Rivera-Powell v. New York City Bd. of Elections

• Decision Date: 05 December 2006
• Docket Number: Docket No. 06-4665-CV.
• Citation: 470 F.3d 458
• Parties: Verena RIVERA-POWELL, Francesca Castellanos, Georgina Sanchez, and Marie Sierra, Plaintiffs-Appellants, v. NEW YORK CITY BOARD OF ELECTIONS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

470 F.3d 458

Verena RIVERA-POWELL, Francesca Castellanos, Georgina Sanchez, and Marie Sierra, Plaintiffs-Appellants, v. NEW YORK CITY BOARD OF ELECTIONS, Defendant-Appellee.

Docket No. 06-4665-CV.

United States Court of Appeals, Second Circuit.

Argued: October 18, 2006.

Decided: December 5, 2006.

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Stephen T. Mitchell, New York, NY, for plaintiffs-appellants.

Scott Schorr, City of New York Law Department (Michael A. Cardozo, Corporation Counsel of the City of New York, on the brief; Barry P. Schwartz, Stephen Kitzinger, of counsel), New York, NY, for defendant-appellee.

Before JACOBS, Chief Judge, KEARSE and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge.

Plaintiffs-appellants Verena Rivera-Powell, who seeks to be a candidate for judge of the Civil Court of the City of New York, and voters who support her candidacy (the "voter-plaintiffs") (collectively, "plaintiffs") appeal from an October 4, 2006 order of the United States District Court for the Southern District of New York (Buchwald, J.), Rivera-Powell v. N.Y. City Bd. of Elections, No. 06-6843, 2006 WL 2850212 (S.D.N.Y. Oct. 4, 2006), denying their motion for a preliminary injunction and dismissing their complaint. Defendant-appellee New York City Board of Elections (the "Board") removed Rivera-Powell from the ballot on the basis of a voter's written objection to her candidacy. Seeking to be reinstated to the ballot, Rivera-Powell filed this action pursuant to 42 U.S.C. § 1983 (2000), asserting that the objection was untimely filed and that in entertaining it, the Board acted contrary to New York election law. She claims that this allegedly unauthorized conduct deprived her and her co-plaintiffs of procedural due process in violation of the Fourteenth Amendment and infringed on their freedom of association and voting rights in violation of the First Amendment. She also alleges that the Board removed her from the ballot because of her race. We hold that because the state provided Rivera-Powell with a pre-deprivation hearing and an adequate judicial procedure by which to challenge any alleged illegalities in the Board's action, Rivera-Powell and her co-plaintiffs have failed to state violations of their procedural due process and First Amendment rights. We also find Rivera-Powell's equal protection claim without merit because the only allegation of racial discrimination is conclusory.¹

BACKGROUND

Rivera-Powell sought to become the Democratic party nominee for judge of the Civil Court of the City of New York in the 7th Municipal District. To be placed on a party's primary ballot, New York law requires an individual to submit a "designating petition" meeting certain formal requirements. See N.Y. Elec. Law §§ 6-130 to -136 (McKinney 1998). A designating petition comprises "petition volumes" (bound groupings of sheets bearing the signatures of registered voters), each with an identification number, and a "cover sheet," which contains a variety of information including the identification numbers of the petition volumes the candidate is claiming. See Board of Elections in the City of New York, Designating Petition and Opportunity to Ballot Petition Rules for the September 12, 2006 Primary Election, Rule C2 & Definitions (May 9, 2006), http://vote.nyc.ny.us./pdf/documents/boe/2006primaryelection /2006designatingotbrules.pdf ("Board Rules").² A petition for an office elected by the voters of a municipal court district must contain no fewer than 1,500 signatures. New York State Board of Elections, Official Political Calendar 2006 (Mar.2006), http://www. elections.state.n y.us/NYSBOE/law/2006_OFFICIAL_calendar.pdf; see also N.Y. Elec. Law § 6-136(2)(c) (McKinney 1998).

On Tuesday, July 11, 2006, Rivera-Powell filed her designating petition with the Board. Rivera-Powell's petition volumes consisted of so-called Popkin petitions, which collect signatures on behalf of more than one candidate; some signatures are eligible to support only one candidate, others to support more than one.³ Her cover sheet claimed the six petition volumes with identification numbers ending in 206, 208, 210, 212, 214 and 216. Rivera-Powell estimated that the petition volumes contained roughly 3900 signatures; only some of these, however, were from individuals who resided in the proper district to support her candidacy.

On Thursday, July 13, 2006, a Popkin petition volume in the same numerical series and ending in 218 was filed with the Board. Petition volume 218, like volumes 206 through 216, listed Rivera-Powell's name as one of the candidates it supported, though Rivera-Powell had not claimed volume 218 on her July 11 cover sheet. Under prior Board practices, if the Board received a petition volume without a designating cover sheet (a "stray" petition), it automatically removed the candidate from the ballot, notified the candidate of the stray petition and offered him or her an opportunity to claim the petition by filing an amended cover sheet. If the candidate filed the amended cover sheet or affirmatively disclaimed the petition, he or she would be reinstated and the stray petition either attributed to the candidacy or ignored, as the candidate had chosen. Two years ago, however, the Board "liberalized" its practices. Currently, the Board automatically attributes a stray petition to the named candidate's application immediately upon receipt, while maintaining the candidate on the ballot. Within several days, the Board sends a letter to the candidate giving him or her three days in which affirmatively to claim the petition by filing an amended cover sheet; if the candidate affirmatively disclaims or does nothing, the Board does not attribute the petition to the candidate. The critical difference between the old and new practices is that currently, during the interval between the filing of the stray petition and the expiration of the three-day claim period, the Board's public records attribute the stray petition volume to the candidate. Thus, when volume 218 was submitted on July 13, the Board immediately attributed it to Rivera-Powell, and consistent with normal practice updated its public records database to reflect that the most recent petition volume filed for Rivera-Powell's candidacy was received July 13. On July 25, the Board sent her a letter informing her of the filing of volume 218, and giving her three business days in which to file an amended cover sheet if she wished to claim it. Because she did not respond within the specified period, the Board removed volume 218 "from any consideration of any matter relating to" her candidacy and updated the database accordingly.

Under New York Election Law section 6-154, a general objection must be filed "within three days after the filing of the petition . . . to which objection is made."⁴ N.Y. Elec. Law § 6-154(2) (McKinney 1998). The Board Rules state more specifically that "[t]he last day for filing general objections shall be three days after the latest date on which any part of such petition or cover sheet was filed." Board Rule G1. On July 17, three days after the filing of petition volume 218 (excluding a Sunday, which otherwise would have been the third day), but six days after Rivera-Powell filed her original petition, Franklin Hess, a registered voter in the 7th Municipal District, filed a general objection to Rivera-Powell's petition.

On August 3, the Board met to consider, inter alia, Hess' challenge to Rivera-Powell's candidacy. In response to Hess' objection, the clerk of the Board had counted the signatures in the petition volumes Rivera-Powell claimed on her July 11 cover sheet (i.e., 206, 208, 210, 212, 214 and 216, but not 218) and found that she was 71 signatures short of the required 1,500 signatures. Rivera-Powell's counsel was present at the meeting and objected that Hess's challenge was untimely. Because Rivera-Powell neither claimed petition volume 218 on her original cover sheet nor filed an amended cover sheet to claim it, her counsel argued, her documentation was complete on July 11, and any objection to it had to be filed by July 14.⁵ Hess's counsel countered that Hess had reasonably relied on the information in the Board's public records (which until July 28 indicated that July 13 was the last day that a part of Rivera-Powell's petition, the stray petition, was filed) in order to calculate July 17 as the final date to file an objection.

In considering the timeliness question, Board Chairman Frederic Umane noted that the circumstances presented "an interesting conundrum because if we rule one way, one side is unfairly punished based on these Popkin [sic] type petitions and if we rule the other way the other side's unfairly prejudiced." In other words, if the Board ruled the objection timely, it could unfairly prejudice the candidate, who might have had nothing to do with the filing of the stray petition, but if it ruled the objection untimely, it could unfairly prejudice the objector, who had no way of knowing that the date reflected in the public record was not in fact the last day that a part of the candidate's petition was filed. Umane also noted that either decision would open up the system to maneuvering — either by objectors, who could file petitions "on behalf of the candidate they're going to be objecting to [in order] to extend they're [sic] time by 3 days in order to be able to file objections," or by candidates, who "could do the same thing — they could file an extra petition and giv[e] false hope to objectors" by making them think, "ah, I have an extra 3 days." It appears from the record that the Commissioners believed the question of the objection's validity to be pending before the New York Supreme Court,⁶ and so, without explicitly resolving the "conundrum" Chairman Umane had identified they voted to approve the clerk's report, thereby removing Rivera-Powell from the ballot.

To contest her removal, Rivera-Powell instituted a special action in New...