Butts v. City of New York
| Decision Date | 13 August 1985 |
| Docket Number | No. 84 Civ. 7373-CLB.,84 Civ. 7373-CLB. |
| Citation | 614 F. Supp. 1527 |
| Parties | Reverend Calvin O. BUTTS III and Digna Sanchez, on behalf of themselves and all others similarly situated, Plaintiffs, v. CITY OF NEW YORK, New York City Board of Elections, Election Commissioners Matteo Lumetta, Ferdinand C. Marchi, Rosemary A. Millus, Joseph J. Previte, Martin Richards, James S. Bass, Alice Sachs, Anthony Sadowski, Betty Dolen, Executive Director, Robert S. Black, President, and Orlando Velez, Secretary, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Randolph M. Scott-McLaughlin, C. Vernon Mason, Juan Saavedra-Castro, New York City, for plaintiffs.
Frederick A.O. Schwarz, Jr., Corp. Counsel for City of New York by Beth G. Schwartz, Thomas C. Crane, and Elizabeth J. Logan, New York City, for defendants.
Plaintiffs, suing in behalf of a class consisting of all present and/or potentially eligible Black and Hispanic voters residing in New York City, seek injunctive and declaratory relief holding that New York Election Law § 6-162 violates the United States Constitution, the Voting Rights Act, 42 U.S.C. § 1973, and the Civil Rights Act, 42 U.S.C. §§ 1981, 1983. The challenged New York statute is a run-off primary law, applicable only to the City of New York and there only to the three city-wide offices. It states in full:
"In the city of New York, when no candidate for the office of mayor, city council president or comptroller receives forty per cent or more of the votes cast by the members of a political party for such office in a city-wide primary election, the board of elections of such city shall conduct a run-off primary election between the two candidates receiving the greatest number of votes for the same office."
This statute was enacted originally in 1972 and made applicable to cities with a population of one million or more. New York is the only such city. In 1976 and 1978 the state legislature amended the statute to read as quoted above. In every other city in the state, and in elections for noncity-wide offices in New York City, New York Election Law § 6-160 applies. It provides that in any contested primary, whoever wins the most votes becomes the party nominee.
Since 1972, a total of three run-off primary elections have been held in New York City pursuant to the statute. All were held for the Democratic Party. Two run-offs were for the mayoral nomination and the third was for nomination for the office of City Council President.
Plaintiffs Calvin O. Butts and Digna Sanchez are representatives of a class consisting of all present and/or potentially eligible Black and Hispanic voters residing in New York City. This action was certified as a class action pursuant to Rule 23, F.R. Civ.P., following a February 11, 1985 hearing at which this Court made oral findings. Adequate notice of the pendency of the class action was published; no plaintiff class members requested exclusion.
As originally filed on October 15, 1985, this action named the State of New York and its Governor as defendants. On December 21, 1984 the Attorney General of New York submitted a consent order dismissing the State and the Governor as defendants. This was proper. On January 3, 1985, the Clerk of the Court provided statutory notice, required under 28 U.S.C. § 2403(b), informing the Attorney General that plaintiffs here challenge the constitutionality of New York Election Law § 6-162. Since that date the Attorney General has declined to appear or defend the validity of the statute in this Court. See Endorsement Order of January 3, 1985 in this action.1
This Court conducted a non-jury trial beginning on June 3, 1985 and concluding on June 10, 1985. The parties were permitted to submit post-trial memoranda which have been filed and considered. There follows the Court's findings of fact and conclusions of law.
Plaintiffs essentially contend that the run-off primary law infringes upon the constitutional rights of Black and Hispanic voters to equal protection and due process, and that the operation of the run-off statute was intended to and does make it more difficult for a Black or Hispanic candidate to emerge as the party nominee. Plaintiffs offered evidence in support of the theory that the effect of the run-off statute is to give class members less opportunity than other members of the electorate to participate successfully in the electoral process to the extent of nominating members of their class. Defendants claim that the statute has no discriminatory impact on any particular social, racial or ethnic group in New York City.
As will be anticipated by any reader vaguely familiar with New York City politics, the evidence in this case included animated testimony concerning the recent history of Democratic party affairs, the ever changing atmosphere of race relations in the City, and the recent campaigns of various office seekers. Plaintiffs offered the testimony of three prominent political figures, Herman Badillo, a Hispanic, and Basil Paterson and Percy Sutton, both of whom are Black. Each witness described his personal experiences in city-wide election campaigns in terms both vivid and trenchant. In addition, experts appeared for both plaintiffs and defendants to express their opinions from a more academic perspective.
The facts which have emerged from the trial testimony and the documentary exhibits are these. In 1973, there were four candidates in the initial primary for Mayor — Mario Biaggi, Albert Blumenthal, Herman Badillo, and Abraham Beame. The percentages of total votes obtained by each of the candidates were:
Abraham Beame 34.5%
Herman Badillo 29.0%
Mario Biaggi 20.5%
Albert Blumenthal 16.0%
A run-off election was held in which Mr. Beame resoundingly defeated Mr. Badillo, by the following percentages of the total votes cast:
Abraham Beame 61%
Herman Badillo 39%
In 1977, there were seven candidates seeking the Democratic Party nomination for Mayor — Edward Koch, Mario Cuomo, Abraham Beame, Bella Abzug, Percy Sutton, Herman Badillo and Joel Harnett. The results of the initial primary election were as follows:
Edward Koch 20.0%
Mario Cuomo 19.0%
Abraham Beame 18.0%
Bella Abzug 16.5%
Percy Sutton 14.0%
Herman Badillo 11.0%
Joel Harnett 1.5%
Mr. Koch was the winner of the 1977 run-off primary, defeating Mr. Cuomo. He received 55% of the total votes cast.
In the third run-off primary, held in 1977 for the office of City Council President, the results were as follows. In the initial primary there were five white candidates who received these percentages of total votes cast:
Paul O'Dwyer 31%
Carol Bellamy 25%
Carter Burden 20%
Abraham Hirschfield 17%
Leonard Stavisky 7%
Ms. Bellamy won the run-off election with 59% of the vote, defeating the incumbent, Paul O'Dwyer. Ms. Bellamy, who also won the general election, is currently serving as City Council President and is a candidate for the 1985 Democratic nomination for Mayor.
As can be gleaned from the figures stated above, except for Mr. Badillo, no Black or Hispanic candidate has participated in a run-off primary under this statute. In recounting his political career, Mr. Badillo told the Court that he held his first elective office beginning in 1965 when he served as Borough President of the Bronx. In 1970, Mr. Badillo began the first of four elected terms as a United States Congressman. In 1970 he was elected to Congress as a representative of a tri-borough district covering a portion of the South Bronx, a portion of Manhattan in East Harlem, and Astoria, a portion of Queens. For his second, third and fourth terms he was elected from a Congressional District covering only the South Bronx.
In 1969, prior to the adoption of the challenged statute, there was a contested primary for the Democratic nomination for Mayor. Mr. Badillo, the only minority candidate, nearly won. The results were as follows:
Mario Procaccino 33%
Robert Wagner 29%
Herman Badillo 28%
James Scheur 5%
Norman Mailer 5%
Mr. Badillo testified that:
The final results of the 1969 general election for Mayor were that incumbent John Lindsay, running that year as an Independent and Liberal Party candidate, won in a three way race, receiving about 42% of the total vote. The Democratic nominee, Mario Procaccino, was defeated. The experiences of 1969 inspired the enactment of the run-off statute, which was known in Albany legislative circles as the "Badillo bill", or perhaps more properly the "anti-Badillo bill".
Mr. Badillo made a second try for the mayoral nomination in 1973, after the enactment of the run-off statute, and achieved the second highest percentage of votes cast. According to his testimony, which we consider credible since it can be assumed that a political candidate can and will review and evaluate his own election results with some reasonable degree of accuracy, Mr. Badillo received support from...
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