Gold v. Feinberg
| Citation | 101 F.3d 796 |
| Decision Date | 26 November 1996 |
| Docket Number | D,987 and 988,Nos. 984,s. 984 |
| Parties | Lila GOLD; Howard Lasher; Delores Vargas; Arcadia Rodriguez; Audra Rodriguez; Gloria Hacken; Paul Podhaizer; Howard Babbush; Pedro Lamboy, Plaintiffs-Appellants-Cross-Appellees, v. Michael FEINBERG; New York City Board of Elections; Kenneth Evans, Defendants-Appellees, John Sampson; Adele Cohen; Martin Bromberger, Defendants-Appellees-Cross-Appellants. ockets 96-9274(L), 96-9278(XAP), 96-9284(XAP) and 96-9308(XAP). |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Dudley Gaffin, Gaffin & Mayo, P.C., New York City, Jeffrey D. Buss, Smith Buss & Jacobs, L.L.P., New York City, Jerry H. Goldfeder, New York City, for Plaintiffs-Appellants.
Franklyn H. Snitow, Snitow & Pauley, New York City (Kenneth A. Kanfer, Snitow & Pauley, on the brief), for Defendant-Appellee Michael Feinberg.
Fabian Palamino, New York City, for Defendants-Appellees New York City Board of Elections, and Kenneth Evans, and for Defendant-Appellee-Cross-Appellant Michael Feinberg.
John W. Caroll, Wolfson & Carroll, New York City, for Defendants-Appellees-Cross-Appellants Adele Cohen and Martin Bromberger.
Gerald J. Dunbar, Brooklyn, NY, for Defendant-Appellee-Cross-Appellant Kenneth Evans.
B. Mitchell Alter, Alter and Barbaro, Esqs., Brooklyn, NY, for Defendant-Appellee-Cross-Appellant John Sampson.
Before: OAKES, ALTIMARI and MAHONEY, * Circuit Judges.
The present case, along with a number of companion cases, 1 involves constitutional challenges to state primary elections held in Kings County, New York, on September 10, 1996. The elections were marked with irregularities, including, inter alia: (1) delays in the arrival of voting machines at approximately one-third of the election districts, (2) a miscounting of votes resulting from improper placement of templates over ballots, and (3) the presence of ineligible candidates on the ballot. According to the plaintiffs-appellants, these irregularities, among other things, deprived voters of their right to vote in violation of 42 U.S.C. § 1983. The United States District Court for the Eastern District of New York (Trager, J.) agreed with the plaintiffs, and entered a preliminary injunction directing that in specified election districts the Democratic primary election for Surrogate of Kings County and certain other county offices be continued on October 10, 1996. Plaintiffs and defendants appeal on an expedited basis from that order.
After oral argument was heard in this appeal, a per curiam decision was issued reversing the district court's preliminary injunction, and stating that an opinion articulating the rationale for our decision would follow. See Gold v. Feinberg, 97 F.3d 680 (2d Cir.1996). An emergency appeal was taken by the appellant Gold to the United States Supreme Court seeking a stay of this Court's order, which was denied by Justice Ginsburg. As we explain below, the rationale for our decision is that controlling precedent in this Circuit requires that in order to find a violation of § 1983 there must be evidence of an intentional deprivation of the right to vote, and no such evidence exists here. Our rationale equally applies to each of the companion cases cited in footnote 1 above, but we write separately in Coto v. Gangemi only because that case involved slightly different facts warranting further discussion.
On September 9, 1996, the day before the primary election at issue was to occur, New York State Supreme Court Justice William H. Garry issued an order removing Judge Fern Goldstein's name from the ballot for the Democratic Surrogate's race in Kings County. Federal injunctive relief from the state court order was denied later that evening. According to the record, because of the late-issued order of Justice Garry, voting machines that had not been delivered to polling places by the evening of September 9th had to be modified to conform to the order.
The Board of Elections arranged with the Board of Education to have schools that were to be used as polling places kept open late for delivery of the voting machines. However, a breakdown in communication occurred, and notice of the late delivery never reached many of the individual school custodians who were to keep the buildings open. This resulted in the Election Board's inability to deliver more than 300 of the total 1,837 Kings County voting machines until well after polling places had opened at 6:00 a.m. on September 10th. Although paper ballots are available when voting machines are inoperative, such ballots are delivered inside the voting machines and, thus, also remained unavailable to voters in the affected polling places until the voting machines arrived. Eventually, the voting machines were delivered, some by late morning and others during the afternoon. The late arrival of voting machines was the single irregularity alleged in all of the companion cases accompanying this appeal.
Unique to this particular case is a second alleged irregularity: namely, the failure to remove Judge Goldstein's name from approximately seventy-five percent of the voting machines pursuant to Justice Garry's order. After that order was issued, technicians were dispatched to modify the voting machines which had already been delivered. Attempts to correct the ballots, however, proved unsuccessful, and in some cases counterproductive, because of a failure by the technicians to account for a procedure used to list candidates whereby the candidates' name order is rotated from ballot to ballot so that no candidate's name appears first on the ballot more frequently than any other candidate's name. By failing to account for this procedure when realigning the templates, some votes previously cast were deleted and others cast for one candidate were effectively "switched" to another candidate. As a result, plaintiffs contend that ineligible candidates were credited with over 2,000 votes out of a total of approximately 77,000 votes cast in the Surrogates race.
On September 20, 1996 the plaintiffs, who include registered voters allegedly deprived of the right to vote in the primary election and unsuccessful candidates for the offices of Surrogate, Democratic Party State Committee Member, and State Senate, commenced the present action against the prevailing candidates in the aforementioned primary races and the New York City Board of Elections. Plaintiffs simultaneously moved for a preliminary injunction enjoining the New York City Board of Elections from certifying the results of the September 10, 1996 primary, and directing the Board of Elections to schedule and administer a new, county-wide Democratic primary election in all the races allegedly tainted by the primary's irregularities. Similar actions filed by other plaintiffs soon followed. Although the district court did not formally consolidate all of the cases, they were assigned to Judge Trager, who held hearings in each of the cases and then issued an oral ruling from the bench covering all of them.
The district court rejected arguments put forward by several of the parties that decisions by some members of the Board of Elections and its staff regarding delivery of the voting machines may have been made to benefit a particular candidate, finding that any such evidence was insufficient to support granting the plaintiffs' motion. Nonetheless, it found that the delays in the arrival of the voting machines were not the result of inadvertence, but of conduct constituting "willfulness within the meaning of the civil rights law and the case law when it is the result of procedures, policies, and practices, and actions that have persisted throughout the years." Accordingly, the district court held that the irregularities constituted a violation of 42 U.S.C. § 1983. To remedy the consequences caused by the untimely delivery of the voting machines, Judge Trager entered a preliminary injunction ordering a continuation of the primary election on October 10, 1996, between the hours of 6:00 to 9:00 p.m., for those eligible voters who had not voted on September 10, 1996 in specified election districts.
This appeal followed and was considered on an expedited basis. Plaintiffs appeal from the district court's denial of the broader injunctive relief they desired; that is, a declaration that the original primary election was void and an order that an entirely new primary election be held. Several of the defendants who won the primary and are candidates for the general election cross-appeal. The defendants John Sampson, Adele Cohen and Martin Bromberger appeal, contending that the plaintiffs lack standing to bring the present claims, and that the district court improperly exercised jurisdiction over this case. Sampson further contends that the plaintiffs failed to meet their burden of showing irreparable harm and a likelihood of success on the merits, among other things. Like the plaintiffs, the defendant Kenneth Evans contends on appeal that an entire new primary election in all election districts be held. The defendant Michael Feinberg responds to the plaintiffs' appeal by contending that the district court's injunction was appropriate and should be affirmed, but cross-appeals and argues that the district court erred in retaining jurisdiction over the matter.
Although plaintiffs' complaint also alleges claims under the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973-1973ff-6, the First and Fourteenth Amendments to the United States Constitution, Article II, Section 1 of the New York State Constitution, and the New York State Election Law, the district court's injunction was entered on the basis of § 1983, and we limit our review here to that claim.
The general standard for issuing a preliminary injunction requires that the movant show " '(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2...
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