779 F.2d 141 (2nd Cir. 1985), 325, Butts v. City of New York

Docket Nº:325, Docket 85-7670.
Citation:779 F.2d 141
Party Name:Reverend Calvin O. BUTTS, III and Digna Sanchez, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, 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, Bet
Case Date:December 13, 1985
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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779 F.2d 141 (2nd Cir. 1985)

Reverend Calvin O. BUTTS, III and Digna Sanchez, on behalf

of themselves and all others similarly situated,



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-Appellants.

No. 325, Docket 85-7670.

United States Court of Appeals, Second Circuit

December 13, 1985

Argued Sept. 17, 1985.

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Randolph M. Scott-McLaughlin, New York City (Frank E. Deale, Juan Saavedra-Castro, Center for Constitutional Rights, New York City, of counsel), for plaintiffs-appellees.

Thomas C. Crane, New York City (Frederick A.O. Schwarz, Jr., Corp. Counsel of City of New York, New York City, Frederick P. Schaffer, Beth G. Schwartz, Elizabeth J. Logan, of counsel), for defendants-appellants.

Robert Abrams, Atty. Gen. State of N.Y., New York City (Robert Hermann, Sol. Gen., O. Peter Sherwood, Deputy Sol. Gen., Frederick K. Mehlman, Asst. Atty. General-in-Charge, Litigation Bureau, Colvin W. Grannum, Frederic L. Lieberman, James Cole, Asst. Attys. Gen., of counsel), filed a brief for amicus curiae State of N.Y.

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Alan Rothstein, New York City, filed a brief for amicus curiae Citizens Union of the City of New York.

Lanie Guinier, Penda D. Hair, Maryann Walsh, New York City, filed a brief for amicus curiae NAACP Legal Defense and Educational Fund, Inc.

Esmeralda Simmons, Emanuel A. Towns, Paul Wooten, Ann C. Northern, Brooklyn, N.Y., filed a brief for amicus curiae Metropolitan Black Bar Association, Inc.

Robert Plautz, New York City, filed a brief for Intervenor Joseph R. Erazo, or in the alternative, amicus curiae.

Before LUMBARD, OAKES and NEWMAN, Circuit Judges.

LUMBARD, Circuit Judge:

The City of New York appeals from a judgment entered by Judge Brieant (S.D.N.Y.) following a bench trial, declaring that New York Election Law Sec. 6-162 violates both the Equal Protection Clause of the fourteenth amendment to the U.S. Constitution, and Section 2 of the Voting Rights Act, 42 U.S.C. Sec. 1973. 1 Judge Brieant's order permanently enjoined the City from giving effect to Sec. 6-162, more commonly known as the "primary run-off law." See 614 F.Supp. 1527, 1556. The City argues, first, that the district court clearly erred in finding that Sec. 6-162 was enacted with a racially discriminatory purpose; and that therefore there is no Equal Protection violation. Second, the City argues that the district court's finding of discriminatory effect sufficient to constitute a violation of the Voting Rights Act rests both on clearly erroneous factual findings, and on misapplication of legal standards. Because the record shows that the primary run-off law was never intended to deny minority voters--and does not have the effect of denying them--an equal opportunity to participate in the political process, we reverse.


Political observers are agreed that the adoption of the run-off law was prompted by the unusual results of the 1969 New York City mayoral election. In the Democratic primary that year, two candidates--Herman Badillo and Robert Wagner--split the votes of the party's mainstream (Badillo receiving 28%, and Wagner 29%); as a result, the nomination went to Mario Proccacino (with 33% of the votes), who had run on a "safe streets" platform. Proccacino lost in the general election to incumbent John Lindsay, the nominee of the Independent and Liberal parties.

In 1972, Democratic State Assemblymen Stanley Steingut and Albert Blumenthal sponsored a primary run-off law. The run-off bill speedily passed the State Senate by a vote of 49-8, and the Assembly by a vote of 104-5. Governor Rockefeller subsequently signed it into law. As amended in 1976 and 1978, the law provides that if no candidate for the offices of Mayor, City Council President, or Comptroller of the City of New York receives 40% or more of the votes cast in a party's general primary, then the Board of Elections must conduct a run-off between the two top vote-getters in the general primary. 2

Senator Bloom and other proponents of the bill argued that it was designed to avoid a repeat of the 1969 "fluke" Proccacino result, when a candidate who clearly did

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not represent the views of a majority of the members of his party secured the nomination because of the vicissitudes of vote division. The bill's few opponents in the Senate argued that it could have the effect of preventing blacks and Hispanics from ever electing their own candidates to the three city wide offices covered by Sec. 6-162. They argued, first, that the underlying motive for the law was the "Badillo scare" of 1969--that is, his garnering of 28% of the votes in the initial primary. Second, they pointed out that the 40% threshold figure was just above the percentage of black and Hispanic combined population in New York City at the time. Despite this criticism, and following strong rebuttal by the bill's proponents, the Senate passed it overwhelmingly. It is important to note that Senator Garcia--a leading Hispanic legislator and a Badillo supporter for the 1973 mayoralty--spoke in favor of Sec. 6-162 in the Senate debates, and claimed that then-Congressman Badillo supported the bill. Furthermore, the bill passed in the Assembly virtually without opposition, all five black and Hispanic Assemblymen present voting aye.

The original version of Sec. 6-162 survived constitutional challenge in Proccacino v. Board of Elections, 73 Misc.2d 462, 341 N.Y.S.2d 810 (Sup.Ct.N.Y.Co.1973). Proccacino argued that the law violated the "Home Rule" provision of the New York State Constitution (Art. IX, Sec. 2(b)), which allows municipalities to pass on State laws directed at the municipalities' "property, affairs, or government"; he also argued that the law violated the Due Process and Equal Protection Clauses of the fourteenth amendment to the U.S. Constitution. The court rejected the home rule claim on the ground that the state legislature had acted validly with regard to a matter of state concern. See 73 Misc.2d at 464-67, 341 N.Y.S.2d at 813-17 (citing Adler v. Deegan, 251 N.Y. 467, 167 N.E. 705 (1929)). As to the federal challenges, the court first rejected Proccacino's claim that Sec. 6-162 deprived him of his due process rights as a voter, holding that the law embodied a rational process aimed at better reflecting "a more valid consensus of the party members." 73 Misc.2d at 470, 341 N.Y.S.2d at 818. Second, the court rejected Proccacino's claim that, because it applied only to New York City, the law violated the Equal Protection clause. The court noted that the application to New York City alone was reasonable. See 73 Misc.2d at 470, 341 N.Y.S.2d at 818-19.

The run-off law has been triggered in three New York elections. In the 1973 mayoral race, the initial standings in the primary were:

Beame 34.5% Badillo 29.0% Biaggi 20.5% Blumenthal 16.0%

The run-off totals were:

Beame 61.0% Badillo 39.0%

In 1977, seven candidates sought the Democratic mayoral nomination. The results of the initial primary were:

Koch 20.0% Cuomo 19.0% Beame 18.0% Abzug 16.5% Sutton 14.0% Badillo 11.0% Harnett 1.5%

Ed Koch defeated Mario Cuomo in the run-off, 55% to 45%. Also in 1977, five candidates sought the Democratic nomination for City Council President. The initial standings in the primary were:

O'Dwyer 31.0% Bellamy 25.0% Burden 20.0% Hirschfeld 17.0% Stavisky 7.0%

In the run-off, Carol Bellamy overtook incumbent Paul O'Dwyer, and won with 59% of the vote.

Plaintiffs Rev. Calvin Butts and Digna Sanchez, who represent a class consisting of all present and/or potentially eligible black and Hispanic voters residing in New York City, filed this action on October 15, 1984. On December 21, 1984, the Attorney General submitted a consent order dismissing the State and the Governor as defendants. 3

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The City and the Board of Elections remain as defendants.

Judge Brieant presided over a bench trial from June 3 to June 10, 1985. To support their contention that Sec. 6-162 was intended to and does make it more difficult for a black or Hispanic candidate to receive a party's nomination, the plaintiffs offered the testimony of three leading minority political figures--Badillo, former Manhattan Borough President Percy Sutton, and former Lieutenant Governor Basil Paterson--and also the testimony of experts in the field of New York City politics. Defendants called their own expert witness, and offered extensive documentary evidence. On August 13, 1985, Judge Brieant found for the plaintiffs; subsequently, in a Final Order dated August 16, he enjoined the defendants from conducting any run-offs pursuant to Sec. 6-162. At the defendants' request, we expedited the appeal.

The district court first found for the plaintiffs on their claim under the Voting Rights Act. The court noted that Section 2 of the Act creates a private right of action for citizens to challenge allegedly discriminatory voting practices or procedures. Judge Brieant pointed out that intent is not a prerequisite to a Section 2 violation; instead, a plaintiff can prove a violation by demonstrating the existence of some combination of nine objective factors. In accordance with the Supreme Court's direction in Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982), Judge Brieant focused his analysis on the "totality of circumstances," using the objective factors as a guide.

Crediting the plaintiffs' documentary evidence and their experts, the court found that the plaintiffs had met their burden of proof with respect to six of the nine typical objective factors. Judge Brieant stated that, in the "totality of circumstances," Sec. 6-162...

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