New Alliance Party v. NY State Bd. of Elections

• Citation: 861 F. Supp. 282
• Decision Date: 30 August 1994
• Docket Number: No. 90 Civ. 6226 (RJW).,90 Civ. 6226 (RJW).
• Parties: NEW ALLIANCE PARTY, Lenora A. Fulani and Rafael Mendez, Plaintiffs, v. NEW YORK STATE BOARD OF ELECTIONS, Libertarian Party, Democratic Party, Republican Party, Conservative Party, Right to Life Party, and Liberal Party, Defendants.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

861 F. Supp. 282

NEW ALLIANCE PARTY, Lenora A. Fulani and Rafael Mendez, Plaintiffs, v. NEW YORK STATE BOARD OF ELECTIONS, Libertarian Party, Democratic Party, Republican Party, Conservative Party, Right to Life Party, and Liberal Party, Defendants.

No. 90 Civ. 6226 (RJW).

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

August 30, 1994.

Gary Sinawski, New York City, for plaintiffs.

G. Oliver Koppell, Atty. Gen., Judith T. Kramer, Joel Graber, Asst. Attys. Gen., Peter S. Kosinski, Sp. Counsel, NY State Bd. of Elections, New York City, for defendant NY State Bd. of Elections.

Mark N. Axinn, New York City, for defendant Libertarian Party.

Gerard E. Harper, Glenda G. Grace, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for defendant Democratic Party.

Jeffrey T. Buley, Albany, NY, for defendant Republican Party.

ROBERT J. WARD, District Judge.

In this action challenging the constitutionality of N.Y.Elec.Law § 7-116 ("Section 116"), plaintiffs New Alliance Party ("NAP"), Lenora B. Fulani, and Rafael Mendez move for summary judgment, pursuant to Rule 56, Fed.R.Civ.P. Defendant New York State Board of Elections (the "State") cross-moves for an order, pursuant to Rule 12(b)(6), Fed. R.Civ.P., dismissing the complaint for failure to state a claim upon which relief can be granted.¹ For the following reasons, NAP's motion is denied, the State's motion is granted and the Court finds that Section 116 does not deprive plaintiffs of their constitutional rights.²

BACKGROUND

Under New York Election Law, there are two varieties of political organizations — "parties" and "independent bodies." A "party" is defined as "any political organization which at the last preceding election for governor polled at least fifty thousand votes for its candidate for governor." N.Y.Elec.Law § 1104(3). On the other hand, an "independent body" refers to "any organization or group of voters which nominates a candidate or candidates for office to be voted for at an election, and which is not a party as herein provided." Id. § 1-104(12). While independent bodies are not subject to any organizational requirements, parties must maintain state and county committees of elected representatives and must conduct primary elections in the event more than one person seeks its nomination for public office. NAP is an independent body that has fielded candidates for federal and state office since its formation in 1979. It, along with its chairperson and one of its supporters, alleges that Section 116, New York's ballot placement statute, is unconstitutional.³

Section 116 provides two methods for arranging political candidates on the ballot in New York, one for the candidates of political parties, the other for the candidates of independent bodies. Pursuant to Section 116, party candidates are listed before independent body candidates, and are positioned in descending order based on their performance in the preceding gubernatorial election. N.Y.Elec.Law § 7-116(1).⁴ At present, New York has five parties, and, as a result of their performance in the 1990 gubernatorial election, their order on election ballots for the subsequent four years has been as follows: (1) Democratic; (2) Republican; (3) Conservative; (4) Right to Life; and (5) Liberal. While Section 116 directs that the independent bodies follow the parties, it does not prescribe a particular method for arranging these candidates, and leaves the order of placement to the discretion of the State. Id. § 7-116(2).⁵ Currently, the State determines the arrangement of independent bodies by a lottery.

When this action was instituted in 1990, NAP sought to challenge the States's discretionary authority and the methods it employed in positioning independent bodies on the ballot. On September 27, 1990, NAP brought an order to show cause for a preliminary injunction requiring the State to list all political organizations on the November 1990 general election ballot in descending order based on performance in the 1986 gubernatorial election. In particular, NAP claimed that it should be slotted sixth after the five parties because it had been the only independent body to run a candidate for governor in the 1986 election in which NAP received 24,100 votes. As a result of the lottery which was held on September 18, 1990, however, NAP placed third among independent bodies and was therefore to be situated in the eighth position overall.

This Court denied NAP's motion for a preliminary injunction on the ground that plaintiff failed to prove irreparable harm. New Alliance Party v. New York State Board of Elections, 1990 WL 155590 (S.D.N.Y. Oct. 9, 1990). Were the motion granted, the Court explained, NAP would have been slotted sixth rather than seventh. While case law has sometimes found that position advantage inheres in the first slot on the ballot, no case has held, nor did NAP submit evidence showing, that movement from one intermediate position to another closer to the first position confers an advantage on the candidate. The Court also noted that NAP might have had more support for its motion had the ballot remained as originally arranged after the lottery was conducted. Subsequent to the lottery, the second ranked independent body was removed from the ballot and NAP was switched from eighth to seventh position. This move was significant because in the 1990 gubernatorial election, New York City voting machines were arranged in horizontal rows of seven columns. Placement in the eighth slot, the Court theorized, might have harmed NAP because it would have been positioned on the second horizontal row.

In the 1990 gubernatorial election, NAP received approximately 31,100 votes, the highest vote tally among the independent bodies.⁶ Plaintiff then moved for summary judgment contending that the State's policy deprives the independent bodies of benefiting from positional advantage on the ballot in relation to their voting strength, something the parties enjoy. NAP claimed the board was discriminating against the independent bodies in violation of the Constitution under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The Court denied the summary judgment motion on account of a disputed factual issue. New Alliance Party v. State Board of Elections, 1991 WL 196263 (S.D.N.Y. Sept. 25, 1991). As with the preliminary injunction motion, plaintiff's claim was premised on intermediate position advantage, and here too it neglected to offer any concrete evidence of such advantage. The Court, therefore, found that absent statistical evidence or expert testimony, plaintiff would be incapable of establishing the necessary foundation for its claims. Id. at *6. Although, at the end of its decision, the Court directed the parties to engage in discovery and submit a pre-trial order, the action was discontinued without prejudice by stipulation and order on May 29, 1992.

Then, on September 9, 1992, the State held its lottery for the presidential election to be held on November 3, 1992. Six independent bodies participated and NAP drew fifth place. Because the sixth ranked independent body failed to file timely acceptances, it was disqualified from being listed on the ballot and NAP fell to last place. As a result of the lottery, NAP was "double columned" or "double rowed" on the 1992 ballot in New York State. For that election, the State used two styles of voting machines. In New York City and the city of Albany, the ballot was arranged horizontally in a row of nine columns designated "A" through "H." Additional independent bodies were doubled-up under other independent bodies, and thus NAP in slot "J" was situated directly below Ross Perot's No Party in slot "G." Appendix A, infra. On all other ballots in the State, the voting machines listed candidates vertically in a column of nine rows. On this ballot, NAP was the only independent body doubled-up, also adjacent to the No Party. Appendix B, infra.

After its poor performance in the 1992 lottery, NAP once again decided to challenge New York's ballot placement statute through an order to show cause seeking a preliminary injunction. At oral argument held on October 9, 1992, plaintiff argued that it would suffer irreparable harm by its allotted placement on the ballot because of the space limitations that exist on voting machines in New York. Subsequent to oral argument, plaintiff withdrew its motion for a preliminary injunction, while the Court agreed to vacate the stipulation of discontinuance and grant plaintiff leave to serve and file a supplemental complaint.

Through its supplemental complaint, plaintiff now seeks declaratory and injunctive relief from the procedures employed by the State in listing and ordering all candidates for political office on the electoral ballot in New York. Specifically, plaintiff contends in Count I that the statutory scheme abridges its First and Fourteenth Amendment rights to cast an effective vote, to associate for the advancement of political ideas, and to create and develop a new political party. It also alleges, in Count II, that Section 116 violates the Equal Protection Clause of the Fourteenth Amendment, insofar as the statute denies independent bodies the same opportunity parties have to be listed in the first position on the ballot or even on the first row or column.⁷ Plaintiff offers no empirical evidence in support of its claims, but asserts that ballot placement advantage is a self-evident fact. According to NAP, the Court need only glance at the ballots used in the 1992 election to determine that a doubled-up party is relegated to a confused, obscure and disadvantaged position.

As an alternative to Section 116, NAP proposes that a uniform method be applied to all political entities listed on a ballot or that a rotational system be devised whereby each entity qualifying for the ballot is assigned each position on the ballot in an equal number of voting districts. Plaintiff submits that...