ballot has been
in place for many years, the issue has gained newfound significance
because of the federally-mandated transition from lever to optical
scanner voting machines.

rd.

~

6.

The old voting machines did not

8

--~------

physically allow a voter to pull two levers for any office, and it
was therefore impossible for a voter to double-vote for a single
candidate on more than one party line.

rd.

Thus, only voters who

voted on a paper ballot could double vote, and, according to
plaintiffs, paper ballot voting "comprised a tiny percentage of the
4.7 million votes that were case in the 2006 gubernatorial election."
rd.

~

7.

However, as required by the Help America Vote Act of 2002,

42 U.S.C.

§

15301 - - - - - ' " ­ ("HAVA" ), New York enacted the Election
et

Reform and Modernization Act of 2005

1

which introduced new optical

scanning voting machines for the first time in 2010.
do not prevent double-votes
first named party.

1

These machines

but simply count them for the

rd. at ~~ 1 9i 33-34.

As a result, according

to plaintiffs, "available data indicates [sic] that there were likely
tens of thousands of double-votes in the 2010 general election in
New York."

rd. ~ 47 (emphasis removed).

Such data suggest that

"[t]he number of double-votes in the 2010 election was material to
Plaintiff Taxpayers Party's ability to reach the 50,000 vote
threshold for political party status, and in future elections will
likely be material to and affect all Plaintiffs' ability to reach
the 50, 000 vote threshold for political party status and Plaintiffs'
ballot placement in New York."

rd.

9

~

54.

In their motion to dismiss, defendants, in a variation of their
"no injury in fact" threshold argument, see ,supra, emphasize the
Supreme Court's recent iteration of the requirement that

II

[f] actual

allegations be enough to raise a right to relief above the speculative
level," Bell At l<!tnti c Corp. v. Twombly, 127 S. ct. 1955, 1965 (2007),
and contend that the complaint must be dismissed as too speculative.
This argument is without merit.

Plaintiffs allege that the Statute

and Regulation, when applied in conjunction with N.Y. Election Law
§ 7-116, codify a discriminatory counting rule that places unequal

burdens on both the right to vote and the right to associate.

In

an equal protection case, and right of association case, no more is
required to satisfy the federal pleading standard.

Although it is

true that the exact rate of double voting in the 2010 New York State
General election is not yet known, the palpable difference between
the old voting machines that prevented such double-votes and the new
machines that allow double-votes render the allegations of injury
entirely plausible.

See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009) .
A more colorable issue is whether the alleged burden on
plaintiffs' First and Fourteenth Amendment rights that the Statute
and Regulation impose can be overcome, as a matter of law, by the
State's justification for the Statute and Regulation -- and,

10

correlatively, what standard should be used to assess this issue.
In cases involving alleged discrimination against minor parties,
" [t} he Supreme Court has said that if state law grants \ established
parties a decided advantage over any new parties struggling for
existence and thus place[s]

substantially unequal burdens on both

the right to vote and the right to associate' the Constitution has
been violated, absent a showing of a compelling state interest."
Green Party of New York v. New York State Board of Elections,
F.3d 411, 419-20 (2d Cir. 2004)
23,

31 (1968)).5

Moreover,

389

(quoting Williams v. Rhodes, 393 U.S.

"even when pursuing a legitimate

interest, a State may not choose means that unnecessarily restrict
constitutionally protected liberty," but must rather adopt the
"least restrictive means" available to achieve its ends.

Ill. state

=-B-,,-d_.-=--o_f_E-=--l...:.e=-c=-t_i_o=-n_s~v_._=-:.S=-o=-c_i=-a=-l=-l=-·_s=-t=-_==--:...::--=.-=---=---=--~! 440 U. S. 173, 183 (1979) .

In this case! plaintiffs allege that the Statute and Regulation
place discriminatory burdens on minor political parties! and the

See also Anderson v. Celebrezze, 460 U.S. 780! 793 94 (1983) ("A
burden that falls unequally on new or small political parties or on
independent candidates impinges, by its very nature! on
associational choices protected by the First Amendment.
It
discriminates against those candidates and - of particular
importance -- against those voters whose political preferences 1
outside the existing political parties.
. By limiting the
opportunities of independent-minded voters to associate in the
electoral arena to enhance their political effectiveness as a group!
such restrictions threaten to reduce diversity and competition in
the marketplace of ideas.").
11
5

alleged unequal burdens are those that affect plaintiffs' ability
to exercise their First Amendment rights.

Accordingly, as in Green

Party, the Court is "faced with a situation where the plaintiffs'
First Amendment claims substantially overlap with their equal
protection claims."

Green Party, 389 F.3d 411 at 420.

will therefore adopt the Second Circu

The Court

's analysis in that case as

the appropriate legal standard:
with respect to both claims, we must first determine the character
and severity of the alleged burdens. If we conclude that the
burdens on plaintiffs' associational rights are severe, we must
next analyze the state's purported interests to determine whether
those interests are compelling and, if so, whether the alleged
burdens are necessary for the state to achieve its compelling
interests. If we determine.
. that the state's interests are
not sufficient to justify such burdens, we must rule that the
plaintiffs have a substantial likelihood of success on the merits
of their claims.
Id.
In this case, as noted, plaintiffs argue that the Statute and
Regulation impose a number of burdens on minor poli tical parties and
independent bodies.

First, they contend that "a fair and accurate

count of the number of votes cast for each party in each election
is critical to the ability of minor parties to secure a place on the
ballot."

Second Am. Compl. , 42.

Under New York Election Law

§§

1-104(b) and 6 138, only political organizations that poll at least
50,000 votes for their gubernatorial candidates achieve full fledged
"party" status, and only political parties are guaranteed placement
12

-------------_

...

-

.--......--.-~ ..-.--... ~

on the ballot.

Id.

By contrast,

"independent bodies" must go

through the "labor- and cost-intensive process of sUbmitting
nominating petitions to place their candidates on the ballot."
(c

ing N.Y. Elec. Law

§

6-138).

Id.

The Court agrees that the

distinction between a minor political party on the one hand and an
independent body on the other is important in terms of ballot access,
and that the State's double -vote counting rule burdens minor parties
and independent bodies by making it more difficult for them to cross
the crucial threshold.
U.S.

780

SeegenerCll~y

Anderson v. Celebrezze, 460

(1983).

Second, plaintiffs contend that the Statute and Regulation
burden their ability to achieve a favorable ballot placement.
Defendants are surely correct that plaintiffs have no constitutional
right to appear first on the ballot.

As stated in New Alliance Party

v. N.Y. Bd. of Elections, 861 F. Supp. 282 (S.D.N.Y. 1994), "access
to a preferred posi tion on the ballot so that one has an equal chance
of attracting the windfall vote is not a constitutional concern .
. The Constitution does not protect a plaintiff from the
inadequacies or the irrationality of the voting publiCi it only
affords protection from state deprivation of a constitutional
right."

rd. at 295.

that New Alliance

The Court agrees with plaintiffs, however,
is inapposite to the issues here.
13

Plaintiffs

do not assert a freestanding right to receive any particular
placement on the ballot; rather, they "assert the right to be free
from unabashed discrimination in the process of determining bal
order."

Plaintiffs' Memorandum of Law in Opposi tion to Defendants'

Motion to Dismiss ("PIs.' Mem.") at 16.
chosen to determine bal

They argue that, having

order based on the number of votes cast

for a particular party in the prior gubernatorial election, the
"State cannot then stack the deck in favor of the major political
part

s, to the disadvantage of the minor pol

ical parties, by

assigning votes to the major parties that they did not actually
receive.

/I

Id.

Unlike the minor party in New Alliance Party, which

asserted the right to be listed first among the non-full fledged
parties in order to capture "windfall" votes, plaintiffs in this case
to prevent the major politi

parties from receiving all the

credit for votes that may have been intended to support the minor
parties.

Id.

Third, plaintiffs argue that the Statute and Regulation burden
the ability of minor part

s and independent bodies to fundraise,

to influence elected officials on matters of public policy, and to
recruit candidates and members. 6

Second Am. Compl. ~~ 36-41.

6 Although defendants cite Timmons v. Twin Cities Area
, 520
U.S. 351, 362 63 (1997), for the proposit
that pol
parties
do not have a right to use the ballot itself II to send a particularized
14

Plaintiffs have alleged that there is a strong correlation between
the number of votes a minor party/independent body receives and its
ability to accomplish these aims, an allegation that comports with
common sense.

rd.

Accordingly, the Court finds that the Statute

and Regulation impose another cognizable burden in this respect.
Finally, plaintiffs argue that the State's policy burdens the
voters themselves,

"who have the fundamental right to have their

intended votes counted and reported fairly and accurately."
44.

rd.

~

According to plaintiffs, their "members are harmed when they

signal their intent to support a minor party but the State credits
their vote as if it had been cast exclusively for a major party."
rd.

The State might have sought to prevent this problem by not

counting double-votes at all.

But having chosen instead to count

them, the State cannot distort how the voters actually voted.

This

then{ is a fourth impermissible burden imposed by the Statute and
Regulation.
The Second Amended Complaint thus adequately alleges severe
burdens that the Statute and Regulation impose on minor parties{

message{ to its candidate and to the voters, about the nature of its
support for the candidate { " this case is distinguishable.
While it
is true that political parties have no right to use the ballot to
itself send convey messages to voters and/or candidates { that does
not mean that political parties have no right to use accurate election
results to convey their strength to candidates, voters { and potential
donors.
15

independent bodies, and voters themselves. 7

The Court must now

consider whether the State's policies embodied in the Statute and
Regulation further a compelling interest and whether it has chosen
the least restrict

means of achieving that interest.

Defendants articulate the State's interest as follows:
The State has a compelling interest in ensuring that candidates
with the most support win the election and that elections run
smoothly and efficiently.
Those goals are achieved by the manner
which the legislature determined double votes should be
counted. The statute not only provides an administrat
ly
efficient and swift way to credit a vote for the candidate who is
the clear cho
of the voter, it also makes certain that the vote
is counted only once despite the fact that the voter voted for the
same candidate multiple times. Election Law §9 112(4) is,
therefore, a remedial statute intended to ensure that the votes
for candidates are fairly counted and that the candidates with the
most support are actually elected.
Defs.' Mem. at 21.

Defendants further argue that the State' s chosen

policy is the least restrictive means of achieving these goals
because it is the only option that simultaneously (1) assures that
the voter's choice of candidate is captured and recorded; (2) assures
that only one vote for a candidate is counted;
parties the same;

(3) treats all minor

(4) counts the vote for a party whose ballot

position is already secure; (5) operates so that the vote is typically

Of course, for purposes of the instant motions, the Court takes all
allegations of the Second Amended Complaint, and all reasonable
inferences therefrom, most favorably to plaintiffs.
Discovery may
well show that the burdens are more ephemeral, or the State's
justifications more weighty.
16
7

credited to the candidate's own party; and (6) is nondiscriminatory
because it is neutral on its face.

Id. at 23-24.

It is well-established that "[s]tates certainly have an
interest in protecting the integrity, fairness, and efficiency of
their ballots and election processes as means for electing public
, 520 U.S. 351,

officials."

Timmons v. Twin Cities Area New

364 (1997).

However, while discovery may yet reveal that the State's

chosen method of resolving the double-vote issue serves substantial
interests, the Court is not persuaded at this stage that the State
has chosen the least restrictive means available to achieve this end.
Plaintiffs argue that there is no logical reason why the candidate
could not receive credit for the vote, and then, with respect to the
parties, either: (1) credit neither party,
both parties,
parties.

(2) split the vote among

(3) credit only the minor party, or (4) credit both

PIs.' Mem. at 23.

that one might readily infer

None of these alternatives -- and others
- would have the same discriminatory

impact on minor parties as does the existing rule.
In short, as of the time of the instant motion, plaintiffs had
adequately alleged that the Statute and Regulation severely burdened
their First and Fourteenth Amendment rights and the State had not
yet established, at a minimum, that the State had chosen the least
restrictive alternative to achieve its purported justification for
17

the Statute and Regulation.

Accordingly, the Court, for the

foregoing reasons, denied defendants' renewed motion to dismiss.

~~S'D'J'

Dated:

New York, New York
May ~, 2011

18