Green v. Board of Elections of City of New York, 66 Civ. 2005.
Decision Date | 05 October 1966 |
Docket Number | 66 Civ. 2005. |
Citation | 259 F. Supp. 290 |
Parties | Gilbert GREEN, Plaintiff, v. BOARD OF ELECTIONS OF the CITY OF NEW YORK, Louis J. Lefkowitz, Attorney General of the State of New York, and Frank S. Hogan, District Attorney of the County of New York, Defendants. |
Court | U.S. District Court — Southern District of New York |
Leonard B. Boudin, Rabinowitz & Boudin, New York City, for plaintiff.
Samuel A. Hirshowitz, First Asst. Atty. Gen., and Brenda Soloff, Asst. Atty. Gen., New York City, for defendant Louis J. Lefkowitz, Atty. Gen. of New York.
David T. Austern, Asst. Dist. Atty., New York City, for defendant Frank S. Hogan, Dist. Atty. of County of New York.
Plaintiff has applied to this court for an order to convene a three-judge court pursuant to 28 U.S.C. §§ 2281, 2284 for a hearing and determination of his application for a declaratory judgment that Article II, Section 3 of the Constitution of the State of New York, Section 152 of the New York State Election Law, McKinney's Consol.Laws, c. 17, and Section 510-a of the Penal Law of New York, McKinney's Consol.Laws, c. 40, are unconstitutional. In his complaint, he seeks both a preliminary and permanent injunction against enforcement of the aforementioned statutory provisions by the defendants or their agents. He also seeks an order directing the Board of Elections of the City of New York to permit him to vote in the next general election.
Green was convicted in this court of conspiracy to overthrow the government of the United States. 18 U.S.C. § 2385. On October 21, 1949, he was sentenced to a term of five years and fined $10,000. Thereafter he was convicted in this court of contempt for failing to surrender to the authorities following his conviction. As a result of this contempt conviction, he was sentenced on March 26, 1956, for a term of three years to run consecutively with his conspiracy sentence.
On July 29, 1961, Green was granted a conditional release on parole. His parole status was concluded on August 23, 1963. It is conceded that Green has not received a Presidential Pardon. It is also conceded that under federal law, the crimes for which Green was convicted constitute felonies.
The constitutional and statutory provisions which plaintiff here assails are set forth as follows:
Article II, Section 3 of the New York State Constitution provides in pertinent part:
Section 152 of the New York Election Law provides in pertinent part:
Section 510-a of the New York Penal Law provides in pertinent part:
Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794 (1962); accord: Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Bell v. Waterfront Comm'n, 279 F.2d 853 (2d Cir. 1960); Stuart v. Wilson, 282 F.2d 539 (5th Cir. 1960). Where the single district judge finds that the constitutional question presented lacks the necessary substance, the complaint will be dismissed for lack of jurisdiction over the subject matter. California Water Service v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323 (1938); Ex parte Poresky, supra; Morrison v. California, 238 F.Supp. 22 (S.D. Cal.1964).1
The Supreme Court has said that the lack of substantiality in a constitutional question may appear "either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject." California Water Service v. City of Redding, supra, 304 U.S. at 255, 58 S.Ct. at 867; accord, Ex parte Poresky, supra, 290 U.S. at 32, 54 S.Ct. 3.
It is true, as plaintiff contends, that the Supreme Court has never directly considered the questions presented by this particular set of facts. It is, however, important to note that, by means of dicta, the Supreme Court has upheld the right of a State to bar felons from the voting rolls.
The Supreme Court case most analogous to the one at hand is Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890). At issue was the validity of a statute of the territory of Idaho which provided, inter alia, that "no person * * * convicted of treason or felony * * *; nor any person who is a bigamist or polygamist * * * is permitted to vote at any election * * * within this territory." The proponents of the invalidity of the statute were Mormons who maintained that the portion of the law relating to barring bigamists and polygamists from voting was a law respecting an establishment of religion in violation of the First Amendment to the Constitution and was therefore void.
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Green v. Board of Elections of City of New York
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