Doherty v. Meisser

• Decision Date: 12 May 1971
• Citation: 66 Misc.2d 550,321 N.Y.S.2d 32
• Parties: Patrick William DOHERTY, an infant by his parent and natural Guardian Patrick John Doherty, Plaintiffs, v. William D. MEISSER and Marvin D. Cristenfeld, as Commissioners of the Board of Elections of Nassau County, N.Y., Defendants.
• Court: New York Supreme Court

Page 32

321 N.Y.S.2d 32

66 Misc.2d 550

Patrick William DOHERTY, an infant by his parent and natural Guardian Patrick John Doherty, Plaintiffs, v. William D. MEISSER and Marvin D. Cristenfeld, as Commissioners of the Board of Elections of Nassau County, N.Y., Defendants.

Supreme Court, Special Term, Nassau County, Part III.

May 12, 1971.

Alan Manning Miller, Freeport, for plaintiffs.

Joseph Jaspan, County Atty., Nassau County for defendants by Edward Glazer, Mineola.

MEMORANDUM

BERTRAM HARNETT, Justice.

Is a voting registrant over 18, but under 21, entitled to vote in the Democratic primary in Nassau County this September 14, 1971? The question is simple to state, but the answer is not.

I. Legal Setting

Until Congress passed the Voting Rights Act Extension of 1970, there was no question whatsoever but that only people over 21 could vote in New York elections, primaries or otherwise. N.Y. State Const., Art. II, § 1; Election Law, § 150. Then came the Voting Rights Act Extension of 1970, in which Congress sought to reduce the voting age throughout the Country to age 18. In sweeping terms, Congress declared that:

'Except as required by the Constitution, no citizen of the United States who is otherwise qualified to vote in any State or political subdivision in any primary or in any election shall be denied the right to vote in any such primary or election on account of age if such citizen is eighteen years of age or older'. P.L., 91--285, § 302.

If the matter had rested there, and the statute were to be applied as written, 18 year olds could freely vote in the 1971 primary.

But, before the legislative ink was dry, the constitutionality of the 18 year old vote statute was attacked in Court, culminating in the United States Supreme Court decision of Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272, which, even at this early time, must be reckoned a landmark case. The Supreme Court said:

'* * * it is the judgment of the Court that the 18-year-old vote provisions of the Voting Rights Act Amendments of 1970 are constitutional and enforceable insofar as they pertain to federal elections and unconstitutional and unenforceable insofar as they pertain to state and local elections'. 400 U.S. at 118, 91 S.Ct. at 261.

Predictably, a great swirl of confusion has arisen as a result of the Congressional act and its partial nullification. Some states already have an 18 year old voting limit (Alaska, Georgia, Kentucky), so no problems arise there. But, some have voting ages above 18, but below 21 (see, opinion of Harlan, J., concurring in part and dissenting in part, Oregon v. Mitchell, Supra, at 213, n. 90, 91 S.Ct. 260), and the great bulk of the states continue age 21 voting systems. In those states which have voting ages above 18, the clarifying choices lie between (a) maintaining a dual voting age system for federal elections, on one hand, and for state and local elections on the other, with all its concomitant problems, (b) lowering the voting age in that state for all elections to accord with the federal 18, or (c) subscribing to a federal constitutional amendment reducing all states' voting ages to 18.

However, even while the controversy of political revision rages, there remains an election upcoming in New York in 1971. While the New York State Legislature is reported to be considering lowering the voting age by statute or state constitutional amendment, or as being agreeable to a federal constitutional amendment, the fact remains that under presently governing law, the age dichotomy persists in New York for the 1971 elections.

II. The Coming Election

On September of 1971, the enrolled voters of the Democratic party of Nassau County will vote for 'County Committeemen' of their party (Election Law, §§ 12, 13), and, also, will nominate their party candidates for various public offices to be filled at the general election in 1971. These particular public offices consist of a state legislator, various judgeships, and County and town officials. No federal offices, such as Congress, United States Senator, or Presidential Elector (Cf. Ray v. Blair, 343 U.S. 214, 224--225, 72 S.Ct. 654, 96 L.Ed. 894; In Re Green, 134 U.S. 377, 379, 10 S.Ct. 586, 33 L.Ed. 951), are scheduled to appear on the primary ballot in 1971.

The Democratic County Committeemen elected at the primary will serve for a two year term, including 1972, during which there will be presidential and congressional elections in Nassau County. Under New York law, County Committee members are neither federal, state or local officers, nor are they even public officers at all. Public Officers Law, § 2; Matter of Neary v. Voorhis, 207 App.Div. 419, 202 N.Y.S. 236; People v. Clampitt, 34 Misc.2d 766, 222 N.Y.S.2d 23. The applicable statute provides simply that they are 'party officers'. Election Law, § 2(8), (9).

III. The Issue Becomes Joined

The plaintiff in this case, Patrick William Doherty, is a 19 year old interim-appointed Democratic Committeeman who claims that the County Committeemen elected in the 1971 party primary will have a direct effect on the federal elections in 1972. The defendant, County Board of Elections, essentially argues that the County Committeemen are not national or federal officers, and that they do not figure significantly in federal elections.

The 19 year old Mr. Doherty has registered to vote with the Nassau County Board of Elections. He has also enrolled in the Democratic party. By letter dated February 9, 1971, his attorney requested an opinion of the Board of Elections whether Mr. Doherty might be permitted to vote in the primary elections to be held on September 14, 1971. There are in Nassau County two Commissioners of Election constituting the Board of Elections. In separate letters, each dated February 10, 1971, these Commissioners of Election rendered conflicting opinions. Acting on the opinion of the Nassau County Attorney, defendant Commissioner Meisser declared that Mr. Doherty would not be permitted to vote in the 1971 Democratic primary. Defendant Commissioner Cristenfeld opined that Mr. Doherty should be entitled to vote in the primary, at least for the office of County Committeeman.

It is apparent that unless the Board of Elections, made up of only the two Commissioners, takes an affirmative action to permit voting for Democratic County Committeeman at the primary by newly registered 18--21 year old voters, a large number of Democratic enrollees, including Mr. Doherty, will be unable to exercise that right of franchise. The Board of Elections can take such action only by agreement of its two Commissioners, Cristenfeld v. Meisser, 64 Misc.2d 296, 314 N.Y.S.2d 638. While the Commissioners both express in their papers a union in sympathy for the 19 year old Mr. Doherty's point of view, they disagree as to the applicable legal fundamentals. This impasse left Mr. Doherty with the necessity to institute this proceeding if he is to vote in the 1971 Democratic primary. In the Court's opinion, there is posed a justiciable controversy with respect to plaintiff's right to vote for County Committeeman in the 1971 Democratic primary. This controversy is present, real, definite and substantial, and ripe for judicial determination. Prashker v. United States Guar. Co., 1 N.Y.2d 584, 592, 154 N.Y.S.2d 910, 916, 136 N.E.2d 871, 875; Park Avenue Clinical Hospital v. Kramer, 26 A.D.2d 613, 271 N.Y.S.2d 747, affd. 19 N.Y.2d 958, 281 N.Y.S.2d 359, 228 N.E.2d 411. See CPLR 3001.

IV. Procedural Maneuvering

Commissioner Meisser moved to dismiss the complaint for failure to state a cause of action. In resisting the motion, Mr. Doherty had the written support of Commissioner Cristenfeld and also Amicus curiae support from an organization known as the New Democratic Coalition. This Court denied the motion to dismiss, for the principles announced in this opinion, pending an immediate trial of the issues of fact of the actual role of the Democratic County Committeemen in the federal election process. CPLR 3211(c), 3212. Accordingly, the parties proceeded to trial of this action for declaratory judgment, waiving further answer by the defendant.

Defendant's contention that the New York Secretary of State is a necessary party is lacking both in cited authority and apparent merit. That official has no function with regard to the primary election of Democratic County Committeemen in Nassau County, and that is what this case is about. Cf. Election Law, § 144.

One final and puzzling procedural involvement separates us from the substance of the case. The plaintiff served this declaratory judgment action in the New York State Supreme Court on March 1 1971. On March 30, 1971, the defendant served a notice of motion in the same court to dismiss the complaint on the merits, and asked this New York State Supreme Court for an order pursuant to Section 3001 of the New York Civil Practice Law and Rules declaring that the U.S. Voting Rights Act Extension of 1970 does not grant the plaintiff the right to vote in the 1971 Democratic New York State primary. The motion was returnable April 19, 1971, and was ultimately assigned to this Court. None of the defendant's moving papers raised any question whatsoever of federal jurisdiction. On April 19, 1971, the Court requested oral argument of the parties, and at the stated mutual convenience of the parties, the argument was held in this Court on April 30, 1971. At no time during this argument was any question of federal jurisdiction raised. Defendant's brief contained no reference to federal jurisdiction. The Court determined from the argument that there was sufficient probability of the requirement of a trial of some issues of fact for the parties to get themselves ready, pending this Court's determination of the defendant's motion for dismissal or summary judgment. The Court followed this expeditious procedure because both parties expressed to it their desire to expedite this action, which...