# Appendix — Donahue v. Board of Elections > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2326%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1977 - **Citation:** 434 U.S. 861 ## Text 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? = 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 Brooklyn, N.Y. 11201 86a 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 procedural problems, and having the Court address the merits of the claim itself sus- ceptible of appellate review. Accordingly, in a preliminary decision dated December 7, 1976 (60a) he directed that an evidentiary hearing commence on December 8, 1976. In that memorandum decision and Order he set forth the standards and criteria to be applied in the evidentiary hearing. In essence, this appeal seeks to overturn the legal criteria formulated by the Court below. For good and practical reasons, these appellants do not seek by this appeal! to de- certify the election of James Ear! Carter as President of the United States of America. The proof elicited at the eviden- tiary hearing demonstrated a pattern of voting fraud which had the direct and immediate effect of unconstitutionally 93a diluting votes properly and legally cast. In the words of Mr. Justice Powell in Anderson v U.S., 417 U.S. 211, 227 (1974): ‘‘Every voter...whether he votes for a candidate with little chance of winning, or for one, with little chance of losing, has a right under the Constitution to have his vote fairly counted without its being distorted by fraudulently cast votes.”’ THE LEGAL ISSUES PRESENTED BY THIS APPEAL The criteria evolved by Chief Judge Mishler are criteria of first impression, and being of singular and national impor- tance, require Appellate review to assure constitutional protection in future elections. The issues herein are not moot (Point I infra). Accord- ingly, this Appeal will be limited to two very specific areas of law: (1) mootness, (II) the clearly erroneous requirement of proving criminal intent in the Civil action. THE LAW POINT I THE ISSUES HEREIN ARE NOT MOOT It is clear that under the principles set forth by the United States Supreme Court, the case at bar is not moot. Ax ‘s plainly indicated by the record of the case as fully developed below, the action presents both a substantial claim for damages and a viable and continuing issue of primary consti- tutional magnitude, which by its very nature is likely to reoccur, but evade review. Furthermore, because plaintiffs bring the action in their representative capacity, the issues pose a continuing controversy between the represented class and the defendarts. 94a THE CONTROVERSY IS ONE THAT IS CAPABLE OF REPETITION, YET EVADING REVIEW, AND IS THEREFORE NOT MOOT. Plaintiffs’ claim (the dilution of their constitutional right to the franchise) stems from the Presidential elections of November 1976. In connection therewith, plaintiffs have charged defendants with unlawful and fraudulant conduct, and sought damages and a ruling that the election was con- ducted in violation of the Constitution. Neither plaintiffs, nor the class which plaintiffs represent, could vindicate their rights in a high court if the mootness doctrine were to be applied. Because of the time element inherent in the electoral processes, application of the mootness doctrine would systematically abort judicia! review of the gravest violations of the most fundamental of rights — the right to vote. The Supreme Court does not permit such a result and has there- fore propounded the principle that a case is not moot if the problem is ‘‘capable of repetition yet evading review.”’ (See, Southern Pacific Terminal v ICC, 219 U.S. 498, (1911) (ICC rate making); U.S. v W.T. Grant, 345 U.S. 629 (1953) (interlocking directorate); Carroll v President and Com- missioners of Princess Anne, 393 U.S. 175 (1968) (right to con- gregate); Roe v Wade, 410 U.S. 113 (1973) (abortion); Doe v Bolton, 410 U.S. 179 (1973) (abortion); SuperTire Engineering Co. v McCorkle, 416 U.S. 115 (1973) (strike); Frost v Weinberger, 515 F. 2d 57 (2nd Cir. 1975), cert den. — U.S. —, (social security benefits); Andujar v Weinberger, 69 F.R.D. 690 (1976) (social security benefits); Moore v Ogilvie, 394 U.S. 814 (1969) (election). It is important to note that the case to first coin this oft- cited principle, Southern Pacific Terminal v ICC, supra, carved this exception to the mootness doctrine in part because the controversy therein concerned interests of a public character. Plaintiffs there had challenged the legality of an ICC order prohibiting the granting of a rate preference. By the time the case reached the Supreme Court for review, the ICC order had terminated. 95a Similarly, in U.S. v Grant, supra, the Court held as not moot a suit to enjoin an interlocking directorate which had terminated by the resignation of the defendant from certain corporate boards, before the appeal. The basis of the Court’s decision was that the defendant was free to resume his conduct ‘‘(and there was) a public interest in having the legality of the practices settled.”’ Id. at 62. The electoral processes are more in the public weal than the existence of an interlocking directorate and are exem- plary of the Southern Pacific Terminal rule. Therefore the Court has time and again refused to declare election cases moot. To deprive a plaintiff of a remedy because an election is over would be to invite an infinite and irremediable cycle of future abuses and invocations of the mootness doctrine. (See, Moore v Ogilvie, 394 U.S. 814, 816 (1969); Dunn v Blumstein, 405 U.S. 330, 332 n. 2 (1972); Rosario v Rocke- feller, 410 U.S. 752, 756 n. 5 (1974); American Party v White, 415 U.S. 767, 770 n. 1 (1974); Salera and the U.S. Labor Party v Tucker, 399 F. Supp. 1258, aff’d — U.S. —, 96S. Ct. 1451 (1976), Fishman v Schaffer, 50 L. Ed. 2d 56 (1976). A typical ex- pression of the doctrine as applied to election cases may be found in Storer v Brown, 415 U.S. 724, 737 n. 8 (1974): ‘‘The election is long over, and no effective relief can be provided to the candidates or voters, but this case is not moot, since the issue properly presented and their ef- fects...will persist...(T)his is therefore a case where the controversy is ‘capable of repetition yet evading review.””’ The case at bar, evolving from, and directly related to, the electoral processes, is therefore clearly situated within the parameters of the Southern Pacific Terminal rule. The above cited cases concern challenges to allegedly unconstitutional statutes, or orders; the case at bar is a challenge to a court evolved standard, which under the doctrine of stare decisis is in pari causa. If this rule of law is permitted to stand, it constitutes an open invitation to the repetition of such activities as alleged herein; or in more mundane terms will constitute a ‘‘license to steal elections.” The burden is on the defendants to show that it is ‘‘ab- solutely clear that the allegedly wrongful behavior could not 96a reasonably be expected to reoccur.”’ U.S. v Concentrated Phosphate Export Association 393 U.S. 199, 203 (1968): U.S. v W.T. Grant, supra, at 633. (See also, Securities and Exchange Commission v Medical Committee for Human Rights, 404 U.S. 403 (1971); Grey v Sanders, 372 U.S. 368 (1963): Frost v Weinberger, supra; Andujar v Weinberger, supra. The latter two cases involve allegedly faulty methods of paying out social security benefits, which methods are not compelled by law. Moreover, under the above cited cases, the law is clear that the voluntary discontinuance of the challenged conduct does not moot the case, unless defendants demonstrate that “there is no reasonable expectation that the wrong will be repeated.”’ U.S. v W.T. Grant, supra, at 633, quoting U.S. v Aluminum Co. of America, 148 F .. 2d 416, 448 (2d Cir. 1945). It is the ‘‘mere possibility (of recurrent violations that) serves to keep the case alive.’’ Id. There is every reason to expect that the American elec- torate will be subjected to the same dilution of their right to vote in succeeding elections (federal, state, or local) unless an enforceable remedy is provided. THIS ACTION PRESENTS A CLASS WITH A CONCRETE CONTROVERSY In the case at bar, it cannot be overstressed that the claims as they relate to the named plaintiffs are viable and in all likelihood these same individuals, at the next election, will be forced to again seek judicial relief if none be forthcoming herein. Already, plaintiff Lyndon H. LaRouche has declared his presidential candidacy for the U.S. Labor Party in the next national elections. However, assuming arguendo that the interests of the other individual plaintiffs be deemed extinguished at this time, the Southern Pacific Terminal rule operates to save the case from mootness. As a class action election suit, this case 97a presents the classic features for the operation of the rule. Where the interests of the named plaintiff are extinguished, but the class he represents are not, the court permits the named plaintiff to continue his representation in order to insure that the repeated conduct of the defendant does not evade review. Sosna v Iowa, 413 U.S. 393 (1975); Gerstein v Pugh, 420 U.S. 103, 110 n. 11, Richardson v Ramerez, 418 U.S. 24 (1974): Goosby v Osser, 409 U.S. 512; Brockington v Rhodes, 396 U.S. 41; Roe v Wade, supra. Thus the existence of a class action removes the necessity that there be a “reasonable expectation that the same complaining party...be subject to the same action again.’ Weinstein v Bradford, 423 U.S. 147 (1975) 1 The fact that this case was dismissed before any applica- tion could be made for certification for class action status does not detract from the applicability of the Southern Pacific Terminal rule. The case was pleaded as a class action (32a) and the pleadings are at least a prima facie indication that it was properly so pleaded, in the absence of a ruling to the contrary. The Second Circuit has applied the Sosna class action rule, whereby the class assumes a legal status separate from the interest of the named plaintiffs in order to avoid class action claims from being mooted, even where the classes have not yet been certified. Andujar v Weinberger, supra; Frost v Weinberger, supra. In fact, the Supreme Court in Gerstein v Pugh, supra, stated that the certification of the class is not required where circumstances, including those of time, do not permit. The lack of necessity for certification is especially true in election cases where the court has notec the importance of 1 In any event, the plaintiffs at bar represent the full spectrum of interested or entitled parties, i.e.: Donohue, Weissman, Bramwell, Stewart sued as private citizens; Vanasco, Long and LaRouche as candidates on the ballot; Rockland «County Conservative Party as a partisan political club; the Labor Party as an of- ficial political par’y sponsoring a candidate for president (LaRouche) and entitled to election funds under the Federal! Election Campaign Act. Even if the interests of one or more of the individuals is deemed to be moot, there are remaining plaintiffs in- dividually, and as a class, who are likely to be subject again to the same action. 98a the issues to all the voters and candidates and has reviewed the constitutional claims even after the election has taken place, and without reference to the absence of a certified Class action. American Party v White, supra; Storer v Brown, supra; Moore v Ogilvie, supra; Dunn v Blumstein, supra. Thus, the fact that the instant action was commenced as a class action, even though not so certified, renders it in- capable of becoming moot, even were it not the case, arguendo, that the named plaintiffs would be injured similarly in the future. In reality the class alluded to in Anderson v U.S., supra, consists of one hundred million voters. The rule of law e- nunciated by the trial court, which is the subject of this appeal, is a rule of law affecting the hundred million voters in this country. Therefore, given the expectation of recurring and allegedly unconstitutional conduct, it must be said that, as to the class, there exists a concrete controversy capable of repetition yet evading review. Plaintiffs emphasize, however, that they, as well as the entire American electorate, will be injured in the future, as in the past, unless their rights are upheld by this Court, since their rights are subsumed within the rights of ‘‘every voter’’ referred to by Mr. Justice Powell in Anderson, supra. THE EXISTENCE OF A BONA FIDE CLAIM FOR DAMAGES IS A LIVE ISSUE AND PREVENTS THE CASE FROM BEING MOOT The Court below has implied that plaintiffs have stated a non- frivolous claim for monetary damages under 28 U.S.C. 1331 (a). See Opinion of December 7, 1976 (73a). The law of this Circuit and as set forth by the Supreme Court is that even when an action for declaratory and injunctive relief has become moot, a claim for monetary relief continues to be viable. Bond v Floyd, 385 U.S. 116, 128 n. 4 (1966); Powell v SJya McCormick, 395 U.S. 486 (1969); McCabe v Nassau County, 453 F. 2d 698 (2d Cir. 1971); Winters v Miller, 306 F. Supp. 1158 (1969); Ashby v Weinberger, 402 F. Supp. 1203 (1975). In McCabe v Nassau County, supra, this court held that where monetary damages are timely included in the initial Complaint, and the equitable prayer for relief becomes moot, the claim for damages survives in the Federal Court. In Powell v McCormick, supra, petitioner Powell was duly elected to serve in the 90th Congress, House of Represen- tatives. However, he was denied his seat by a resolution of the House. Powell sued for injunctive and declaratory relief and mandamus, charging violations of the Constitution. He additionally sued for the salary denied to him. By the time the case reached the Appellate stage, the 90th Congress had ended. Nevertheless, the Court said that the case was not moot because the claim for back pay remained a viable issue. Furthermore, the Court said, at p. 498-99: ‘Petitioner was denied salary due to an allegedly un- constitutional House resolution. That claim is still unresolved and hotly contested by clearly adverse par- ties. Declaratory relief has been requested....A Court may grant declaratory relief even though it chooses not to issue an injunction or mandamus.”’ Certainly the alleged fraudulent conduct of the presidential election is an issue of great constitutional and public import, and presents a viable claim under any circumstance, in addition to the direct damages sustained by the plaintiffs at bar. 100a POINT.II IN A PROCEEDING BROUGHT UNDER THE CIVIL PORTIONS OF THE CIVIL RIGHTS ACT OF 187) (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. : Tle trial Court focused on this issue in the following language: “A party contesting 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, approxi- mating criminal activity.’’ (Italics added) (69a) The trial Court reached the foregoing conclusion from two erroneous premises. 1 Unless one is attacking a statute per se, in contradistinc- tion to improper application of a statute, it becomes necessary to demonstrate improper intent by those bodies or individuals whose legal obligation it is to enforce the statute. 2 Mere proof of incompetence or negligence by a body or individual applying the statute is insufficient to sustain the burden of one seeking to enforce his constitutional right in an election case, rather, the plaintiffs must demonstrate mens rea. The Court below in its December 7th opinion set forth the following standards of proof: “‘Uneven or erroneous application of an otherwise valid statute constitutes a denial of equal protection only if it represents intentional or purposeful discrimination. (Citations omitted).’’ (67a) (Italics added). eee l0la ‘“‘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 permitted to vote. Rather intentional acts must be proven...’’ (67a) (Italics added) The trial Court held that the standard of proof imposed on the plaintiffs was a showing of: “Conduct of a most egregous nature, approximating criminal activity’ (69a) (Italics added) Notwithstanding the fact that the Court below announced the foregoing standard only in terms of plaintiffs’ request for a new election, it also applied that standard equally to plaintiffs injunctive, declaratory and monetary prayers for relief. Upon the Court’s finding that the plaintiffs failed to meet this standard of proof, the complaint was dismissed (84a). It is submitted that in requiring proof of intentional, indeed quasi-criminal acts, the trial court committed clear error. The standards evolved by the trial court create an onerous burden of proof which is not proper in a civil action brought pursuant to 42 U.S.C. 1983 and 1985 (3), which action seeks to protect a voter’s first amendment rights to an undiluted vote in an election. THE IMPOSITION OF A QUASI-CRIMINAL STANDARD OF PROOF IN ACIVIL 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. The Court below in the December 7 opinion apparently misapplied the distinction between the civil and criminal 102a sections of the Civil Rights Act of 1871. The Supreme Court of the United States has emphasized that this is not to be done. In Monroe v Pape 365 U.S. 167, 187 (1961) the Supreme Court drew the following distinction: “In the Screws case, we dealt with a statute that imposed criminal penalties for acts ‘wilfully’ done. We construed that word in its setting to mean the doing of an act with ‘a specific intent to deprive a person of a federal right’. 325 U.S. at 103. We do not think that gloss should be placed on Section 1979 which we have here. The word ‘wilfully’ does not appear in Section 1979. Moreover, Section 1979 provides a civil remedy, while in the Screws case we dealt with a criminal law challenged on the ground of vague- ness. Section 1979 should be read against a background of tort liability that makes a man responsible for the natural consequences of his actions.’’ 2 Monroe v Pape, supra, renders inapposite Judge Mishler’s reliance on Swain v State of Alabama, 380 U.S. 202; Oyler v Boles, 368 U.S. 448; United States v Price, 383 U.S. 787; United States v Guest, 383 U.S. 745; Powell v Power, 436 Fed 2d 84; and Snowden v Hughes, 321 U.S. 1 (67a). Swain v Alabama, supra, was a criminal case involving alleged exclusion cf black jurors. Not only was the intent standard stated in a criminal context, it was mere dicta, since the Supreme Court held that there was neither ex- clusion nor token inclusion of black jurors. c.f. 380 U.S. at 206 and 227. Oyler v Boles, supra, likewise arose in a criminal context, and involved alleged selective application of an habitual offender law. Claims of selective prosecution fall into an area of quasi-judicial immunity and are totally unlike claims of deprivation of voting rights. See Imbler v Pachtman, — U.S. —: 96S. Ct. 984 (1976). Furthermore, the intent language in Oyler was dicta, since the Supreme Court found that there 2 The Sect. 1979 referred to in Monroe v Pape is 42 USC 1983 (under which this case was brought). 1979 is the numbering of the Revised Statutes. 103a was a waiver of rights by the represented criminal defendant in that case, 368 U.S. at 453. United States v Guest, supra, and United States v Price, supra, were criminal! prosecutions arising out of the murder of civil rights workers in the South, and were precisely the type of cases, such as Screws, which the Supreme Court dis- tinguished from civil actions (c.f. Monroe v Pape, supra). Powell v Power, supra, relied upon Snowden v Hughes, supra. It is submitted that although the Snowden case was not mentioned in Monroe v Pape, Monroe had the effect of limiting the Snowden intent requirement to equal protection claims. See Whirl v Kern 407 F 2d 781, cert. den 396 U.S. 901 (1962); Cohen v Norris, 300 F 2d 24 (9 Cir. 1962); Jenkins v Averett, 424 F 2d 1228 (4 Cir 1970); Batista v Weir, 340 F 2d 74 (3Cir 1965); Roberts v Williams, 456 F 2d 819, cert. den. 404 U.S. 866 (1971); Selico v Jackson, 201 Fed. Supp. 475, 477 (196 2); Roberts v Trapnell, 213 F. Supp. 49, 50-51 (1962); Johnson v Crumlish, 224 F. Supp. 22, 25: and see Antieau Federa/ Civil Rights Acts, Sect. 83, notes 6 and 7. However, even if this were not the case, the intent requirement of Snowden was never applied to cases involving electoral rights, even in the early days of hostility towards the Civil Rights Act: “In the voting rights area, however, purposive intent has never been required. Historically, the civil action for damages based upon the deprivation of voting rights was one of the first type of cases to utilize the remedy afforded by Section 1983.’’ The Evolution of the State of Mind Re- quirement of Section 1983; 47 Tulane Law Review, 870, 872 (1973) (Italics added). That the foregoing analysis of the Tulane Law Review article is, indeed, correct is shown by the Federal cases which specifically hold that intent is not a required element of proof in electoral rights cases which span the entire 20th Century. “In cases of this character...it (is) not necessary that the plaintiff should allege that the defendant, in rejecting 104a his vote, acted either maliciously or intentionally wrongful. The statute under which the plaintiff proceeded does not so require.’’ Brickhouse v Brooks, 165 F. 534, 543 (1908). See also Andersen v Meyers, 182 F. 223, aff’d 238 U.S. 368 (1915). The more recent cases have granted relief even where a positive finding has been made that criminal intent was absent, e.g., Urey v Santee, 303 F. Supp. 119, 123 (Finding of Fact number 14, at page 126) (Conclusion of Law number 5) (1969); U.S. v Post, 297 F. Supp. 46, 49 and 50 (Findings of fact numbers 2] and 31) (1969). The New York State Court of Appeals in Ippolito v Powers, 22 NY 2d 594 held that relief could be granted ‘without evidence of fraud or other intentional conduct’’ in an election case. The Federal Courts have since adopted this rule, Lehner v O’Rourke, 339 F. Supp. 309, 314 (SDNY 1971). It is quite apparent that the trial court at bar predicated its holding on inapplicable cases, all the while ignoring the better and more persuasive cases in the relevant area of elec- toral rights. In support of the proposition that plaintiffs may not demonstrate ‘‘purposefu! deprivation of the right to vote’ by a demonstration that election officials acted ‘‘incompetently or negligently’’, Judge Mishler relied on three cases which, it is respectfully urged, are inapposite. Swain v State of Alabama, supra; Smith v State of Texas, 311 U.S. 128, and Washington v Davis, 96 S. Ct. 2040 (67a). Swain v Alabama, supra, as is demonstrated supra, was a criminal case totally inapposite to actions brought under the civil side of the Civil Rights Act. Smith v Texas, supra, upon which Swain is bottomed, arose out of a criminal prosecution wherein there was alleged racial discrimination in jury composition. Remarkably, the only reference to intent in Smith is to the effect that intent is not a requirement of proof, 311 U.S. at 132. Thus, the Court below doubly erred in relying upon Smith v Texas. 105a The Court below cited Washington v Davis, supra, (67a), without discussion. Because of its recentness, and its notoriety, this case deserves fuller discussion. Several popular accounts would have it that Washington v Davis represents a re-introduction of an intent standard into the civil rights act. This is simply not so and certainly not correct in terms of the quasi-criminal intent mandated by Judge Mishler. Washington concerned tests given to applicants for em- ployment as police officers. The Court held that these tests were not arbitrary, but ‘“‘reasonably and directly related to the requirements of the police’’ 348 F. Supp. 15 at 17 (1972). (This citation is the District Court citation.) A greater per- centage of black applicants failed the tests than did white applicants. Since, at the time, Title VII of the Civil Rights Act of 1964 did not apply to civil service positions, the plaintiffs sought to have the court apply Title VII requirements (that employment tests be not only ‘‘job related’’ but also *“‘validated’’. Griggs v Duke Power, 401 U.S. 424 (1971), under 42 U.S.C. 1981. This the Court declined to do. The holding of Washington does not apply to the case at bar for several reasons. Initially, Washington is itself in the nature of dicta, since Title VII as amended in 1972 now covers police force applicants. See 42 U.S.C. 2000e (a). As Mr. Justice Stevens, who joined in the main opinion and also wrote a concurring opinion, noted, the holding was limited to Section 1981. 48 Law Ed. 2d at 616. The case at bar is a Section 1983 case: “It is unrealistic...to require the victim of alleged dis- crimination to uncover the actual subjective intent of the decisionmaker.’’ 48 Law Edition 2d 615. See also Arm- strong v Brennan, 539 F . 2d 625, 633-4 (7th Circuit, 1976). Finally, Washington was an equal protection case, and so arguably subject to the doctrine of Snowden v Hughes, supra. The case at bar is a voting rights case, and is thus totally outside of the doctrine of those cases which require intent, e.g., Snowden v Hughes. 106a The United States Supreme Court nas recently demon- strated that it recognized this distinction, and the primacy of electoral rights. As Mr. Justice Powell wrote in Anderson v U.S., supra, a criminal case with facts quite similar to those at bar: ‘Every voter...whether he votes for a candidate with little chance of winning or for one with little chance of losing, has a right, under the constitution, to have his vote fairly counted without it being distorted by fraudulently cast votes.’’ 417 U.S. at 227. In its most recent pronouncement concerning 42 U.S.C. 1983, the statute under which the case at bar is bottomed, as opposed to Section 1981, which was before the Court in Washington v Davis, supra, the Court specifically negated any quasi-criminal intent requirement such as that imposed by Judge Mishler in this case: ‘“‘An act violating...constitutional rights can no more be justified by ignorance or disregard of settled, indisputable law...than by the presence of actual malice...(defendant is) not immune if he knows, or reasonably should have known, that the action he took...would violate the consti- tutional rights...’’ Wood v Strickland, 420 U.S. 308, 321-322 (1975). It surely passes belif that Wood would be overruled sub- silentio by Washington, within one year, in a case involving an entirely separate statute. This is especially so in light of the fact that Mr. Justice White wrote both opinions for the Court. Yet, the Court below at bar, in relying upon Washington and not discussing Wood, apparently so believed. This belief. it is contended, is clear error. Pragmatically, Judge Mishler has created a standard which is not only legally not required, but is additionally impossible of fulfillment. Given the anatomy of an election fraud, and more particularly the fraud demonstrated in the 107a. case at bar, one notes that it is not the election official who walks into the election booth and casts improper or fraud- ulent ballots. In the case at bar, some 24 photographs were introduced into evidence (exhibits 9 through 25 and 28 through 38). These photographs were of abandoned buildings in the South Bronx and Buffalo and empty lots in the South Bronx. These buildings were correlated with computer print- outs from the Board of Elections (exhibit 27 in evidence). Essentially, the factual demonstration on the trial was that persons unknown registered with the Board of Elections, giving as their legal addresses premises which turned out to be the empty lots and abandoned buildings shown on the photographs. These same persons were later recorded as having voted. Clearly, plaintiff at bar presented no proof that any election official prepared false registration cards, or voted improperly by giving as their address these abandoned buildings or empty lots. Betty Dolen, the executive director of the New York City Board of Elections, and a co-defendant in this action, testified (32a): ‘“‘O. How many mail registrations did the New York City Board of Elections receive up to and including November 2, 1976? A. Up to and including October 4th and postmarked October 4th, Iam proud to say, New York City brought in 468, 586 mail registrations.’’ The election law of the State of New York, Section 153 (9), provides that the County Board of Elections, when it is not satisfied from an examination of an application for regis- tration, or after its initial inquiry, that the applicant is en- titled to such registration, may order an investigation, through any officer or employee of the State or County Board of Elections, police officer, sheriff or deputy sheriff’’ (which Section the Court was asked to take judicial notice of (35a). Mrs. Dolen testified(33a) : 108a “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 alphabetical order by boroughs. Then sent to the— We made an IBM print-out for our own office use by county, by week of the application that came in through the mail.”’ *** Q. How long after a particular application was processed was it that it got onto a computer? A. The same day. They were closed, divided by borough and alphabetized. (33a) Q. Do you have 468, 586 names on computers? A. We have, I would say, about 375,000 names on com- puters.” (33a) *** Q.Mrs. Dolan, 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 inthe binders at Varick Street? A. Each borough. Q. When you say we, you are referring to the — A The entire borough, the entire City of New York. 109a The Court: When you ask 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 safe- guard 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 to the election law, that the two parties that received the highest votes in the last election — it usually means the Democrats and the Republicans — have equal representation on the State Board of Elections, on the City Board of Election, down to the inspectors of the election. Now, it may be that the inspectors haven’t been doing their job. At least the system is designed to safe- guard against fraud and irregularities. Mind you, the elec- tion law is so spec fic to say that the election inspectors are supposed to: umpare the signatures, placing a hand over the signature on the above card first, and announce in public that so and so in voting.”’ (34, 35a). It was at that point that trial counsel for plaintiffs, Mr. Fetell, requested the Court to take judicial notice of Section 153 of the election law which puts the burden not on poll watchers, but on the board of elections and makes available to it all of the investigative agencies of this State. As counsel pointed out to the Court (35a) ‘“‘Apparently, the legislature in their wisdom made the County Board of Election the police- man over it and that is why I’m examining Ms. Dolan now.”’ Further pertinent testimony is to be found at 36a: “‘Q. Ms. Dolan once these registrations were put into the computer did anybody in the Board of Elections get a read-vut to check the double registrations? A. I got a copy of the — this is not the checking of the registration. Q. The question is, in its entirety, did anybody get a read-out for the — alphabetical read-out — to check for double registrations at that level? pwr i «oe l1l0a A. No, not to check for double registrations. 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 affidavit on the application and when it is signed — that affidavit must be signed by the applicant. And when that application comes in with the signature on the affidavit, it is presumed what the person filled out it 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 to a class E felony.”’ Further along these lines, Mrs. Dolan testified (52a): The Witness: Well perhaps I am mistaken, but I don’t think people go in and vote twice. Q. You would believe that was a crime wouldn’t you? A. That would be acrime, I would say I don’t condone it. Q. In your capacity with the Board of Elections of the City of New York, do you persume that there is no fraud among voters? A. Well, I wish we had a utopia of that kind. Q. Do you recognize that it is a part of your respon- sibility 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 irregularities, if they are called to our attention we check them out.”’ (Italics added). z*** llla As a matter of law, what difference does it make whether an election official commits fraud directly, or through negligence or condonation permits fraud to be committed by private or partisan groups? If an election is tainted it is tainted regardless how the taint comes about. Mrs. Dolan tesified that she was part of a major program of registration (28a) that there were over 400,000 registra- tions by mail and that some 50,000 persons voted by ‘‘A ballot’’ (30a), i.e., affidavits in lieu of a registration card, and that of these 50,000 persons 40,000 of them were rejected, all of which demonstrated the mass confusion and inefficiency which pervaded this presidential election. Employees of the board of election came from the ‘‘County organization’, i.e., the Democratic County organization (3la) and that having been sent down by the party organization these clerks were prima facie qualified. On the last day for registration the Board of Elections received ‘100,000 applications’’ (34a) which were sent out to borough offices without a list being made, from which list double registration could be deter- mined. There were incidents where individuals representing community groups or themselves brought in as many as 10,000 new voter registration cards into the election offices at one time (44a). The Court: So individuals "ho were interested in the outcome of the elections brought in 5,000 or 10,000 ap- plications? The Witness: That is right. The testimony of Mrs. Dolan is reproduced in its entirely in the appendix (25a, et. seq.). In terms of protecting voters’ rights, in the language of Mr. Justice Powell in Anderson v U.S., supra, does it really matter whether votes are diluted or fraudulently cast by reason of negligence, or by reason of fraud committed by an election official, or by other voters? Is not the assurance of a ll2a free, unfettered and constitutional election the goal man- dated by our Federal Constitution? Judge Mishler cited no legal authority for the proposition that in any civil rights case wherein a voter seeks to enforce his constitutional right to a clean election, he is precluded from demonstrating negligence, etc., by election officials and must prove criminal or quasi-criminal fraud or intent. In effect, Judge Mishler has created a rule of law which requires that in order to upset a fraudulent election, the plaintiff must bring in proof showing the hand of an election official ‘‘in the cookie jar.’’ Such a rule of la [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2326%3A2. Public record. Not legal advice.