Bishop v. Lomenzo

• Decision Date: 07 September 1972
• Docket Number: No. 72 Civ. 1088.,72 Civ. 1088.
• Citation: 350 F. Supp. 576
• Parties: Leah N. BISHOP, on her own behalf and on behalf of all others similarly situated, namely, qualified voters wishing to register to vote in the forthcoming presidential election during the month of September, et al., Plaintiffs, v. John P. LOMENZO, Secretary of State of the State of New York, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

350 F. Supp. 576

Leah N. BISHOP, on her own behalf and on behalf of all others similarly situated, namely, qualified voters wishing to register to vote in the forthcoming presidential election during the month of September, et al., Plaintiffs, v. John P. LOMENZO, Secretary of State of the State of New York, et al., Defendants.

No. 72 Civ. 1088.

United States District Court, E. D. New York.

September 7, 1972.

COPYRIGHT MATERIAL OMITTED

Burt Neuborne, Arthur Eisenberg, Mervin Rosenman, New York City, for plaintiffs.

Louis J. Lefkowitz, Atty. Gen. of New York, New York City, for defendants Rockefeller and Lomenzo; George D. Zuckerman, Asst. Atty. Gen., of counsel.

Joseph Jaspan, County Atty., Nassau County, Mineola, N. Y., for defendants Meisser and Cristenfeld; J. Kemp Hannon, Mineola, N. Y., of counsel.

Norman Redlich, Corp. Counsel, New York City, for defendants Dinkins, Martinez, Duberstein and Larkin; Elliot P. Hoffman, Asst. Corp. Counsel, of counsel.

Before MANSFIELD, Circuit Judge, and BARTELS and DOOLING, District Judges.

MANSFIELD, Circuit Judge.

This suit, instituted under the federal civil rights law, 42 U.S.C. § 1983, asks us to declare § 355 of the New York Election Law,¹ McKinney's Consol.Laws, c. 17 unconstitutional and to enjoin its enforcement, when read with § 354,² § 355 would have the effect of barring registration of qualified voters during a period of approximately 66 days prior to the Presidential election to be held on November 7, 1972, except for local registration during a few days in the first part of October (October 5, 6, 7 and 10) and for absentee registration as authorized by § 153-a³ of the Election Law. In addition, plaintiffs ask us to enjoin as unconstitutional certain other provisions of the New York Election Law (§§ 39 through 42, and § 353) to the extent that they restrict qualified registrars of voters to teams consisting of one enrolled member of each of the two major political parties (Democratic and Republican) and preclude others, including independent voters, members of other parties (Liberals and Conservatives) and persons who have registered since the last preceding general election, from serving as registrars.

Since the complaint raised substantial questions with respect to the constitutionality of statutes of state-wide application, we were, on August 23, 1972, designated to serve as a statutory three-judge district court by the Acting Chief Judge of the United States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. §§ 2281 and 2284. Following the service and filing by the defendants of answers and motions to dismiss the complaint pursuant to Rule 12(b), F.R.Civ.P., on various grounds (laches, defective papers, lack of standing, lack of jurisdiction over the subject matter and failure to state a claim for relief), we, on August 30, 1972, held a hearing at which testimony, documentary evidence, and stipulated proof were received.

Concluding that we had jurisdiction over the subject matter, which had been invoked pursuant to 42 U.S.C. § 1983, 28 U.S.C. §§ 1343 and 2201, et seq., we, on August 31, 1972, issued a temporary restraining order directing the defendants, among other things, to continue central registration of voters in accordance with the procedures provided by § 355 of the New York Election Law, until September 15, 1972, or until the filing of our decision, whichever event should first occur.

Plaintiff Leah N. Bishop, a Nassau County resident recently enfranchised by the Twenty-Sixth Amendment, will be able to register personally only during a period of approximately two weeks in September, as she is employed and attends school in Massachusetts. The other plaintiffs are individuals and organizations desiring to engage in volunteer registration activities during September in connection with the forthcoming Presidential election. Except for plaintiff Alan Epstein, an enrolled Democrat, none of the individual plaintiffs is enrolled as Democrat or Republican.

Upon learning of defendants' proposal to enforce the above-mentioned provisions of the Election Law, plaintiffs, frustrated in their plans to continue their registration activities in September, instituted the present purported class suit on August 17, 1972, on behalf of themselves and all others similarly situated. They claim that the provisions of § 355, which mandate the termination of central registration of voters for a period of 30 days prior to local registration, i. e., from September 2, 1972 (since September 3 and 4 fall on Sunday and Labor Day, respectively) to October 5, 1972, will have the effect of disenfranchising large numbers of the electorate who are qualified to participate in the forthcoming Presidential election, in violation of the First, Fourteenth, Fifteenth and Twenty-Sixth Amendments to the United States Constitution and the Voting Rights Act Amendments of 1970, § 202(d), 42 U.S.C. § 1973aa-1(d) (the "Act" herein). They further assert that the New York statutory provisions restricting registrars to enrolled members of the two major political parties and requiring that registration be conducted by teams of one member each of these two parties discriminate against plaintiffs and others who wish to act as registrars and violate their rights under the same provisions of the Constitution.

Defendants are the Governor and Secretary of State of New York and the Commissioners of Election of Nassau County and of the City of New York. Although David N. Dinkins, Commissioner of Elections for New York City and Marvin D. Cristenfeld, Commissioner for Nassau County, are named as defendants, they not only do not oppose the relief sought but have appeared and testified in favor of it. Counsel for the New York City Board of Elections filed an affidavit to the effect that it takes no position on the merits of the action but will abide by any order of this Court affecting the validity of the statutes under attack. The Commissioner of Elections of Rockland County filed an affidavit generally favoring the continuation of central registration of voters during September 1972. All defendants other than Dinkins and Cristenfeld, however, oppose the suit and seek its dismissal. Defense counsel, furthermore, offered to furnish testimony of commissioners of elections from other counties of New York opposing continuation of registration in September.⁴

At the outset we face certain threshold questions, the first of which is the contention that equitable relief should be denied because of laches. Unquestionably plaintiffs, who have been actively engaged in registration activities as early as mid-July, were or should have been aware of the general provisions of the statutes now under attack. Their delay in bringing suit until August 17, 1972, has imposed a heavy burden not only on the Court but on the defendants who, if the action had been commenced earlier, would have been afforded more time to prepare for any contingency, e. g., to explore the issues and to prepare the administrative and clerical force required to continue registration activities in September, if it should be so ordered. In reply plaintiffs urge that they believed until they were first advised to the contrary in mid-August that they would be permitted to continue their activities (i. e., registration by voluntary unpaid registrars) in September since they were not using the services of regular paid employees of the Boards of Elections and hence did not consider their activities to be "Central Registration" as that term is used in § 355. While we do not doubt plaintiffs' good faith, it is apparent that the New York City Board of Elections, in permitting unpaid volunteers to function as registrars, was acting pursuant to authority granted by § 355 to provide "branch offices of the central registration board in any county" and plaintiffs could have clarified the matter by asking the boards for their view at an earlier date. However, in view of our conclusion that § 355 does violate the Voting Rights Act Amendments of 1970—a violation which could, unless restrained, affect the rights of thousands of qualified voters—we believe that the public interest in enforcement of such an important federal law is paramount and should not be defeated because of laches on the part of the named plaintiffs. Any inability due to the short notice, to provide the clerical or administrative assistance required to comply fully with the Act, although relevant to determination of the nature and extent of the relief to be granted, would not provide a basis for denial of any relief at all.

Turning to the question of plaintiffs' standing, we are satisfied that plaintiffs have a sufficient personal stake in the outcome and are seriously enough affected by the enforcement of the statutes in question to insure presentation of the issues in an adversary context that is capable of judicial resolution as a case or controversy within the meaning of Article III, § 2 of the Constitution. See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663; Flast v. Cohen, 392 U.S. 83, 101; Abele v. Markle, 452 F.2d 1121, 1124-1125 (2d Cir. 1971). Plaintiffs here have far more than an academic interest of the type found insufficient in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Except for Ms. Bishop, who desires to register in September, they are now all currently engaged in registration activity, either as registrars or as organizations promoting such ends, and if they prevail in this lawsuit, they propose to continue these activities. Lastly, if plaintiffs were denied standing, it is difficult to conceive of any person who would have standing.

With respect to plaintiffs' application for a determination that the action may be maintained as a class action pursuant to Rule 23, F.R.Civ.P., it appears from the evidence that there are at least several thousand voluntary unpaid registrars having the same interests as the...