The Green Party of the State of New York v. Weiner

Full title: THE GREEN PARTY OF THE STATE OF NEW YORK, a political party duly organized…

Court: United States District Court, S.D. New York

Date published: Sep 8, 2000

00 Civ. 6639 (GEL) (S.D.N.Y. Sep. 8, 2000)

Opinion

00 Civ. 6639 (GEL)

September 8, 2000

MEMORANDUM OPINION

GERARD E. LYNCH, United States District Court Judge.

This case was instituted by a complaint by the Green Party of New York and others ("plaintiffs"), making various claims for relief mainly against the New York City Board of Elections. Plaintiffs' principal assertions are that various practices of the defendant Board either discriminate against their Party or impose an unreasonable burden on their ability to compete in elections, in violation of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Various claims under state law are also made, over which the plaintiffs apparently assert this Court has ancillary jurisdiction.

Before the Court is an application for preliminary injunctive relief. Although plaintiffs seek a variety of remedies, the only plausible claims for emergency provisional relief relate to the primary election now scheduled for next Tuesday, September 12. Plaintiffs' primary demand is that this Court enjoin the Board of Elections to conduct the Green Party senatorial primary on voting machines rather than on paper ballots, and order Federal marshals to supervise the conduct of the primary. In considering this application I have reviewed the extensive submissions of both sides and heard oral argument. No factual hearing has been held, nor is one necessary to resolve the matter.

The motion for a preliminary injunction is denied, based on the following findings and conclusions.

DISCUSSION

The parties agree, correctly, that to obtain preliminary relief plaintiffs must show (1) that they are likely to succeed on the merits and (2) that they will suffer irreparable injury if preliminary relief is not granted. See. e.g., Time Warner Cable of New York City v. Bloomberg L.P., 118 F.3d 917, 923 (2d Cir. 1997) (internal citations omitted). Neither showing can be made on this record.

First, plaintiffs have not established a likelihood of success on the merits. Plaintiffs have presented some interesting questions of New York State law, concerning the interpretation of various provisions of the New York Election Law, and I express no opinion on how a state court might answer them. But a federal court must be cognizant of its limited jurisdiction, particularly where the case concerns the broad power granted to the States to prescribe the "Times, Places and Manner of holding elections for Senators and Representatives. . . ." U.S. Const. art. I, § 4, cl. 1. See Tashiian v. ReDublican Party of Connecticut, 479 U.S. 208, 217 (1986). Unless persuasive federal claims are presented, it would be rash to consider demands for sweeping provisional relief on the basis of state law claims over which at most ancillary jurisdiction may exist.

At this stage of the litigation, however, I cannot conclude that plaintiffs' federal claims are likely to succeed on the merits. As the Supreme Court has held:

When deciding whether a state election law violates First and Fourteenth Amendment associational rights, we weigh the character and magnitude of the burden the State's rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State's concerns make the burden necessary. Regulations imposing severe burdens on plaintiffs' rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (citations and internal quotation marks omitted). Accepting for the sake of argument the factual claims presented in plaintiffs' affidavits, which of course would be subject to dispute at a trial on the merits, those affidavits establish some troubling irregularities in the conduct of the Green Party presidential primary in March of this year, including failure to deliver paper ballots to polling places or to post copies of such ballots as required by state law, and occasional incidents in which poll workers denigrated Green Party members or provided misinformation about the primary. But whatever inferences might be drawn after a full trial, it cannot be said now that this evidence will likely succeed in establishing either that the decision to conduct the impending Green Party primary by paper ballot was discriminatory, or that the defendant Board cannot or will not conduct such an election properly, or that the apparent defects in the March primary were pervasive or intentional.

This is particularly so in light of other facts, apparently undisputed. The Green Party electorate is small, comprising approximately 1640 enrolled members in New York City. See DeFrancesco Aff. Ex. A. (By contrast, the Democratic Party, which is also conducting a primary on the same day for the same office, has over two million registered members in the City. Id.) Small parties have equal standing with large, of course, to compete for the favor of voters, and the size of a party does not reduce the seriousness of any violation of its members' First Amendment rights. See, e.g., Anderson v. Celebrezze, 460 U.S. 780 (1983) ("'Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms. New parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as the old parties have had in the past.'") (quoting Williams v. Rhodes, 393 U.S. 23, 31-32 (1968)). But what is at issue here is not the equitable conduct of a general election, or the Green Party's right to have its candidates on the ballot. Rather, we are concerned with the proper conduct of the Green Party's own internal primary. "The Supreme Court has held that 'the States' interest [in political stability] permits them to enact reasonable regulations that may, in practice, favor the traditional two-party system." Timmons 520 U.S. at 367. What is at issue here is far less than what the Supreme Court has upheld. The Board of Elections has presented credible evidence that it has applied neutral standards of practicality in deciding that limited space on voting machines should be used primarily for larger electorates, See DeFrancesco Aff. ¶ 9-17, and that paper ballots are a more sensible and practical way of conducting an election among 1600 eligible voters spread over more than 5000 electoral districts. Id. at ¶ 26-32. Perhaps a different conclusion would be reached after a full hearing, but on this record it cannot be said that plaintiffs are likely to succeed in demonstrating that.

The defendant Board of Elections has represented to this Court (in its papers and at the hearing on this motion) that it has printed 200, 000 paper ballots for this primary, that they will be duly distributed to polling places, and that Board of Elections personnel have been properly cautioned to conduct the election according to proper procedure and with due regard for the dignity and constitutional rights of voters in smaller parties. See id. On this record, there is no reason to assume that any irregularities that might have occurred in previous paper-ballot primaries will be repeated. (Of course, if the case proceeds to trial on the merits, any significant failure to live up to these representations would be highly relevant in assessing the credibility of the Board's claims to impartiality and fairness.)

Second, plaintiffs have not shown the threat of irreparable injury. Any denial of the right to vote is a serious matter. But it is entirely speculative whether any member of the party would suffer such deprivation in a properly-conducted election using paper ballots, and there is no reason to think that the Party's ability to compete in the general election or the outcome of the primary will be affected by the challenged practices. The only question in this regard concerns the ability of the Board to render a prompt count of paper ballots. The Party would be significantly hampered if dilatory procedures attributable to the paper ballot process delayed it in learning the identity of its candidate for the Senate, and therefore impaired its ability to begin an effective campaign in the short time between the primary and the general election. Any such delay would be particularly incomprehensible, however, in light of the Board's heavy emphasis on the small size of the electorate involved. Given that the Green Party senatorial primary outside New York City will apparently be conducted on machines, and that the defendants have represented that a preliminary count in the City will be available within 48 hours, I cannot conclude that these procedures pose an undue and irreparable burden on the party's ability to conduct a general election campaign.

Finally, the competing equities cannot be ignored. The defendants have presented credible and uncontradicted evidence that reconfiguration of voting machines this close to the scheduled primary would be impossible without delaying the primary. I note an opinion from the District of Delaware denying a motion to enjoin the distribution of ballots and voting machines (two weeks before a general election) which failed to provide for write-in voting procedures. See Wright v. Cripps 292 F. Supp. 294 (D. De. 1968). The court stated that

[a]ssuming without deciding that plaintiffs' constitutional rights may be violated as contended, the questions arise whether in the present circumstances the extraordinary equity powers of this Court should be exercised to give the relief requested for the forthcoming general election and whether the relief, if given, might not do more harm than good to the public interest, might not indeed disrupt the Delaware election altogether or might not in fact create such chaotic conditions as to make a mockery of the electoral process within the state.

Id. at 297. Here, while plaintiffs have criticized the timing of the Board's decision, it is undisputed that a final decision was made on August 22, after a public hearing, and that the plaintiffs had notice no later than August 15 of the Board's tentative conclusion. Plaintiffs then waited until September 5, one week before the primary, to bring this action. Under these circumstances, to order such massive relief, at great cost to the public, and with a complete disruption of the State's orderly electoral process, would be completely unjustified.

The motion is denied.