Appendix — Donahue v. Board of Elections
Supreme Court brief1977
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Appendix
IN THE _
Supreme Court of the United States
October Term, 1977
no. ©? 19] 9
WARREN DONAHUE, SANDRA WEISMAN, VALDA BROMWELL.,
ROY G. VANASCO, JOHN T. STEWART, NICHOLAS A. LONGO,
LYNDON LA ROUCHE, THE ROCKLAND COUNTY
CONSERVATIVE PARTY, AND THE LABOR PARTY,
Petitioners,
p against
BOARD OF ELECTIONS OF THE STATE OF NEW YORK,
BOARD OF ELECTIONS OF THE CITY OF NEW YORK,
SECRETARY OF THE STATE OF NEW YORK, BETTY DOLEN
AND HUGH CAREY,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the
Second Circuit
EEE
x Index to Appendix
Page
~~ NIT LOE OT a Oe PEE. la
ee nak decane cah at 3a
Defendant’s Motionto Dismiss .......................... l5a
Plaintiff's Opposition to
ee a ae 20a
Order to Show Cause for
Temporary Restraining Order ...................... 24a
es cs cv ecebesedeeendiaasun 25a
Memorandum Decision and
Order of December 7, 1976 .......................2:: 60a
Memorandum Decision and
Order of December 10, 1976.......................... 78a
nA ea EE aa ae 85a
Plaintiffs-Appellants’ Brief on
Appeal to the Second Circuit ....................... 86a
Order of Second Circuit
’ I i 1l4a
Date
1976
Nov. 22
Nov. 23
Nov. 30
Dec. 1
Dec. 1
Dec. i
Dec. 1
Dec. 1
Dec. 1
Dec. 2
Dec.
i)
la
Docket Entries
Proceedings
Complaint filed. Summons issued.
By Costantino, J.—Order to show cause dtd 11-22-76
returnable 11-30-76 at 10 a.m. temporarily
restraining defts from moving, disposing of, etc.
files, records, etc. relating to conduct of the 1976
Election in the State of New York filed. (Ret 9;15
before Mishler, J. on 11-30-76).
Before Mishler, Ch.J.—case called—motion
argued—T.R.O. vacated as stipulated on recor-
d—defendants’ motions to dismiss the complaint are
submitted—hearing for a preliminary injunction
adjd without date.
Motion to dismiss action for failure to state a cause of
action under 42 USC 1983 filed with defts’ memo of
law in support. (BOE of NYC).
Deft Board of Elections of the City of New York (BOE of
NYC) and Betty Dolen’s motion to vacate temporary
restraining order and annexed affidavit in opposition
to a preliminary injunction filed with memo of law in
support.
Dft. Board of Election of the State of New York’s motion
to dismiss filed with memo of law in support.
Plaintiffs’ supplementary memo of law filed.
Letter deemed as reply memo to J. Mishler from Ed-
ward Patrick and David Blabey filed. (dtd 11-30-76).
Before Mishler, J.—Case called for civil cause. Motion
to dismiss complaint argued. Decision reserved.
Affidavit of Thomas W. Wallace in support of motion to
dismiss filed.
Plaintiffs’ supplementary memo of law filed.
Dec. 2
Dec. 8
Dec. 8
Dec. 9
Dec. 10
Dec. 14
Dec. 17
Dec. 21
1977
Jan. 21
Feb. 1
2a
Docket Entries
Notice of cross motion pursuant to Rule 12(b) FRCP ret
12-1-76 at 4:30 p.m. filed.
By Mishler, J.—Memo of decision and order dtd. 12-7-76
granting the plitffs an evidentiary hearing for a
preliminary injunction on 12-8-76 and that plitffs will
be allowed to amend their pleadings at this hearing
and denying defts motions to dismiss filed.
Before Mishler, Ch.J.—Case called. Hearing ordered
and begun for preliminary inj. Cont’d to 12-9-76.
Before Mishler, Ch.J.—case called—hearing resumed—
defendants rest—hearing concluded—decision
reserved.
By Mishler, Ch.J.—Memorandum of decision and order
dtd 12-10-76 denying pIntff’s motion fcr a preliminary
injunction and granting defts’ motion.to dismiss the
complaint filed. Order also directs Clérk of the Court
to enter judgment in favor of the defendants and
against the plaintiffs dismissing the complaint.
Judgment dtd 12-13-76 that the pIntffs take nothing of the
defts and that pintffs’ motion for a preliminary in-
junction is denied and that defts’ motion to dismiss
the complaint is granted and the complaint is
dismissed filed.
Notice of appeal for pltffs filed. Copy to C of A.
Sten. transcript dtd 12-9-76 and 12-8-76 filed.
Above record certified and mailed to C OF A.
Acknowledgment received from the C of A for receipt of
record on appeal.
3a
Complaint
Preliminary Statement
This is an action for declaratory and injunctive relief. This
suit is authorized by 42 U.S.C. Sec. 1983, 1985 (3) and 1988. and
28 U.S.C. 1331 (a) to redress deprivations by state officials
and others, acting under color of law, of rights, privileges
and immunities secured by the First and Fourteenth Amend-
ments and various federal and New York State statutes
guaranteeing the right to vote and participate in the electoral
process. More specifically, plaintiffs bring this action to
remedy the deprivation of their right to vote and of their right
to equal protection of the Laws in the General Election for
President of the United States and for Electors to the Elec-
toral College from the State of New York, on November 2.
1976. The amount in controversy exceeds $10,000.00 exclusive
of interest and costs.
Jurisdiction
_ Jurisdiction is conferred on this Court pursuant to 28 U.S.C.
Section 1331 (a) and 1343 (3) and (4). This suit is authorized
pursuant to 42 U.S.C. 1983, 1985 (3) and 1988 to redress
deprivations of plaintiffs’ First and Fourteenth Amendment
rights to vote and participate in elections.
Class Action Allegations
Plaintiffs bring this action as a class action under Rule 23
(b) (2) of the Federal Rules of Civil Procedure. Plaintiffs are
qualified voters enrolled in the Republican, Labor and
Conservative Parties of the State of New York who on
November 2, 1976 cast their ballots for Gerald Ford or
Lyndon LaRouche for President of the United States and for
the Presidential Electors for Gerald Ford and Lyndon
LaRouche from the State of New York. Plaintiffs bring this
action on behalf of themselves as representatives of all other
qualified voters enrolled in the State of New York who. in the
Presidential Election on November 2, 1976, were denied the
right to vote in said Election or whose votes for Gerald Ford
or Lyndon LaRouche were improperly counted, debased and
4a
Complaint
diluted as a consequence of the acts and practices herein-
after set out.
The manner in which the defendants conducted and af-
fected the aforesaid Election violated rights secured to all
members of the class by the Constitution and Laws of the
United States, on grounds generally applicable to the class.
thereby making appropriate final injunctive relief with
respect to the class as a whole. The claims of the plaintiffs
are typical of the claims of the class and it can be expected
that the plaintiffs and their attorneys will prosecute the case
diligently and will adequately and fairly protect the interests
of said class.
There are questions of law and fact common to all mem-
bers of the class; that is, whether plaintiffs’ right to vote ina
federal action have been denied or diluted and whether, in
vindication of said wrongs, the aforesaid General Election
should be vacated and set aside and a new Presidential
Election for the State of New York ordered. The total number
of persons in said class is approximately three million per-
sons and joinder of all members of the class is therefore
impossible.
Parties
1. Plaintiffs, WARREN DONOHUE, SANDRA
WEISSMAN, VALDA BROMWELL and ROY G. VANASCO
are members of the Republican Party who cast their vote for
Gerald Ford in the November 2. 1976 election for President.
2. Plaintiffs, JOHN T. STEWART and NICHOLAS A.
LONGO are members of the Conservative Party who cast
their vote for Gerald Ford in the November 2, 1976 election
for President.
3. Plaintiff LYNDON LA ROUCHE was the candidate of
the Labor Party for President in the 1976 New York Presi-
dential election.
4. The Rockland County Conservative Party and the Labor
Party are political organizations and associations existing by
and under the laws of the State of New York.
5. In addition, plaintiff JOHN T. STEWART is the
Chairman of the Rockland County Conservative Party;
5a
Complaint
Plaintiff NICHOLAS A. LONGO is the Treasurer of the Rock-
land County Conservative Party and Plaintiff ROY G.
VANASCO is the Republican Party District Leader. New
York City Election District 57 and candidate for New York
State Assembly in the November 2, 1976 election.
6. Defendant Board of Elections of the State of New York.
at all times herein mentioned, was and is the entity charged
under the Election Law of the State of New York with the
duty and responsibility to conduct the Election for President
of the United States in the State of New York.
7. Defendant Board of Elections of the City of New York, at
all times herein mentioned, was and is the entity charged
under the Election Law of the City of New York to conduct
the Election for President of the United States in the City of
New York.
8. Defendant Secretary of State of New York is empowered
by the laws of the State of New York to certify electors from
the State of New York to the Electoral College.
9. Defendant Hugh Carey, at all times herein mentioned.
was and is the Governor of the State of New York and is
charged with the responsibility of signing the Certification
for electors to the Electora! College from the State of New
York.
10. Defendant Betty Doilen, at all times herein mentioned.
was and is the Director of the Board of Elections of the City of
New York and is charged by law to conduct Genera! Elec-
tions as set forth in the New York Election Law.
Allegations
1. On November 2, 1976, pursuant to its duties and
responsibilities, defendants conducted a General Election for
the office of President of the United States for the State of
New York. The two candidates receiving the greatest
number of votes in said general election were Gerald Ford
and James Carter.
2. Prior to said General Election. defendants were
obligated and required by law to:
a. Provide, maintain and prepare voting machines and
appoint custodians of said voting machines;
Sa
Complaint
b. Appoint election officers, including inspectors, from
each of the two parties represented on the Board of Elections,
and insure that these officers were properly trained and
qualified;
c. Create, maintain and conduct a system of registration
of qualified residents, potential voters, in the State of New
York. '
3. In the conduct of these duties, defendants failed and
refused to insure and on information and belief intentionally
failed and refused to insure that all unqualified voters would
be prevented from voting and that all qualified voters would
be afforded the opportunity to cast ballots for the candidates
of their choice, by the following acts and ommissions.
4. During 1976, prior to the November 2, 1976 elections,
defendants put into effect and conducted a state-wide system
of registration of new voters by use of ‘‘post card”’ affidavit
registrations, and proceeded to register hundreds of
thousands of ‘‘new’’ voters via ‘‘post-card’’ affidavits.
Defendants failed to properly supervise the processing and
verification of these new voters, resulting in the following
irregularities and unlawful practices:
a. Approximately one-half of the nearly 600,000 new
“‘post-card’’ registrants in the City of New York were not
properly processed or verified in any way whatsoever with
respect to qualifications. Proper processing involved tran-
smitting all incoming ‘‘post-card”’ registrants to a computer
list. Approximately 280,000 such registrations were not trans-
mitted to the computer prior to the said election, and were
not properly verified thereafter.
b. Thousands of individuals registered two or more
times. A review of the existing partial computer lists of
newly registered voters demonstrates that these multiple
registrants were not eliminated from the voter rolls and thus
could vote twice or more times.
c. Numerous false or fictitious individuals fraudulently
registered from wrong or non-existent residences, vacant
buildings, warehouses, etc. A review of the existing partial
computer lists of newly registered ‘‘voters’’ at wrong or
7a
Complaint
fictitious addresses demonstrates that such registrants could
vote in the said election.
d. A review of the buff cards used in the said election
indicates that such fictitious, fraudulent voters did vote in the
said election. Tens or hundreds of thousands of additional
such irregularities could not be determined because the
names were not printed as alleged in Paragraph 4a.
e. Although registration is legally required to occur in a
nonpartisan atmosphere, and through nonpartisan
procedures, the recent registrations of ‘‘post-card’”’
registrants involved numerous partisan groups, organ-
izations and individuals, all to the detriment of plaintiffs, and
the deprivation of plaintiffs’ rights, as follows:
1. Ramon Velez, democratic supporter of candidate
James Carter. caused to be registered approximately 20,000
new voters, of whom the overwhelming percentage were
supporters of James Carter.
2. Percy Sutton and Charles Rangel, democratic
supporters of James Carter, caused to be registered tens of
thousands of new voters, of whom the overwhelming per-
centage were supporters of James Carter.
3. Victor Gotbaum and Lilian Roberts, in their posi-
tions as officials of AFSCME, and as Democratic supporters
of James Carter, caused to be registered tens of thousands of
new voters, of whom the overwhelming percentage were
supporters of James Carter.
4. Arthur Eve, Democratic State Assemblyman from
Erie County. New York State, caused to be registered ten to
fifteen thousand new voters, of whom the overwhelming
percentage were supporters of James Carter.
f. With respect to the individuals and acts stated in
Paragraph 4(e) (1) — (4). supra, in almost all cases mem-
bers and officials of the Board of Elections of New York State
and New York City met with, planned and cooperated with
said individuals in their attempts to register new voters,
despite the fact that these individuals were supporters and
campaigners for James Carter. Each and all of these in-
dividuals utilized registration procedures calculated and
Sa
Complaint
intended to register non-existent or unqualified Carter
voters, all to the knowledge of defendants.
g. On or about October 14, 1976, prior to the November 2,
1976 elections, the Board of Elections of the City of New York
forwarded to the Elections Boards for Brooklyn, Queens and
Bronx approximately 60,000 new postcard registration ap-
plicants, and ordered that these registrants be allowed to
vote in the said election, despite the fact that said registrants
could not be properly processed and-or verified and vaili-
dated. The majority of these registrations had been gathered
in August and September and were withheld from the said
Election Boards until the last minute to prevent proper
validation.
h. The New York City Board of Elections extended the
time limit for acceptance of mailed-in postcard registrations
to October 8, 1976. Article 7, Section 153, No. 3 specifies that
completed applications must be received not later than the
thirtieth day before the next following general or special
election. October 2nd was the final legal day for accepting
such registrations, according to the Election Law standards.
i. Immediately prior to the said election, defendant
Betty Dolen spoke numerous times on radio and television
and stated publicly that all individuals should appear at the
polls and vote, and that: no one would be turned away.
Defendant Dolen failed to mention that numerous individuals
were unqualified to vote and that such individuals would not
be legally qualified to vote. This encouraged numerous
illegal and invalid voters to appear at the polls on Election
Day. As discussed infra, the large overflow at the polls on
Election Day created a situation of confusion and chaos in
which numerous illegal practices occurred, and in which
numerous illegal and invalid ‘‘voters’’ were permitted to
enter the voting machines and cast a ballot.
j. Immediately prior to the said election, defendant
Betty Dolen met with the election officials for the said
election and instructed them not to turn away anyone who
appeared at the polling place and requested to vote, despite
the lack of qualifications of such a voter.
9a
Complaint
5. In the Spring of 1976, members of the Republican Party
from the State of New York filed a lawsuit in New York State
Supreme Court and requested an order declaring the law
permitting registration by postcard to be unconstitutional.
The New York Courts upheld the validity of registration by
postcard. However, the Law, as upheld, was systematically
violated in every particular resulting in the improper
registration of tens of thousands of individuals, as stated
supra. Plaintiffs herein therefore have no other relief but to
ask for an order calling for a new election.
6. Defendants failed to provide adequate voting facilities
and personnel in substantial numbers of election districts,
thereby permitting numerous irregularities and illegal acts
to occur. More specifically:
a. Numerous polling places were overcrowded with
individuals seeking to vote, and there existed a situation of
chaos and confusion, which led to the following illegal acts.
b. Approximately fifty thousand individuals entered the
polls and voted ona paper affidavit ballot. due to the fact that
there was no official buff card for such individuals. Approxi-
mately 80 to 90 percent of such votes have since been deter-
mined to be improper and invalid. The presence and ad hoc
processing and voting of such individuals at the polling
places during the said election greatly increased the chaos
and confusion at the polling places.
c. In numerous polling places, electioneering occurred,
although such acts are not legally permitted.
d. There were numerous instances in which individuals
entered the polling places and illegally voted at least twice.
Such illegal acts were carried out through several methods,
but all such acts resulted from the chaos and confusion at
most polling places.
e. There were numerous instances in which voters were
subjected to force and threats at the polling places. Such
illegal acts both resulted from. and added to the chaos and
confusion at polling piaces.
f. Numerous fraudulent and improper voters, im-
properly registered via postcard affidavits, were permitted
l0a
Complaint
to vote. Such individuals have been shown to live at wrong or
non-existent addresses.
g. Numerous mentally incompetent and otherwise
illegal individuals, such as convicted, were permitted to
register and vote. Further, numerous such mentally in-
competent individuals, and elderly people, and individuals
who did not speak English were permitted to enter the voting
machines with another person who actually voted for that
person. In several such instances, the ‘‘friend’’ reappeared
with several such people and voted many times.
h. Post-election inspection of the buff cards used in the
said election revealed forged signatures on the buff cards;
that is, an illegitimate person signed a buff card and voted
for a legitimately registered person. Further, in some in-
stances, a different person with a different name signed a
wrong buff card and was permitted to vote, without the
detection and correction by the election officials.
i. Innumerous instances Democratic election officials at
the polling places did not properly rotate positions in the
polling places. Further, at many polling places, the Demo-
cratic election officials processed all the new registrants.
j. In numerous polling places, Democratic election of-
ficials improperly assisted voters by entering the machines,
choosing candidates and pulling the levers.
k. Many poll watchers were not permitted to inspect
machines and otherwise review and correct the ongoing
election process.
7. A review of the election results, as recorded and
reported by the Board of Elections after the said election ©
demonstrates numerous irregularities and statistically
improbable results, including the following:
a. On almost all voting machines employed in the said
election, the total body count registered on the machine was
a larger number than the number of signed buff cards of
legal voters who could have legally voted on such machines.
b. On almost all voting machines inspected the total vote
cast for the office of President falls far short of the total body
count registered on the machine. Such an occurrence on any
lla
Complaint
machine is rare and should only occur on a few machines in
any election.
c. Acomparison of the results of the instant election with
the Presidential election results for the preceeding, 1972
Presidential election indicates that the vote for the Demo-
cratic candidate stayed roughly the same, at 1,800,000 voters,
while the Republican vote dropped from 1,300,000 votes in
1972 to approximately 650,000 votes in 1976. Such a result is
highly statistically improbable and presents statistically
valid evidence of highly irregular practices.
d. The votes for a third party presidential candidate, the
U.S. Labor Party Presidential candidate Lyndon H.
LaRouche, also a presidential candidate in the said election,
indicates a vote pattern in which low, equivalent vote totals
were obtained in all election districts throughout the City of
New York, despite extreme differences of voter penetration
and recognition in different election districts. Such results
are highly improbable. statistically significant, and indicate
prima facie evidence of irregularities with respect to the
voting machines which counted the presidential vote, or
irregularities resulting from the counting of the votes after
the election. Moreover. in several precincts, more people
have signed affidavits that they voted for LaRouche than
voves were recorded.
8. Onthe basis of the foregoing, plaintiffs are informed and
specifically believe. and on that basis allege, that certain
aspects of the election process and the tally of votes
thereafter were fraudulently. purposely and corruptly
conducted and that defendants condoned, permitted.
acquiesced in, and approved said fraudulent election.
9°. As a proximate and foreseeable consequence of the acts
set out in Paragraphs 4 through 8 the tabulated results of the
said election were inaccurate and misstated the results of the
election.
10. The purpose and effect of said acts set out in
Paragraphs 4 through 8 herein was to discriminate against
candidate Gerald Ford and those voters who cast ballots or
desired to cast ballots in his favor thereby depriving said
12a
Complaint
voters of the equal protection and due process of law and the
right to vote guaranteed under the Constitutional provisions
heretofore set out.
11. Plaintiffs have no plain, adequate or complete remedy
at law to redress these wrongs in that these wrongs are not
compensable in monetary damages. This suit for injunction
is the only means for securing adequate relief and unless
remedied plaintiffs will continue to suffer irreparable injury
from defendants’ conduct as herein set forth.
12. Plaintiffs expended approximately $2,000,000.00 in the
Presidential campaign in New York State the use of which
money was wrongfully taken from them by defendants’ acts
as herein alleged.
l3a
Complaint
PRAYER FOR RELIEF
WHEREFORE, plaintiffs respectfully request that this
Court enter a judgment:
1. Adjudging the aforesaid Presidential election to have
been conducted in violation of the United States Constitution
and therefore said election to be null and void.
2. Directing defendant State Board of Elections to conduct
a new Presidential Election for the State of New York.
3. Enjoin defendants from representing and holding James
Carter as the Presidential nominee for aforesaid office. from
the State of New York, or from certifying any slate of
Electors pledged to James Carter as valid Electors from the
State of New York.
4. Granting such other and further relief as this Court may
deem just and proper.
5. Damages in the amount of $2,000,000.00.
6. Plaintiffs’ costs and atiorneys’ fees incurred in bringing
this action.
Dated: New York City. New York
November 22, 1976
Respectfully submitted,
DAVID L.HELLER
CARREN C. KLEINMAN
WILLIAM F. WRAY, JR.
DAVID MAC RAE WAGNER
ALAN TABAKMAN
Attorney’s Affirmation
State of New York
County of Rockland ss.:
DAVID MAC RAE WAGNER, an attorney at law. admitted
to practice in the Federal Courts of the Eastern District of
l4a
Complaint
New York, deposes and swears as follows under penalties of
perjury:
1. Deponent is an attorney at law and one of the attorneys
of record for the Plaintiffs herein.
2. Because of the geographical diversity of the Plaintiffs
and the time strictures placed upon the Plaintiffs by the New
York Election Law, deponent verifies the Complaint herein.
3. Deponent knows all the matters contained herein to be
true except those alleged to be upon information and belief
and to those deponent believes them to be true.
Dated: New York City, New York
November 22, 1976
DAVID MAC RAE WAGNER
INGER K.I. WARREN
Notary Public, State of N.Y.
44-4606400
Qualified in Rockland Count;
Commission Expires March 30, 1977
l5a
Defendant's Moticn to Dismiss
Sirs:
PLEASE TAKE NOTICE upon the annexed affidavit of A.
Seth Greenwald, sworn to December 1, 1976, the undersigned
will move this Court, in Courtroom 5, 225 Cadman Plaza
East, Brooklyn, New York 11201. on the Ist day of December,
1976, 4:30 p.m. pursuant to F.R.C.R. 12(b) upon the grounds
that the complaint fails to state a cause of action and is not
within the subject matter jurisdiction of the federal court and
for such other and further relief as may be just and proper.
Dated: New York, New York
December 1, 1976
Yours, etc.,
LOUIS J: LEFKOWITZ
Attorney General of the
State of New York
Attorney for Hugh Carey
and Secretary of State of
New York
By
A. SETH GREENWALD
Assistant Attorney General
Two World Trade Center
New York, New York 10047
Tel. No. (212) 488-3396
l6a
Defendant's Motion to Dismiss
TO: DAVID M. WAGNER
11 Stokum Lane
New City, New York
DAVID BLABEY
Special Counsel
State Board of Elections
W. BERNARD RICHARD
Corporation Counsel
City of New York
17a
Defendant’s Motion to Dismiss
Defendant New York State Board of Elections moves that
the court dismiss the action for lack of jurisdiction over the
person of the defendant New York State Board of Elections
and for failure to join persons needed for a just adjudication
of the action and for failure to state a claim upon which relief
may be granted.
DAVIDE. BLABEY
EDWARD R. PATRICH
Attorneys for Defendant
New York State Board of Elections
2 World Trade Center
New York, New York 10047
(212) 488-6098
18a
Defendant's Motion to Dismiss
Defendants Board of Elections of the City of New York and
Betty Doken move the court to dismiss the above-captioned
action on the ground that plaintiffs fail to state a cause of
action under 42 U.S.C. 1983. as more fully appears from the
annexed affedavit and memorandum of law of MARK L.
SCHWARTZ, Esq.
W. BERNARD RICHLAND
Corporation Counsel
Attorney for City Defendants
Municipal Building
New York, N.Y. 10007
By MARK L. SCHWARTZ
= 19a
Defendant's Motion to Dismiss
Defendants Board of Elections of the City of New York and
Betty Dolen move the court to vacate the temporary restrain-
ing order entered herein without notice to defendants on
November 22, 1976 on the grounds that the plaintiff’s attorney
failed to certify to the court his efforts, if any, to give notice
to the defendants. or their attorney and the reasons why
notice should not be required and secondly, the issuance of a
temporary restraining order and-or a preliminary injunction
is not necessary for the prevention of irreparable injury to
the plaintiffs, as more fully appears from the affidavits of
Mark L. Schwartz and Betty Dolen attached hereto.
W. BERNARD RICHLAND
Corporation Counsel
Attorney for City Defendants
Municipal Building
New York, N.Y. 10007
By MARK L. SCHWARTZ
~~
20a
Plaintiff's Opposition to
Motion to Dismiss
PLAINTIFFS’ SUPPLEMENTARY
MEMORANDUM OF LAW
Limitations of time obviously limit the scope of reply avail-
able to plaintiffs. In brief, the points raised by the various
defendants may be rebutted as follows.
1. The Motion of defendants Board of Elections and Betty
Doken (sic) relies on Phillips v. Rockefeller, 321 F. Supp 511,
affd 435 F.2d 976, (2 Cir 1970). That case concerned itself with
whether a Senatorial candidate who received less than a
majority of the votes could take his seat. The defendants rely
on dicta. The Second Circuit wrote:
“Since we find this case so clear on its merits, we do
not reach the procedural and jurisdictional points
relied on by the District Court...’’
and,
“The sole question which we find necessary to reach in
this case is whether the language of the 17th Amend-
ment to the United States Constitution.... requires that
a candidate... receives a majority of the votes.’’
(emphasis added).
Thus, the defendants rely not only on lower-court dicta. but
rejected dicta at that.
That Elections are state, and not federal functions cannot
be clearer. U.S. Constitution. Art. II, sec. 1, clause 2. Old
cases and new are unanimous on this point especially in the
context of Presidential elections.
‘‘Although the electors are appointed and act under
and pursuant to the Constitution of the United States,
they are no more officers or agents of the United States
than are members of the State legislatures... Constitu-
tion Art. 1, sects. 2.3.’" In Re Green, 134 U.S. 377, 379
(1890).
and,
“‘Under the Constitution the President is not chosen
directly by the citizens. but by the electoral colleges in
the States... the whole thrust of this is that the Constitu-
tion does not, by its terms, grant citizens the right to
2la
Plaintiff's Opposition to
Motion to Dismiss
vote, but leaves the matter entirely to the States.’’
Sanchez v. U.S., 376 F. Supp 239, 241 (D.P.R. 1974).
(emphasis in original).
See also Williams v. Virginia State Board of Elections, 288 F .
Supp 622, 624-25 (1968); U.S. v. Buch, 98 F. Supp 313. aff’d 93
F. 2d 383, cert den. 303 U.S. 644, reh den. 303 U.S. 688 (1937).
The Constitution is itself plain enough on this point.
“Each state shall appoint, in such manner as the
legislature thereof may direct. a number of Electors.
equal to the whole number of Senators and Represen-
tatives to which may be entitled in the Congress...”’
Art. 11, sec. 1, cl. 20
Reliance on dicta in a case not concerning fraud, nor
Presidential electors, and rejected on appeal in relevant
part, is hardly a convincing argument. Of course, even where
color of state law is not present, such is not required under 42
U.S.C. 1985 (3), a separate basis of jurisdiction herein.
Griffen v. Breckenridge, 403 U.S. 88 (1972).
2. The Board of Elections seeks to evade its responsibility
on grounds of technical joinder. The simple reply is that if
there are necessary parties non-joined, plaintiffs will serve
them at once in whatever manner as this Court may direct.
No reason is advanced why non-joinder of parties should aid
in the evasion of substantive matters. Morever, the Board
itself, while immune to suit under 42 U.S.C. 1983, is liable
under the general federal question jurisdiction 28 U.S.C. 1331
(a), aS matters arising directly out of the United States
Constitution. See Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1969). Tens of cases have held that constitutional
violations not cognizable under Sec. 1983 are properly before
the Court under 1331(a) provided the jurisdictional amount is
pled. See Lehner v. O’Rourke, 339 F.Supp 309 (S.D.NY 1971)
dicta as well as the numerous progeny of Bivens. 1.
3. Finally, the various arguments with regard to
preliminary relief are moot, given that defendants’ cosmetic
concerns have been satisfied by plaintiffs’ stipulation. Should
this case come on for an evidentiary hearing. even early next
week, no disruption of the normal process of the electoral
22a
Plaintiff's Opposition to
Motion to Dismiss
college need occur, since this Court may hear the evidence
and decide on the propriety of permanent injunctive relief at
that time.
Collaterally, according to the New York Times of
November 4, 1976. p. 34, the alleged margin in New York
State was 250.327, not 280,000 as stated in Court. And. as
alleged in Para. 9 of the Complaint, it is alleged that the
results of this election would be reversed were the fraudulent
votes excised.
Conclusion
Defendants’ Motions ought to be denied and a full
evidentiary hearing ordered.
David S. Heller
231 West 29th Street
P.O. Box 1901 GPO
New York, New York 10001
(212) 563-8633
One of the Attorneys for
Plaintiffs
1 Particulary relevant are: Aptar v. Wilson, 506 F.2d 83
(1974): and Maruso v. District of Columbia, 484 F .2d 828.
Other cases among the vast majority holding that Bivens
applies to the Constitution generally are: States Marine v.
Shultz, 498 F.2d 1146. (4th Cir.. 1974), (Fifth Amendment) ;
Johnson v. Alldridge. 349 F.Supp 1230 (M.D. Pa. 1972) aff'd in
relevant part 488 F.2d 820 (3rd. Cir., 1973); Washington v.
Brantley, 352 F.Supp. 559 (M.D.Fla.. 1972); Hilliard v.
Williams, 516 F.2d 1344 (6th Cir., 1975): Howard v. Warden,
348 F. Supp 1204, 1205 (E.D. Va., 1972).
Other courts ha * overwhelmingly ruled that Bivens
covers any violation of Constitutional rights by federal of-
ficers. Merely illustrative of these cases are the following:
Cox v. Stanton. 529 F.2d 47. (4th Cir., 1975), (13th and 14th
Amendments): Brault v. Milton, (527 F2d 730,732 (2nd Cir..
23a
Plaintiff's Opposition to
Motion to Dismiss
1975) (14th Amendment); Dry Creek Lodge v. U.S., 515 F.2d
926. 932 and n. 5 (10th Cir., 1975) (Fifth Amendment);
Sullivan v. Murphy, 478 F.2d 938,965 and n. 47 (D.C.C., 1973)
(Fourth and Fifth Amendments), cert den 414 U.S. 880;
Braden v. University of Pittsburgh. 477 F.2d 1, 7 n. 10 (3rd.
Cir., 1973) (144th Amendment — dictum); Reus v. Laird. 391
F.Supp 1133, 1139, (E.D. Pa., 1975) (First and Fourteenth
Amendments); Brown v. Board of Education, 386 F.Supp 110,
121-22 and n. 5 (N.D.IIl., 1974) (14th Amendment); Shaffer v.
Wilson, 383 F.Supp 554 (Colo., 1974). (Fourth and Fifth
Amendments); Dahl v. Palo Alto, 372 F.Supp 647 (N.D. Cal..,
1974) (Fifth Amendment); Perzanouski v. Salvio 369 F.Supp
223,224 (D.Conn. 1974) (14th Amendment); Bulter v. U.S.. 365
F.Supp 1035 (D.Haw., 1973) (First. Fourth and Fifth
Amendments); Dupree v. Chattanooga 362 F.Supp 1136.1139
(E.D.Tenn., 1973) (14th Amendment); Covington v. Cole, 528
F.2d 1365,1320 (5th Cir.. 1976) (Fourth Amendment); Alliance
to End Repression v. Rochford, 407 F.Supp 115, (N.D. IIL...
1975) (First. Fourth, Eighth Amendments); Lombard v.
Board of Education, 407 F.Supp 1166 (E.D.NY, 1976) (14th
Amendment): Panzarella v. Boyle, 406 F.Supp 787 (D.RI,
1975) (14th Amendment): NCLC v. Banks, 75 Civ. 1536,
D.C.NJ. (First and Fourth Amendments); and Rauch v.
United Instruments. 405 F.Supp 442 (E.D. Pa. 1975 (Civil
Aeronautics Board).
ot ae
24a
Order to Show Cause
For Temporary Restraining Order
Upon reading a copy of the Verified Complaint herein and
the supporting affidavits thereto. and the parties having been
heard, it is hereby
ORDERED that defendants, their agents, servants, em-
ployees, and all others acting in privity or concert with them
be, and hereby are temporarily restrained from disposing of.
relinquishing possession of (except to this Court), or in any
manner altering. moving, destroying. defacing, mutilating
or rendering illegilbe the files, records, data, instructions, di-
rections, manuals, cards or the like comprising or relating to
conduct of the 1976 Election in the State of New York. and it is
further
ORDERED that the defendants herein be temporarily
restrained from representing and holding James Carter as
the Presidential nominee from the State of New York or from
certifying any slate of Electors pledged to James Carter as
valid elector from the State of New York and it is further
ORDERED that defendants show cause at a hearing to be
had in the Eastern District of New York on the 30th day of
November, 1976, why this order should not be issued as a
preliminary injunction herein and it is further
ORDERED that persona! service of this order and sup-
porting papers upon defendant. or their attorneys or their
official representatives in New York City by 4 p.m. on
November 24, 1976, shall be good service.
Dated: New York, New York
November 22, 1976.
signed Mark A. Constantino
U.S.D.J.
25a
Excerpts from Transcript
Direct Examination by Mr. Fetell:
Q. Ms. Dolen— A. Yes.
Q. By whom are you employed? A. The Board of Elec-
tions.
Q. Which Board of Elections? A. The Board of Elections
in the City of New York.
Q. Whatis yourtitle? A. Executive Director.
Q. How long have you been employed by the Board of
Elections? A. 15 years.
Q. How long have you held your p-esent title? A. Two
years.
Q. What did you do before that? A. I was Senior Ad-
ministrator. before that an Administrative Associate and an
Administrative Assistant.
Q. Are you working fulltime? A. Oh, yes.
Q. Are you the senior staff member of the Board of
Elections in contradistinction to those who may hold honor-
able titles or part-time positions? A. Yes,lam.
Q. And are there numerous district Boards under your jur-
isdiction? A. The five-borough offices and the general
office.
Q. So that there is a total of six offices, yours plus the five
boroughs? A. Yes, plus the five boroughs and mine.
Q. And you have personal knowledge of the new mail
registration system, don't you? A. Yes.
Q. When did you first become oriented to the provisions of
the new mail registration system? A. The law was enacted
in June of 1975 to be effective as of December 1, 1975. I had
met with the members of the State Board of Elections, with
the Commissioners of the Board of Elections of New York
City and with many representatives of community groups,
the League of Women Voters, and we had many conferences
as to the regulations of registration by mail.
Q. I take it, then, you were personally familiar with the
statutes. and more importantly its implementa-
tion? A. Thatis right.
Q. And were you charged by the State of New York to ac
26a
Excerpts from Transcript
minister that program in the City of New
York? A. Together with the Commissioners of the Board of
Elections, right.
Q. But you said that the Commissioners are part time, they
don’t work full time; is that correct? A. Well, they set
policy and I follow it.
Q. Isee.Now—
The Court: How is the statute implemented, were there
rules and regulations promulgated?
The Witness: Not really. The main thing when the law
had been enacted was to get a form—it isn’t really a
postcard, it is a registration-by-mail sheet and we met, we
were seated with the State Board of Elections and with the
members of other boards of elections throughout the State
of New York and this form finally was compiled.
By Mr. Fetell:
Q. What is the form?
(The witness indicated a document.)
The Court: Is it the form that you are holding?
A. This is an application for registration-by-mail.
Q. I see.
Mr. Fetell: May I have that marked for identification,
your Honor?
The Court: Any objection to marking it in evidence?
Mr. Schwartz: No.
The Clerk: So marked as Plaintiffs’ Exhibit 44 in
Evidence.
Mr. Fetell: Do you have an extra copy so I don’t have to
look at yours?
Do you have an extra copy?
The Witness: Not with me.
Mr. Schwartz: I believe this is one.
Is this the one, in Spanish or English?
Mr. Fetell: I will read it in either lanugage.
The Clerk: May 1 mark it. please?
The Witness: Incidentally. one of the rules pro-
mulgaged was that it may be printed in English and in
Spanish.
27a
Excerpts from Transcript
Mr. Fetell: Does your Honor want to look at it?
The Court: I think I saW the xeroxed copy of some so I
have some idea of what it is.
Q. Let us go to that for the moment. When you say it was
both printed in English and Spanish, was this a requirement
that one form be bi-lingual? A. The State of New York has
to print everything bi-lingually pertaining to elections
matters.
Q. Well, the one you have shown us— AA. I think it is in
Spanish.
Q. That is my question, is it the same form, is it the same
piece of paper, is it a bi-lingual document or must one get one
in English and one in Spanish? A. I have a form printed in
English and a form printed in Spanish.
Q. And what provisions were made for the proper distri-
bution of these—
Mr. Schwartz: Your Honor, I object.
The scope of this hearing, I suggest, is broad enough
now without going into every aspect.
The Court: What is the purpose of this inquiry?
Mr. Fetell: Because we are attempting here, your
Honor, to make an offer of proof that the irregularities
that we are discussing and which culminated in the elec-
tion, started right from the inception of the voter registra-
tion. and the voter registration was part and parcel of
what culminated and that there is a complete chain
leading from it.
The Court: Go ahead.
The Witness: Will you repeat your question, please?
Q. What provision, if any, did you make for a balanced dis-
tribution of these forms in English and Spanish so you
wouldn’t send too many, let us say, Spanish forms to the
English area or too many English forms to the Spanish
area? A. 1 didn’t send them out to anyone unless I was
requested to. People came up representing community
groups. They asked for X number in English and X number in
Spanish. The statute provides that no one was to be denied
applications within a reasonable amount.
28a
Excerpts from Transcript
Q. Did you take part in any publicity drives in connection
with voter registration in your official capacity? A. No.
Q. Were you ever interviewed on the radio or television or
newspaper or other media in your official capacity in order to
describe the new provisions that come into effect? A. Well,
I was a part of a major program of registration, whenever
there was a drive, but the Board of Elections, per se, did not.
go out on street corners and hand out these forms.
Q. I didn’t ask you about that, what I asked you was were
you ever on the radio or television or did you give interviews
to any of the media in which you in your official capacity was
asked questions in that public forum whereby you assisted
and encouraged voter registration? A. Yes.
Q. All right. And in what form, radio or television or other
media? A. All media
Q. On how many occasions? A. Numerous occasions,
from the very inception.
Q. And was it—
The Court: What do you mean, all media, are you in-
cluding the press?
The Witness: The newspapers.
The Court: Press releases in all languages?
The Witness: Well, we sent press releases to all news-
papers and to all radio stations.
Q. Iam not talking about you personally, I’m talking about
you in your official capacity, did you have radio or television
exposure in your officialcapacity? A. Yes.
Q. Onhow manyoccasions? A. In what period?
Mr. Schwartz: Your Honor, if we may, the hearing has
up until this point been in the form of witness narration,
and if Counsel wants to know about this publicity program
or whatever, or however he wants to characterize it, I
think he ought to let the witness explain.
The Court: I will allow the examiner to ask the
questions in his own way.
Q. From the beginning of the new system of postcard
registration up until November 2nd? A. Well, every time I
29a
~
Excerpts from Transcript
was asked by radio or television, how many times I was
asked?
Q. Yes. A. 1 would give an educated guess of fifteen
times.
Q. Was it the stated policy of the commissioners of the
Board of Elections of the City of New York for the Board to
encourage increased voter registration? A. Well,
naturally, it is the duty of the Board to—
Q. Is youranswer yesorno? A. Yes.
Q. When you say that the Commission made policy—that
was one of the state policies in 1976; is that correct?
A. What?
Q. To encourage increased voting registration. A. Yes.
Q. When you appeared on radio or television, approx-
imately fifteen times, you were implementing that state
policy of encouraging increased registration? A. I ex-
plained the process of registering by mail.
Q. Was it part of what you were doing, implementation of
the Commissioner's stated policies of encouraging and in-
creasing voter registration? A. Yes.
Q. Was your material ad libbed, or were there written
statements prepared by somebody to be read by you? A. I
didn’t have written statements.
Q. Did you ever indicate in words or substance that voters
were encouraged to come out and vote? A. Always.
Q. Now, how long has the system of voting on (a) affidavits
beenineffect? A. 1974.
Q. Was there any appreciable increase—Withdrawn. Have
there been any elections prior to 1976 election in which A
cards— A. It was effective immediately, so we had af-
fidavit ballots in the general election of 1974, in the primaries
of 1975, and the general election and the two primaries of 1976
and the general election of 1976.
Q. Mrs. Dolen, was there any appreciable increase in the
number of A ballots that were cast in the November '76
election? A. Yes.
Q. Asdistinguishedfrom the prior— A. Yes.
Q. Can you give the Court some indication of the number or
30a
Excerpts from Transcript
percentage of the amount of increase? A. In 1974, the
apathy of the people was very strong. Not too many people
came out to vote. And naturally the requests for affidavit
ballots would be less. In 1975 it was what we call an off year,
and there weren't many at that time. 1976 was a Presidential
election, and I would suspect ihat the amount of the A ballots
would be comparable to the importance of the election.
Q. Do you know how many A ballots were cast in Kings
County in the November election? A. I know—no, not by
borough. I have a total.
Q. What is the figure? A. The total for the entire City
was approximately 50,000.
Q. How many werethrownout? A. They weren’t thrown
out.
Q. Rejected. A. 40,000 were not counted.
Q. Forty? A. 40,000.
Q. On what basis were they not counted’ A. Their ap-
plication may have come in beyond October 4th, in person
they probably had never re-registered after their registra-
tion had been canceled. Some people moved and they were
mistaken with the word ‘‘permanent.’’ They thought they
were permanently registered. There are various reasons and
the reasons are set forth on the outside of the envelope.
Q. Out of 50,000—We understand what you are
saying—50,000 A ballots means 50,000 people who showed up
atapolling place? A. Ne.
Q. 50,000 showedup— A. At 4,800 polling places.
Q. At all of the polling places, and when they got there,
there was no buffer card for them; is that correct?
A. That is right.
Q. Of those 50,000 people who showed up, 40,000 people
were not entitled to vote for reasons other than the absence of
a buffer card; they simply were not registered and eligible
voters; isthatcorrect? A. Right
Q. Now, when the new statute—that is, Section 153 of the
election— A. Yes.
Q. —153 of the election law was added by the Laws of the
1975 New York State Legislature; isthatcorrect? A. Yes.
3la
Excerpts from Transcript
Mr. Schwartz: Counsel, you have the book in front of
you. I don’t see the purpose of this interrogation.
The Court: I will allow it.
Q. When, Mrs. Dolen, for the first time, did you receive a
copy—Withdrawn. Did you receive a copy of this legislation
before its legal effective date? A. Yes.
Q. How long before? A. I knew that regulation, by mail,
was being legislated. I don’t recall exactly when before.
Q. We're dealing with days or months. A. Several
months.
Q. From that time, did you or anyone on your behalf or
under your supervision prepare any rules or regulations or
instructions with regard to the implementation of this
document? A. It wasn’t necessary.
Q. Theanswerisno? A. No.
Q. Did the Commissioner discuss with you the personal
requirements that you anticipated with respect to im-
plementingit? A. Yes.
Q. Were provisions made for additional budgeting for
more employees? A. Through the office of the Mayor and
the Director of the Budget.
Q. How many additional employees did you get to process
the influx of cards? A. We started with about a hundred,
and when the influx became very great we ended up with an
additional two hundred.
Q. Where did you get the employees from? A. From the
county organizations.
Q. Came out of the clubs? A. From the county
organizations.
Q. Let’s get the record clear. A. 1 don’t know where
they came from.
Q. What is the county organization? A. A democratic
county organization. Two organizations of the two highest
votes at the last gubernatorial election.
Q. Was each club alloted a certain number of positions
A. I don’t know.
Q. Once the organization sent an employee, do you know
whether he was interviewed with respect to his ability to read
32a
Excerpts from Transcript
and write? A. If he didn’t produce, at the end of the second
day he was replaced.
Q. Who was checking onthem? A. We have chief clerks
and supervisors.
Q. Now, what were these clerks doing? The registration
cardscamein— A. They checked it.
Q. What is the first thing they did with them? A. The
registration from the mail came in back to 80 Varick Street,
the 9th floor, that is the general office of the Board of Elec-
tions. Every application was clocked on the very day they
came in, regardless of the amount.
Q. How many mail registrations did the New York City
Board of Elections receive up to and including November
2,19762 A. Up to and including October 4th and post-
marked October 4th, I am pround to say, New York City
brought in 468,586 mail registrations.
Q. Is it your testimony that that precise number was
closedandstamped? A. Every singleone.
The Court: Can you give me that number?
The Witness: 468,586.
Q. What wasthatdate? A. The last date they could have
been delivered personally at the Board of Elections was
October 4th. We were open until midnight.
Q. Was the clock stopped for four days to give you time to
catchup? A. No, wedid not stop the clock.
Q. You say there wasn’t a single, solitary mail registration
that came in that remained unstamped and unclocked?
Mr. Schwartz: I object to this examination on the
ground this is direct examination.
The Court: I know. Do you think it sounds like cross--
examination?
Mr. Schwartz: Yes.
The Witness: Iam a big girl; I can answer.
Q. Andadefendant? A. Right. Andacriminal.
Q. No, this is not a criminal procedure. We are trying to
prove that it is not. A. Your papers you put out in the
street list me as a criminal.
Q. NotI. A. Let’s not go into that.
33a
Excerpts from Transcript
Q. Now, when these clerks came in, did they have any
paper or syllabus or instruction sheet telling them what to
do? A. No, when they came in the names and addresses
were noted, Social Security numbers were noted, and they
were then assigned to a chair and a deck, and they had a
supervisor. Every twenty employees had a regular employee
who supervised the work.
Q. Did these regular employees, the supervisors, have any
written instructions? A. No. I hada meeting with the chief
clerks time and time again, and we went through whatever
problems might have been presented at the time. We tried to
correct the problems. The chief clerks in turn went back to
their offices and instructed their employees on how to
proceed. .
Q. After these things were clocked in, what was the next
thing the clerks were instructed todo? A. After they were
clocked in at the general office of the Board of Elections they
were then sent into boroughs. They were also put into alpha-
betical order by boroughs. Then sent to the— We made an
IBM printout for our own office use by county, by week of the
application that came in through the mail. And this may
sound like it took a long time, but within 48 hours that par-
ticular batch was sent to the respective boroughs for reproc-
essing.
Q. Yousay they were putonacomputer?§ A. Yes.
Q. Was that done through a punch card system? A. I
have no idea about the IBM. We have an IBM department in
our office, in our building.
Q. How was the information transmitted through the
computer department from your office? A. They took the
application and it was just a question of putting down the
name and the address and the date that it was clocked. That's
all that we had.
Q. How long after a particular application was processed
wasitthatit gotontoacomputer? A. The same day. They
were closed. divided by borough and alphabetized.
Q. Do you have 468,586 names on computers? A. We
have, I would say, about 375,000 names on computers.
34a
Excerpts from Transcript
Q. Now, how do you account for the fact that you
registered 468,000 people and only have 375,000 on a com-
puter? What happened to the others? A. The last day we
got over 100,000 applications. It now became important they
be sent to the borough office immediately without making a
list for our own records.
Q. You would like to amend your last answer to say that
some but not all went to the computer room and went the
sameday? A. Isaidall were clocked.
Q. I am asking you whether all got on the computer and
you said that they went up—
Ths Court: Objection sustained. Argumentative.
Mr. Fetell: Thank you, sir.
Q. After the election, were those names put on a com-
puter? A. That computer list we are describing now is just
for our own use. That is not a list of those people who are
registered. For some reason their registration may not have
been valid.
Q. Ms. Dolen, what if anything was built into your system
to determine whether a person registered more than once?
A. When the card—the buff card was put in a binder, if we
Saw another card with the same name, same birth date,
same address, we didn’t put the new one in. We just put that
aside.
Q. Who put them in the binders at Varick
Street? A. Each borough.
Q. When you say we, you are referring tothe— A. The
entire borough. The entire City of New York.
The Court: When you asked what is built into the
system, I must note the observation of the Court. That sets
out the pattern of the election process designed at least to
safeguard against fraud and irregularity. I said before I
consider an election an adversary proceeding. The statute
provides in the State Constitution, right through the legis-
lative enactment and the election law, that the two parties
that receive the highest vote in the last election—it usually
means the Democrats and Republicans—have equal rep-
resentation on the State Board of Election, on the City
35a
Excerpts from Transcript
Board of Election, down to Inspectors of Election.
Now, it may be that the Inspectors haven’t been doing
their job. At least the system is designed to safeguard
against fraud and irregularities. Mind you, the election
law is so specific to say that the election inspectors are
supposed to compare the signatures, placing a hand over
the signature on the buff card first, and announce in public
that so and so is voting.
Mr. Fetell: The law changed on that score.
The Court: That I don’t know.
Mr. Fetell: Iam about to present it right now. I ask the
Court to take judicial notice of Section 153 of the Election
Law and more specifically Subparagraph 9 which says:
That the County Board of Election when it is not satisfied
from an examination of an application for registration, or
after its initial inquiry that the applicant is entitled to such
registration may order an investigation through an officer
or employee of the State or County Board of Election,
Police Officer, Sheriff, or Deputy Sheriff.
I understood what your Honor said, that the system was
designed for one party or the other party—and the party is
not majoritive for the parties to keep an eye on each other.
Apparently the legislature in their wisdom made the
County Boards of Election the policemen over it and that
is why Iam examining Ms. Dolen now.
The Court: I suggest that Section 153 has nothing to do
with what I just said. Nothing.
Go ahead.
You asked this witness whether the system—what
controls the system has.
Mr. Fetell: When I said system, I wasn’t referring to
the general word. I’m talking about their mechanics as an
official Board of Elections. Maybe I used the wrong
phrase in that regard. I didn’t mean the country system. I
was ambiguous and I apologize. _
The Court: You don’t have to apologize. I think the
question was proper. Ms. Dolen answered it. And I said
that I wanted to note what I regard as safeguards in the
36a
Excerpts from Transcript
system, in the structure, and I said what the statutory
plan was. I didn’t say it worked out that way.
Q. Ms. Dolen, once these regulations were put into the
computer did anybody in the Board of Elections get a readout
to check the double registrations? A.I got a copy of
the—this is not a checking of the registrations.
Q. The question is, in its entirety, did anybody get a
readout for the—alphabetical readout—to check for double
registrations at that level? A. No, not to check for double
registrations. Os
Q. Was there anything—when this system was im-
plemented by the Board of Elections, was anything done to
spot check for the possibility of registering from tombstones
to empty lots to empty buildings? A. No, there is an af-
fidavit on the application and when it is signed—that af-
fidavit must be signed by the applicant. And when that ap-
plication comes in with the signature on the affidavit it is
presumed that what the person filled out is the truth and also
there is a Class E Felony on the other side which charges in
the event it is proven you are not telling the truth, you are
subject toa Class E Felony.
Q. Then the underlying methodology, if I can use that
word, the underlying approach by the New York City Board
of Elections in the November 1976 election, was with respect
to registration if an affidavit was signed, that was a fulfill-
ment of the Board of Elections obligation under the election
law? A. The election law, if anyone wants to change a
person's registration, there is a format to do that. Unless we
get a challenge, we presume that the registration is in good
order.
The Court: I think the Election Law provides a judicial
procedure for determining the validity of registration. All
the judicial proceedings as far as I can determine are
designed to eliminate invalid, fraudulant registration
before election.
It is questionable whether there are procedures avail-
able after election.
I think the New York State statutes do provide a judicial
37a
Excerpts from Transcript
procedure for challenging registration.
Mr. Fetell: Again, your Honor, I’m referring now to
the—I am limiting myself now to the obligation of the
Board as mandated by the legislature in Section 153.
Q. Other than checking to see whether an affidavit was
signed, did the Board do anything to determine whether an
applicant was or was not entitled to registration enrollment
or transfer or registration, and I’m reading now the language
of Subsection 8 of 153, other than looking at affidavits, did you
do anything? A. Sent out the ID card and the yellow card
that Mr. Wiseman described in an envelope. On that envelope
there are instructions to the post office to not forward. We
send that out first class mail and we ask if it is returned to us
it be returned first class mail.
Q. Do you have a record in your office, a warehouse which
contains any letters that come back as_ undeliver-
able? A. Yes. No, we don't have undeliverable—addressee
unknown.
Q. That is undeliverable? A. When we had time we sent
it out a second time.
Q. My question, ma’am, was is there a repository some-
where where the stuff came back? A. Yes.
Q. Thatisavailable right now? A. That's right.
Q. So that if hypothetically, 1742 Bath Gate Avenue in the
Bronx, which is in the 26th E.D., 78th A.D., if that hypoth-
etically—that photograph represents 1742 Bath Gate Avenue
in the Bronx, and if hypothetically somebody used that ad-
dress to register—
Mr. Schwartz: This is Exhibit what?
The Court: Yes. I wish you'd give the Exhibit number.
Mr. Schwartz: I don’t think it is an exhibit.
Mr. Fetell: I will take another one. I thought they were
all marked.
Mr. Schwartz: That is an exhibit—
Mr. Fetell: I will find another empty lot for you.
Mr. Schwartz: Iam sure you will, you’ve found enough
of them already.
Mr. Fetell: I withdraw the question. Is that all right?
38a
Excerpts from Transcript
The Court: Show it to the witness.
Mr. Fetell: I want to show him the sticker number first.
Exhibit 9 in evidence.
Q. Ms. Dolen, if hypothetically a person were to have given
1656 Washington Avenue in the Bronx as his address. and if
hypothetically this photograph represents what 1656 Wash-
ington Avenue looked like in the latter half of 1976, you would
have an undeliverable letter in the archives of the Election
Board? A. If the Post Office brought it back we would
have it undelivered.
The Court: Do you have an instruction on the envelope
for the Post Office not to deliver the mail if the addressee
was not at the premises?
The Witness: Yes.
The Court: He has to perform his obligation under your
direction?
The Witness: Yes.
Q. Did any come back inthis manner? A. I would say of
the 468,000 approximately 20,000 came back. Not from empty
lots, just addressee unknown.
Q. Was the 468 the number you ultimately
registered? A. No.
Q. Or the number of applications? A. Applications we
processed.
Q. How many did you register out of 468,568? A. 20,000
came out. 448,586.
Q. Exactly 20,000onthe nose? A. No. givea little, takea
little, I didn’t stop to count them.
Q. Is there a count anywhere? A. We probably will get
around to counting them. Right now, first things firts.
Q. Were any rejections made out by your office? A. (no
response. )
Q. 468.586 applications were received? A. Yes.
Q. 20,000 of them were rejected because the letters
bounded; isthatit? A. (Noresponse.)
Q. Gr came back undeliverable? A. I can’t answer that
with a yes or no.
39a
Excerpts from Transcript
Q. Goahead. A. Withall due respect to the Post Office, I
am not too sure they are doing their job correctly and many
of them were returned zip code missing. There is one par-
ticular building 3333 Broadway. It is a brand new building.
with probably new tenants living in there. Everybody would
have to register. They were returned because—I don’t know
how many stories the building consisted of—but it is divided
into Building A and Building B although they are all in one
building. They call it Section A and Section B. If you lived in
Section A and it was B, the Post Office returned it. That
doesn’t mean to say the people don’t live there.
Q. You say some were sent back because they had no zip
codes? A. Thatis right.
Q. Did your clerks check to see whether the zip codes were
on the application? A. The zip codes were on the ap-
plication.
Q. If they weren't. what if anything were your clerks in-
structed to do? A. We did not return applications pro-
miscuously. We returned an application if the affidavit wasn't
signed, if the naturalization information was not complete.
We didn’t return an application if the color of the eyes was
omitted, or if the zip code was omitted.
Q. Did you have two forms: One a form of approval and
oneaformofrejection? A. Yes.
Q. How many rejections did you mail out? A. I don’t
have a figure.
Q. The approximate amount. A. No,I don’t.
Mr. Schwartz: She answered the question, counsel.
Q. Did you file a report with the Commissioners which
reflects the result of this first time mail registration setting
forththesetotals? A. DidI file a report?
Q. Yes. A. We had discussions at the meetings and I
gave them anoral report.
Q. Did your oral report set forth how many rejections
evolvedfromthisone? A. No.
QO. You just don’t remember? A.1I1 didn’t discuss
rejections.
40a
Excerpts from Transcript
Q. Where did you get the figure 468.586, is that from
memory? A. No, that is from a group of people who ac-
tually kept a record of the applications.
Q. Did anybody keep a record of rejections? A. I would
have to check with the chief clerk.
Mr. Schwartz: Your Honor—
The Court: The defendant is in the same classification
as a hostile witness. I will allow it. If Ms. Dolen can’t
answer it she will say so.
The Witness: I can’t answer.
Q. Nobody tabulated it? A. The chief clerks have
tabulated it.
Q. Did yourever see the figures? A. No.
Q. Did anybody ever tell you the figure? A. I know it
was a very smal! amount.
Mr. Schwatrz: This is badgering the witness.
The Court: Yes, but | allow badgering. Special dis-
pensation.
You may be badgered.
The Witness: Thank you.
Mr. Fetell: I doit at my own risk, lam aware of it.
The Court: 1am aware of it too.
Mr. Fetell: I understand.
The Court: I don’t allow it in every case but in a case
when we have a head of a department and lawyers
examining on the matters within her knowledge, I will
allow it.
Mr. Fetell: Incredulity is something I am entitled to.
The Witness: What was that word?
Mr. Fetell: That is a little bit of colloquy—
The Court: Just lawyer talk. If there were a jury anda
lawyer said “‘incredulity.’’ | would probably stop it.
The Witness: I like to learn.
The Court: He conducts this kind of examination at his
own risk.
Go ahead.
Q. Ms. Dolen. did you ever ask somebody to tabulate the
4la
Excerpts from Transcript ,
rejection amount? A. Not to tabulate. I did ask how many
were rejected and the answer was very few.
Q. Now, did your office mail out approval documents?
A. Yes.
(At this point the Official Court Reporter was relieved
by Emanuel Karr.)
Q. How many such approval documents were mailed
out? A. Well, whatever. there were 468,586 less the qnes
that would have been rejected. I don’t know what the total
would be, would have been of the approval ones. If you
weren't rejected you were approved.
Q. Youhavenotablesofthat? <A. No, I saidI didn’t.
Q. Does the City have franchised mailing or do you have to
pay for mailing? A: No, we have to pay.
Q. Do you submit to anybody a calculation of the amount of
postage spent by your office in returning rejections or ap-
provals?
Mr. Schwartz: Objection.
The Court: Overruled. I will allow it.
A. I don’t have knowledge of that. the Finance Office
would have that. '
Q. Isn't that something that passes through you as the
Director? A: Well, what you mean is the actual figures?
Q. Well, approximately. A: It runs into the hundreds of
thousands of dollars.
Q. You never got a report on that? A. I would have a
report, I have a report in the office, but I don’t have it with
me.
Q. Youdon’tremember what figuresare? A: No.
Q. Okay. fine. Now I refer you to Section 153, paragraph
7(b): ‘“‘The county Boards of Election shall review each
applicant.’’ Now I ask you, ma’am, other than checking to
‘determine whether the affidavit was signed, was anything
else done to ‘“‘review each applicant?’’ A. Yes, the most
important thing was the naturalization part, that was
checked. We scrutinized those. that part of the application. as
I said. Now. if the color of the hair was left out or the color of
the eyes. we didn't return the application.
42a
Excerpts from Transcript
Q. But you checked the signature of course on the bot-
tom? A. Yes.
Q. What was the purpose of stamping these cards as they
came in? A. Because this is only an application (in-
dicating). When it came into the Board of Elections we
clocked it and it then became a registration.
Q. Thatis underthe statute? A. Thatis right.
The Court: Now this has nothing to do with the issues in
the case, but Iam curious:
Did they ever discuss when they got this form up the
requirement of inscribing the Social Security number if
there was one?
The Witness: Yes, the original form had the Social
Security and then an action was brought under the Civil
Rights by the Civil Liberties Union—
The Court: You mean the Civil Rights Act?
The Witness: That is right.
The Civil Liberties Union said that the civil liberty was
being infringed upon by asking for that personal in-
formation.
The Court: Andthey won?
The Witness: Now on the second one we did not—
The Court: Did they win on that issue?
The Witness: They took it off. they withdrew the first
where we were going to check with the Social Security
number.
The Court: Did a judge decide that. was there a
decision on whether it infringed on the right of privacy?
The Witness: Yes.
Mr. Blabey: Your Honor. may I assist on this; may I
say that under the Privacy Act of 1974, which your Honor
can take judicial notice of, it prohibits the use of asking for
Social Security information unless you are authorized to
do so before | believe January |}, 1974, that is..unless the
specific federal statute permitted you to ask it: otherwise
you are prohibited for asking for that information.
The Court: Well. then. the Act should have been
43a
Excerpts from Transcript
amended to permit you to ask that because that would be
an obvious control.
Mr. Blabey: This is state legislation, that is a federal
act.
The Court: Let me say this, that every lawyer that
comes in before me and asks for fees under the Criminal
Justice Act has to have his Social Security number.
The Witness: The second time around it was taken off.
The Court: You would think that the Civil Liberties
Union would be interested in protecting the right to vote.
Well, go ahead.
By Mr. Fetell:
Q. Mrs. Dolen, how did these applications—I withdraw
that for the moment. When you said they were stamped,
you are referring to the portion of Section 153 which says
that registrant is registered to vote once the appropriate
county board receives it: isthatright? A. Right.
Q. That is prima facie, and then it is up to the Board to
reject if it finds basis for it, and in the absence of such
rejection he is a registered voter merely by the act of
sending itin: isthatcorrect? A. Yes.
Q. It is your testimony that you know of your own personal
knowledge that 458.586 were actually date and time
stamped without exception?
Mr. Schwartz: That was asked and answered.
Mr. Fetell: lam repeating it for a reason.
A. Well. as I said if one or two—
QO. Pardonme?_ A. I say if one or two slipped by without
being stamped, but each batch that came in was stamped and
clocked.
Q. Did these come in by mail or were they dropped off?
A. They came in in bags, mail bags in the morning and—
Q. That is United States mails, through the United States
mail? A. Thatisthe only mail we have here.
QO. When you say mail bags— A. The United States
mail.
44a
Excerpts from Transcript
Q. That is what | want.
The Court: Did any individuals, to your knowledge ever
come in and say “‘Here. I would like to drop off twenty or
fifty applications?”’
The Witness: That is what I was coming to. In the
communities—
Mr. Fetell: Or 2,500 or 25.000.
A. Some came in ten thousands, some twenty thousand.
Q. Atoneshot? A. Atone shot.
Q. Now, when that type of delivery was made, five. ten,
twenty thousand by one person— _ A. Yes, they clocked
them.
Q. —was that—I say was that treated in the same way as
the ones that came in through the United States
mail? A. Every one was treated the same, they were in no
way different.
The Court: Can you identify any of the individuals who
brought in ten thousand?
The Witness: Oh, surely.
The Court: Who are they?
The Witness: There was an operation, I think it was a
program called Operation Big. that was city-wide. Then
the AFL-CIO, the League of Women Voters, all different
community groups.
Now anyone who came in and asked for forms, we have
a receipt: so we have a list of all of the groups and the
number of applications that each group got.
We have, as I say, the names of the persons who were
responsible for that particular program.
The Court: So individuals who were interested in the
outcome of the elections brought in five thousand or ten
thousand applications?
The Witness: That is right.
Q. Do you have that on a single list? You tell us you have
receipts from people asking for a large — if I waiked in and
asked for two, you wouldn't take my name and address, I take;
is that right? A. We had at least three hundred telephone calls
a day asking—
45a
Excerpts from Transcript
Q. No. A. —asking for to please be good enough to send
them one or two applications, which we sent out im-
mediately.
Q. I think you indicated to his Honor that when somebody
came in for a large amount you would have them sign a
receipt? A. Thatis right
Q. What was the purpose of that? A. So that we had a
record, we had to keep a rccord, I have to show the City the
reason why I needed another million forms and what I did
with the first million.
Q. Do you still have those receipts; are they readily
available for the first thing in the morning? A. Anything
you want.
Q. Within the next twelve hours? A. Whenever you want
them.
Q. By tomorrow morning? A. I have it in a book right
now.
QO. Youhaveitinabook? A. Yes.
Q. Do you have any recollection of the names of the
organizations that were big customers? A. I just told you,
the AFL-CIO.
Q. Aside from them, have any community groups come in?
For example, from the South Bronx. A. Community
groups. Puerto Ricans. Jewish groups, Irish groups, Greek
groups—every ethnic group. every American gruup,
everybody.
Q. Do you have that list? A. I told you four times I have
the list. I'm not going to get it now.
Q. Iam just looking at my clock. Could that be delivered to
us by tomorrow morning? A. Surely.
Mr. Fetell: And if itis. your Honor, may we look at it?
The Court: Sure. if it is delivered to you it is for your
inspection.
Mr. Fetell: I thank you. sir. 1 wanted them to un-
derstand it.
By Mr. Fetell:
Q. With respect to the increased registration, a 440,000
increased registration, were any steps taken to change the
46a
Excerpts from Transcript
procedures at the polls to take care of this new traffic, this
new influx of voters? A. It is not new traffic. The in-
spectors that we have were accustomed to having groups
of people coming in to vote as they finally did in 1976; it
was the last—
Q. Did you ever receive a complaint of large groups of
people coming in at one time, into a particular polling
place?
Mr. Schwartz: I believe she was in the middle of a
sentence and—
Mr. Fetell: I heard the period: I am sorry.
The Court: Did you complete your answer?
The Witness: Well, all I know is that there are
no—there are no special hours when groups are going to
come in. We have no idea at ten o’clock whether thirty
people are going to come in—
Mr. Fetell: That wasn’t my question, ma’am.
Q. My question was, Were any steps taken to increase the
number of personnel at various polling places to ac-
commodate this reflected increase of 448,000 new voters?
A. This 448,000 new voters are replacing about 400,000
people that have been taken off the rolls, so actually the same
number of people—As a matter of fact, the registration is
down by about 300,000 as against 1972.
Q. It has been experienced, Ms. Dolen, that new voters
take longer to vote and to check than old? A. They are
given three minutes: the law gives them three minutes ina
polling place.
Q. Were you given any indication or did you receive any
phone calls on Election Day that there were problems at
particular polling places of large groups coming in at the
same time? A. This was the first year that I got very,
very, very few complaints about long lines and about— The
people were just out to vote.
Q. You were satisfied from your own investigation of the
polling and the voting procedures this year that it was more
orderlythannormal? A. Yes. it was.
Q. It was quieterthanusual? A. Right-on!
47a
Excerpts from Transcript
Q. Lesschaotic? A. That is right.
Q. Were you—I withdraw that. What happened— What is
the obligation of an inspector at a polling place who at the
close of day notices in taking the count that there were more
votes cast, or more people entered the booths than there were
buff cards and were they given any instructions as to what
they were to do? A. Inspectors are brought down to the
boards, the respective Boards of Elections, two or three
times a year. They are given instructions as to what to do.
Q. What are the instructions specifically? Well, I will
reframe it. Inspector has a Statement of Canvass, and it has
to be signed by the chairman and the three inspectors on
opening. right? A. Right.
Q. And there are certain figures, the numbers that are
written on the Statement of Canvass, which they say are
correct, and then they look atthe counter, right? A. Yes.
Q. Now, if at the close of the day, they are required to do
the same thing. make entries and then sign it, correct?
Q. Now. what instructions were they given by you during
this course of the year as to what they are supposed to do
when they note that the public counter indicated that there
were more curtain operations than there were buff cards?
What were they supposed to do? A. When they open the
machine in the morning. sometimes instead of it reading
zero, zero, zero, it may by 908. or 012, and if it is 012, then they
have to make a note on their inspector’s report as to the
public counter, and then at the end of the evening that
number is to be deducted from the total.
Q. And what happens in a situation where they find that
there were more, a higher number on the public counter than
there are buff cards, and they can’t account for it by the first
opening discrepancy? What are they supposed to
do? A. You are making up instances that 1 don’t know
about.
The Court: How much are inspectors of election paid
for an clection day?
The Witness: $37.50.
Mr. Fetell: Your Honor, that is a question which I am
48a
Excerpts from Transcript
going to object to on the grounds of irrelevancy, and Iam
going to be so bold—
The Court: Well, you don’t have to be bold to do it—
Mr. Fetell: I say that because I would expect that they
would do it right even if they were paid nothing.
The Court: Oh, really?
Mr. Fetell: For thirteen years I have been on a school
board for nothing. I consider it as pro bono, perhaps I am
still foolish enough to believe—
The Court: Weil, we are talking about Mr. Average
American, because I recall a time when those jobs were
hard to come by. and there were more applicants for the
job than there were positions. Then there was a time when
the Board of Elections took on almost anyone, because it
was unattractive. But for $37.50. I imagine that you would
get people.
The Witness: It is very, very unattractive. They have to
be at the polls at 5:30 in the morning, and with the crime
rate being what it is. there are not too many people who
want to come out at that hour, particularly in the City of
New York.
The Court: I think the fact of their being paid $37.50 a
day might be helpful to the plaintiff because I would
assume they would get capable inspectors.
I thought that they were paid what the State pays for
jurors, like $12 a day.
The Witness: No.
Mr. Fetell: I don’t want to continue further on this, but I
would just take a firm position whether one is paid $100 or
zero, one has the right to expect the same results under
the law, and that is why I entered a formal objection.
The Court: We might get a different kind of inspector of
elections for $37.50 than we might get for $10, and I
thought that that might account for some of the slop-
piness.
Mr. Fetell: My view is that if you pay them $100 a
politician is really going to grab that off for the boys, so it
goes both ways, your Honor; it is a tough one.
49a
Excerpts from Transcript
Q. Mrs. Dolen, do you make allowances fer any discrep-
ancies because of long hours and low pay? A. That is why
we have a recanvass of the voting machine.
Q. Were these voting machines recanvassed? A. They
are later all recanvassed.
Q. Whenisthatdone? A. On November 9th.
Q. And if there are districts in which on recanvass it was
determined that more people went into the machine that
were entitled to by reason of the buff cards, would that be
data or information that would come to you as executive
director? A. No.
Q. Who would it go to? A. I don’t know if anybody has
made any such report.
Q. So you have no way of knowing whether on November 2,
1976, the election, there were any instances in which more
people got into the booths than were entitled to by reason of
having a buff card? A. Practically speaking, this is the
only action, yours is the only action that has been brought—
Mr. Fetell: I move to strike.
The Court: Strike it out.
The Witness: Let me answer—
Q. Iam asking you. ma’am, has it come to your attention
as the executive director of the County Boards of Election
whether there were any demonstrated instances of where the
public counter showed up higher than the number of buff
cards for that machine: Did any such instances come to your
attention? A. No. It would, but it didn’t.
Q. Itdidn’t? A. Right.
QO. In other words— I will withdraw that. Is this infor-
mation checked and are suchtables made? A. No.
Q. If one were to take that statement of canvass, can’t you
check it against the number of registered voters? A. Well,
if an election district—
The Court: Well, I don’t see what this witness did after
the election would in any way affect the validity of the
election.
Mr. Fetell: Well. your Honor, we have now reached one
of the areas of proof in which, with all due respect, the
50a
Excerpts from Transcript
plaintiffs are diametrically opposed to the ruling of the
Court, and I have indicated at the outset that there were
two such areas. Your Honor has set up a certain standard
and we disagree with it. Now—
The Court: What does that have to do with this question
which you are asking her, what her duties were in
examining these statements of canvass, that is after the
election had taken place. How could whatever Mrs. Dolen
did or had done affect or infect the election?
Mr. Fetell: That is an easy one: If the County Boards of
Election and the State Board of Elections had done its
work and checked and found discrepancies, then they had
an obligation to report it through channels to the
Secretary of State and the Governor. to let the Secretary
of State and the Governor determine whether they wanted
to certify the election. But if they don’t get that input in
Albany from the very public official obligated by law to
check, then I suggest to your Honor that the Governor and
the Secretary of State will be put in a very compromising
position by reason of nonfeasance, malfeasance—
The Court: How would that affect the election or affect
the reporting?
Mr. Fetell: It would surely affect the election: the
Governor or the Secretary of State may refuse to cer-
tificate the election, and that is a power of the Secretary of
State, he may refuse to certificate the election, just as the
Secretary of State in Ohio now refuses to certificate,
although I don’t know what he is going to do later.
That is our position.
The Court: Go ahead: go ahead.
By Mr. Fetell:
Q. I would like to know whether there are any procedures
followed by the Boards of Election of New York to insure the
regulation. the procedures—! will withdraw that question.
After the vote is taken and an official canvass is made, what
if anything is done to determine whether the figures sub-
mitted on the Statements of Canvass represent irregularities
oravalidelection? A. Tomy knowledge—
5la
Excerpts from Transcript
The Court: Did you say irregularities or a valid elec-
tion?
Mr. Fetell: Yes.
The Court: Objection sustained.
Mr. Fetell: Irregularities.
A. To my knowledge nothing is done other than our
recanvass of the voting machines and a recanvass of the A
ballots.
Q. Mrs. Dolen, is anybody entitled to walk into a voting
machine on election day who has not been properly
registered? A. No.
Mr. Schwartz: Objection.
Q. And if there are more persons voting on a particular
machine than they are entitled to go into that machine by
reason of valid buff cards. what if anything is done by your
office? A. How do you figure there are more people voting
on a machine than sign the buff cards? By what, how do you
prove that?
Q. Is any check—all right. Is anything done if—if a tally, if
the public counter shows 100 and there are only 90 buff cards,
is that prima facie an irregularity that there were twenty
more bodies counted than should have been? A. You are
just making an instance.
Q. I’m asking hypothetically. A. But I can’t answer
hypothetically.
Q. I'm asking you to.
The Court: She can’t. That is the answer.
Q. And there is nothing in the work that you did which is
designed to prevent that from happening; is that correct?
The Court: Objection sustained.
A. That is right.
The Court: You are assuming a state of facts that this
witness will not accept.
Can you explain the differentiation in the count where
the public count shows that the number of votes cast was
more than the number of buff cards in the election
district?
The Witness: Well. as I said at the very beginning. the
dZa
Excerpts from Transcript
inspector may have been lax in failing to put down the
actual number on the public counter.
The Court: That is the explanation that there might
have been twelve more?
The Witness: That is right.
The Court: And that then didn’t put it down, so that if
there were twelve votes over they could account for the
twelve?
The Witness: They would have to deduct, right.
The Court: Is there any other explanation?
The Witness: Well, perhaps ~ am mistaken but I don’t
think people go in and vote twice.
By Mr. Fetell:
Q. You would believe that that was a crime, wouldn’t
you? A. That would be a crime, I would say I don’t con-
done it.
Q. Do you recognize the existence of the fact that people lie
and commit crimes in the City of New York?
Mr. Blabey: Objection, your Honor.
Q. I mean in your official capacity—
Mr. Blabey: Objection.
Q. In your capacity with the Board of Elections of the City
of New York, do you presume that there is no fraud among
voters? A. Well, I wish we had Utopia—
Mr. Schwartz: Objection, your Honor.
The Court: Well, just because Mr. Fetell volunteered
the statement I will allow the witness to answer.
A. I said 1 wish we had a Utopia of that kind.
Q. Do you recognize that it is a part of your responsibility
and the responsibility of the Board of Elections to look for
irregularities and report them to the proper authorities, if
found? A. No. we don’t look for irregulavities; if they are
called to our attention we check them out.
Q. Were any irregularities called to your attention in con-
nection with this presidential election? A. A few.
Q. And what did you do to check them out? A. Alleged
irregularities. '
Q. That is right. What did you dotocheckthem out? A. I
53a
Excerpts from Transcript
heard from the Justice Department. | called the Chief Clerks
of the respective boroughs that the alleged irregularities
were taking place and they personally sent out employees.
We didn’t rely on the inspectors. And in nine out of ten, in nine
out of ten cases, the irregularities were strictly allegations,
there was no proof to them, and we have that down in writing,
too, and I reported back to the Justice Department.
Mr. Fetell: Ihave no further questions of this witness.
The Court: Mr. Schwartz?
The Witness: Now is this cross-examination?
Mr. Schwartz: Yes.
The Court: Mr. Schwartz, will you proceed, please.
54a
Excerpts from Transcript
Cross-Examination by Mr. Schwartz:
Q. Mrs. Dolen, previously to today there was some
testimony that relied substantially on the Statement of
Canvass, the Inspectors’ Statements of Canvass and I under-
stand from conversations that I previously had with you that
there is such a thing as a Statement—a Statement and a
Canvass—what is the correct name? _ A. Statement and
Return.
Q. Yes. Are they synonymous, and if not, what is the dif-
ference? A. This (indicating) represents one election dis-
trict, each green sheet. The Statement and Return represents
the election districts jor the entire Assembly District.
Q. I see. And would there be a reason for the Statement of
Canvass to have a vote count that is different from the State-
ment and Return? A. Oh. yes, if there are errors
made—and that is why—well, our clerks, when they get the
entire Assembly districts in back from the Police Depart-
ment, put them in election district order and then they take
the figures from those green sheets. without making any
changes, and they put them on to the Statement of Canvass
and Return. Then, when the machines are opened, those
statements—
The Court: Are they opened in the presence of repres-
entatives of both parties, both political parties, the
Democratic and Republican?
The Witness: And all candidates and splinter parties,
and all of the candidates later have to be present on
November 9th and on November 16th is when we open up
the counters and from them we derive the addresses of
what is in the five boroughs, and these sheets are taken by
our clerks and they are checked against the figures on the
voting machine.
In addition, there may be a discrepancy of a few votes,
there is the write-in vote which the inspectors don’t take
down on the night of election, those are on rolls of pad,
they are in the back of the voting machine, and they are
done on the day that we open up the machines.
55a
Excerpts from Transcript
Q. I see. There has been some questioning about publicity,
a media campaign, if we can call it that, although I don’t
think it is quite proper with respect to this particular elec-
tion: Now, isn’t it a fact that it has always been the policy of
the Board to encourage registration by whatever means
possible and that it is not an isolated election in which some-
thing brand new was done; this has been a running
policy? A. Itis not anisolated policy, no.
Q. There was also mention of allegation of chaos at the
polls and confusion. Can you tell the Court a little bit about
the representatives that are present at the polls or near the
election booths? A. Every candidate is entitled to two poll
watchers so that if you have the poll watchers and you have
your voters, it looks like a lot of pandemonium. In one school
you may have ten or twelve election districts and when you
walk in it may seem like an awful lot of people are present.
But each polling place, each election district is separate, and
certainly the poll watchers for the respective candidates, if
there were any irregularities or things that they thought
were not proper. he had the police officer to talk to as well as
calling the Justice Department.
Q. I see. So that there are poll watchers and there are, you
say.twoforeach— A. Two for each candidate.
Q. What about inspectors, how is that broken
down? A. Each board consists of four inspectors, two
Democrats and two Republicans, with one voter machine;
where the registration is 750 and over, you have two voting
machines and you have two additional clerks, one
Democratic another Republican.
Q. I see. A. There is also one clerk. If you have four
inspectors one of them is always at the side of the voting
machine to release it. If you have two machines, you have
two. so that the machines are always covered with an in-
spector.
Q. Do you possess anything within your knowledge to
explain why a building that might appear abandoned on its
face could actually be a legal residence of a registrant?
A. Yes. I think there is something in the law—
P 56a
Excerpts from Transcript
The Witness: I will word it differently.
A. (Cont’g) The law says that if you are living—
Mr. Fetell: I object to that.
The Court: I think you ought to argue the law. I agree.
Mr. Fetell: Same objection.
The Court: If it’s a statute, cite it to me.
Q. On Election Day, you were at your office on Varick
Street? A. Yes, 1 was there from 5:30 a.m. until 11:00 p.m.
and kept knocking on wood all day because it was so quiet
and uncomplicated.
Q. Did you get any complaints at all? A. Just a few
complaints we had our own personne! go out to check, if there
was some grounds for it. It was corrected most of the time.
The allegations were far-fetched and grossly exaggerated.
Q. Mrs. Dolen, if you know. could you tell me what your
understanding is about the situation where there will be an
abandoned building and yet a registrant could be in legal
residence? A. If the person has been put in a temporary
residence with the idea of moving back to the building. should
it be refurbished, then his address still remains in that
particular building.
Q. Getting back to the Election Day when the complaints
came in, you said you sent some of your staff. Specifically, is
there a certain level in the office that will go out? A. In
Brooklyn, I sent Margarita Ligouri who is an administrative
associate. She personally went out and checked two or three
of the complaints that had come in through the Justice
Department and nothing was happening that was alleged to
be happening. In the Bronx, Bea Berger, she is the chief clerk
of the Bronx Board of Elections, she sent out staff em-
ployees—
Mr. Fetell: I object to what somebody else did.
The Court: Objection sustained.
Q. Now, you mentioned on your direct testimony that
packets of applications for registration by mail would be
delivered. hand delivered at the Board of Elec-
tions? A. Yes.
57a
Excerpts from Transcript
Q. Could you tell us how late your office was receiving
those packages? A. Onthe last day which was October 4th
we were open until midnight. For weeks before that we were
on an overtime basis. We had permission from the City to
work overtime. We had six additional time clocks purchased
in Manhattan in the General Office in addition to the regular
four that we had so that nothing regardless of how late it
came in was left for the following day to be clocked. Because
the clocking date in our opinion was very important.
Mr. Schwartz: Just a moment, please.
(Pause.)
Mr. Schwartz: I have no further questions.
Mr. Blabey: No questions.
The Court” Redirect?
Mr. Fetell: Yes.
Excerpts from Transcript
Redirect Examination by Mr. Fetell:
Q. While your were knocking on wood. do you know
whether any application was being made to Supreme Court
Justices of the State of New York by voters who claimed they
were denied the right to vote? A. The didn’t claim they
were denied the right. many of them came in and claimed
they had lost part of their vote in order to get a second vote,
that is another reason why the number may be higher, the
only way they could get a second chance to go in a voting
machine is by getting a court order.
Q. What do you mean, get a second chance? A. People may
have come in and said, ‘‘I went in to vote and before I knew it
I pulled the lever back again and the inspector said that is it,
you can’t vote now you lost your chance.”’ So the person
never had an opportunity to vote. In order to get a second
change to go into the booth. she would have had to come down
to the borough office and get a court order from one of the
Supreme Court Justices assigned.
Q. Thepollsopenwhattime? A. Sixo’clock.
Q. Inthe morning? A. Yes
Q. By ceven a.m., how many such Supreme Court orders
were obtained?
Mr. Blabey: I object to this line of questioning. It is not
proper redirect.
The Court: If she knows.
A. The judges didn’t come here until seven.
Q. The twelve hours, seven to seven, how many orders
were obtained in New York? A. Roughly speaking. I would
say about seven or eight hundred.
Q. Do you remember telling Peter Kirsch of the New York
Times the following: ‘‘932 voters got orders authorizing them
to use the machine from State Supreme Court Justices at the
Bureau of Elections office by seven p.m.’’ Did you make that
statement? A. Yes, when he kept calling.
Q. You madethatstatement? A. Yes.
Q. Does that refresh your recollection that it was 932 ap-
proximately? A. Yes. if I told him it was 932, it was 932
59a
Excerpts from Transcript
Q. Is that normal for an election day. 932
challenges? A. Very. very little.
Mr. Fetell: No further questions.
The Court: You may step down.
We'll take a short recess.
Mr. Fetell: Thank you, sir.
(A recess was taken at this time.).
Memorandum Decision
And Order of December 7, 1976
Plaintiffs, who include Republican and Conservative Party
supporters of President Ford, and members of the Labor
Party, bring this action prusuant to 42 U.S.C. Sections 1983,
1985 (3) and 1988. 1] They seek an order: (1) enjoining the
Secretary of the State of New York and the Governor from
certifying the Democratic Presidential electors; (2)
declaring the Presidential election conducted in New York on
November 2, 1976, null and void; and (3) directing that a new
election be held. Plaintiffs allege that state officials, acting
under the color of state law, committed fraudulent acts in the
conduct of voter registration and the subsequent general
Presidential election which served to deprive them of their
constitutionally protected right to vote. Plaintiffs also assert
a claim premised upon a violation of the equal protection
clause of the fourteenth amendment, 2 arguing jurisdiction
is conferred under 28 U.S.C. Section 1331 (a). That claim,
couched in general terms, is that the ballots cast by
legitimate voters were debased and diluted by the illegal
votes allegedly cast by thousands of unqualified voters.
The contours of plaintiffs’ complaint charge officials of the
Board of Elections of the City of New York with the inten-
tional and purposeful commission of wrongful acts and the
use of slipshod procedures in the administration of mail
registration 3 and the conduct of the general Presidential
election. The alleged frauds and omissions are said to have
resulted in the fraudulent registration of thousands of
otherwise ineligible voters, and in turn, the casting of
numerous illegal ballots.
Specifically, plaintiffs cite actions taken by Betty Dolan,
executive director of the City Board of Elections. which they
claim were intentionally designed to undermine the
processing and verification of close to 300,000 post card
registration applications. Plaintiffs allege that Dolan, armed
with the knowledge that partisan groups were wrongfully
submitting applications from nonexistent or unqualified
6la
Memorandum of Decision and Order December 7, 1976
voters, intentionally withheld close to 180,000 post card ap-
plications gathered by the Central Board; before sending
them to the local Boards in Brooklyn, Queens, and the
Bronx, merely two and one-half weeks before the election.
Moreover, plaintiffs charge Dolan with unilaterally extend-
ing the deadline for receipt of mail applications, allegedly in
violation of Election Law Section 153. 4 These acts are said to
have prevented the transmission of all of these applicants’
names to computer lists, barring their subsequent verifica-
tion. Dolan. according to plaintiffs, then ordered that buff
cards be prepared on all applicants, whether verified or not.
The end result, it is argued. was that Board officials indis-
criminately sent registration cards to thousands of otherwise
ineligible voters, thereby validating their subsequent ap-
pearances at polling places and their demands to cast
ballots.
Plaintiffs’ allegations focus not only on the processing of
applications. but on the conduct of the election as well. They
seek to hold Board officials primarily responsible for the
alleged chaos and confusion on election day. Plaintiffs argue
Dolan’s public appearance on television and radio, shortly
before the election, during which she urged people to appear
at polling places, promising they would be permitted to vote,
served to foster chaotic conditions. This, coupled with the
election officials’ alleged failure to adequately staff voting
places, is claimed to have resulted in the casting of thousands
of illegal votes. Plaintiffs recite allegations of numerous
instances where individuals who registered more than once
in turn cast several ballots. As well, they charge that non-
existent persons had their votes recorded, as did mental in-
competents and convicted felons. 5
However, plaintiffs do not claim that the illegal votes
allegedly cast were sufficient in number to have changed the
outcome of the election. Rather. they assert that the election
process was so permeated by fraud, a determination of the
rightful winner is impossible.
62a
Memorandum of Decision and Order December 7, 1976
I.
The defendants have moved to dismiss on various grounds.
Defendant City Board of Elections, relying on the district
court’s holding in Phillips v Rockefeller, 321 F. Supp. 516
(S.D.N.Y.), aff’d, 435 F. 2d 976 (2d Cir. 1970), contends that
neither a Section 1983 cause of action nor an equal protection
claim can be maintained since there is an absence of state
action. Defendant’s reliance on Phillips is misplaced. This is
not a case, as in Phillips, where certification of the prevailing
candidate is pursuant to federal authority.16 The statutory
scheme existing in New York for the election and subsequent
certification of Presidential electors, Election Law Section
291, expressly provides for certification by the Secretary of
State and the Governor’s confirming signature. 7 Hence, the
ministerial act of certifying the Presidential electors is
performed pursuant to state authority. 8
Defendant Hugh Carey, the Governor of New York, and
defendant Secretary of State argue dismissal of the com-
plaint is mandated because neither is subject to statutory
duties concerning the registration of voters or the conduct of
the election, and as such, they are not proper parties.
It is well-settled that a state official may properly be made
a party to a suit seeking to enjoin the enforcement of an
allegedly unconstitutional act only if that official plays some
role in the enforcement of the act. McCrimmon v Daley, 418
F. 2d 366, 368 (7th Cri. 1969); Oliver v Board of Education of
the City of New York, 306 F. Supp. 1286, 1288 (S.D.N.Y. 1969);
Coon v Tingle, 277 F. Supp. 304, 306 (N.D.Ga. 1967); Fitts v
McGhee, 172 U.S. 516, 530. 19 S. Ct. 269, 274 (1899). As noted
above, Election Law Section 291 9 requires the Secretary of
State to prepare a certified list of electors after the final
canvass is approved by the State Board of Canvassers, and to
procure the Governor’s signature. Although the function
performed by both officials in this context is seemingly
ministerial, a reading of the provision indicates that the
electors’ appointment is not validated until both officials
have completed their statutory duties. Since both play a part
63a
Memorandum of Decision and Order December 7, 1976
in the enforcement of the scheme to choose electors, both are
clearly proper parties and subject to suit.
While the point is not raised by defendant City Board of
Election, defendant State Board of Election moves to dismiss
on the ground that, as a state agency, it is immune from suit
under 42 U.S.C. Section 1983. Extended discussion is not
required of the well-settled principle that states, counties,
municipalities, or their agencies are not ‘“‘persons”’ answer-
able to plaintiffs in an action at law or suit in equity to
redress enumerated deprivations, pursuant to the Civil
Rights Act of 1871. 42 U.S.C. Section 1983. Aldinger v Howard,
— U.S —. 96 S. Ct. 2413, 2421 (1976); City of Kenosha v
Bruno, 412 U.S. 507, 512-513, 93 S. Ct. 2222, 2226 (1973); Monroe
v Pape, 365 U.S. 167, 187-191, 81 S. Ct. 473, 484-486 (1961);
Brault v Town of Milton, 527 F. 2d 730, 732 (2d Cir.) on
rehearing, 527 F. 2d 536 (2d Cir. 1975) (en banc). Clearly, a
Section 1983 action is not maintainable against either the City
or State Board of Elections.
The question remains, however. whether a cause of action
seeking injunctive relief flows directly from a violation of the
fourteenth amendment. rendering a state of municipality
subject to the jurisdiction of the court under 28 U.S.C. Section
1331 (a). 10 The granting of equitable relief premised
directly upon the Constitution has long been a settled prac-
tice accepted without discussion. Bivens v Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388, 404; 91 S. Ct. 1999, 2008 (Harlan, J. concurring, 1971);
Dellinger, Of Rights and Remedies: The Constitution as a
Sword, 85 Harv.L.Rev. 1532 passim (1972); See, e.g., Loving
v Georgia, 388 U.S. 1, 87 S. Ct. 1817 (1967); Takahashi v Fish
and Game Commission, 334 U.S. 410, 68 S. Ct. 1138 (1948). 1]
When a state or municipal agency is alleged to have deprived
individuals of equal protection of the laws, it may be the
subject of the federal court’s exercise of equitable powers.
The City and State Boards of Elections are not immune and
may lawfully be enjoined from debasing or diluting the votes
of qualified citizens. 12
7
64a
Memorandum of Decision and Order December 7, 1976
The State Board of Elections’ reliance on Aldinger v
Howard, supra, in arguing that once it is found immune from
suit under Section 1983, it should not be brought back into the
action under a different theory, is misplaced. This is not a
case where plaintiffs seek to premise jurisdiction on a pend-
ent state claim. Clearly an independent basis of federal juris-
diction exists in 28 U.S.C. Section 1331 (a). Aldinger v
Howard, supra, 96S. Ct. at 2422.
Defendant State Board of Elections additionally argues
that it is not a proper party to the action since it has little if
anything to do with the registration of voters and administra-
tion of the elections. The court disagrees. Although the
County Boards of Election have the primary responsibility of
conducting both voter registration and the general election
itself, 13 it cannot be said that the State Board is entirely
removed from the electoral process. Pursuant to Section 470
of the Election Law. 14 The State Board is vested with the re-
sponsibility of enforcing the provisions of the election laws. It
was the intent of the legislature in creating the State Board of
Elections that a coordinating agency exit to oversee the
execution and enforcement of the laws relating to the elective
franchise and to foster citizen confidence in the political
process. Election Law Section 466. Hence, it can hardly be
argued the State Board is not a proper party to this action.
McCrimmon v Daley, supra.
Finally, it is argued that the action should be dismissed for
plaintiffs’ failure to join all fifty-seven County Boards of
Election, as well as the Democratic Presidential electors, as
necessary parties to this action. Although, as defendants
contend, a successful candidate is a necessary party under
New York law in a suit to recover his position, Matter of
Ullman v Power, 17 App.Div.2d792. aff'd, 12N.Y.2d 724(1962) ;
Lohmair v Ulster County Board of Elections, 50 App. Div.
2d 1055*.(1975), in this case the federal law governs in
procedural matters. Erie Railroad Co. v Thompkins, 304 U.S.
64, 58S. Ct. 817 (1938).
Rule 19 of the Federal Rules of Civil Procedure vests the
65a
Memorandum of Decision and Order December 7, 1976
court with wide discretion in deciding whether to proceed in
the absence of necessary parties; application of the joinder
rules requires a balancing of interests, Kamhi v Cohen, 512 F.
2d 1051, 1054-1055 (2d Cir. 1975). Determinations of indispen-
sibility and necessity are grounded in equitable principles,
Teney v White, 476 F. 2d 203, 207 (5th Cir.), modified and aff'd
on rehearing, 486 F. 2d 310 (1973). Were we blessed with the
luxury of time in this matter, the express terms of Rule 19 (b)
would require joinder since all parties are subject to process
and their addition would not defeat the court’s power to hear
the matter. Yet, where it is only a matter of days within
which this court must act. 15 and the interests of the suc-
cessful electors are adequately protected by counsel for the
existing defendants, equity demands that the court proceed
in their absence, Teney v White. supra at 207.
Accordingly. we turn to a consideration of whether the
complaint states a claim upon which relief can be granted.
Il.
The Supreme Court has unequivocally stated that:
the Constitution of the United States protects the right of all
qualified citizens to vote. in state as well as in federal elec-
tions. A consistent line of decisions by this Court in cases
involving attempts to deny or restrict the right of suffrage
has made this indelibly clear. It has been repeatedly
recognized that all qualified voters have a constitutionally
protected right to vote...
Reynolds v Sims, 377 U.S. 533, 554, 84S. Ct. 1362, 1377-78 (1964)
(citations omitted). The right to vote may not be denied by
alteration of ballots. see United States v Classic, 313 U.S. 299,
315, 61 S. Ct. 1031, 1037 (1941). nor ‘“‘diluted’’ by ballot-box
stuffing. Ex parte Siebold, 100 U.S. 371, 25 L. Ed. 717 (1880);
United States v Saylor, 322 U.S. 385, 64S. Ct. 1101 (1944). As
the Supreme Court said in Reynolds v Sims, supra, where
political districting in Alabama was challenged under the
fourteenth amendment:
The right of suffrage can be denied by a debasement or
66a
Memorandum of Decision and Order December 7. 1976
dilution of the weight of a citizen’s vote just as effectively
as by wholly prohibiting the free exercise of the franchise.
377 U.S. at 555, 84S. Ct. at 1378 (footnote omitted). See Hadley
v Junior College District of Metropolitan Kansas City, 397
U.S. 50, 52, 90 S. Ct. 791 (1970): South v Peters, 339 U.S. 276,
279, 70 S. Ct. 641, 643 (1950) (Douglas, J.. dissenting); Hen-
nings v Grafton, 523 F. 2d 861, 863-64 (7th Cir. 1975). Thus.
while Reynolds v Sims was a case involving re-apportion-
ment, there appears to be little distinction, insofar as the
fourteenth amendment is concerned, between dilution of a
citizen’s vote by malapportioned political districts and
dilution of valid ballots by votes cast by persons not entitled
to vote.
Despite the importance placed by the Supreme Court on
the right to vote and the integrity of elections, not every
election irregularity will give rise to an equal protection or
due process claim. The Second Circuit Court of Appeals
r° jected the argument that administrative infirmities in an
eiection, in the absence of ‘‘wilful or knowing’’ dilution of
ballots by illegal voting. create a remedy in federal courts:
Were we to embrace plaintiffs’ theory, this court would
henceforth be thrust into the details of virtually every
election, tinkering with the state’s election machinery,
reviewing petitions, registration cards, vote tallies, and
certificates of election for all manner of error and insuf-
ficiency under state and federal law. Absent a clear and
unambiguous mandate from Congress, we are not inclined
to undertake such a wholesale expansion of our jurisdiction
into an area which, with certain narrow and well defined
exceptions, has been in the exclusive cognizance of the
state courts.
Powell v Power. 436 F.2d 84, 86 (2d Cir. 1970 (footnote
omitted). See Hennings v Grafton. supra; Pettengill v
Putnam County R-1 School Dist. Unionsville, Mo., 472 F.2d
121 (8th Cir. 1973); Means v Wilson, 383 F. Supp. 378 (D.S.D.
1974).
67a
Memorandum of Decision and Order December 7, 1976
Allegations of misconduct in the administration of a state
election must be judged in light of principles governing
claims under the fourteenth amendment and Section 1983. It
is necessary, first of all, to plead and prove specific acts of
misconduct, including the time, place and circumstances of
the alleged deprivation of the right to vote. See Snowden v
Huges, 321 U.S. 1, 10, 64S. Ct. 397, 402 (1944): Means v Wilson,
supra at 389. Cf. Federal Rules of Civil Procedure 9 (b).
Second, ‘‘uneven or erroneous application of an otherwise
valid statute constitutes a denial of equal protection only if it
represents ‘intentional or purposeful discrimination.’’’
Powell v Power. supra at 88, quoting Snowden v Hughes,
supra at 8. 64S. Ct. at 401. See Swain v State of Alabama, 380
U.S. 202, 204-205, 85 S. Ct. 824. 827 (1965); Oyler v Boles, 368
U.S. 448, 82 S. Ct. 501 (1962). Cf. United States v Price, 383
U.S. 787, 86 S. Ct. 1152 (1966): United States v Guest, 383 U.S.
745, 86 S. Ct. 1170 (1966). Purposeful deprivation of the right
to vote will not be assumed merely because there is evidence
that election officials acted incompetently or negligently
and, as a result, persons not properly registered were per-
mitted to vote. Rather. intentional acts must be proved, ‘‘the
quantum of proof necessary being a matter of federal law.”’
Swain v State of Alabama, supra at 205, 85S. Ct. at 827 (1965),
citing Smith v State of Texas. 311 U.S. 128, 61S. Ct. 164 (1940).
See also Washington v Davis. — U.S. — , 96S. Ct. 2040 (1976
). Third, whether the claim for injunctive relief is predicated
on Section 1983 or the remedy is sought directly under the
fourteenth amendment, the fraud or other unlawful behavior
must be committed by persons acting under color of state
law. Smith v Allwright. 321 U.S. 649, 64 S. Ct. 757 (1944);
Terry v Adams, 345 U.S. 461, 73S. Ct. 809 (1953), or by private
persons acting jointly with state officials, United States v
Price. supra at 794 and n.7, 86 S. Ct. at 1157 and n.7. 16
Finally, the party seeking a new election must establish that
the fraud or other unlawful! behavior changed the otucome of
the election. In the absence of proof of a causal relationship
between the unlawful conduct and the result of the election,
68a
Memorandum of Decision and Order December 7, 1976
injunctive relief must be denied. See Starr, Federal In-
validation of State Elections, 49 N.Y.U.L.Rev. 1092. 1124-27
(1974). Cf. Lehner v O’Rourke, 339 F. Supp. 309, 314 (S.D.N.Y.
1971).
The burden which plaintiffs must meet is a heavy one.
Moreover, even if a claim is stated under this standard,
plaintiffs bear an even heavier burden in demonstrating the
necessity for a new election. In the present case, ordering a
new election in New York State for President could involve
the most serious consequences, raising the question of
‘‘whether the relief, if given, might not do more harm than
good.’’ McDougall v Green, 355 U.S. 281, 286, 69 S. Ct. 1, 3
(1948) (Rutledge, J., concurring). President-elect Carter’s
victory in New York will provide him with the margin of
victory in the Electoral College, which meets on December
13, 1976, to complete the nation’s quadrennial task of
choosing a President. If New York’s electors are disqualified
from casting their ballots. and a new election in New York is
necessary, possibly no candidate would receive sufficient
votes in the Electoral College to be elected President. 17 The
delay attendant in holding a new election in New York might
disrupt the governing process and leave the nation without a
legitimate leader for an unpredictable length of time.
The point, however, is not that ordering a new Presidential
election in New York State is beyond the equity jurisdiction
of the federal courts. Protecting the integrity of elec-
tions—particularly Presidential contests—is essential to a
free and democratic society. See United States v Classic,
supra. It is difficult to imagine a more damaging blow to
public confidence in the electoral process than the election of
a President whose margin of victory was provided by fraud-
ulent registration or voting, ballot-stuffing or other illegal
means. Indeed, entirely foreclosing injunctive relief in the
federal courts would invite attempts to influcence national
elections by illegal means, particularly in those states where
no statutory procedures are available for contesting general
elections. 18 Finally, federal courts in the past have not
hesitated to take jurisdiction over constitutional challenges
69a
Memorandum of Decision and Order December 7, 1976
to the validity of local elections and, where necessary, order
new elections. 19 The fact that a national election might
require judicial intervention, concomitantly implicating the
interests of the entire nation, if anything, militates in favor of
interpreting the equity jurisdiction of the federal courts to
include challenges to Presidential elections.
But before a federal court can responsibly order a new
election, the claimants seeking this extraordinary relief
must come forward with the most clear and convincing
evidence that state officials or persons acting under color of
state law, by intentionally depriving qualified voters of the
right to vote, altered the outcome of the election. A party con-
testing a Presidential election carries a heavy burden. Not to
put too fine a point on it, this standard implies conduct of a
most egregious nature, approximating criminal activity.
Therefore, in judging whether the complaint before us
states a claim upon which relief can be granted, the plaintiffs
must allege. and be prepared to prove, the following:
(1) that specific acts of fraud or other unlawful behavior
were committed in the conduct of the election;
(2) the fraud or other unlawful behavior was committed
with the intent or purpose of depriving qualified voters of
their constitutionally protected right to vote;
(3) the fraud or other unlawful behavior was committed
by persons acting under the color of state law; and
(4) the fraud or other unlawful behavior changed the
outcome of the election.
Applying these standards to the pleadings in this case, we
find the complaint. as presently drawn, does not state a claim
upon which relief can be granted. Rather than dismiss the
complaint with leave to replead. because of the time con-
siderations we grant the plaintiffs an evidentiary hearing on
their request for a preliminary inujunction. At this hearing,
plaintiffs will be allowed to amend the pleadings to conform
70a
Memorandum of Decision and Order December 7, 1976
to the proof. The defendants’ motions to dismiss are denied.
An evidentiary hearing will be held on December 8, 1976, at
9:30a.m. Itis .
SO ORDERED.
Jacob Mishler
U.S.D.J.
Footnotes
1. Title 42 U.S.C. Section 1983 provides that:
Every person who, under color of any statute. ordinance,
regulation, custom, or usage. of any State or Territory,
subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.
++
Section 1985 (3) provides for a cause of action:
If two or more persons in any State or Territory conspire
or go in disguise on the highway or on the premises of
another, for the purpose of depriving, either directly or
indirectly. any person or class of persons of the equal
protection of the laws, or of equal privileges and im-
munities under the laws; or for the purpose of preventing
of hindering the constituted authorities of any State or
Territory from giving or securing to all persons within such
State or Territory the equal protection of the laws; or if two
or more persons conspire to prevent by force, intimidation,
or threat, any citizen who is lawfully entitled to vote, from
giving his support or advocacy in a legal manner, toward
or in favor of the election of any lawfully qualified person
7la
Memorandum of Decision and Order December 7, 1976
as an elector for President or Vice President, or as a
Member of Congress of the United States; or to injure any
citizen in person or property on account of such support or
advocacy; in any case of conspiracy set forth in this sec-
tion, if one or more persons engaged therein do, or cause to
be done. any act in furtherance of the object of such con-
spiracy, whereby another is injured in his person or
property, or deprived of having and exercising any right or
privilege of a citizen of the United States, the party so in-
jured or deprived may have an action for the recovery of
damages. occasioned by such injury or deprivation,
against any one or more of the conspirators.
+++
Title 42 U.S.C. Section 1988 in turn provides:
The jurisdiction in civil and criminal matters conferred
on the district courts by the provisions of this chapter and
Title 18. for the protection of all persons in the United
States in their civil rights. and for their vindication, shall
be exercised and enforced in conformity with the laws of
the United States, so far as such laws are suitable to carry
the same into effect; but in all cases where they are not
adapted to the object. or are deficient in the provisions
necessary to furnish suitable remedies and punish offenses
against law. the common law, as modified and changed by
the constitution and statutes of the State wherein the court
having j@risdiction of such civil or criminal cause is held,
so far as the same is not inconsistent which the Constitution
and laws of the United States, shall be extended to and
govern the said courts in the trial and disposition of the
cause. and, if it is of a criminal nature, in the infliction of
punishment on the party found guilty.
2. Section 1 of the fourteenth amendment to the Constitution
provides that:
‘* No state shall...deny to any person within the juris-
diction the equal protection of the laws.”
72a
Memorandum of Decision and Order December 7. 1976
3. Election Law Section 153, recently enacted in 1975,
provides for voter registration by mail. Mail registration
procedures were used for the first time in New York in the
1976 elections.
4. Election Law Section 153 provides that an individual shall
be entitled to vote if his completed application is received by
the County Board no later than thirty days before the general
election. Plaintiffs claim that Dolan unilaterally decreed that
applications received by October 8, 1976, would be deemed
valid as long as postmarked by October 4, 1976. This action.
they argue, was in direct contravention of the terms of
Section 153.
5. Plaintiffs additionally claim that some 50,000 individuals.
for whom no buff cards existed at polling places. were
permitted to cast paper ballots. Approximately 80 to 90
percent of such votes were allegedly determined to be in-
valid.
6. Philliphs v Rockefeller. supra. involved the election of a
United States senator. ar.d sought to answer the question of
whether the seventeenth amendment of the Constitution
required the senatorial candidate to receive a majority of the
votes cast. Plaintiffs therein sought merely to enjoin the cer-
tification of the winner; irregularities in the conduct of the
election were not alleged. The district court, pointing to the
fact that Election Law Section 296 merely required the Stace
to conduct the election for senator, drew upon the fact that
certification was pursuant to federal authority, 2 U.S.C. and
Section 1 (a) and ! (b), in dismissing the Section 1983 cause of
action.
7. Election Law Section 291 in full, requires that:
The secretary of state shall prepare seven lists, setting
forth the names of such electors, and the canvass under the
laws of this state of the votes given for each person for
whose election any and all votes were given, together with
the certificate of determination thereon, by the state board
of canvassers: procure to the same the signature of the
governor; affix thereto the seal of the state: and, in behalf
of the governor, send one of these lists so certified to the
73a
Memorandum of Decision and Order December 7, 1976
administrator of general services of the United States by
registered mail and deliver six other lists thus signed and
sealed to the president of the college of electors on the first
Monday after the second Wednesday in December.
8. Moreover, defendant seemingly ignored the tact taken by
the Court of Appeals in passing on the substantive question.
avoided by the lower court in Phillips. The Second Circuit
wrote:
Since we find this case so clear on its merits, we do not
reach the procedural and jurisdictional points relied upon
by the district court. Phillips v Rockefeller, supra at 979.
9. See, supra, n.7.
10. Plaintiffs. as well, assert a claim for damages also
premised upon the fourteenth amendment of the Consti-
tution. They seek to recover $2 million, representing the
amount expended by plaintiffs in the Presidential campaign
in New York.
The question whether the violation of the fourteenth
amendment itself gives rise to a cause of action for damages
has not been decided in this circuit. See Brault v Town of
Milton, 527 F.2d 730 (2d Cir.), on hearing, 527 F.2d 736 (2d Cir.
1975) (en banc). We find it unnecessary to answer this
question since we find independent jurisdictional bases exist
for plaintiff's Section 1983 cause of action and their claim for
injunctive relief predicated on the equal protection clause.
Other circuits have found jurisdiction over actions
premised on the fourteenth amendment. See Cox v Stanton,
529 F.2d 47 (4th Cir. 1975); Construction Industry Association
of Sonoma County v City of Petaluma, 522 F.2d 897 (9th Cir.
1975); cert. denied, — U.S. — , 96S. Ct. 1148 (1976); Hanna v
Drobnick, 514 F.2d 393 (6th Cir. 1975): Muskegon Theatres,
Inc. v City of Muskegon, 507 F.2d 199 (6th Cir. 1974); Roane v
Callisburg Independent School District, 511 F.2d 633 (5th Cir.
1975); Fitzgerald v Porter Memorial Hospital, 523 F.2d 716
(7th Cir. 1975). cert. denied, — U.S. — . 96S. Ct. 1518 (1976).
1]. Section 133] requires that the ‘‘matter in controversy
(exceed) the sum or value of $10,000,”’ In cases in which in-
junctive relief is sought, the amount in controversy may be
74a
Memorandum of Decision and Order December 7, 1976
measured by either ‘‘the value of the right sought to be
gained by the plaintiff...(or) the cost (of enforcing that right)
to the defendant.’’ Hedberg v State Farm Mutual Automobile
Insurance Co., 350 F.2d 924, 928-29 (8th Cir. 1965) (Blackmun,
J.; dictum). Accord, e.g.. Tatum v Laird, 444 F.2d 947 951 and
n.6 (D.C. Cir. 1971), rev’d on other grds., 408 U.S. 1, 92S. Ct.
2318 (1972): Williams v Phillips, 360 F. Supp. 1363, 1365
(D.D.C. 1973); C. Wright, Federal Courts, Sections 34, 134-35
(1976). In the present case, should a new election be
necessary, according to the defendants the cost of state and
local boards of election would be in the area of $1,350,000.
12. Nor should the eleventh amendment serve to bar
plaintiffs from proceeding against the State Board of Elec-
tions in seeking equitable relief. Edelman v Jordon, 415 U.S. 6
51, 663-667; 94S. Ct. 1347, 1355-1357 (1974); Ex Parte Young,
209 U.S. 123, 28S. Ct. 441 (1908).
13. The County Boards are charged with the responsibilities
of appointing election inspectors (Election Law Sections 39
and 40). preparing voting machines (Election Law Section
250), registering voters (Election Law Sections 153 and 154),
and the canvassing of election returns (Election Law Sec-
tions 270, et seq.).
14. Section 470 of the Election Law provides that:
a. The state board of elections shall have jurisdiction of,
and be responsible for, the execution and enforcement of
the provisions of this article and other statutes governing
campaigns, elections and related procedures.
b. Whenever the state board of elections or other board of
elections shall determine, on its own initiative or upon
complaint. or otherwise, that there is substantial reason to
believe a violation of this article or any code or regulation
promulgated thereunder has occurred, it shall ex-
peditiously make an investigation which shall also include
investigation of reports and statements made or failed to
be made by the complainant and any political committee
supporting his candidacy if the complainant is a candidate
or, if the complaint was made by an officer or member of a
political commitiee. of reports and statements made or
75a
Memorandum of Decision and Order December 7, 1976
failed to be made by such politicai committee and any can-
didates supported by it. The state board of elections, in lieu
of making such an investigation, may direct the appro-
priate board of elections to make an investigation. The
state board of elections may request, and shall receive, the
assistance of the state police in any investigation it shall
conduct.
15. New York State's Presidential electors are scheduled to
meet and record their votes on Monday, December i3, 1976.
Election Law §292.
16. Section 1985(3) of Title 28. United States Code, creates
civil liability against any persons who conspire to deprive
other persons or a class of persons of ‘‘the equal protection of
the laws. or of equal privileges and immunities under the
laws.”’ There is some doubt, however. that §1985 embraces
purely private conspiracies. involving no governmental
action, that interfere with fourteenth amendment rights.
Bellamy v. Mason's Stores. Inc.. 508 F.2d 504 (4th Cir. 1974);
Gibbs v. Titelman, 502 F.2d 1107, 1110 n.69 (3rd Cir.), cert.
denied, 419 U.S. 1039, 96 S.Ct. 526 (1974). See Griffin v.
Breckenridge, 403 U.S. 88. 91 S.Ct. 1790 (1971). In any event,
in the present case the allegations are directed at the conduct
of state officials or persons acting pursuant to state law.
17. The twelfth amendment to the Constitution, which
governs Presidential electors. provides in pertinent part:
The Electors shall meet in their respective states and
vote by ballot for President and Vice-President, one of
whom, at least shall not be an inhabitant of the same state
with themselves: they shall name in their ballots the
person voted for as President, and in distinct ballots the
person voted for as Vice-President, and they shall make
distinct lists of all persons voted for as President, and of all
persons voted for as Vice-President. and of the number of
votes for each, which lists they shall sign and certify, and
transmit sealed to the seat of the government of the United
States. directed to the President of the Senate; — The
President of the Senate shall, in the presence of the Senate
76a
Memorandum of Decision and Order December 7, 1976
and House of Representatives, open all the certificates and
the votes shall then be counted;— The person having the
greatest number of votes for President, shall be the Presi-
dent, if such a number be a majority of the whole number
of Electors appointed; and if no person have such majority,
then from the persons having the highest numbers not
exceeding three on the list of those voted for as President,
the House of Representatives shall choose immediately, by
ballot, the President.
This language raises the issue of whether ‘‘the whole number
of Electors appointed’’ means the number of electors elected
and certified by the individual States, as opposed to the
combined electoral votes of all the States. See 3 U.S.C. §5. If
the former is the proper construction, then President-elect
Carter need only receive a majority of the votes of those
electors who are ‘‘appointed’’ by their States and who cast
their ballots in the Electoral College. Even if New York’s
electoral votes are withheld pending a new election, the
Electoral College could ‘‘meet’’ and elect Mr. Carter. At
present, President-elect Carter has 297 electoral votes
committed to him, while President Ford's total is 241.
Assuming that the Presidential electors in all other States
are ‘‘appointed”’ and cast their ballots, excluding the ballots
of New York’s forty-one electors would still leave President-
elect Carter with 256 electoral votes to President Ford’s 241,
a clear majority of ‘‘the whole number of Electors ap-
pointed.”’
Furthermore, even if a majority of the combined electoral
votes of the States is required to elect a President, the twelfth
amendment directs the House of Representatives, in the
event no person is able to achieve a majority, to ‘‘im-
mediately’’ choose a President. It is possible that, should
New York’s electors fail the cast their ballots, the House of
Representatives would meet and select a President before a
new election could be held in New York. e
18. It is unclear, for example, whether the State of New
York provides either a forum to challenge the outcome of a
general election on grounds of fraud or an adequate remedy
77
a
Memorandum of Decision and Order December 7, 1976
in the event serious fraud in a general election is established.
Under §330 of the New York Election Law, the State Supreme
Court has summary jurisdiction over challenges to primary
elections. The only remedy a candidate or his supporters
have under §330 in a general election, however, ‘‘is that the
state court may direct a recanvass or the correction of any
error in the canvass...it cannot look behind votes cast on a
voting machine to determine whether the persons who cast
them were qualified to do so.’’ Lehner v. O’Rourke, 339 F.
Supp. 309, 313 (s.D.N.Y. 1971). While some state court
decisions refer to the institution of a quo warranto
proceeding to challenge a general election, e.g., Corrigan v.
Board of Elections of Suffolk County, 38 App. Div.2d 825, 329
N.Y.S. 2d 857 (2d Dep't.). aff'd, 30 N.Y.2d 603, 282 N.E.2d 122,
331 N.Y.S.2d 35 (1972): Periconi v. Power, 48 Misc.2d 391, 265
N.Y.S.2d 22 ‘Sup.Ct. 1965). it is uncertain whether such a
proceeding is available to contest a Presidential election and,
more importantly, whether state courts have inherent
authority to order a new Presidential election in the absence
of statutory authorization. See Matter of U.S. Labor Party,
N.Y.L.J. at 10. col. 2 (Sup.Ct. N.Y. County. Nov. 24, 1976).
19. E.g., Hadnott v. Amos, 394 U.S. 358. 89 S.Ct. 110) (1969);
Bell v. Southwell, 276 F.2d 659 (5th Cir. 1967); Hamer v.
Campbell, 358 F.2d 215 (5th Cir.), cert. denied, 385 U.S. 851, 87
S.Ct. 76 (1966); Ury v. Santee, 303 F. Supp. 119 (N.D.II1. 1969).
See Perkins v. Mathews, 336 F. Supp. 6 (S.D.Miss. 1971)
(Voting Rights Act): Cousins v. City Council of City of
Chicago, 361 F. Supp. 530 (N.D.II. 1973); Dollinger v. Jef-
ferson Cty. Comm'rs. Court, 335 F. Supp. 340 (E.D.Tex.
1971): Mann v. Davis, 238 F. Supp. 458 (E.D.Va. 1964), order
aff'd., 379 U.S. 694, 85 S.Ct. 713 (1965).
20. Under §271 of the Election Law, any qualified voter can
challenge another person’s application for registration.
Presumably. the plaintiffs were aware of the alleged illegal
registrations prior to November 2nd, yet they have not
brought to our attention any pre-election efforts to challenge
the registrations.
78a
Memorandum Decision
And Order of December 10, 1976
The court held an evidentiary hearing in accordance with
its memorandum of decision dated December 7, 1976.
Plaintiffs, through the use of statistical survey techniques,
sought to prove that the November 2, 1976, Presidential
election in New York was permeated by voter fraud. A
random sample of 2,434 voters, representing 42% of the
State’s 1976 voting population — 2,821,699 voters — was used
to project the minimum number of irregular votes cast in the
election. The sample of 2,434 voters was divided into four
distinct classes:
CLASS A) — 660 ‘‘new”’ registrants drawn from 32 Assembly
Districts (‘‘A.D.’s’’) in New York City considered by
plaintiffs to be most prone to voter irregularities;
CLASS B) — 608 “‘old’”’ registrants drawn from the 32 A.D.’s
in New York City considered by plaintiffs to be most prone
to voter irregularities;
CLASS C) — 263 registrants drawn from the remaining 32
A.D.’s in New York City:
CLASS D) — 903 registrants drawn from 62 townships or
election wards in Buffalo, Syracuse, Rochester. Erie
County and Albany.
The sample voters were chosen in the following manner. In
New York City, two election districts (‘‘E.D.’s’’) from each
of the City’s A.D.’s were randomly selected through a
recognized procedure that utilizes a table of random num-
bers. Field investigators, working from the ledgers of signed
buff cards, recorded the name of every tenth voter (old or
new, depending on the particular class) in each of the
designated E.D.’s. The methods employed to gather the
upstate sample were varied slightly. In Erie County, voters
were drawn from a townships’ entire voter population if the
town, because of its size. was not sub-divided into wards.
Otherwise. two E.D.’s in each ward of the upstate cities were
randomly chosen and the selection of sample voters was
79a
Memorandum of Decision and Order December 10, 1976
conducted in the manner described above.
Once the sample was fully compiled, field workers were
carefully instructed on investigating voter fraud. A
‘fraudulent vote’’ was defined as a vote cast by an individual
found not to reside at the address listed on the registration
card, for example, a ballot cast by a person registered from
an abandoned building or a vacant lot. Using data sheets
listing the individual names and addresses of sample voters.
volunteers attempted to contact each voter by telephone to
ascertain whether he or she in fact lived at the recorded
registration address and whether the registrant had voted in
the November 2. 1976 election. If an affirmative response was
received. the vote was listed as ‘‘confirmed valid.”
Field investigators were deployed to investigate each voter
who could not be reached by telephone. If the voter was found
to reside at the recorded address and to have voted in the
November election, his vote was designated ‘‘confirmed
valid.’’ If the voter was not found at the listed address, in-
vestigators interviewed neighbors or the building’s
superintendent. Only if the investigators found no evidence of
the sample voter's existence, was the vote cast listed as a
“confirmed fraud.’ Unless there was confirmation by two
separate teams of investigators that either a sample voter
did not reside at the address of registration or that
registration was from an abandoned building or empty lot,
the vote cast received only a designation of ‘“‘unconfirmed
fraud.’’ In some instances, individual determinations of
fraud were corroborated by documentary or photographic
evidence.
80a
Memorandum of Decision and Order December 10, 1976
After the study’s completion, the foilowing data was
compiled:
PoPULA- Con- UNCON-
1ON AMPLE FIRMED ” OF IRMED oTaL Totar B
CLASS GE on upS ‘SAMPLE FRAUDS FRAUDS QF SAMPLE
2
B
C
D
Tota. 2,821,669 2434 123 9% 177 3
209,040 660 Yu 7 45 89 13.48%
685,133 608 Wy 7.23% 81 125 20.55%
1,272,413 263 ll = 4.18% 13 24
655.085 303 29s 3,212 38 67 L418
05
(WEIGHTED) (WEIGHTED)
The data, as compiled, was turned over to Dr. Steven
Bardwell. a_ statistical expert. Employing standard
statistical methodology, Bardwell extrapolated the absolute
findings over the represented 42% of the voter population and
drew the following conclusions:
Ts
. OF
MIN. % RREGULAR j
[RREGULAR VoTes Larcer Ho,
VOTES MIN, %2 OF CONFIRM. .
PopucaTION (CONFIRM. JRREGULAR % UNCONFIRM, GRREGULAR
ov 2: rely VOTES Fraups _____~‘YoTes
A 209,940 6.677 13,797 13,482 28,220
£ 685,133 7.23% 59,015 20.552 141,137
C 1,272,413 4,187 53 434 9,127 115,789
) _ 655,083. 3.24 29,961 JAW =6©_ 20,962
Tota 2,821,669 4.9% 138,207 10.87 306,108
e _ -----
232==33s==- ===> = oes
ss2==32
8la
Memorandum of Decision and Order December 10. 1976
During his testimony, Dr. Bardwell cautioned that further
projection of the absolute findings could not be made over the
remaining 58% of the voter population. Moreover, he can-
didly stated that since the partisan nature of the vote was not
a factor in drawing his conclusions, there was no way to
determine. through his study. what percentage of the
irregular vote was cast for Mr. Carter or Mr. Ford.
Plaintiffs’ theory is that their sampling demonstrated that
widespread irregularities probably deprived President
Ford's electors of their victory. Lehner v. O’Rourke, 339 F.
Supp. 309 (S.D.N.Y. 1971). Where, as here, direct testimony is
unobtainable. opinion testimony based on reliable hearsay is
admissible. Public Utilities v. Pollak, 343 U.S. 451, 72 S.Ct. 813
(1952): Bohus v. Board of Election Commissioners, 447 F.2d
821 (7th Cir. 1971): United States v. Aluminum Company of
America, 35 F. Supp. 820 (S.D.N.Y. 1940); United States v.
United Shoe Machinery Corp.. 110 F. Supp. 295 (D. Mass.
1953), aff s without opinion, 343 U.S. 521, 84s.ct. 699 (1954).
The relevance of this testimony in determining the extent
of the irregularities in the vote for Presidential électors
depends directly on the ‘‘universe”’ selected for study. If the
universe is properly defined. the reliability of the study, in
turn, depends on whether the sample selected evidences the
characteristics of the universe. The theory upon which a
sample is admissible as proof of the universe is ‘‘...the
‘universe’ is. by reason of its uniformity or by reason of some
predictable uniformity of recurrence of differences without
it, susceptible of fair representation by a randomly selected
sample, so that the characteristics of the ‘sample’ will,
within mathematically measurable limits of reliability,
evidence the characteristics of the universe.’’ Judge John F.
Dooling, Jr.. Polls. Samples, Surveys and Scientific
Evidence. Seminar for Newly Appointed United States
District Judges (Feb. 12-16, 1962, Monterey, Cal.). If the
sample is properly selected, the characteristics of the
sample may be attributed to the entire universe. Note, Public
Opinion Surveys as Evidence: The Polls Go To Court, 66
82a
Memorandum of Decision and Order December 10, 1976
Harv.L.Rev. 499 (1953). If the universe is not properly
defined, or the sample is not properly selected, it follows that
the opinion evidence is irrelevant.
The irregularities are based on evidence that persons were
permitted to vote from addresses of buildings shown to have
been abandoned and from vacant lots. The plaintiffs claim
that the improprieties resulted from the negligence of the
New York City Board of Elections and the 57 County Boards
of Elections in registering voters by mail, the failure to
verify the residences of potential voters, and the failures of
the election inspectors of the elections districts (and wards)
to require proof of eligibility. These irregularities, which, for
the sake of this argument, we assume to have taken place,
are based only on a sample consisting of approximately 600
registrants in 32 Assembly Districts in the City of New York,
determined by the survey team to be those suspected of a
higher degree of irregularities in voter registration than the
remaining 32 districts. (1) There is no showing, however, that
characteristics of the sample are characteristic of any other
area in the State. Since the five county boards are under the
jurisdiction of the New York City Board of Election, we
assume that the practices of those boards are uniform. The
sampling of 32 Assembly Districts would be a fair sampling
of irregularities resulting from mail registration in the City
of New York. It does not sample irregularities arising out of
mail registration in the remainder of New York. The court
does not consider the evidence relevant to the claim of fraud
arising out of mail registration.
Plaintiffs sampled the balance of the registr2nts in the first
set of 32 assembly districts, all the registrants in the rest of
New York City’s assembly districts and registrants in some
upstate areas, including Syracuse, Rochester, Albany and
Erie County. (2) Though this sampling for fraud is more rep-
resentative of the universe than that conducted of the
mail registrants, its value in predicting the characteristics of
the universe is in doubt because it fails to include the other 53
counties of the state.
83a
Memorandum of Decision and Order December 10, 1976
In designing their study. plaintiffs defined the universe as
‘restricted to the urban areas of New York State’’ (Dec. 8,
1976, Tr. 18), comprising 42% of the voter population. Yet, the
plaintiffs’ own expert, Dr. George E. Bardwell, defined the
appropriate universe as ‘‘the entire State of New York and
the voters in the last Presidential election’ (Dec. 9, Tr.221),
i.e., the 6,668,262 voters who cast ballots in the Presidential
contest. In order to attribute the voter fraud in 42% of the
State to the entire Presidential! vote in New York, the sample
should have included voters in the remaining 53 counties, or,
in the alternative. plaintiffs should have shown that the
election practices in the unsampled areas were similar to
those of the sampled areas.
Even if arguendo, the proper universe had been tested, and
a proper voter sample selected, nonetheless, plaintiffs’
evidence of voting irregularities is susceptible of inferences
other than fraud. It is conceivable that in many of the in-
stances where “‘old’’ registrants who voted did not reside at
the address of registration, there was not fraud at all. Given
the existence of a permanent registration system in New
York, many of these voters may live in the New York area,
but at a different address. and simply never bothered to
change their voting address. Similarly, in view of the highly
transient nature of urban populations, it is possible that some
new registrants changed residences between the time their
registration application was filed and election day. This is
not to say that such irregularities should be condoned and
that serious efforts should not be made to correct these ad-
ministrative deficiencies. yet. such votes cannot be con-
sidered ‘‘fraudulent”’ in any real sense.
Moreover, even if we accept plaintiffs’ contentions that
306,107 ‘‘fraudulent’’ votes were cast primarily in New
York’s urban areas, as a matter of mathematics, plaintiffs
have failed to establish that the outcome of the election would
have been different in the absence of fraud. As Dr. Bardwell
conceded. the partisan nature of the vote was not a factor in
his statistical survey (Dec. 8, Tr.A61). As such, it is impos-
84a
Excerpts from Transcript
sible to determine what percentage of the fraudulent vote
went to Mr. Carter and what portion went to President Ford.
Nor have plaintiffs presented any independent evidenc that
would provide a basis for this court to conclude that Mr.
Carter’s margin of victory was derived from fraudulent
votes. Even if we were to generously concede that 90% of the
extrapolated fraudulent vote went for Mr. Carter, this consti-
tutes 275,496 votes, less than President-elect Carter’s 288,767
vote margin of victory.
In sum, the plaintiffs have failed to prove that specific acts
of fraud were performed by persons acting under color of
state law, or that the irregularities in the voting, if
eliminated from the final tally, would have changed the
result. Accordingly, the court finds no likelihood that
plaintiffs will prevail on the merits.
It is therefore
ORDERED that plaintiff's motion for a preliminary in-
junction is denied, and defendants’ motion to dismiss the
complaint is granted.
The Clerk of the Court is directed to enter judgment in
favor of the defendants and against the plaintiffs, dismissing
the complaint.
Jacob Mishler
U.S.D.J.
85a
Notice of Appeal
Sirs:
PLEASE TAKE NOTICE that plaintiffs do hereby appeal
to the United States Court of Appeals for the Second Circuit
from a judgment entered in the office of the Clerk of this
court on the 13th day of December 1976, dismissing the
complaint, and do hereby appeal from each and every part
thereof. as well as the whole thereof on questions of fact and
law.
Dated Brooklyn, New York.
December 13, 1976
Yours etc.
LESTER E: FETELL
Counse! to DAVID S. HELLER
etal. Esqs.
Attorney for plaintiffs
Office and PO address
44 Court Street
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TABLE OF CONTENTS
I Bk i i ee ng Sa ke kL
THE LEGAL ISSUES PRESENTED BY THIS APPEAL... 4
POINT I — The Issues Herein Are Not Moot................ 4
THE CONTROVERSY IS ONE THAT IS
CAPABLE OF REPETITION, YET EVADING
REVIEW, AND IS THEREFORE NOT MOOT ......... 5
THIS ACTION PRESENTS A CLASS WITH A
CONCRETE CONTROVERSY ................0.00eeee 7
THE EXISTENCE OF A BONA FIDE CLAIM
FOR DAMAGES IS A LIVE ISSUE AND PREVENTS
THE CASE FROM BEING MOOT..................... 9
POINT Ul — In a Proceeding Brought Under the
Civil Portions of the Civil Rights Act of 1871
(42 U.S.C. 1983 and 1985): It is a
Clear Error to Apply Criminal Law
Standards. In this Regard the Trial
Court Committed Clear Error..................... 11
THE IMPOSITION OF A QUASI-CRIMINAL STANDARD
OF PROOF IN A CIVIL RIGHTS ACTION, UNDER
THE CIVIL ASPECTS OF THE CIVIL RIGHTS LAW, IN
CONTRADISTINCTION TO THE CRIMINAL ASPECTS
THEREOF, INVOLVING VOTER RIGHTS, PRESENTS
A NEW, UNIQUE AND ONEROUS REQUIREMENT . 12
chu adicd te ekeshNeddechssuekbededauaiiaeeal 24
CASES CITED
American Party v White 415 U.S. 767 (1974) .............. 6,9
Andersen v Meyers 182 F . 223, aff’d 238 U.S. 36 (1915) ...... 15
Anderson v U.S. 417 U.S. 211 (1974). ..............2.. 4,9,17,22
Andujar v Weinberger 69 FRD 690 (1976) ............... 5,7,8
Armstrong v Brennan 539 F . 2d 625 (7 Cir. 1976)............ 16
87a
Ashly v Weinberger 402 F. Supp. 1203 (1975) ............... 10
Batista v Weir 340 F. 2d 74 (3 Cir. 1965) .............0.0005- 14
Be Oe is I voc ci ccdccdccccccdcteecncé. )
Brickhouse v Brooks 165 F. 534 (1908) .................000. 15
Brockington v Rhodes 396 U.S. 41 (1969) ..................5. 8
Carroll v President and Commissioners of Princess Anne 393
I A a eS a 5
Cohen v Norris 300 F. 2d 24 (9 Cir. 1962) ................... 14
Demkowitz v Endry 411 F. Supp. 1184 (1975) ............... 23
ee es DOP IUED ok. 6 dnv dice cucncccccctccecece 5
Dunn v Blumstein 405 U.S. 330 (1972) ...............2 20 eee 6,9
Fishman v Shaffer — U.S. —; 50 Law. Ed. 2d 56 (1976) ...... 6
Frost v Weinberger 515 F. 2d 57 (2 Cir. 1975) cert. den.—
ON awedes Keb d ch so dardeuds secnuadbeacuesdaddeuus 5,7,8
Gerstein v Pugh 420 U.S. 103 (1975). .... 0... cece eee eee ee eee §
Ge Or Ge Ss EE GEE cv vcceccccccccccevccccecce &
Gray v Sanders 372 U.S. 368 (1963) .............cccceccccces 7
Griggs v Duke Power 401 U.S. 424 (1971) .................. 16
Imbler v Pachtman — U.S. —; 96S. Ct. 984 (1976).......... 13
Ippolito v Powers 22 N.Y. 2d 594 (1968) ..............00055. 15
Jenkins v Averett 424 F. 2d 1228 (4 Cir. 1970) ............... 14
Johnson v Crumlish 224 F.Supp. 22 ..............00cceeeee 14
Lehner v O'Rourke 339 F. Supp. 309 (1971)................. 15
McCabe v Nassau County 453 F. 2d 698 (2 Cir. 1971)....... 10
Monroe v Pape 365 U.S. 167 (1961) ................0eeeee 13,14
Moore v Ogilvie 394 U.S. 814 (1969)... 2.2.2... eee eee eee 5,6,9
Oyler v Boles 368 U.S. 448 (1962) ........... ccc cece cee eeeee 13
Powell v McCormick 395 U.S. 486 (1969) .................4.. 10
Powell v Power 436 F. 2d 84 (2 Cir. 1970) ..............0006- 13
Richardson v Ramerez 418 U.S. 24 (1974) ..... 2... 6. eee eee 8
Roberts v Trapnell 213 F. Supp. 49 (1962) ...............45. 14,
Roberts v Williams 456 F . 2d 819 cert.den.404 U.S. 866 (1971) 14
88a
ee , CD os eecasekdedeeesasnncons 5,8
Rosario v Rockefeller 410 U.S. 752 (1973) ...............24.. 6
Salera and the U.S. Labor Party v Tucker 399 F. Supp. 1258,
aff'd — U.§. —; 965. Ce. 1451 (ISTE) 2... ccc ccc ccccecss 6
S.E.C. v Medical Committee for Human Rights 404 U.S. 403
ee a ee ceupucesseent 7
Selico v Jackson 201 F. Supp. 475 (1962) ................... 14
Smith v State of Texas 311 U.S. 128 (1940).................. 15
Snowden v Hughes 321 U.S. 1 (1944) ..........55e eee 13, 14, 16
I ED cv cares esaceddsuseceenveees 8
Southern Pacific Terminal v ICC 219 U.S. 498 (1911) ...5,6,7,8
Storer v Brown 415 U.S. 724 (1974) ...........02.ceeeeeeees 6,9
Super Tire Engineering v McCorkle 416 U.S. 115 (1974) ..... 5
Swain v State of Alabama 380 U.S. 202 (1965) ........... 13,15
Ury v Santee 303 F. Supp. 119 (1969) .............. ccc eee 15
U.S. v Aluminum Co. of America 148 F . 2d 416 (2 Cir. 1945) ..7
U.S. v Concentrated Phosphate Export Assn. 393 U.S. 199
Nee up cuewedeedsesonrs 7
ee Oe a, PE CED a cvvccsccccscececcesqes« 13,14
ee es I I, og vcrccccccedccccccvesest 15
ee en ccs ccucnccceseeceen 13,14
U.S. v W.T. Grant 946 U.S. 628 CIGGS) .... cc cccccccccccess 5,6,7
Washington v Davis — U.S. —; 96S. Ct. 2040 ......... 15,16,17
Weinstein v Bradford 423 U.S. 147 (1975) ...............04.. “
Whirl v Kern 407 F.. 2d 781, cert den 396 U.S. 901 (1962) ..... 14
Winters v Miller 306 F. Supp. 1158 (1969) .................. 10
Wood v Strickland 420 U.S. 308 (1975)... 20... cece eee eee 17
STATUTES CITED
ee eae. eed aine se aesaerenes 2,9
ie ot cca os atnwesaeademneden 2
SG et pdt benueneseeuunanbeund 16,17
eo owes eee hadeeneennes 2,11, 12, 16,17
ic acid cove ceideuwened bedsores 2,11,12
a a i ei tee deseeanpehesne 2
ee cd cceebeendcneeabedebivesesconese 16
OTHER AUTHORITIES CITED
“The Evolution of the State of Mind Requirement of Section
1983’’ 47 Tulane Law Review 870 (1973) ............00065 14
90a
United States Cut of Appeals
For the Second Circuit
WARREN DONAHUE, SANDRA WEISMAN,
VALDA BROMWELL, ROY G. VANASCO, JOHN T.
STEWART, NICHOLAS A. LONGO, LYNDON LA
ROUCHE, THE ROCKLAND COUNTY CON-
SERVATIVE PARTY, AND THE LABOR PARTY,
Plaintiffs-Appellants,
against
BOARD OF ELECTIONS OF THE STATE OF NEW
YORK, BOARD OF ELECTIONS OF THE CITY OF
NEW YORK, SECRETARY OF THE STATE OF
NEW YORK, BETTY DOLEN, AND HUGH CAREY,
Defendants-Appellees,
On Appeal! From the United States District Court For
The Eastern District of New York
BRIEF FOR PLAINTIFFS-APPELLANTS
STATEMENT
This is an appeal from a judgement entered in the office of
the clerk of the United States District Court for the Eastern
District of New York (Mishler, U.S.D.J.) dismissing the com-
plaint.
The dismissal! followed an evidentiary hearing conducted
9la
before the Honorable Jacob Mishler, Chief Judge, U.S. Dis-
trict Court, Eastern District of New York.
The plaintiffs are voters, legally registered to vote in the
Federal Election in the State of New York, plaintiff Lyndon
LaRouche was a candidate of the Labor Party for the office
of President of the United States, whose name appeared on
the ballot in the State of New York, and the Rockland County
Conservative Party is a duly constituted political organ-
ization active in the Federal Election, which did not support
the Labor Party or its candidate.
The complaint (3a) was docketed in the District Court on
November 22, 1976, seeking declaratory and injunctive relief
pursuant to 42 USC 1983, 1985 (3), 1988, and 28 USC 1331 and
1343. In addition to declaratory and injunctive relief the com-
plaint sought monetary damages.
A review of the procedural posture of this case in the dis-
trict court requires delineation to bring this appeal into
proper focus
In essence, plaintiffs petitioned the District Court to enjoin
the Secretary of the State of New York and the Governor of
the State of New York from certifying 41 electoral votes to
the Electoral College in Washington, D.C. The timing was
and is of vital consequence. Pursuant to Federal! statutes
involving elections, States were required to certify their
electoral votes on or prior to December 13, 1976. In order to
meet that deadline, plaintiffs simultaneously filed an Order
to Show Cause (24a) requesting a temporary restraining
Order pendente lite. This had the effect of bringing on for
immediate argument the procedural and substantive issues
involved in this important litigation.
The plaintiffs, in support of their application for a tempor-
ary restraining Order, submitted to the Court approximately
50 affidavits of various individuals, delineating specific acts
of election fraud which plaintiffs contended demonstrated a
prima facie showing of a tainted election. These affidavits
were submitted to the Court in the nature of an offer of proof
92a
to demonstrate to the District Court the bonafides of the
action in chief as well as the application for a restraining
Order.
On December 1, 1976, Judge Mishler heard oral argument
on behalf of the parties. The State Board of Elections was
represented by special counsel, the New York City Board of
Elections was represented by the Corporation Counsel of the
City of New York, and the Secretary of State and the
Governor of New York State were represented by the At-
torney General of the State of New York. Judge Mishler, sua
sponte directed all counsel to appear before him again on
December 2, 1976 at which time he heard additional
argument.
The defendants, in the interim, served and filed Motions to
dismiss the complaint (15a et. seq.). At the second argument
Judge Mishler had before him the Complaint, Petition for a
Temporary Restraining Order and the Motions to dismiss the
complaint. The Court advised all counsel that he was fully
cognizant of the serious underlying substantive questions
presented, as well as the procedural problems. He
recognized the multiplicity of procedural problems which
could be raised such as Standing, Proper Parties, etc. Judge
Mishler further stated that justice would best be served by
his holding in abeyance these procedu
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