Opposition Brief — New York State Board of Elections v. Lerman

“Te |

| MAY 16 200

| |

No. 00-1360 | OFFICE OF THE CLERK

a

IN THE

Supreme Court of the United States

NEW YORK STATE BOARD OF ELECTIONS,

Petitioner,

A

ANITA LERMAN, et ai.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

sone

BRIEF IN OPPOSITION

Nancy NorTHuP

Counsel of Record

GILLIAN METZGER

BRENNAN CENTER FOR JUSTICE

AT NEw YorK UNIVERSITY

SCHOOL OF LAW

Attorneys for Respondents

161 Avenue of the Americas

12th Floor

New York, New York 10013

(212) 998-6730

167112 g

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

a rm me SR ne ee Sg REET mS a gm ee =a ae

i

QUESTION PRESENTED

Whether the Second Circuit was correct in holding that

New York’s political subdivision residence requirement for

candidate petition witnesses, which is imposed in addition

to an in-state residence requirement and a party registration

requirement, violates the First Amendment because it

imposes a severe burden on political speech and is not

narrowly tailored to serving compelling government

interests?

ii

PARTIES TO THIS PROCEEDING

The petitioner in this case is the New York State Board

of Elections (“State Board”), which was a defendant below.

Respondents are Anita Lerman, who served as a petition

witness for a New York City Council candidate in 1999, and

Angelo D’ Angelo, who signed the petition carried by Lerman.

Respondents Lerman and D’Angelo were plaintiffs below,

along with another petition signer, Pio D’ Agostino.

D’ Agostino was not a party to the proceeding before the

Second Circuit as he did not appeal from the district court’s

adverse decision, and thus is not a party to this proceeding

under this Court’s Rule 12.6.

Also named as defendants below, but not filing a petition

for certiorari and thus denominated respondents under

Rule 12.6, are George A. Pataki, Governor of the State of

New York, and the Board of Elections of the City of

New York (“City Board”).

til

TABLE OF CONTENTS

| Ee er PS rr rene

Parties to this Proceeding .........seseseccsess

De ee eb bbe akens

Constitutional and Statutory Provisions Involved ..

NE OG CI ID: oo is on occ swnb nena bes 'ecces

A. Factual Background and District Court

NS i oie ty Wo 008 CRS OS BOW

B. Decision of the Second Circuit ...........

Reasons for Denying the Writ .................

I. The Question Presented Is Not Appropriate

ere

A. There Is No Conflict in the Lower Courts

on the Question Presented for this

IE Nr reat a

B. The Question Urged by Petitioners Was

Correctly Decided Below. ...........

II. Evenifthe Question Presented Were to Merit

this Court’s Review, this Case Is Not

an Appropriate Vehicle for Doing So. .....

12

15

iv

Contents

Page

A. Petitioner Has Waived Any Argument

That the Political Subdivision Residence

Requirement of § 6-132(2) Satisfies

ie ir rr rrr 15

B. A Substantial Question Exists As

to Whether Petitioner Is Precluded

from Defending the Constitutionality of

BORE nS rere reer ne 17

RN oo ee ee en ae ae 19

TABLE OF CITED AUTHORITIES

Page

Cases:

Browne v. Russell, 27 Cal. App. 4th 1116 (Cal. Ct.

Aap. 1999) vik cjaseestvinwiee ene 10

Buckley v. American Constitutional Law Found.,

SAD ths SS CHEE ec ceantabeeesss ita passim

Campbell v. Buckley, 203 F.3d 738 (10th Cir. 2000)

PP eer Ie ne ero T er re 11

Hart v. Secretary of State, 715 A.2d 165 (Me. 1998),

cert denied, 525 U.S. 1139 (1999) ............. 11

Initiative & Referendum Inst. v. Jaeger, 241 F.3d

Cid CO CW. Bee) ok v6 ka aha wae 11

Kean v. Clark, 56 F. Supp. 2d 719 (S.D. Miss.

SOUR oe oa via nuedneensasiowunaeeeteee 11

Krislov v. Rednour, 226 F.3d 851 (7th Cir. 2000),

cert. denied, 121 S. Ct. 1085 (2001) ...... 7, 9, 10, 12

KZPZ Broad., Inc. v. Black Canyon Concerned

Citizens, 13 P.3d 772 (Ariz. Ct. App. 2000) .... 10

Lawrence v. Jones, 18 P.3d 1245 (Ariz. Ct. App.

BOGE heer diese eee eat 10

vi

Cited Authorities

Page

McGuffage v. Krislov, 121 S. Ct. 1085 (2001) .... 9

McIntyre v. Ohio Elections Comm'n, 514 U.S. 334

(1999) 2.6 iieeseeesetncveasinssen eee 5

Meyer v. Grant, 486 U.S. 414 (1988) ...... 8, 12, 14, 16

Molinari v. Powers, 82 F. Supp. 2d 57 (E.D.N.Y.

BUGS) oviéinsideas Senden eens 4,9, 13, 17, 18

Tobin for Governor v. Illinois State Bd. of Elections,

105 F. Supp. 2d 882 (N.D. Ill. 2000) .......... 10

Young v. Illinois State Bd. of Elections, 116 F. Supp.

26 S70 GRED. Eh. Aes 6s ine teas tntncaeds ees 10

United States Constitution:

Foret AMNENNOEE ois cS exe Ra eR i. tie: 2

Fourteenth AGMGMER oho 6c ok dhs Caw te <s |

Statutes:

N.Y. UOO. EWE GBR) seiinsds leu cwak vem passim

WY. Bee LOW GO RSEee 6 esdc deceive wise 13

PA. X. Comes Re B Grd eee nc kk wd ce weneuncbous 3

vii

Cited Authorities

Page

Other Authorities:

Bill Jacket, Ch. 351 § 1 of N.Y. Laws of 1951 .... = 15

82 Ops. Cal. Atty. Gen. 250 (1999), 1999

Sr | fe OF . ) ree: 11

1

Respondents Anita Lerman and Angelo D’ Angelo

respectfully submit this brief in opposition to the Petition

for Certiorari filed by the New York State Board of Elections

in this case.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves a challenge to § 6-132(2) of

New York’s Election Law based on the First and Fourteenth

Amendments to the United States Constitution.

United States Constitution, Amendment I, provides in

relevant part:

Congress shall make no law . . . abridging the

freedom of speech . . . or the right of the people

peaceably to assemble, and to petition the

Government for a redress of greiveances.

United States Constitution, Amendment XIV, § 1,

provides in relevant part:

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of

the laws.

2

New York Election Law § 6-132(2), provides in relevant

part:

There shall be appended at the bottom of each

sheet a signed statement of a witness who is a

duly qualified voter of the state and an enrolled

voter of the same political party as the voters

qualified to sign the petition, and who is also a

resident of the political subdivision in which the

office or position is to be voted for. However, in

the case of a petition for election to the party

position of member of the county committee,

residence in the same county shall be sufficient.

Such a statement shall be accepted for all purposes

as the equivalent of an affidavit, and if it contains

a material false statement, shail subject the person

signing it to the same penalties as it he had been

duly sworn.

STATEMENT OF THE CASE

This case involves a challenge to the constitutionality

of New York’s requirement, contained in N.Y. Elec.

Law § 6-132(2) (McKinney 1998), that witnesses carrying

nominating petitions for political candidates must reside

within the political subdivision where the candidate is

running for office. |

A. Factual Background and District Court Proceedings

To gain access to the primary election ballot in

New York, candidates must obtain a certain number of

nominating petition signatures from registered voters who

are party members residing in the political subdivision where

the candidates are running for office. Section 6-132(2)

imposes restrictions on who may serve as petition witnesses

3

and circulate petitions to gather these signatures. The section

requires that petition witnesses not only must be registered

voters and party members, but also, like petition signers, must

reside in the political subdivision where the candidate is

running for office.

Respondent Anita Lerman served as a petition witness

for John Sollazo, who was seeking access to the September

14, 1999 primary of the Independence Party in order to

become the Independence Party’s candidate for the 50th New

York City Council district, located in Staten Island. To gain

access to the Independence Party ballot Sollazo needed to

obtain 38 signatures, representing 5% of the registered

Independence Party members in the 50th district.’ In her role

as petition witness, Lerman witnessed a total of 58

nominating signatures for Sollazo, including a signature from

respondent Angelo D’ Angelo. However, all of the signatures

Lerman gathered on Sollazo’s behalf were subsequently

invalidated because, although Lerman is a registered voter

and Independence Party member, she resides in the

neighboring 49th City Council district — also located in

Staten Island — instead of the 50th district where Sollazo

was running. As aresult, Sollazo failed to obtain the 38 valid

signatures he needed to appear on the Independence Party’s

primary ballot.

Respondents then filed a pro se complaint? against

petitioner, the City Board and Governor Pataki. Respondents

1. For City Council races, candidates are required to obtain

signatures from 5% of resident party members, or 900 signatures,

whichever is less. See N.Y. Elec. Law § 6-136(2).

2. Counsel for respondents first appeared when this case was

on appeal after briefing was completed, and participated in oral

argument and subsequent supplemental briefing ordered by the

Second Circuit.

4

sought to have the petition witness residence requirement of

§ 6-132(2) declared unconstitutional and enjoined as

violating the First and Fourteenth Amendments. The City

Board filed a motion to dismiss which the U.S. District Court

for the Eastern District of New York (Block, J.) granted, in

a decision issued from the bench during a hearing on

respondents’ Order to Show Cause.

While this case was pending on appeal, the

constitutionality of § 6-132(2)’s petition residence

requirement was addressed again in a separate lawsuit which

garnered far greater public attention and concerned the

application of New York’s ballot access rules in the context

of the Republican Presidential Primary. See Molinari v.

Powers, 82 F. Supp. 2d 57 (E.D.N.Y. 2000) (Korman, C.J.).

Notwithstanding their continued assertion of § 6-132(2)’s

constitutionality on appeal in this case, the State and City Boards

stipulated in Molinari that the requirements for access to the

Republican Presidential Primary ballot imposed an undue

burden on political speech, and the district court accepted this

stipulation only after concluding that the Republican primary

ballot access “scheme, both in its totality and by virtue of two

of its individual but related elements” — one of which was the

petition witness residence requirement of § 6-132(2) — was

unconstitutionally burdensome. Jd. at 69. Pursuant to the

stipulation, neither the State nor City Board appealed from the

district court’s determination in Molinari that § 6-132(2)’s

witness residence requirement was unconstitutional.

B. Decision of the Second Circuit

On appeal in this case, a unanimous panel of the Second

Circuit sided with the district court in Molinari and ruled

§ 6-132(2)’s requirement that candidate petition witnesses must

5

reside in the political subdivision where the candidate is running

was facially unconstitutional.’

The Court of Appeals held that the petition witness

residence requirement should be subject to strict scrutiny.

It found strict scrutiny applicable first because the petition

witness residence requirement, like the registered voter

requirement at issue in Buckley v. American Constitutional

Law Foundation, 525 U.S. 182 (1999) (“ACLF’) and the

prohibition on anonymous leaflets at issue in McIntyre v.

Ohio Elections Commission, 514 U.S. 334 (1995), “directly

restricts ‘core political speech’ as opposed to the ‘mechanics

of the electoral process.’ ” Pet. App. at 18a (quoting ACLF,

525 U.S. at 207-08 (Thomas, J., concurring)) (additional

internal quotations omitted). The court additionally held that

strict scrutiny would be appropriate even if § 6-132(2)’s

petition witness residence requirement was viewed more as

an election process regulation, because the “requirement

severely burdens political speech by ‘dramatically reduc[ing]

the number of persons . . . available to circulate petitions’ ”

and inhibits political association. Jd. at 19a-2la (quoting

ACLF, 525 US. at 193). Specifically, it emphasized that the

requirement served to render all but 760 of the 170,000

registered Independence Party members in New York State,

or 99.5%, ineligible to witness candidate petitions in the

50th City Council district. See id. at 2la. It also noted

3. After seeking briefing on the question of whether the

defendants in this action were collaterally estopped from asserting

§ 6-132(2)’s constitutionality by virtue of their stipulation and failure

to appeal in Molinari, the Second Circuit declined to decide this

issue, stating “the preclusion issue is close ... and... the merits of

this case are not.” Pet. App. at 7a-8a. The appeals court also rejected

the City Board’s claim that this action was moot and that respondents

lacked standing. See id. at 8a-16a.

6

that signature gathering is particularly burdensome for

minor party candidates or candidates who are not favored

by the party leadership and therefore do not have easy access

to the resources needed to ensure a place on the ballot.

See id. at 22a.

The Second Circuit then reviewed the three government

interests asserted as justifications for § 6-132(2)’s petition

witness residence requirement — “(1) ensuring integrity and

preventing fraud in the electoral process; (2) ensuring that

candidates demonstrate a sufficient modicum of support

before their name is included on the ballot; and (3) ensuring

that non-residents may not impose the cost of a primary on the

district” — and concluded that the “requirement does not bear

even a rational relationship to any of these three justifications, ~

let alone the narrowly tailored relationship that strict scrutiny

demands.” /d. at 26a (internal quotations omitted). While noting

that New York unquestionably had a compelling interest in

ensuring electoral integrity and preventing fraud, the court found

that the petition witness residence requirement “does nothing

to advance this end” because under unchallenged portions

of § 6-132(2) petition witnesses must be registered voters in

the state and provide their residence address in an affidavit.

These measures, combined with the statewide subpoena power

of local election boards, sufficed to ensure that petition witnesses

are subject to the state’s jurisdiction. Jd. at 26a-28a.

Similarly, the appeals court found that the state’s interests

in ensuring local support for candidates was “already advanced

by the requirement that candidates obtain a number of signatures

from district residents,” as was the interest in avoiding outsider-

imposed primaries. /d. at 31a-32a. It also underscored that

insofar as the defendants were attempting to justify the witness

residence requirement on the grounds that it “helps to prevent

SPREE ARC DY ENED I EMM RD LE

7

non-residents from influencing politics within the district,”

such an interest was not legitimate and could not be reconciled

with the First Amendment’s commitment to “ensuring the

widest possible dissemination of information.” Jd. at 32a-33a

(internal quotations omitted).

REASONS FOR DENYING THE WRIT

The question presented by petitioner is not appropriate

for certiorari review. There is no conflict in the lower courts

on the question of whether requiring candidate petition

witnesses to reside in the political subdivision where the

candidate is running for office violates the First Amendment.

On the contrary, the well-reasoned opinion of the Second

Circuit is completely consistent with other lower court

decisions on point, including a Seventh Circuit decision on

which this Court recently denied certiorari. See Krislov v.

Rednour, 226 F.3d 851 (7th Cir. 2000), cert. denied, 121

S. Ct. 1085 (2001). The question urged by petitioner is also

inappropriate for certiorari review because the Second

Circuit’s decision below is correct and carefully applies the

governing analysis laid out by this Court in ACLF and in

other opinions. Moreover, even if the question presented were

to merit this Court’s review, this case is not an appropriate

vehicle for doing so given that petitioner has waived any

argument that the witness residence requirement satisfies

strict scrutiny and the presence of a substantial question as

to whether petitioner is precluded from asserting the

requirement’s constitutionality.

8

I.

THE QUESTION PRESENTED IS NOT

APPROPRIATE FOR CERTIORARI REVIEW.

A. There Is No Conflict in the Lower Courts on the

Question Presented for this Court’s Review.

Two years ago, in ACLF, this Court struck Colorado’s

requirement that ballot petition circulators must be registered

voters as unconstitutional because it imposed a severe burden

on political speech that was not warranted by the government

interests_asserted by the State. See 525 U.S. at 192-97.

In reaching this conclusion, the Court applied a two step

analysis under which it first determined that the requirement

imposed a severe burden on political speech because, like

the ban on paid circulators invalidated in Meyer v. Grant,

486 U.S. 414 (1988), it dramatically reduced the pool of

individuals available to circulate petitions. See ACLF, 525

U.S. at 193-96; Meyer, 486 U.S. at 422-23. The Court then

ruled that the interest Colorado asserted in defense of the

voter registration requirement, “policing lawbreakers among

petition circulators,” was already met by Colorado’s separate

demand that circulators be state residents and provide

affidavits attesting to their residence address. ACLF, 525 U.S.

at 196. As a result, the Court concluded that the voter

registration requirement failed its “now-settled approach”

under which “state regulations imposing severe burdens on

speech must be narrowly tailored to serve a compelling state

interest.” Jd. at 192 n.12, 196-97 (internal quotations

omitted).

There is no conflict in the lower courts regarding the

application of the Supreme Court’s decision in ACLF to

9

candidate petition witness requirements. On the contrary, the

Second Circuit’s decision below is completely consistent

with other recent lower court decisions addressing the

constitutionality of political subdivision residence

requirements for candidate petition witnesses. In Krislov, a

unanimous panel of the Seventh Circuit held that such a

requirement contained in Illinois law violated the First

Amendment.‘ See 226 F.3d at 866. Like the Second Circuit

below, the Seventh Circuit concluded that Illinois’ political

subdivision residence requirement for petition circulators

imposed a severe burden on political speech because it

“prevent[s] the candidates from employing millions of

potential advocates to carry their political message to the

people of Illinois” and inhibits effective political association.

Id. at 860-61. It then ruled that the state interests offered by

Illinois to justify the rule failed to satisfy strict scrutiny,

holding in particular that the residence requirement did not

advance the state’s interest in ensuring local support for

candidates or preserving election integrity because these

interests were already adequately served by other, more

closely tailored provisions. See id. at 863-65. This Court

denied a petition for certiorari in Krislev on February 20,

2001. See McGuffage v. Krislov, 121 S. Ct. 1085 (2001).

While Krislov is the only recent federal circuit

' court decision directly on point, several federal district

courts and intermediate state appellate courts similarly have

struck down local residence requirements for petition

witnesses. See, e.g., Molinari, 82 F. Supp. 2d at 73-77

(holding that § 6-132(2)’s political subdivision petition

witness residence requirement violates the First Amendment

4. The court in Krislov also struck down Illinois’ requirement

that petition circulators be registered voters. See 226 F.3d at 866.

10

and stating that ACLF removes any doubt about § 6-132(2)’s

constitutionality); Lawrence v. Jones, 18 P.3d 1245,

1252-53 (Ariz. Ct. App. 2001) (reading city code provision

as allowing circulation of referenda by norresidents of city

on grounds that a city residence requirement would be

unconstitutional under ACLF); KZPZ Broad., Inc. v. Black

Canyon Concerned Citizens, 13 P.3d 772, 778-80 (Ariz. Ct.

App. 2000) (reading Arizona law as allowing circulation of

county referenda by nonresidents of county on grounds that

a county residence requirement would be unconstitutional

under ACLF); cf. Young v. Illinois State Bd. of Elections,

116 F. Supp. 2d 977, 985 (N.D.-Ill. 2000) (holding

unconstitutional under ACLF an Illinois requirement,

separate from that at issue in Krislov, which required that

petition circulators be registered voters in the political

subdivision where the petition is being circulated, but

focusing on the registered voter requirement); Tobin for

Governor v. Illinois State Bd. of Elections, 105 F. Supp. 2d

882, 887-88 (N.D. Ill. 2000) (same).

Other than the district court’s bench opinion in this case,

reversed by the Second Circuit, the only decision upholding

a local residence requirement for petition witnesses is an

earlier, pre-ACLF decision from a California state court,

Browne v. Russell, 27 Cal. App. 4th 1116, 1124-26 (Cal. Ct.

App. 1994). Browne offers little support to petitioner,

however, as it rests on the California court’s case-specific

determination that the plaintiffs failed to introduce sufficient

evidence demonstrating that the residency requirement

burdened their right of political expression. Moreover,

Browne’s continuing authority after ACLF is questionable

insofar as the decision holds that a reduction in the pool of

available circulators is irrelevant in assessing burden.

See id. at 1125; see also KZPZ, 13 P.3d at 779 (Browne “may

11

be questionable law after [ACLF]’”); 82 Ops. Cal. Atty. Gen.

250 (1999), 1999 WL 1249548 at *2-*3 (Cal. A.G.)

(initiative petition circulators need not declare that they are

registered voters of city and therefore under statute need not

be city residents).

To the extent that recent decisions have upheld residence

requirements for petition witnesses, they have addressed

in-state residence requirements, not political subdivision

residence requirements. See Initiative & Referendum Inst.

v. Jaeger, 241 F.3d 614, 616-17 (8th Cir. 2001) (upholding

requirement that initiative petition circulators be state

residents as not unduly burdensome and narrowly tailored

to serve state’s compelling interest in preventing fraud

because residency ensures circulators are subject to state’s

subpoena power); Kean v. Clark, 56 F. Supp. 2d 719, 733

(S.D. Miss. 1999) (same); Hart v. Secretary of State, 715

A.2d 165, 168 (Me. 1998) (same), cert denied, 525 U.S. 1139

(1999). As the Second Circuit emphasized, § 6-132(2)

separately requires petition witnesses to be state residents,

and plaintiffs did not challenge this aspect of § 6-132(2)

here.’ See Pet. App. at 28a & n.14. Thus, there is no

conflict between the Second Circuit’s decision below

and these lower court decisions sustaining such in-state

residence requirements. Moreover, these decisions offer no

support to petitioner on the question presented for this

Court’s review, as contrary to petitioner they hold that

in-state residence requirements should be subject to strict

scrutiny. See, e.g., Jaeger, 241 F.3d at 616; Kean, 56 F. Supp.

2d at 730; Hart, 715 A.2d at 167-68; see also Campbell v.

Buckley, 203 F.3d 738, 745 (10th Cir. 2000) (noting, in

5. New York’s in-state residence requirement is embodied in

§ 6-132’s requirement that petition witnesses be “duly qualified

voter[s] of the state.”

12

sustaining Colorado’s title setting requirements for baliot

initiatives, that “strict scrutiny is applied where the

government restricts. . . . the available pool of circulators or

other supporters of a candidate or initiative” and more

generally “where the government restricts the overall

quantum of speech available to the election or voting

process’’).

B. The Question Urged by Petitioners Was Correctly

Decided Below.

The Second Circuit’s analysis carefully hews to the

approach and analysis laid out in ACLF in ruling that New

York’s political subdivision residence requirement for

petition witnesses violated the First Amendment. ACLF and

Meyer make clear that speech by petition witnesses is

interactive political speech and discussion at the core of the

First Amendment’s protections. See ACLF, 525 U.S. at 199;

Meyer, 486 U.S. at 421-22. While these cases addressed

ballot petitioning rather than candidate petitioning, there is

no basis to conclude that candidate petitioning is any less

political speech — and indeed, petitioner does not make such

a claim here. See Pet. App. at 23a-25a; Krislov, 226 F.3d at

861-62; see also ACLF, 525 U.S. at 232 (Rehnquist, C.J.,

dissenting) (arguing that the majority opinion in ACLF put

registered voter requirements for candidate petition

circulators in jeopardy).

As in ACLF, the Second Circuit examined the impact

§ 6-132(2)’s political subdivision residence requirement had

on the pool of available witnesses. The appeals court’s

determination that the residence requirement drastically

reduces the pool of available witnesses is plainly correct

under ACLF. There, the disqualification of 21% of the

13

available petition circulator pool (400,000 of 1.9 million

potential circulators) was found to impose a severe burden,

whereas here the pool reduction is 99.5%. See id. at 193;

Pet. App. at 21a. Reductions of similar magnitude are present

in regard to any congressional, state legislative, or local race

in the state, as there are inevitably far fewer registered party

members residing in any political subdivision than reside in

the state as a whole. See, e.g., Molinari, 82 F. Supp. 2d at 75

(noting that the witness residence requirement “reduces by

approximately 2.9 million to 3 million voters the pool of

Republicans available to volunteer to petition in any

particular district.)

Contrary to the claim of petitioner, see Pet. at 7, the

substantia! reduction in pool of available petition witnesses

wrought by the residence requirement is not altered by the

fact that notaries and commissioners of deeds are allowed

to serve as petition witnesses. Petitioner failed to introduce

any evidence into the record regarding the number of notaries

and commissioners of deeds in New York. In Molinari,

however, the district court found that there were only 250,000

notaries public in the state as a whole, 82 F. Supp. 2d.

at 76 n.11 — clearly an inadequate number to compensate

for the millions of registered party members who may be

precluded from carrying petitions by the witness residence

requirement, even assuming every notary was willing to

serve as a witness. Moreover, this option is far more

burdensome than using party volunteers, as notaries and

commissioners are required to have each signer swear that

the information the signer provided on the petition is true,

see N.Y. Elec. Law § 6-132(3), and candidates often must

pay notaries for their services, see Molinari, 82 F. Supp. 2d.

at 76-77. Again, the Second Circuit correctly adhered to

binding precedent in not holding that the notary and

14

commissioner of deed exception rendered § 6-132(2)’s

residence requirement constitutional, for as this Court stated

in Meyer, that a law “leaves open more burdensome avenues

of communication[] does not relieve its burden on First

Amendment freedoms.” 486 U.S. at 423 (internal quotations

omitted).

The Second Circuit’s conclusion that the interests

asserted by the state fail to justify the witness residence

requirement also follows directly from ACLF. Under ACLF,

it is clear that New York’s in-state residency requirement,

combined with the further requirement that witnesses provide

an affidavit as to their address, suffices to ensure that petition

witnesses are subject to the state’s oversight and enforcement

jurisdiction. See 525 U.S. 196-97. Particularly given that local

election boards enjoy statewide subpoena power,

see Pet. App. at 28a, there is simply no basis for petitioner’s

suggestion that the political subdivision residence

requirement at issue here is needed “to subject petition

witnesses to the jurisdiction of the state’s courts.” Pet. at 7.

ACLF further establishes that at a minimum a challenged

provision must be narrowly tailored to serving an asserted

state interest to justify imposing a severe burden on political

speech. The Second Circuit’s determination that the interests

offered by petitioner failed this test is unassailable, given

that such local involvement is already assured by making

only district residents eligible to sign petitions and the state

is willing to allow non-local participation in the case of

notaries and commissioners of deeds.

It is also worth noting that the interests petitioner asserts

in defense of § 6-132(2)’s political subdivision residence

requirement are not found in the legislative history of the

provision. The measure was adopted at the same time as the

requirement that witnesses be party members, and the main

15

purpose offered in justification was preventing party raiding.

See Bill Jacket at 12-13, Ch. 351 § 1 of N.Y. Laws of 1951

(Letter from Assemblyman Anthony J. Travia); see also

id. at 16 (memorandum from Louis J. Lefkovitz, Counsel to

the Joint Legislative Committee to Revise and Recodify the

Election Law of New York) (restrictions on petition witnesses

are reasonable because primary election serve to settle a

dispute within the party). In fact, the legislative history

suggests that the real purpose of the measure was hardly so

benign: Assemblyman Travia, the bill’s sponsor, expressly

justified it as a means of curbing the influence of the

American Labor Party in New York City and other comments

indicate that another motive was to enhance the power of

party machines. See id.; see also id. at 3-4 (letter from

Citizens Union arguing that the bill will limit political

competition and harm insurgents); id. at 7-8 (measure will

favor political machines in local districts). But even

taking the stated party raiding concern at face value, it is

adequately addressed by the requirements — again, not

challenged here — that petition witnesses and signers must

be enrolled party members.

II.

EVEN IF THE QUESTION PRESENTED WERE TO

MERIT THIS COURT’S REVIEW, THIS CASE IS NOT

AN APPROPRIATE VEHICLE FOR DOING SO.

A. Petitioner Has Waived Any Argument That the

Political Subdivision Residence Requirement of

§ 6-132(2) Satisfies Strict Scrutiny.

In addition, there are two significant obstacles to using

this case as the vehicle for this Court to consider the

constitutionality of political subdivision residence

16

requirement, even if it were to determine that this question

merits review. The first is that petitioner has waived any

- argument that the political subdivision residence requirement

of § 6-132(2) satisfies strict scrutiny. Before the court of

appeals, neither petitioner nor the other defendants attempted

to justify the political subdivision residence requirement as

narrowly tailored to realizing compelling government

interests. See Br. of Gov. Pataki at 10; Br. of State Board

at 4; see also Pls.’ Supp. Reply Br. at 1-2 (noting that

defendants “rest their defense on the claim that the

[residence] requirement imposes a minor burden on

[p]laintiffs’ nghts and is subject only to rationality review.”).

Similarly, petitioner here makes no claim that § 6-132(2)’s

political subdivision residence requirement would survive

strict scrutiny, but instead only contends that the Second

Circuit erred in applying such exacting review because the

residence requirement is not burdensome. See Pet. at 5.

As a result, this Court would be limited to reviewing

whether the political subdivision requirement should be

subject to strict scrutiny because it directly targets core

political speech or because of its impact on the pool of

potential petition witnesses — questions that this Court has

already addressed and answered in ACLF and Meyer. It would

be precluded from reaching the very issues on which this

case differs from those earlier decisions: specifically, whether

such local residence requirements can be justified by concerns

with preventing election fraud and ensuring local

involvement in elections.

17

B. A Substantial Question Exists As to Whether

Petitioner Is Precluded from Defending the

Constitutionality of § 6-132(2) Here.

The second problem with using this case as a vehicle for

considering the constitutionality of political subdivision

residence requirements is that a strong argument can be

made that petitioner is precluded from asserting the

constitutionality of § 6-132(2)’s residence requirement by

its stipulation in Molinari. As the Second Circuit detailed,

petitioner and the City Board stipulated that “several

provisions of the New York Election Law impose[d] an

undue burden on access to the ballot in connection with the

2000 New York State Republican Presidential Primary. .. .

[and] also agreed to waive their rights to appeal from any

order entered by the district court based on that stipulation.”

Pet. App. at 5a (internal quotations omitted). In his decision,

Chief Judge Korman carefully examined the political

subdivision residence requirement and held, like the Second

Circuit below, that the requirement was unconstitutional

because it imposed a severe burden on political speech and

was unjustified “under any test.” 82 F. Supp. 2d at 77.

After being informed of the Molinari stipulation by

respondents’ counsel at oral argument in this case,° the

Second Circuit specifically sought additional briefing on the

question of whether petitioner and the other defendants were

precluded from continuing to defend the constitutionality of

§ 6-132(2)’s political subdivision residence requirement.

Although the Second Circuit ultimately did not reach a

decision on this issue, noting that the preclusion question

was close while the merits of the case were not, it stated that

6. Respondents’ counsel also represented the plaintiffs in

Molinari.

18

it was “not untroubled by the possibility that the defendants

have attempted to evade their stipulation in Molinari.”

Pet. App. at 7a.

Petitioner’s actions in stipulating to the residence

requirement’s unconstitutionality in Molinari while

continuing to press its constitutionality here provide strong

equitable grounds against granting certiorari. This course of

behavior looks disquietingly like an attempt to game the

system: petitioner avoided defending the requirement on

appeal in the context of a politically sensitive, high publicity

case, yet sought to avoid being legally bound by that failure

to defend through asserting the constitutionality of § 6-132(2)

in this pro se, low profile, appeal.

In addition, the presence of this preclusion issue means

that a reversal by this Court on the merits might not alter the

result in this case. It would be inappropriate for the Court to

resolve the preclusion issue in the first instance, particularly

as petitioner has not raised this issue in the petition for

certiorari. As a result, the Second Circuit would need to

address preclusion on remand before it could rule in

petitioner’s favor. Moreover, the court of appeals’ evident

discomfort with defendants’ behavior suggests that if forced

to reach the issue, it might well rule that defendants were

indeed precluded by the Molinari stipulation from asserting

the residence requirement’s constitutionality here.

19

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

NANCY NorRTHUP

Counsel of Record

GILLIAN METZGER

BRENNAN CENTER FOR JUSTICE

AT New York UNIVERSITY

SCHOOL OF LAW

Attorneys for Respondents

161 Avenue of the Americas

12th Floor

New York, New York 10013

(212) 998-6730