Appendix — Rosario v. Rockefeller

Supreme Court brief1973

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INDEX

evant Docket Entries

int in Rosario v. Rockefeller

plaint in Eisner v. Rockefeller

de ‘to Show Cause Why Three Judge Court Should

q lot Be Convened in Rosario 12 -

r to Show Cause Why Three J udge Court Should

t Be Convened in Eisner 13

; Bd nvit of Burt Neuborne in Support of Motion 14

iswer in Eisner Submitted on Behalf of Commis.

fioners of Elections of Nassau County 16

btion to Dismiss in Eisner and Rosario Submitted on

of Attorney General of New York 19

aion of Chief Judge Mishler Declaring Section 186

Dine onstitutional

dex ent of the District Court

: ion and Order of District Court Denying Motions

e Mtay and Reargument

b of Appeal in Rosario Filed on Behalf of Attor-

F General of New York

PAGE

‘Notice of Appeal in Fisner Filed on Behalf of Attor-

ney General of New York

Notice of Appeal in Kisner Filed on Behalf of Com-

missioners of Elections for Nassau County ..............

Order of Second Circuit Staying Decision of District

Court and Scheduling an Expedited Appeal -.........

Opinion of Second Circuit Holding Section 186 Con-

stitutional

Judgment of Second Circuit Reversing District Court

in Rosario

Judgment of Second Circuit Reversing District Court

in Eisner

Order Denying Motion to Stay Mandate and Denying

Petition for Rehearing in Eisner

Order Denying Supplemental Petition for Rehearing

in” Eisner

Order Denying Petition for Rehearing in Banc With

' Judges Feinberg and Oakes Dissenting

Temporary Stay of Second Circuit Judgment Issued

by Mr. Justice Marshall

Order Granting Certiorari But Denying Motion for

Summary Reversal, Expedited Consideration and a

Stay

2/17/72

2/22/72

Relevant Docket Entries

Proceedings

Complaint in Rosario filed

Order to show cause for convocation of - three

judge Court in Rosario filed

Complaint in Eisner filed

Order to show cause for convocation of three

judge Court in Eisner filed

Plaintiffs in Eisner and Rosario withdraw re-

quest for three judge Court. Parties agree to

submit case to single District J udge for declara-

tory relief. 7

Answer in Eisner filed on behalf of Nassau

County Board of Elections

Motions to dismiss in Eisner and Rosario filed

by Attorney General

Memoranda of Law submitted by all parties

Eisner and Rosario cases ordered consolidated ;

decision and judgment declaring Section 186

unconstitutional announced by Chief J udge

Mishler

Application for stay denied; motion for reargu-

ment denied by District Court; supplemental de-

cision and order filed

Notice of Appeal to Court of Appeals filed

Stay granted by Second Circuit; argument on

expedited appeal set for 2/24/72

Relevant Docket Entries

4/ 7/72 Second Circuit reverses District Court and up-

holds constitutionality of Section 186

4/19/72 Supplemental petition for rehearing denied by

Second Circuit

4/24/72 Application for stay pending filing of certiorari

petition denied; application for rehearing in

bane denied with Judges Oakes and Feinberg

dissenting

4/24/72 Application for stay filed with Supreme Court;

< petition for writ of certiorari filed with Supreme

Court; motion for summary reversal, or, in the

alternative, expedited consideration on the

merits filed in the Supreme Court

4/26/72 Temporary stay of Second Circuit opinion

granted by Mr. Justice Marshall

5/30/72 Petition for certiorari granted; motion for sum-

mary reversal denied; motion for expedited re-

lief denied 8-1 (Mr. Justice Stewart dissenting) ;

application for stay of Second Circuit judgment

denied 5-4 (Justices Douglas, Brennan, Stewart

and Marshall dissenting) ¢

Complaint in Rosario v. Rockefeller

UNITED STATES DISTRICT COURT

Eastern District or New York

——p—-

[CaPTION OMITTED

iw 71 C 1573]

JURISDICTION

1. The jurisdiction of this Court.is invoked under Title

% U.S.C. 2201 et seq., this suit being authorized by Title

#2 U.S.C. 1983. This is an action for a declaratory judg-

ment and appropriate equitable relief to prevent the

deprivation under color of the Election Law of the State

of New York, of rights, privileges and immunities secured

to the plaintiffs by the First, Fifth, Fourteenth and

Twenty-Sixth Amendments to the Constitution of the

United States. Jurisdiction is conferred upon this Court

by 28 U.S.C. Section 1343 (3).

Parties

2. (a) Plaintiff, Pedro J. Rosario, is a new duly regis-

tered voter, eighteen years of age, who registered to vote

on December 3rd, 1971 in County of Kings and enrolled

that same day as a member of the Democratic Party.

(b) Plaintiff, William J. Freedman, is a new duly regis-

tered voter, who became twenty-one years of age on Oc-

tober 12, 1971, who registered to vote on December 3rd,

1971, in the County of Queens and enrolled that same day

ss a member of the Democratic Party.

Complaint in Rosario v. Rockefeller

tered voter, who is twenty-two years of age, who registered

to vote on December 8rd, 1971, in the County of Queens

and enrolled that same day, as a member of the Democratic

Party.

(d) Plaintiffs bring this action to challenge New York’s

statutory scheme regulating the participation of newly en-

rolled voters in primary elections. _

3. (a) Defendant, Nelson Rockefeller, is the duly elected

Governor of the State of New York.

(b) Defendant, John P. Lomenzo, is the duly appointed

Secretary of State of the State of New York and is charged

with general responsibility for the administration of the

Election Laws of the State of New York.

Thomas Mallee and J. J. Duberstein, are the duly ap-

pointed Board of Elections in The City of New York and

are charged with responsibility for the administration of

the Election Law of the State of New York, in the City of

New York.

4. The individual plaintiffs bring this action pursuant

to Rule 23 (b) of the Federal Rules of Civil Procedure,

én behalf of each individual plaintiff and on behalf of all

others similarly situated, namely, all persons whose at

tempted enrollment as a member of a political party, pur-

suant to Sections 186 and 187 of New York’s Election

Law is frustrated and impeded by the operation of Section

186 of the Election Law, and Section 187 of the Election

Complaint in Rosario v. Rockefeller

dew. There are questions of law and fact common to the

dass and the named plaintiffs will adequately protect the

E interest of the class.

+6. Upon information and belief, at all times relevant

to this Complaint, defendants have acted under color of

‘Section 186 of New York’s Election Law which forbids any

enrollments in a political party filed subsequent to a general

election from becoming effective until one week after the

next annual general election. The net effect of Section 186

is to disqualify from participation in party primaries all

persons who were not duly registered voters and enrolled

party members at the preceding general election.

Tue Issue

6. Each of these plaintiffs could have registered and

enrolled on or before October 2nd, 1971, the last date of

tegistration for the November 1971 elections. They each

did not do so. When they enrolled on December 3rd, 1971,

‘their enrollment ballots were put into a box in compliance

with Section 186 and said enrollment box will not be opened

under present law until after the 1972 General Elections.

Each of them by operation of the Section is ineligible to

participate in the local or Presidential party primaries in

June 1972.

Cause or ACTION

7. New York’s statutory scheme governing the enroll-

ment of voters in political parties unconstitutionally dis-

qualifies plaintiffs, and members of the plaintiff class, from

as participation in the electoral process by disenfranchis-

Complaint in Rosario v. Rockefeller

ing newly enrolled voters from participation in party pri-

maries in the absence of any compelling state justification

for such an abridgment of the franchise.

Wuenrerorg, plaintiffs pray that:

(1) this Court convene a statutory United States Dis-

trict Court to hear and determine this action pursuant to

Title 28 U.S.C. Sections 2281 and 2284;

(2) the statutory United States District Court declare

that the provisions of Section 186 of New York’s Election

Law are unconstitutional ;

(3) the statutory United States District Court grant

plaintiffs appropriate equitable relief to assure their par-

ticipation in the 1972 primary elections scheduled for June,

1972;

(4) The statutory United States District Court grant

such other and further relief as to it may seem just and

proper.

Dated, Brooklyn, New York

December 6th, 1971.

Szymour Frmpmaw

26 Court Street

Brooklyn, New York 11242

Attorney for Plaintiff's

Complaint in Eisner v. Rockefeller

UNITED STATES DISTRICT COURT

For toe Eastern District or New Yorx

[CAPTION OMITTED

In 71 C 1621)

—

I. Jurispiction

1, This is a civil action brought pursuant to Title 42

U.S.C. Sec. 1983 to redress the deprivation under color of

Section 186, Section 187 and Section 117 of the Election

Law of the State of New York of rights, privileges and

immunities secured to plaintiff by the First, Fourteenth

and Twenty-Sixth Amendments ‘to the Constitution of the

United States and by the Voting Rights Act of 1970 (Title

42 U.S.C. Section 1973(a)(a)). Plaintiff seeks a declara-

tory judgment and injunctive relief pursuant to Title 42

U.S.C. 1983; Title 28 U.S.C. Section 2201 et seq. and Title

28 U.S.C. Sections 2281 and 2284, protecting plaintiff’s

constitutional rights to participate in the New York State

Presidential Primary Election scheduled for June 20, 1972.

II. Parrres

2. Plaintiff, Steven Eisner, is a duly registered voter in

the County of Nassau who has been informed that he will

be ineligible to participate in the New York State Presi-

dential Primary Election scheduled for June 1972 because

he was not registered to vote as an enrolled Democrat in

the November 1971 general election.

Complaint in Eisner v. Rockefeller

3(a) Defendant, Nelson Rockefeller, is the duly elected

Governor of the State of New York.

(b) Defendant, John P. Lomenzo, is the duly appointed

Secretary of State of the State of New York and is charged

with the duty of enforcing the provisions of New York's

Election Law in connection with the Presidential Primary

Election scheduled for June 20, 1972.

Cristenfeld, are the duly appointed Commissioners of

Elections for Nassau County and are charged with the

duty of enforcing the provisions of New York’s Election

Law in Nassau County.

4. Upon information and belief, at all times relevant

hereto, defendants were acting under color of law of Sec-

tions 186 and 187 of New York’s Election Law, which dis-

qualify plaintiff from participating in the June 1972 Presi-

dential Primary Election because he was not registered to

vote as an enrolled Democrat in the November 1971 general

elections, and Section 117 of New York’s Election Law

which precludes the issuance of absentee ballots in primary

elections.

Ill. Tse Inoments at Issue

5. Plaintiff, Eisner, first became eligible to vote on

December 30, 1970, upon the attainment of his twenty-first

birthday. He has resided at 134 Home Street, Valley

Stream, New York for fifteen, years.

Complaint in Eisner v. Rockefeller

Election Law he

York State Demo-

eduled for June

f the Democratic

ember 1972.

7. Plaintiff, Eisner, is currently enrolled in his senior

year at the University of Buffalo and consequently will not

be physically present in Valley Stream on primary day.

He was informed however, that even if he were eligible to

in the June 1972 Presidential Primary, he would be

iblefer an absentee ballot because, pursuant to Section

U7 of New Xork’s Election Law, such ballots are not avail-

imary elections.

IV. Causes or AcTION

‘8. Defendants’ refusal, under color of Section 186 of

New York’s Election Law, to permit plaintiff to participate

inthe June 1972 Presidential Primary Election abridges his

constitutional right to participate in the electoral process in

Violation of his rights under the First, Fourteenth and

Twenty-Sixth Amendments to the Constitution of the

United States and his rights under the Voting Rights Act of

1970 (Title 42 U.S.C. Section 1973(a)(a)).

9. Defendants’ refusal, under color—of Section 117 of

New York’s Election Law, to provide plaintiff with an ab-

“

Complaint in Eisner v. Rockefeller

sentee ballot in order to participate in the June 1972 Presi-

dential Primary Election abridges his constitutional right

to participate in the electoral process in violation of his

rights under the First, Fourteenth and Twenty-Sixth

Amendments to the Constitution of the United States and

his rights under the Voting Rights Act of 1970 (Title 42.

U.S.C. 1973(a) (a)).

Wueneror:, plaintiff prays that this Court:

1) Convene a statutory three judge United States Dis-

trict Court to hear and determine this action and that such

Court;

2) Declare that Section 186 of New York’s Election Law

violates the First, Fourteenth and Twenty-Sixth Amend-

ments to the Constitution of the United States insofar as

it precludes plaintiff from participating in the New York

State Presidential Primary scheduled for June 1972.

3) Declare that Section 186 of New York’s Election Law

violates the Voting Rights Act of 1970 (Title 42 U.S.C.

Section 1973(a)(a)) insofar as it precludes plaintiff from

participating in the New York State Presidential Primary

scheduled for June 1972.

4) Declare that Section 117 of New York’s Election Law

violates the First, Fourteenth and Twenty-Sixth Amend-

ments to the Constitution of the United States insofar as it

precludes the issuance of absentee ballots for the New York

State Presidential Primary Election.

5) Declare that Section 117 of New York’s Election Law

violates the Voting Rights Act of 1970 (Title 42 U.S.C.

Complaint in Eisner v. Rockefeller

Section 1973(a)(a)) insofar as it precludes the issuance

of absentee ballots for the New York State Presidential

Primary Election.

6) Grant appropriate equitable relief, if necessary, en-

forcing plaintiff’s right to participate in the New York

State Presidential Primary scheduled for June 20, 1972.

7) Grant such other and further relief as to the Court

may seem just and proper.

Burt Nevsorne, Esq.

Bruce J. Ennis, Esq.

Paut G. Cuevieny, Esq.

New York Civil Liberties Union

84 Fifth Avenue

New York, New York 10011

(212) 924-7800

Dated: December 15, 1971

Order to Show Cause Why Three Judge Court

Should Not Be Convened in Rosario

UNITED STATES DISTRICT COURT

Eastern District or New YorkK

[CAPTION OMITTED

my 71C 1573]

——

Upon the annexed complaint of Pedro J. Rosario, Wil-

liam J. Freedman and Karen Lee Gottesman, and upon due

deliberation after a reading thereof, it is hereby

OrpERED, that the defendants show cause before this

Court in the Courthouse, located at Tillary and Jay Streets,

in the Borough of Brooklyn, City of New York, State of

New York, on the 17th day of December, 1971, at 9:30 A.M.

or as soon thereafter as counsel can be heard in Courtroom

of the said Court, why an Order should not be made direet-

ing the convening of a Special Three Judge Court to hear

and determine the allegations and issues raised in the com-

plaint.

Service of a copy of this Order, with a copy of the com-

plaint upon the Attorney General of the State of New York

personally, on or before December 10th, 1971, at 1:00 P.M.

and upon the named Commissioners of Elections herein by

mail by posting on or before December 8th, 1971, shall be

deemed proper and sufficient service. No previous applica-

tion has been made on this case for this relief.

Dated, Brooklyn, New York, \

December 6th, 1971.

Jacos MisHLER

United States District Judge

Order to Show Cause Why Three Judge Court

Should Not Be Convened in Eisner

UNITED STATES DISTRICT COURT

For THE Eastern District or New York

—<———

[CAPTION OMITTED

In 71C 1621]

—

Upon the annexed complaint and the affidavit of Burt

Neuborne, it is hereby:

OnpERED, that defendants show cause at a motion term

of this Court, at Courtroom 5 of the United States District

Courthouse for the Eastern District of New York, 225 Cad-

man Plaza East, Brooklyn, New York, on Friday, December

17, 1971, at 10 o’clock in the forenoon, or as soon there-

after as counsel may be heard why an order should not

be made convening a three judge United States District

Court to hear and determine this matter; and it is

FURTHER ORDERED, that service of a true copy of this or-

der and the papers upon which it was granted upon the

Attorney General of the State of New York and the Nassau

County Attorney on or before Dec. 16, 1971 at 3:00 P.M.

shall be due and sufficient service hereof.

Dated: December 16, 1971

Brooklyn, New York

Affidavit of Burt Neuborne in Support of Motion

UNITED STATES DISTRICT COURT

For Tue Eastern District or New York

—————

[CAPTION OMITTED]

—>-——

Strats or New York,

County or New York, 83.:

Buar Nevsorne, being duly sworn, deposes and says:

1) I am an attorney for the plaintiff herein and I make

this affidavit in support of plaintiff’s motion to convene 4

three judge United States District Court herein.

2) In Bachrow v. Rockefeller, 71 C 930, this Court ree-

ognized that the impact of Section 186 of New York’s Elec-

tion Law raised substantial constitutional questions requir-

ing the convocation of a three judge Court. The merits

were not reached in Bachrow because the plaintiffs were

found to lack standing to raise the constitutional issues.

However, the plaintiff herein, Steven Kisner, possesses

unquestionable standing.

3) Accordingly, plaintiff respectfully requests the con-

vocation of a three judge Court to hear and determine

whether plaintiff may lawfully be denied an opportunity

to participate in the June Presidential Primary.

Affidavit of Burt Neuborne in Support of Motion

4) Plaintiff is prepared, however, to forego his request

for injunctive relief if defendants are prepared to repre-

sent that they will abide by a declaratory judgment. In

that event, plaintiff is prepared to submit his constitutional

claim to a single Federal District judge, without the neces-

sity of convening a three judge Court.

5) No prior application for the same or for similar relief

has been made to any Court.

Burt NEvBORNE

(Jurat omitted in printing. ]

Answer in Eisner Submitted on Behalf of Commissioners

of Elections of Nassau County

UNITED STATES DISTRICT COURT

For roe Eastern Distaict or New York

—_—»—-

[CAPTION OMITTED

in 71C 1621]

—<>——

The defendants, WmuuaMm D. Mzisser, sued herein as

Wnuium D. Mzissner, and Marvin D. CrisTENFELD, Com-

missioners of Elections for Nassau County, appearing

herein by their attorney, JosEPH Jaspan, County Attorney

of Nassau County, for their Answer to the Complaint

herein, allege as follows:

First: Deny that they have any knowledge or informa-

tion thereof sufficient to form a belief as to each and every

allegation contained in paragraph numbered “5” of the

complaint.

Second: Upon information and belief deny each and

every allegation contained in paragraph numbered “6” of

the complaint, except to state that plaintiff Eisner did

Board of Elections and as a separate procedure, filled out

an enrollment blank which was placed in a sealed box

which will be opened on the Tuesday following the next

general election. ;

Answer in Eisner on Behalf of Commissioners of Elections,

Nassau County

Third: Deny that they have any knowledge or infor-

mation thereof sufficient to form a belief as to each and

every allegation contained in paragraph numbered “7” of

the complaint.

Fourth: Upon information and belief, deny each and

every allegation contained in paragraphs numbered “8”

and “9” of the complaint.

As and for a First, Separate and Affirmative Defense,

Defendants, William D. Meisser and Marvin D. Cristen-

feld, Commissioners of Elections for Nassau County,

Allege, Upon Information and Belief, as Follows:

‘Fifth: Under New York Election Law §§3-a and 149,

all persons designated for uncontested offices or positions

for a primary election shall be deemed nominated or

elected thereto, as the case may be, without any ballot

being cast. At the time of plaintiffs’ claim, no contests

exist. The plaintiffs are not deprived of an opportunity

to cast a ballot in any primary until such a demic contest

comes into being.

As and for a Second, Separate and Affirmative Defense,

Defendants, William D. Meisser and Marvin D. Cristen-

feld, Commissioners of Elections for Nassau County,

Allege, Upon Information and Belief, as Follows:

. Sixth: This Court does not have jurisdiction over New

York State’s primary election procedures. Neither the

First, Fifth, Fourteenth or the Twenty-Sixth Amendments

Answer im Eisner on Behalf of Commissioners of Elections,

Nassau County

of the United States Constitution confer the power on this

Court to rule upon a case in the aforesaid procedure.

Wueneronz, the defendants, William D. Meisser, sued

herein as William D, Meissner, and Marvin D. Cristenfeld,

Commissioners of Elections for Nassau County, respect.

fully request that this complaint be dismissed.

JOSEPH JASPAN

County Attorney

Attorney for Defendants:

Wim D. Meitsser and

Marvin D. CrisTENFELp,

Commissioners of Elections for

Nassau County

County Executive Building

One West Street

Mineola, New York 11501

by J. Kemp Hannon,

Deputy County Attorney

Motion to Dismiss in Eisner and Rosario Submitted

on Behalf of Attorney General of New York

UNITED STATES DISTRICT COURT

Eastern District or New York

[CAPTION OMITTED

in 71C 1573]

71C 1621

Sreven Eisner, on his own behalf and on behalf

of all others similarly situated,

Plaintiffs,

—against—

Netson Rockere.ier, Governor of the State of New York;

Jonn P. Lomenzo, Secretary of State of New York;

Wruu1am D. Meissner and Marvin D. Cristenretp, Com-

missioners of Elections for Nassau County,

Defendants.

Norices or Morions

Sins:

PLease TAKE NOTICE, upon the orders to show cause

signed December 6, 1971 in Rosario v. Rockefeller, et al.

and December 16, 1971 in Eisner v. Rockefeller, et al., the

complaints and upon all the prior proceedings had herein,

the undersigned will move this Court on January 10, 1971 .

at 9:30 o’clock in the forenoon in Courtroom No. 5, United

States Courthouse, 225 Cadman Plaza East, Brooklyn, New

Motion to Dismiss in Eisner and Rosario

York, for an order pursuant to the Federal Rules of Civil

Procedure, Rule 12(b)(1) and (6) and 12(c) dismissing

the complaints upon the ground that the Court lacks

jurisdiction thereof, and further that they fail to state a

claim upon which relief may be granted, as against the

State defendants and for such other and further relief as

to the Court may seem just and proper.

Dated: New York, New York

January 10, 1971

nunc pro tunc

Yours, etc.

Louis J. LerKow!Tz

Attorney General of the State of

New York

Attorney for Rockfeller and

Lomenzo and Pro Se pursuant

to Executive Law § 71.

By: A. Sera GreeNwaLp

Assistant Attorney General

ce & P. O. Address

Centre Street

New York, New York 10013

Tel. (212) 488-3396

(To all attorneys of record.)

Opinion of Chief Judge Mishler Declaring

Section 186 Unconstitutional

February 10, 1972

UNITED STATES DISTRICT COURT

Eastern District or New York

No. 71-C-1573

Pepro J. Rosanio, Wuuus J. FreepMan and Karen LEe

GorTresMAN, individually and on behalf of all others sim-

ilarly situated,

Plaintiff's,

—against+

Netson Rockxeretier, Governor of The State of New York,

res

235)

Joun P. Lomenzo, Secretary of State of The State of

New York, Maurice J. O’Rourxe, James M. Powes,

Tsomas Mauer and J. J. Dusersren, consisting of the

Boarp or ELecrions IN THE Crry or New York,

Defendants.

—_

No. 71-C-1621

Sreven Ersner, on his behalf and on behalf of all

others similarly situated,

Plaintiffs,

- —against—

RockeFeLLer, Governor of The State of New York,

Joun P. Lomenzo, Secretary of State of The State of

New York, Wiiu14m D. Meissner and Marvin D. Cuais-

TENFELD, Commissioner of Elections for Nassau County,

: Defendants.

i —

Opinion of Chief Judge Mishler

Plaintiffs in these class actions represent voters who

were qualified to register to vote and to enroll in a political

party on or before November 2, 1971, the date of the last

general election. They failed to do so.

In December, 1971 each named plaintiff appeared at an

office of the Board of Elections in the county in which he

or she resided. Each registered, demanded and received an

enrollment blank. Each completed the enrollment blank in

which he or she declared that he or she was in general

sympathy with the principles of the political party of

choice, and intended to support the nominees of that party

in the general election. The completed enrollment blanks

were then deposited in a locked enrollment box and kept

sealed as mandated under Section 186 of the Election Law

of the State of New York. They will remain sealed until

the Tuesday following the next general election on Noven-

ber 7, 1972.

The actions, brought pursuant to 42 U.S.C. §1983, claim

that Section 186 of the Election Law of the State of New

York is a violation of the First, Fourteenth and Twenty-

*The Court consolidated the actions as provided in Rule 42A.

* Plaintiff Eisner has withdrawn his complaint and prayer for

relief with respect to §117, dealing with absentee ballots, inasmuch

as litigation is pending on that issue elsewhere.

§ 186. Opening of enrollment box and completion of enrollment

All enrollment blanks contained in the enrollment box shall re

main in such box, and the box shall not be opened nor shall any

of the blanks be removed therefrom until the Tuesday following

the day of general election in that year. Such box shall then be

opened by the board of elections and the blanks contained therein

shall be removed therefrom by the board, and the names of the

party designated by each voter under such declaration, provided

such party continues to be a partys as defined in this law shall be

entered by the board, opposite the name of such voter in the appro-

priate column of the two copies of the register containing enroll-

ment numbers for the election district in which such voter resides.

The enrollment blanks marked by voters, who enrolled before a

Opinion of Chief Judge Mishler

Sixth Amendments to the Constitution and the Voting

Rights Act of 1965 (42 U.S.C. §1973) and the 1970 Amend-

ments thereto (U.S.C. $1973 aa).

Plaintiffs seek a declaratory judgment declaring Section

186-of the Election Law of the State of New York un-

constitutional.’

_ The June primary in the State of New York will be a

contest for party nominations for State Senator, State

Assemblyman, United States Congressmen, United States.

Senators and delegates to the national nominating conven-

tions of the major political parties. The delegates to the

national nominating conventions will in turn choose can-

didates of the major political parties for President and

Vice-President.

New York has a closed primary system in which only

duly enrolled members of a party may vote in that party’s

primary election. The enrollment box system provided in

central or veterans’ absentee registration board shall at the same

time be opened by the board of elections and the names of the

designated by each such voter shall likewise be entered by

Ss teard, provided such party continues to be a party, as defined

in this law. If cross marks are found in more than one of the

direles or if no cross marks are found in any of the circles of any

q@roliment blank, the voter who used the enrollment blank thus

deficient shall not be deemed to be enrolled, and words indicating

the reason why such enrollment is not transcribed shall be entered

pposite the name of such voter in such copies of the register in

}column reserved for the entry of party enrollments. When all

‘the enrollments shali be transcribed from the blanks to the

» the board of elections shall make a certificate upon the

printed in such regi to the effect that it has correct

aad properly transcri the enrollment indicated on the b

of each “goed to such — 2 hoc aay omg shall be complete

succeeding y of February in each year. L.1949,

. amended 1L.1955, c.41, eff. March 7, 1955.

a Plaintiffs originally moved for the convening of a three J

, and thereafter withdrew the motion for a three Judge Court.

Opinion of Chief Judge Mishler

the statutory scheme of the New York Election Law

effectively deprives plaintiffs and the members of their

class who are otherwise qualified by reasons of age, citizen-

ship and residence in the State of New York of the privilege

of voting in the June, 197 2 primary, running for party

office,* or signing designating petitions for candidates wish-

ing to enter the primary.

L Equvat PrRorectTion

The right to vote, whether denominated the right of

suffrage or simply “the franchise,” has long been held by

the Supreme Court to be one of the basic rights of citizen-

ship. As the Court recognized in Reynolds v. Sims, 377 US.

538, 84 S.Ct. 1362 (1964): “Almost a century ago, in

Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed.

220, the Court referred to ‘the political franchise of voting’

as ‘a fundamental political right, because preservative of

all rights.’ 118 U.S., at 370, 6 S.Ct., at 1071.” (377 U.S. at

561-62, 84 S.Ct. at 1981).

The scrutiny to which any infringement of the right to

vote is subject under the Equal Protection Clause of the

Fourteenth Amendment has become increasingly severe in

the past decade. In Reynolds v. Sims, supra, the Court was

faced with a challenge to the apportionment of the two

houses of the Alabama Legislature. The challenge was

founded on the alleged over-representation of rural dis-

tricts, and a resulting violation of equal protection

guarantees. The Court there said:

Undoubtedly, the right of\suffrage is a fundamental

matter in a free and democratic society. Especially

since the right to exercise the franchise in & free and

¢ Party officials are also elected in the primary election.

Opinion of Chief Judge Mishler

- unimpaired manner is preservative of other basic civil

and political rights, any alleged infringement of the

right of citizens to vote must be carefully and meticu-

lously scrutinized. (377 U.S. at 561-62, 84 S.Ct. at

~ 1381) [Emphasis supplied.)

In Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775 (1965),

the Court dealt with a challenge to a Texas constitutional

provision prohibiting any member of the armed forces

of the United States who moved to Texas during the course

of his military duty from ever voting in any election in that

state as long as he remained a member of the armed forces.

After invalidating that provision on equal protection

_ the Court continued :

-. We deal here with matters close to the core of our

-~ constitutional system. ‘The right . . . to choose,’ United

_ States v. Classic, 313 U.S. 299, 314, 61 S.Ct. 1031, 1037,

~ §5 L.Ed. 1368, that this Court has been so zealous to

~. protect, means, at the least, that States may not

cause of some remote administrative benefit to the

State. (380 U.S. at 96, 855 at 780) [Emphasis sup-

plied. ]

in Harper v. Virginia State Board of Elections, 383 U.S.

66s, 86 S.Ct. 1079 (1966), the Court, after characterizing

the right to vote as a niccomemupeee right, went on to advise

that

a We have long been mindful that where fundamental

i rights and liberties are asserted under, the Equal

- Protection Clause, classifications which might invade

: or restrain them must be closely scrutinized and care-

Opinion of Chief Judge Mishler

fully confined. [Citations omitted.] ‘These principles

apply here. (383 U.S. at 670, 86 S.Ct. at 1083) [Em-

phasis supplied. ]

As can easily be seen, the increasing rigor to which state

statutory and constitutional provisions were subjected in

Reynolds, Carrington and Harper, was at variance with

the traditional equal protection test. That test, as enun-

ciated in the classic definition givem by the Court in Mc-

Gowan vy. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101

(1961), is much less stringent. The Court in McGowan

defined the traditional test as follows:

Although no precise formula has been developed, the

Court has held that the Fourteenth Amendment permits

the States a wide scope of discretion in enacting laws

which affect some groups of citizens differently than

others. The constitutional safeguard is offended only

if the classification rests on grounds wholly irrelevant

to the achievement of the State’s objective. State

Legislatures are presumed to have acted within their

constitutional power despite the fact that, in practice,

their laws result in some inequality. A statutory dis-

crimination will not be set aside if any state of facts

reasonably may be conceived to justify tt. (366 US. at

425-26, 81 S.Ct. at 1105) [Emphasis supplied.]

At the October Term of 1968, the Supreme Court con-

tinued to enlarge the divergence between the treatment to

be accorded most state statutes when attacked as violating

the Equal Protection Clause and the treatment to be

accorded those statutes specifically affecting the right to

vote. In Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5 (1968),

the Court was presented with a challenge to a set of Ohio

Opinion of Chief Judge Mishler

statutes which made it extremely difficult for any party

other than the Democratic or Republican Party to achieve

the status of an established party and to have its name

and its candidates placed on the ballot in the general

election. The statutory scheme was attacked not only as a

denial of the equal protection of the laws, but also as in

violation of the First Amendment freedom of association.

In holding the statutes involved unconstitutional, the Court

rested its decision both on the infraction of the Equal Pro-

tection Clause and on the infringement of First Amend-

ment rights. The test applied by the Court, however, was

not whether any merely rational basis could be imagined to

justify the enactment of the statutes, but whether or not

there was any compelling state interest to justify their

existence.

_ The Court drew support for the use of this test from a

case which had not involved the right to vote, but was

solely concerned with First Amendment rights of associa-

tion. The Court in Williams stated:

In determining whether the State has power to place

such unequal burdens on minority groups where rights

of this kind are at stake, the decisions of this Court

have consistently held that ‘only a compelling State

interest in the regulation of a subject within the State’s

constitutional power to regulate can justify limiting

First Amendment freedoms.’ NAACP v. Button, 371

U.S. 415, at 438, 83 S.Ct. 328, at 341 (1963). (393 U.S.

at 31, 89 S.Ct. at 11).

_ The Court concluded by saying that “The State has here

failed to show any ‘compelling interest’ which justifies

imposing such heavy burdens on the right to vote and to

tszociate,” and “. . . the totality of the Ohio restrictive

Opinion of Chief Judge Mishler

laws taken as a whole imposes a burden on voting and

associational rights which we hold is an invidious dis-

crimination, in violation of the Equal Protection Clause.”

(393 U.S. at 31 and 34, 89 S.Ct. at 11 and 12).

The opinion in Williams v. Rhodes, supra, left one in

some doubt as to whether the compelling state interest test —

would be applied to cases involving only voting rights and

having no First Amendment overtones. Later in that same

Term, however, the Court decided Kramer v. Union Free

School District, 395 U.S. 621, 89 S.Ct. 1886 (1969), and

did much in the Kramer opinion to clarify its view of the

appropriate test to be used when statutes involving the

right to vote are challenged on equal protection grounds.

In Kramer, the challenged statute restricted the vote in

local school board elections to those otherwise qualified

voters who were either parents of children attending schools

within the local public school system or were owners or

lessees of real property within the school district.’ The

plaintiff, a registered voter, resided with his parents and

was thus prevented from voting in the local school elections.

No First Amendment issues were involved in the case. The

Court held that the compelling state interest test applied

to the voting restrictions in issue, and, finding no such

interest, voided the statute.

In arriving at its decision, the Court in Kramer made

distinction between two types of restrictions on the

franchise and held that the compelling state interest test

would only be applied in cases involving statutes constitut

ing the latter type of restriction. The Court said:

At the outset, it is important to note. what is not at

issue in this case. The requirements of §2012 that

® New York Education Law §2012 (McKinney 1969).

Eve a oe, see

CARRS

Tao

Binoy re neniien aqui ete miatr oe, tor

Opinion of Chief Judge Mishler

school district voters must (1) be citizens of the

United States, (2) be bona fide residents of the school

district, and (3) be at least 21 years of age, are not

challenged.

Appellant agrees that the States have the power to

impose reasonable citizenship, age, and residency

requirements on the availability of the ballot. Cf.

Carrington v. Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 777,

13 L.Ed.2d 675 (1965); Pope v. Williams, 193 U.S.

621, 24 S.Ct. 573, 48 L.Ed. 817 (1904).

The sole issue in this case is whether the additional

requirements of §2012—requirements which prohibit

some district residents who are otherwise qualified by

age and citizenship from participating in district

meetings and school board elections—violate the

Fourteenth Amendment’s command that no state shall

_ deny persons equal protection of the laws... . Statutes

granting the franchise to residents on a selective basis

_ always pose the danger of denying some citizens any

effective voice in the governmental affairs which sub-

stantially affect their lives. [Footnote omitted.]

Therefore, if a challenged state statute grants the

right to vote to some bona fide residents of requisite

age and citizenship and denies the franchise to others,

the Court must determine whether the exclusions are

necessary to promote a compelling state interest. (395

U.S. at 625-27, 89 S.Ct. 1888-90). [Emphasis in

_ original.]

’s opinion in Kramer that

a ce @ state has imposed basic voting requirements of

Mizenship, age, and residency, all further requirements

ich by their nature must be viewed as restrictions)

Opinion of Chief Judge Mishler

must of necessity be supported by a compelling state

interest. This in effect places the burden of proof on the

state, the reverse of the situation where the rational basis

test is applied. The basic requirements of citizenship, age

and residency, are to be tested, when they are challenged, by

the traditional, “rational relation” test, used in garden-

variety equal protection cases.

Kramer provides us with a relatively simple guide to

the test to be used in examining any state statute dealing

with voting rights when that statute is challenged as in

violation of the Equal Protection Clause. The explicit

theory propounded in Kramer serves to rationalize the

results in the prior voting rights cases. The requirement

of rural residency in order to have a fully weighted vote

in Reynolds, the requirement of being either a civilian or

a resident of Texas prior to entering military service in

order to vote in Carrington, and the requirement of a vot-

ing fee or poll tax in Harper, are all “additional” require-

ments within the meaning of that term as used in Kramer.

See also City of Phoenia v. Kolodziejski, 399 U.S. 204, 9

S.Ct. 1990 (1970); Cipriano v. City of Houma, 395 US.

701, 89 S.Ct. 1897 (1969).

One of the questions presented by the instant case is

whether or not the compelling state interest test is appli-

cable in an examination of the statute herein attacked. In

order to decide this question this court must first decide

whether the right to vote protected in Kramer, Williams,

Carrington, Harper, and Reynolds, includes the right to

vote in a primary election. The defendants here claim that

it is not so included, arguing that a primary is an internal

party matter, and further, that a party is a purely private

organization.

Opinion of Chief Judge Mishler

This view of primary elections, and, indeed, of the

q@tire process of selecting candidates to be voted for at

general elections, is belied by case law. It is true that

primary elections and party affairs in general were once so

regarded. In Newberry v. United States, 256 U.S. 232, 41

S.Ct. 469 (1921), the Supreme Court was faced with a

challenge to the constitutionality of what was then the

Federal Corrupt Practices Act. (Section 8 of the Act as

then in force.) (Section 8, Act of June 25, 1910, c. 392, 36

Stat. 822-24, as amended by Act of August 19, 1911, ¢. 33,

Section 2, 37 Stat. 25-29.)

“The plaintiffs-in-error in Newberry, had been found

guilty in the lower court of violating Section 8, in that,

among other things, they had used or expended more than

the allowed amount in causing the named plaintiff-in-error

to receive the Republican nomination for Senator in the

State of Michigan at the primary election held on August

%, 1918. The Court found that Congress exceeded the

power granted in Article I, Section 4, of the Constitution,

fo determine “the times, places and manner of holding

dections for Senators and Representatives... .” since the

word “elections” did not include primaries. The Court

The Seventeenth Amendment, which directs that

Senators be chosen by the people, neither announced

nor requires a néw meaning of election, and the word

now has the same general significance as it did when

the Constitution came into existence—final choice of

an officer. by the duly qualified electors. Hawke v.

Smith, 253 U.S. 221, 40 S.Ct. 495, 64 L.Ed. 871.

Primaries were then unknown. Moreover, they are in

no sense elections for an office, but merely methods by

ENS RGR Ric fe a gay 8

wee

Opinion of Chief Judge Mishler.

which party adherents agree upon candidates whom

they intend to offer and support for ultimate choice

by all qualified electors. General provisions touching

elections in Constitutions or statutes are not neces-

sarily applicable to primaries—the two things are

radically different. (256 U.S. at 250, 415 at 472

(1921).)*

Twenty years later the Court reversed itself. In United

States v. Classic, 313 U.S. 299, 61 S.Ct. 1031 (1941),

Louisiana election officials had been indicted under what

are now Sections 241 and 242 of Title 18 U.S.C. They were

accused of falsifying ballots at a primary election involv-

ing the choice of federal candidates. A challenge to the

indictment was made and sustained in the lower court on

the ground that Congress had no power to regulate primary

elections. The Supreme Court reversed, distinguishing

Newberry on the grounds previously adverted to, and con-

cluding that:

Where the state law has made the primary an integral

part of the procedure of choice, or where in fact the

primary effectively controls the choice, the right of

the elector to have his ballot counted at the primary,

is likewise included in the right protected by Article I,

Section 2. And this right of participation is protected

just as is the right to vote at the election, where the

primary is by law made an integral part of the election

machinery, whether the voter exercises his right ina

Mr. Justice McKenna concurred in the opinion, as written,

only on the ground that the statute under consideration had been

enacted prior to the Seventeenth Amendment. He specifically re

served the question of the power of Congress under that Amend-

ment. The other four Justices would have upheld the power of

Congress to regulate primary elections.

Opinion of Chief Judge Mishler

party primary which invariably, sometimes or never

determines the ultimate choice of the representative.”

(313 U.S. at 318, 61 S.Ct. at 1039). [Emphasis

supplied. ]

. Finally, in Smith v. Allwright, 321 U.S. 469, 64 S.Ct.

157 (1944), the Supreme Court found itself able to say

that “It may now be taken as a postulate that the right to

yote in such a primary for the nomination of candidates

without discrimination by the State, like the right to vote

ina general election, is a right secured by the Constitu-

tion.” (321 U.S. at 661-62, 64 S.Ct. at 764).

The right to vote in primary elections is indeed part

of the “right to vote,” incursions into which are to be

judged according to the classifications and standards set

Op in Kramer. It is clear that the right to vote protected

e Article I, Section 2 of the Federal Constitution in-

dndes voting in all elections, both primary and general,

dealing with the choice of federal legislators.

+ However, the provisions of the Equal Protection Clause

0 the Fourteenth Amendment apply not only to a state’s

discrimination in the allocation of federal rights, but also

fo a state’s discrimination in the allocation of any other

fights which the state may see fit to create. In this regard,

Bis to be noted that the State of New York has included

the right to vote in primary elections in the rights pro-

fected by Article I, Section 1 of the New. York State Con-

itution. As construed by the Court of Appeals in the case

@f In Re Terry, 203 N.Y. 293, 96 N.E. 931 (1911), Article I,

Section 1 of the State Constitution secures to the people

‘the right to participate in the nominating process:

Opinion of Chief Judge Mishler

The franchise of which no “member of this state” may

be deprived is not only the right of citizens who pos-

sess the constitutional qualifications to vote for pub-

lic officers at general and special elections, but it also

includes the right to participate in the several meth-

ods established by law for the selection of candidates

to be voted for. (203 N.Y. at 295, 96 N.E. at 932).

Defendants protest any reliance upon Classic, supra,

or Allwright, supra, as support for the proposition that

primary elections are to be considered in the same light as

general elections when construing the bounds of the right

to vote. They argue that the fact that all of these cases

arose in what were effectively single party states vitiate

their applicability to primary elections in states which do

not have single party systems. In response to this it

must be said that the Supreme Court was well aware of

the actual nature of primary elections in Texas and Loui- .

siana, and it specifically rejected any notion that its de-

cisions were to be applied solely in those situations where

a primary was actually a general election. As stated pre-

viously, the Court in Classic, supra, would have its hold-

ing apply either “[w]here the state law has made the

primary an integral part of the procedure of choice, or

where in fact the primary effectively controls the

choice. . . .” [Emphasis supplied.) The Court further

stated that the right to vote in a primary is protected

“whether the voter exercises his right in a party primary

which invariably, sometimes or never determines the ul-

timate choice of the representative.” (313 U.S. at 318, 61

S.Ct. at 1039).

That primary elections are “an integral part of the

procedure of choice” in the State of New York is evident

Opinion of Chief Judge Mishler

from the extensive statutory provisions regulating such

¢lections. Primaries in New York are conducted by Public

Officials and financed from public funds. Their conduct,

including all means by which candidates are placed on the

primary ballot, is regulated by the State. Although the

primary elections in New York State as a whole cannot

be said to “effectively control the choice .. .”, the fact is

that they do effectively control the choice in many areas

of New York State which are for all intents and purposes

ne party areas. However, it is unnecessary for this Court

to rely on the second leg of the Classic statement quoted

im the paragraph above, as it is evident that primaries are

am integral part of the procedure of choice in New York

» Applying the standards of K ramer, then, it is clear

that the voting requirement embodied in §186 of the New

York Election Law is a requirement neither of age, nor

@f citizenship, nor of residence and is thus an additional

fequirement which is subject to examination under the

@ompelling state interest test. Section 186 in effect re-

quires voters who have met the basic state requirements

@f age, citizenship, and residence, to have enrolled in a

party prior to the last general election preceding

e primary in which they desire to vote, in order to vote

in that primary.

‘The state interest propounded by the defendants in

ipport of the enrollment box system is New York’s in-

wrest in insuring the integrity of its political parties and

i’ preventing inter-party raiding. Defendants argue that,

fieent the enrollment box provisions of $186, voters not

B basic sympathy with the principles of a specific party

wuld find it easy to organize and enroll in that party

» numbers before a primary so as to be able to

Opinion of Chief Judge Mishler

vote in that party’s primary and subvert its basic in-

terests.

It is true that such raiding is possible. See Matter of

Zuckman v. Donohue, 191 Misc. 399, 79 N.Y.8.2d 169 (Sup.

Ct.), aff'd 274 A.D. 216, 80 N.Y.S.2d 698 (3rd Dept.) aff'd

without opinion 298 N.Y. 627, 81 N.E.2d 371, 86 N.Y.S.

2d —— (1948); Matter of Werbel v. Gernstein, 191 Misc.

274, 78 N.Y.S.2d 440 (Sup. Ct. 1948); Matter of Newkirk,

144 Mise. 765, 259 N.Y.S. 434 (Sup. Ct. 1931)."

However, where a law is subject to thé compelling state

interest test it “will be upheld only if it is necessary, and

not merely rationally related, to the accomplishment of a

permissible state policy.” McLaughlin ‘v. Florida, 379

U.S. 184, 196, 85 S.Ct. 283, 290 (1964). Assuming, ar-

guendo, that the protection of party integrity is a “per-

missible state policy,” no showing has been made that the

enrollment box system is necessary to its accomplishment.

The state has other, less drastic, means to accomplish

its ends if it wishes to protect minority parties and small

geographic subdivisions of major parties. Section 332 of

the New York Election Law provides that the party en-

rollment of a voter may be challenged by any fellow party

member and cancelled by a Justice of the State Supreme

Court upon the determination of the Chairman of the

County Committee of the party in the county in which

t Bach of these cases involved the attempted takeover of a party

organization by adherents of another pore. In each case, they

almost successful. Nevertheless, it is to be noted that the

gen

able to “raid” the other party. All of these cases arose when the

enrollments of the raiders were challenged by bona fide party

Opinion of Chief Judge Mishler

the challenged voter is enrolled that the voter is not in

sympathy with the principles of the party.

That such procedure is highly effective, even on ex-

tremely short notice before a primary, is attested to by

the results in the three state court cases cited above, Zuck-

man, Werbel, and Newkirk. Each of those cases involved

challenges to the enrollment of party members. Each case

involved an attempted takeover of one party by members

of another. Challenges in each of the three cases were

successful.

Such a proceeding, then, is sufficient to protect the per-

missible interests of the state. The challenge procedure

may involve the expenditure of more time and effort on

the part of state officials, but New York may not “deprive

a class of individuals of the vote because of some re-

mote administrative benefit to the State.” Carrington v.

Rash, supra, 380 U.S. at 96, 85 S.Ct. at 780.

_. The explicit and comprehensive criminal sanctions for

various violations of the elective franchise provided for

in Article 16 of the Election Law, §420 et seq., further

buttress the state’s ability to protect: the integrity of its

political parties and election procedures.

. Defendants also argue that plaintiffs have waived their

‘constitutional right to vote in the primaries, or are

‘estopped from asserting it, by reasom of their failure to

@nroll prior to the last general election. In dealing with

fundamental constitutional rights like the right to vote,

“the Supreme Court has said: “Waivers of constitutional

‘Tights not only must be voluntary but must be knowing,

“intelligent acts done with sufficient awareness of the rele-

‘Yant circumstances and likely consequences.” (Footnote

(on itted). Brady v. United States, 397 U.S. 742, at 748,

4 D'S.Ct. 1463, at 1469 (1970). See also Brookhart v. Janis,

Opinion of Chief Judge Mishler

384 U.S. 1, 4, 86 S.Ct. 1245 (1966); Johnson v. Zerbst,

304 U.S. 458, 464, 58 S.Ct. 1019, 1023 (1938).*

Bearing in mind the principles of these cases and the

importance of the rights in question, this Court cannot

say: that there has been any waiver in this case. Plaintiffs

remain free to assert their rights in court, and are not

barred from doing so by any asserted waiver or estoppel.

Il. Fist AMENDMENT

The right to vote is inextricably tied to the right of

free expression and the related right of free association.

The right to vote is meaningless unless accompanied by

the opportunity to exchange ideas and opinions.

Plaintiffs further contend that the “waiting period” im-

posed by New York’s statutory scheme between their ini-

tial attempts to enroll in a political party and their final

acceptance as party members violates their right to freely

associate with the party of their choice for the advance-

ment of their political aims and ideals. As such, they

maintain, the enrollment box system violates the First

Amendment.

The Court agrees. The system is an unconstitutional

infringement by the state of rights guaranteed by the

First and Fourteenth Amendments to the Constitution.

Absent a compelling state interest, no state may impose

onerous burdens on the right of individuals to associate

. these principles were announced in criminal cases,

it can be said that the rights of voting, free expression, and

free association are any less damental and sacred than the

uty © ta caekieed fectoea ate These rights ought not

that a right not need burdensome administrative renewal when

the critical nature of a current situation sparks a citizen to

Opinion of Chief Judge Mishler

for the advancement of political beliefs and the right of

qualified voters to cast their votes effectively. Williams

v. Rhodes, 393 U.S. 23, 89 S.Ct. 5 (1968).

The effect of New York’s enrollment laws is to post-

pone plaintiffs’ right to associate with members of the

political party of their choice and to participate in the

affairs of that party. They are denied the right to vote

in primary elections, to sign designating petitions, to

become regular designees of the party for public office, or

to become candidates for party office, until the enrollment

box is unlocked and they are. enrolled. The citizen who

moves into another county after a general election, or

who switches party loyalty or who only later decides to

take an interest in party affairs is denied the right to

associate with others of the same political views for an

unreasonable length of time.

~ Several formulations of the test that alleged infringe-

ments of First Amendment rights must satisfy to uphold

their constitutionality have been advocated of used by the

courts. These include “balancing” of interests, the abso-

Inte standard, “less drastic means,” and the “compelling

interest” test.

~ “Balancing” would involve weighing the governmental

interest in the purpose of the statute in question against

the First Amendment rights alleged to be infringed. In

United States v. Robel, 389 U.S. 258, 88 S.Ct. 419 (1967),

We are concerned solely with determining whether

the statute before us has exceeded the bounds imposed

3 by the Constitution when First Amendment rights are

hid

Opinion of Chief Judge Mishler

at stake. The task of writing legislation which will

stay within those bounds has been committed to Con-

gress. Our decision today simply recognizes that,

when legitimate legislative concerns are expressed in

a statute which imposes a substantial burden on pro-

tected First Amendment activities, Congress must

achieve its goal by means which have a “less drastic”

impact on the continued vitality of First Amendment

- freedoms.” Shelton v. Tucker, supra.” 88 S.Ct. at

425-26, 389 U.S. 267-69, and see also fn. 20.

Nor is it certain that Robel, supra, Boorda v. Subversive

Activities Control Board, 421 F.2d 1142 (D.C. Cir. 1969),

cert. den. 397 U.S. 1042 (1970), and Williams v. Rhodes,

supra (concurring opinion of Mr. Justice Douglas) have

held that direct restraints on free association are abso-

lutely invalid. It appears that Robel was applying the

“less drastic means” test of Shelton v. Tucker, 364 US.

479, 81 S.Ct. 247 (1960). In overturning a state statute

requiring teachers to disclose their every associational tie,

the Shelton court stated:

In a series of decisions this Court has held that,

even though the governmental purpose be legitimate

and substantial, that purpose cannot be pursued by

means that broadly stifle fundamental personal liber-

ties when the end can be more narrowly achieved."

The breadth of legislative abridgment must be viewed

in the light of less drastic means for achieving the

same basic purpose. 364 U.S. 479, 488, 81 S.Ct. 247,

252. (emphasis supplied, footnote omitted).

Another line of cases has settled upon the “compelling

state interest” test whenever it is alleged that state action

Opinion of Chief Judge Mishler

infringes First Amendment rights protected through the

Due Process Clause of the Fourteenth Amendment. In

“NAACP v. Alabama, a state statute requiring the NAACP

to produce its records including the names of its members

was held unconstitutional. In determining whether Ala-

‘bama had demonstrated an interest in obtaining the in-

formation sufficient to justify the deterrent effect which

the disclosures might have on associational rights, the

Court said, “Such a ‘. . . subordinating interest of the

State must be compelling,’ Sweezy v. New Hampshire, 354

U.S. 234, 265, 77 S.Ct. 1203, 1219, 1 L.Ed.2d 1311 (con-

curring opinion).” 357 U.S. 449, 463, 78 S.Ct. 1163, 1172

(1958).

_ This development was continued in Bates v. City of

Little Rock, 361 U.S. 516, 80 S.Ct. 412 (1960), and NAACP

‘y. Button, 371 U.S. 415, 83 S.Ct. 328 (1963), and culmi-

nated in Williams v. Rhodes, supra. In the latter case,

Ohio election laws were challenged that made it very dif-

ficult for a new political party to be placed on the state

‘ballot to choose electors pledged to particular candidates

for President and Vice President. In language that aptly

describes the present case also, Justice Douglas stated:

Cumbersome election machinery can effectively suf-

focate the right of assocation, the promotion of po-

litical ideas and programs of political action, and the

right to vote. The totality of Ohio’s requirements has

those effects. 393 U.S. 23, 39, 89 S.Ct. 5, 15 (concurring

s opinion).

* Speaking for the Court, Mr. Justice Black said:

> In the present situation the state laws place burdens

- on two different, although overlapping, kinds of right

Opinion of Chief Judge Mishler

—the right of individuals to associate for the advance-

ment of political beliefs, and the right of qualified

voters, regardless of their political persuasion, to cast

their votes effectively. Both of these rights, of course,

rank high among our most precious freedoms. We

have repeatedly held that freedom of association is

protected by the First Amendment.* And of course this

freedom protected against federal encroachment by

the First Amendment is entitled under the Fourteenth

Amendment to the same protection from infringe-

ment by the States.’ 393 U.S. 23, 30-31, 89 S.Ct. 5, 10

(footnotes omitted).

In determining whether Ohio had the power to place sub-

stantially unequal burdens on both the right to vote and

the right to associate, the Court reaffirmed that “only a

compelling state interest in the regulation of a subject

within the State’s constitutional power to regulate can

justify limiting First Amendment freedoms.” (citing

NAACP vy. Alabama, supra).

Thus, First Amendment freedoms are within the state’s

power to limit and regulate only when the state has a com-

pelling state interest that is served by that regulation.

Furthermore, there must be a “substantially relevant con-

nection” between the state’s compelling interest and the

means that are chosen to effect the regulation. Shelton v.

* Although Justice Harlan specifically limited his concurrence

to the proposition that Ohio’s statutory scheme violated the basic

t of political association assured by the First Amendment

which is protected against state infbingement under the Due

Process Clause of the Fourteenth Amendment, it now appears that

the Supreme Court has fixed upon the compelling state interest

test to test alleged infringements of the right to vote and of First

prom a rights on either Due Process or Equal Protection

groun

Opinion of Chief Judge Mishler

Tucker, supra, 364 U.S. 449, 485, 81 S.Ct. 247, 250. This is

essentially saying that the State must utilize the least dras-

tic means available to effect its legitimate interest. If the

state fails to prove either that its interest is compelling or

that the means chosen are the least drastic means possible,

the regulation must fall as an overbroad infringement of

the First Amendment right.

As outlined above, the Court finds that the state has

failed to prove that it has a compelling interest in the

values that the enrollment box system was designed to

protect, and that even if it had such a compelling state

interest, it has not utilized the least drastic means. The

challenge procedures and the criminal sanctions outlined in

the Election Law are certainly less drastic, and there is no

teason to believe that they would not protect whatever

interest the State of New York claims to have in the main-

tenance of “party integrity.”

Il. Tse Vorine Rieuts Act or 1965

AND THE 1970 AMENDMENTS

- Section 1978aa-1 of the Voting Rights Act of 1965, (Pub.

L. 89-110, 79 Stat. 437, 42 U.S.C.A. §1973, and the Amend-

ments of 1970, Pub. L. 89-110, Title II, §201, as added Pub.

L, 91-285, $6, 84 Stat. 315, 42 U.S.C.A. §1973aa) provides:

_ qualified to vote in any election for President and Vice

___ President shall be denied the right to vote for electors

ef for President and Vice President, or for President and

- Vice President, in such election because of the failure

of such citizen to comply with any durational residency

requirement of such State or political subdivision; ....

Opinion of Chief Judge Mishler

(d) For the purposes of this section, each State

shall provide by law for the registration or other means

of qualification of all duly qualified residents of such

State who apply, not later than thirty days immediately

_ prior to any presidential election, for registration or

qualification to vote for the choice of electors for Pres-

ident and Vice President or for President or Vice

President in such election; ... .”

Defendant’s argument that the Voting Rights Act has

no application to “primary voting for presidential nom-

inating conventions,” is answered in the text of the Act.”

42 U.S.C. §19731(¢)(1) provides:

(c)(1) The terms “vote” or “voting” shall include

all action necessary to make a vote effective in any

1°'The Twenty-sixth Amendment to the Constitution has also

brought about a change in voter qualifications by lowering the

voting age in all elections to 18. It does not appear that New

Knee ir sr tren accompa provisions to put these changes

into effect, but compliance with the age requirement and the

per sae Serves (for the = presidential elections) is

eviden' proceeding y means of instructions from the Secretary

of State to the election boards.

1 The legislative history shows that the Act was intended to

apply to primary elections and particularly elections of delegates

0 ee ni House Report No. 439, in explanation of the

ay Section of the Voting Rights Act [42 U.8.C. §19731(c)

nai teisieiiaaes Cuiaities eleva tet Ynuie version

section 14(¢) (1). Id. at 2682. a

Opinion of Chief Judge Mishler

primary, special, or general election, including, but not

limited to, registration, listing pursuant to this sub-

chapter, or other action required by law prerequisite

to voting, casting a ballot, and having such ballot .

counted properly and included in the appropriate

totals of votes cast with respect to candidates for

public or party office and propositions for which votes

are received in an election. (Emphasis supplied).

As stated earlier, delegates to the national nominating

conventions will be elected in New York’s June primary.

These delegates are the direct link between the intersts and

~ opinions of the voters in the primary and the national can-

- didates and platform selected at the national nominating

conventions. In order for a voter to effectively participate

in the selection process, he must be able to cast his vote in

the primary also. It seems intuitively obvious to even the

most casual observer that to deny or encumber the right to

participate in primary elections is to restrict the right to

participate in an integral and essential part of the elec-

toral process.

It also needs little explanation that the waiting period

- mandated by the enrollment box system before an enroll-

ment can become effective is a durational residency re-

quirement." This residency requirement may vary in

duration from one to eleven months, depending on the

_ time of year the enrollment blank is filled out and put in

_ the box (registration and signing of enrollment blanks are

_ ¢losed during the thirty days before and after the general

_ @lection). It is a durational residency requirement imposed

~ _** It is noted that absentee balloting is not available in pri

©. electi primary

Opinion of Chief Judge Mishler

in addition to the ninety days residence required to vote

in a general election.”

The seven months’ additional residence required of those

voters who would be otherwise qualified to vote in the June

primary constitutes a durational residence requirement as

a precondition to voting for President and Vice President

in excess of the thirty days allowed by the Voting Rights

Act. As thus applied, the law is invalid. Const. Art. VI.

It might be noted that the constitutionality of the 1970

Amendments was challenged in Oregon v. Mitchell, 400

US. 112, 91 8.Ct. 260 (1970). A divided (5-4) Court found

that the 18-year-old vote provisions of the Amendments are

constitutional and enforceable insofar as they pertain to

federal elections and unconstitutional and unenforceable

insofar as they pertain to state and local elections. The

literacy test provisions were unanimously upheld, and the

Court, by a vote of 8-1, held that Congress could set resi-

dency requirements and provide for absentee balloting in

elections for presidential and vice presidential electors.

However, it is clear that the Supreme Court did not pass

on the application of the Amendments, by the literal terms

of the Act, to a primary election at which the delegates to

the national nominating conventions would be elected.

This Court must assume the constitutionality of the Act

and its amendments until it is decided otherwise.

48 Section 150 provides in part that

and has bee, daly

Tere arcade dct of Celie Pos

footnote 10, supra.

Opinion of Chief Judge Mishler

IV. Summary or Prior Proceepines

The plaintiff initially moved for the convening of a three-

judge court pursuant to 28 U.S.C. $2281, et seq. The de-

fendants moved to dismiss the complaints pursuant to

Rules 12(b) and 12(c) of the Rules of Civil Procedure. As

previously noted, the plaintiffs withdrew the application to

convene a three-judge court.

V. Conc.usion

Defendants’ motion to dismiss pursuant to Rules 12(b)

and 12(c) is denied. Judgment is granted in favor of the

plaintiffs and against the defendants declaring §186 of the

Election Law of the State of New York unconstitutional.

The Clerk is ordered to enter judgment accordingly.

Jacosp MISHLER

U.S.D.J.

Judgment of the District Court

UNITED STATES DISTRICT COURT

Eastern Distaict or New York

lem

[CAPTIONS OMITTED

in 71C 1573 and 71C 1621]

These actions having been consolidated by the court and

the court having by memorandum of decision dated this

day determined that §186 of the Election Law of the State

of New York contravenes the First and Fourteenth Amend-

ments to the Constitution and is violative of the Voting

Rights Act of 1965.as amended, insofar as it pertains to the

June 1972 primary to be held in the State of New York,

it is ‘

ORDERED, ADJUDGED and pecreEep that plaintiffs have judg.

ment against the defendants declaring §186 of the Election

Law of the State of New York unconstitutional and violative

of the Voting Rights Act of 1965 as amended. __

Dated at Brooklyn, New York, this 10th day of February,

1972,

Lewis Once.

page a Clerk of the Court

Approved and Ordered that

it be entered ‘

Jacos MISHLER

U.8.D.J.

Decision and Order of District Court Denying

Motions for Stay and Reargument

UNITED STATES DISTRICT COURT

Eastern District or New Yorx

No. 71-C-1573

Pepro J. Rosario, et al.,

—against—

Netson Rooxers.xer, etc., et al.,

Defendants.

—— =

No. 71-C-1621

Sreven Eisner, etc.,

Plaintiffs,

—against—

Netson RockEFELEr, etc., et al.,

Def endants.

——>—

Memoranpum or Decision AND ORDER

February 17, 1972

_ The defendants, by order to show cause, move to reargue

the decision of this court and the order entered thereon

made and dated February 10, 1972 on the grounds of (1)

lack of jurisdiction of a single district judge to declare

Decision and Order of the District Court

§186 unconstitutional, and (2) abuse of discretion in grant-

ing declaratory judgment.

The court did not overlook the issue now raised. The

decision made reference to the withdrawal of the motion

for the convening of a three judge district court and noted

that plaintiffs had withdrawn their application for that

relief. Because of what had transpired, as will be here-

inafter described, the court assumed that the parties agreed

that a single judge district court would pass on the issue

of the unconstitutionality of 4186 of the Election Law of

the State of New York.

The Rosario complaint prayed for (1) convening a three-

judge district court, (2) declaring §186 unconstitutional and

(3) granting “plaintiffs appropriate equitable relief to as-

sure their participation in the 1972 primary elections sched-

uled for June 1972”.

On December 6, 1971, the day of the filing of the com-

plaint, an order was signed directing the defendants to

show cause why a three-judge district court should not

be convened pursuant to 28 U.S.C. §2281. The motion was

returnable on December 17, 1971. In the meantime and on

December 15th, Eisner filed a complaint praying that the

court declare §§117 and 186 of the Election Law of the

State of New York unconstitutional and praying for appro-

priate equitable relief to enforce “plaintiff’s right to par-

ticipate in the New York State Presidential Primary sched-

uled for June 20, 1972”. A motion was made for a three-

judge district court returnable on December 17, 1971. De-

fendants served a notice of motivn to dismiss the complaint

for lack of jurisdiction and failure to state a claim upon

which relief may be granted. [Rules 12(b)(1), 12(b) (6)

and 12(c)].

Decision and Order of the District Court

On the return day of all the motions, i.e., December 17,

1971, there was discussion in open court among Seymour

Friedman, attorney for plaintiffs Rosario, et al., Burt Neu-

borne, attorney for plaintiff Eisner, et al., A. Seth Green-

wald, an Assistant Attorney General of the State of New

York, J. Kemp Hannon, an attorney representing the Nas-

sau County Board of Elections and J. Lee Rankin (by Mr.

Gensler), representing The City of New York, concerning

‘the advisability of convening a three-judge district court

in the light of the time schedule for appellate review prior

to June 20, 1972. .

_In Bachrow vy. Rockefeller, 71-C-930, a three judge dis-

trict court on September 8, 1971 dismissed a challenge to

§186 for mootness.. The same lawyers participated in

Bachrow. The undersigned was a member of the three

judge district court.

Since Christmas vacations were about to commence and

a delay in convening a three judge district court was a

possibility, all the lawyers agreed that a more expeditious

appellate review could be realized iif the determination

on the constitutionality of §186 were determined by the

undersigned as a single district court judge. Thereupon the

plaintiffs agreed to withdraw their request for injunctive

Telief. The Court wrote an order ‘to that effect which

stated that the action is “solely one ffor declaratory judg-

_, "In its memorandum of decision, the cowrt, noting the difficulty

a determination, cited the dissenting opinions in Hall v.

Beals, 396 U.S. 45, 90 S.Ct. 20 (1969) in the following language :

_ “Although the time periods involved may make it difficult to

_ Secure a decision and review of any given situation before a

specific election takes place (see the dissenting opinions in Hall

_ Y. Beals, supra), it does not seem that @ diligent plaintiff would

- find such a task impossible.”

a ee

ee ee

Decision and Order of the District Court

ment”. Messrs. Friedman, Greenwald and Gersler signed

their consent to that order.’

Thereafter briefs were served and filed by all the parties.

The constitutional points were argued in the briefs. None

of the parties argued the question of jurisdiction. The de-

fendants now argue that the stipulation does not “amount

to a consent on the part of the defendants above to juris-

diction or the propriety of the granting of a sweeping de-

claratory judgment by a single judge in a case of this

nature.” (Defendants’ Memorandum of Law, p. 1)

The parties cannot confer jurisdiction on this court.

The power of the court to act cannot therefore be based

upon the consent of the defendants. Rather, the court has

recounted the history of this proceeding as an answer to

the defendants in charging an abuse of discretion in decid-

ing this case as a single district court judge. The defen-

dants’ claim of an abuse of discretion in granting a de-

claratory judgment as provided in 28 U.S.C. $2201 is re-

jected in view of the conduct of the defendants’ counsel

described herein at length.

2 The consent reads as follows:

* 12/17/71

On consent of the parties hereto the prayer for relief is

amended by eliminating paragra h (3) of the prayer for relief

and the action is solely one for tory judgment.

So OnpERED

s/ Jacob Mishler

US.D4.

Decision and Order of the District Court

_ The power of a single-judge district court to determine

constitutional questions is stated in Rosado v. Wyman,

897 U.S. 397, 402; 90 S.Ct. 1207, 1212-13, as follows:

“Jurisdiction over federal claims, constitutional or

otherwise, is vested exclusively or concurrently, in the

federal district courts. Such courts usually sit as

single-judge tribunals.”

The district court is a court of limited jurisdiction.

_ Jurisdiction to decide questions involving the deprivation

of civil rights granted under the Constitution is found in

28 U.S.C. §1343.2

ae The power to decide constitutional questions in the first

instance is in the federal district court. Congress has seen

- fit to limit that power by denying a single judge the right

to issue “an interlocutory or permanent injunction re-

straining the enforcement, operation or execution of any

State statute by restraining the action of any officer of

such State in the enforcement or execution of such stat-

Ute...” (28 U.S.C. §2281).

__ The defendants would extend that limitation to an ac-

_tion for declaratory judgment where the effect of that judg- ‘

ment would be identical to that of an injunction. Rosado

¥. Wyman, 304 F.Supp. 1350, 1352 (E.D.N.Y. 1969),

(Weinstein, D.J.).

~ * The pertinent portion of 28 U.S.C. §1343 recites :

_. “The district courts shall have original jurisdiction of any civil

a action authorized by law to be commenced by any person :

nS ee One

Decision and Order of the District Court

Chief Judge Lumbard’s concurring opinion in Rosado

v. Wyman, 414 F.2d 170, 184 (2d. Cir. 1970), made the fol-

lowing observation with reference to the same issue:

“That the state statute could be held unconstitu-

tional in a declaratory ruling by the single judge seems

settled. See ALI Study of the Division of Jurisdic.

tion Between State and Federal Courts 245 (Tent.

Draft No. 6, 1968), recommending that such a declara-

tory judgment requires a three-judge court but noting:

(T]}he requirement is here extended to cases seeking

only a declaratory judgment, a remedy which was un-

known in 1910. Three judges are not now needed in

such a case. Cf. Kennedy v. Mendoza-Martinez, 372

U.S. 144, 154-55, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) ;

Flemming v. Nestor, 363 U.S. 608, 606-607, 80 S.Ct.

1367, 4 L.Ed. 2d 1435 (1960).

Kennedy v. Mendoza-Martinez, 372 US. 144, 83 S.Ct. 554

(1963) defined the power of a single district court judge to

declare a federal statute unconstitutional. In Mendoza-

Martinez, the plaintiff brought an action in the district

court seeking to have §401(j) of the Nationality Act of 1940

declared unconstitutional. That act deprived a citizen, who

remained out of the country for the purpose of avoiding

the draft, of his citizenship. The Court said:

“The present action, which in form was for declara-

tory relief and which in its agreed substance did not

contemplate injunctive relief, involves none of the dan-

gers to which Congress was addressing itself. The

*28 U.S.C. §2282 places the same limitation on the power of a

single district court judge with reference to the enforcement, opera-

tion or execution of any Act of Congress as 28 U.S.C. §2281 places

on the power with relation to any state statute.

Decision and Order of the District Court

relief sought and the order entered affected an Act of

Congress in a totally non-coercive fashion. There was

no interdiction of the operation at large of the stat-

ute. It was declared unconstitutional, but without even

an injunctive sanction against the application of the

statute by the Government to Mendoza-Martinez.

Pending review in the Court of Appeals and in this

Court, the Government has been free to continue to

apply the statute. That being the case, there is here

no conflict with the purpose of Congress to provide

for the convocation of a three-judge court whenever

the operation of a statutory scheme may be immedi-

ately disrupted before a final judicial determination

of the validity of the trial court’s order can be ob-

tained. Thus there was no reason whatever in this

case to invoke the special and extraordinary procedure

of a three-judge court.” 372 U.S. at 155, 83 S.Ct. at

560-6L.°

Were the court to accept the defendants’ argument, then

the result would be that no single judge district court would

have the power to entertain an action for a judgment de-

claring any statute unconstitutional. The restraining

effect of a declaratory judgment which defendants describe

would be present in every case to a greater or lesser de-

*The Circuits have generally understood Mendoza-Martinez to

approve the power of a single district judge to declare statutes

unconstitutional. See, Merced Rosa v. Herrero, 423 F.2d 591 (1st

Cir. 1970) ; United States v. Southern Ry. Co., 380 F.2d 49 (4th

Cir. 1967); Wilson v. Gooding, 431 F.2d 855 (5th Cir. 1970) ;

Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970) ; Sellers v. Regents

of the University of California, 482 F.2d 493 (9th Cir. 1970) ;

See Jeannette Rankin Brigade v. Chief of the Capitol Police,

421 F.2d 1090 (D.C. Cir. 1969) [Bazelon, C.J., dissenting]. See

criticism of Mendoza-Martinez in Currie, The Three-Judge District

Court in Constitutional Litigation, 32 U. Chicago L. Rev. 1 (1964).

Decision and Order of the District Court

gree, since statutes are of a wide, general application and

must necessarily apie an effect beyond the parties to the

litigation.

The Congress may further limit the power of a single

district judge by denying them the right to declare state

or federal statutes unconstitutional. It has not seen fit to

do so.

This court has the power to declare $186 unconstitutional

and finds it appropriate to exercise such power in this case.

The motion to re-argue is in all respects denied, and it is

So onpERED.

Jacos MIsHLER

U.8.D.J.

Notice of Appeal in Rosario Filed on Behalf

of Attorney General of New York

UNITED STATES DISTRICT COURT

Eastern Distaicr or New Yorx

—_—>—__

[CAPTION OMITTED

mx 71 C 1573]

Sigs:

Notice is hereby given that N elson Rockefeller, Gov-

ernor of the State of New York and John P. Lomenzo, Sec-

retary of State of the State of New York, hereby appeals

to the United States Court of Appeals for the Second Cir-

cuit from a judgment entered February 10, 1972 declaring

§ 186 of the Election Law of New York unconstitutional and

from each and every part of said judgment.

Dated: New York, New York

February 17, 1972

_ Notice of Appeal in Rosario on Behalf of Attorney General

Yours, etc.,

Louis J. LerxowirTz

Attorney General of the

State of New York

Attorney for Defendants

Rockefeller and Lomenzo Pro Se

Pursuant to Executive Law $71

Office and P. O. Address

80 Centre Street

New York, New. York 10013

By: A. Sern GreenwaLp

Assistant Attorney General

488-3396

To:

Seymour Faepman, Esq.

26 Court Street

Brooklyn, New York 11201

J. Lez Rawk

Corporation Counsel

Municipal Building

New York, New York 10007

59 f

Notice of Appeal in Eisner Filed on Behalf

of Attorney General of New York

UNITED STATES DISTRICT COURT

Eastern District or New Yorx

—<>>——

~ [CAPTION OMITTED

m 71 C 1621]

—_<>—

Notice is hereby given that Nelson Rockefeller, Gov-

ernor of the State of New York and John P. Lomenzo, Sec-

retary of State of the State of New York, hereby appeals

to the United States Court of Appeals for the Second Cir-

cuit from a judgment entered February 10, 1972 declaring

§ 186 of the Election Law of New York unconstitutional and

from each and every part of said judgment.

Dated: New York, New York

February 17, 1972

Yours, ete.,

Notice of Appeal in Eisner on Behalf of Attorney General

Louis J. Lzrxowr1z

Attorney General of the

State of New York

Attorney for Defendants

Rockefeller and Lomenzo Pro Se

Pursuant to Executive Law § 71

Office and P. O. Address

80 Centre Street

' New York, New York 10013

By: A. Sera GreENwALp

Assistant Attorney General

488-3396

To:

Burr NEUBORNE

New York Civil Liberties Union

& Fifth Avenue

New York, New York 10011

JOSEPH JASPAN

Nassau County Attorney

County Executive Building

Mineola, New York 11501

Att: J. Kemp Hannon

Notice of Appeal in Eisner Filed on Behalf of

Commissioners of Elections for Nassau County

UNITED STATES DISTRICT COURT

Eastern District or New York

—>—

[CAPTION OMITTED

my 71 C 1621]

—— >

Sies:

Notice is hereby given that William D. Meisser and Mar-

vin D. Cristenfeld, Commissioners of Elections for the

Board of Elections of Nassau County, hereby appeal to

the United States Court of Appeals for the Second Circuit

from a judgment entered February 10, 1972, declaring § 186

of the Election Law of New York unconstitutional and from

each and every part of said judgment.

Dated: Mineola, New York

February 18, 1972

Noticé of Appeal in Eisner on Behalf of Commissioners

of Elections, Nassau County

Yours, ete.

JOSEPH JasSPAN

County Attorney of Nassau County

Attorney for Defendants

William D. Meisser and Marvin D.

Cristenfeld, Commissioners of Elec-

tions for Nassau County

Nassau County Executive Building

Mineola, New York 11501

By J. Kempe Hanwon

Deputy County Attorney

(516) 535-3603

To:

Hox, Louis J. Lerxowrrz .

Attorney General of the State of New York

Attorney for Defendants

Rockefeller and Lomenzo Pro Se

Pursuant to Executive Law § 71

80 Centre Street

New York, N. Y. 10013

Burr Nevsorng, Esq.

New York Civil Liberties Union

Attorney for Plaintiff

84 Fifth Avenue

New York, N. Y. 10011,

Order of Second Circuit Staying Decision of

District Court and Scheduling an Expedited Appeal

UNITED STATES COURT OF APPEALS

Szconp Ciacurr

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the twenty-second

day of February, one thousand nine hundred and seventy-

two.

—>__

[Captions OMITTED ]

—

It is hereby ordered that the motion made herein by coun-

sel for the appellants by notice of motion dated February

18, 1972, for a stay and for a preference be and it hereby

is granted.

It is further ordered that the argument of the appeal is

set for Thursday, February 24, 1972; that all parties may

file papers in typewritten form and that the appellant shall

file three copies of all necessary parts of the record.

A. Danie, Fusaro

Clerk

Before:

Hon. Harotp R. Meprva

Hon. J. Epwarp Lumparp

Hon. Wiit1um H. Motiican

Circuit Judges

Opinion of Second Circuit Holding Section 186

Constitutional

UNITED STATES COURT OF APPEALS

For tHe Seconp Circuir

Nos, 632, 633—September Term, 1971.

(Argued February 24, 1972 Decided April 7, 1972.)

Docket Nos. 72-1182-83

= =

err

Prpro J. Rosario, Wmuiam J. Freepman and Karen Lz

Gottesman, individually and on behalf of all others

similarly situated,

Plaintiff s-A ppellees,

—_—Vv—

Ngison Rockereiier, Governor of the State of New York,

Joun P. Lomenzo, Secretary of State of the State of

New York,

Defendants-A ppellants,

Mavrice J. O’Rourgce, James M. Power, Toomas Matier

and J. J. Dusesrstern, constituting the Board of Elec-

tions in The City of New York,

Defendants.

= =

Sorr

Sreven Eisner, on his own behalf and

on behalf of all others similarly situated,

Plaintiffs-A ppellees,

—_—y—

Newson Rockere..er, Governor of the State of New York;

Joun P. Lomenzo, Secretary of State of New York,

Wuiuus D. Meissner and Marvin D. Curistenre,

Commissioners of Elections for Nassau County,

Defendants-Appellants.

Opinion of Second Circutt

Before:

Lumsarp, Mansrietp and Mutuican,

Circuit Judges.

Appeal from a decision in the Eastern District of New

York, Mishler, J., declaring New York Election Law §186

unconstitutional on grounds that it violated plaintiffs’ First

and Fourteerith Amendment rights and that it was in con-

flict with 42 U.S.C. re

Reversed.

—

Szrmous Farepmax, Brooklyn, New York, for

Plaintiffs-Appellees Pedro J. Rosario, Wil-

liam J. Freedman and Karen Lee Gottes-

man, et al.

A. Sern Gneswwata, Assistant Attorney Gen-

eral (Louis J. Lefkowitz, Attorney General

of the State of New York and Irving Galt,

on the brief), for Defendants-Appellants

Nelson Rockefeller and John P. Lomenzo

and Pro Se pursuant to New York Execu-

tive Law §71.

Burr Nsvsorne, New York Civil Liberties Un- _

ion, Brooklyn, New York (Arthur Eisen-

berg, on the brief), for Plaintiffs-Appellees

Steven Eisner, et al.

J. Kemp Hannon (Joseph Jaspan, County At-

torney of Nassau County, Mineola, New

York, on the brief), for Defendants-A ppel-

lants William D. Meissner and Marvin D.

Christenfeld.

66 A

Opinion of Second Circuit

Lumpanp, Circuit Judge:

Defendants below, New York State officials charged with

enforcing section 186 of the New York Election Law which

provides that voters in primary elections must have been

enrolled in the party prior to the previous general election,

appeal from Chief Judge Mishler’s decision in the Eastern

District declaring section 186 unconstitutional as a violation

of plaintiffs’ rights under the First and Fourteenth Amend.

ments and the federal Voting Rights Act, 42 U.S.C. $1973,

as amended 42 U.S.C. §1973aa. We reverse.

Section 186 is part of New York’s comprehensive regula-

tion of its electoral processes and, in particular, of its party

primary elections. By law only enrolled party members

can vote in their party’s primary. New York Election Law

§201. Section 186 is designed to ensure the integrity of the

closed primary and provides that enrollment in a party for

the purpose of voting in a primary election must take place

prior to the general election previous to the primary. The

removed therefrom by the board, and the names of the party

nated by each voter under such declaration, provided such

continues to be a party, as defined in this law shall be en

by the board, opposite the name of such voter in the

eolamn of the two copies of the register containing

numbers for the election district in which such voter resides.

enrollment blanks marked by voters, who enrolled before a cen

or veterans’ absentee board shall at the same time

opened by the board of and the names of the party desig-

nated. by each such voter shall likewise be entered by the board,

provided such party continues to be a party, as ;

If cross marks are found in more than one of the eirele or if no

cross marks are found in any of the circles of any enrollment

blank, the voter who used the enrollment blank thus deficient shall

;

Mit

Opinion of Second Circuit

theory behind the statute is that such early enrollment will

discourage “raiding,” i.e., voters of one party fraudulently

designating themselves as voters of another party in order

to determine the results of the raided party’s primary.

Plaintiffs here, all registered voters, failed to enroll as

party members prior to the November 1971 general elec-

tions. The effect of section 186 is to exclude them from

. voting in the 1972 primary elections. Invoking the juris-

diction of the federal courts under 42 U.S.C. $1983, 28

US.C. §1343(3), §2281, and §2284, plaintiffs sought the

convening of 8 three-judge court and requested declaratory

and injunctive relief against the enforcement of section

186. Subsequently, they dropped their demand for i injunc-

tive relief, and, concomitantly, their request for a three-

judge court.’ The district court granted the requested de-

not be deemed to be enrolled, and words indicating the reason why

such enrollment is not transcribed shall be entered opposite the

name of such voter in such copies of the register in the column

reserved for the entry of party enrollments. When all of the enroll-

ments shall be transcribed from the blanks to the register, the

board of elections shall make a certificate upon the form printed in

such registers, to the effect that it has correctly and properly

transcribed the enrollment indicated on the blank of each voter to

such registers. Such enrollment shall be complete before the suc-

ceeding first day of February in each year.

their demand for injunctive relief. We disagree. The Supreme Court

raga thens fo ag ng Med erate mama dient apo

be construed with great liberality, but . an enactment technical in

the strict sense of the term and to be applied as such.” Phillipe v.

United States, 312 U.S. 246, 251 (1941). Following this doctrine the

for injunctive relief at the district court level and prior to the trial, the

district judge quite properly determined the issue. See Merced Rosa v.

Herrero, 423 F.2d 591, 593 (1st Cir. 1970).

: 68

Opinion of Second Circutt

claratory relief on three grounds: that section 186 violated

plaintiffs’ Fourteenth Amendment rights to equal protec-

tion because raiding can be equally well or better prevented

by New York Election Law §332 which provides for direct

challenges to allegedly fraudulent enrollments, yet under

which plaintiffs would not be kept from voting; that sec-

tion 186 infringed the plaintiffs’ First Amendment rights

of association with other party members, yet advanced no

compelling state interest, or failed to do so by the least

drastic means; and that section 186 was in direct conflict

with the federal Voting Rights Act §1973aa-1(d) which

provides “each State shall provide by law for the registra-

tion .. . of all duly qualified residents . , . not later than

thirty days immediately prior to any presidential election.”

We disagree.

‘The political parties in the United States, though broad-

based enough so that their members’ philosophies often

range across the political spectrum, stand as deliberate

associations of individuals drawn together to advance cer-

tain common aims by nominating and electing candidates

who will pursue those aims once in office. The entire po-

litical process depends largely upon the satisfactory oper-

_ ation of these institutions and it is the rare candidate who

can succeed in a general election without the support of the

party. Yet the efficacy of the party system in the demo-

cratic process—its usefulness in providing a unity of di-

vergent factions in an alliance for power—would be seri-

ously impaired were members of one party entitled to

interfere and participate in the opposite party’s affairs.

In such circumstances, the raided party would be hard-

pressed to put forth the candidates its members deemed

most satisfactory. In the end, the chief loser would be the

public.’

3 New York has a particular interest in preventing raiding. In addition

to the major parties, Democrat and Republican, two minority parties,

Opinion of Second Circuit

Section 186 is part of New York’s scheme to minimize

the possibility of such debilitating political maneuvers.

Designed to prevent primary crossover votes cast only to

disrupt orderly party functioning, the statute requires

that enrollment in the party be completed by a date suf-

ficiently prior to the primary to decrease the likelihood

of raiding. The Supreme Court has made clear that “pre-

vention of [electoral] fraud is a legitimate and compel-

ling government goal.” Dunn v. Blumstcin, 40 U.S.L.W.

4269, 4274 (March 21, 1972). “[{A] State has an interest,

if not a duty, to protect the integrity of its political

processes from frivolous or fraudulent candidacies. Bul-

lock v. Carter, 40 U.S.L.W. 4211, 4215 (Feb. 24, 1972).

And a candidacy determined by the votes of non-party

members for purposes antagonistic to the functioning of

the primary system is, in practical effect, a fraudulent

candidacy. Given the importance of orderly party pri-

maries to the political process, we hold that the preven-

tion of “raiding” is a compelling state interest.‘

Conservative and Liberal, are established throughout the state and

usually present a full slate of candidates in the general election. Yet |

as there are only 107,000 enrolled Conservatives and 109,000 enrolled

Liberals as opposed to 2,950,000 enrolled Republicans and 3,565,000

enrolled Democrats, successful raiding of these minority parties would

present little difficulty on a state-wide basis absent §186.

Restrictions on the exercise of the franchise, dealing as they do with

the fundamental rights of voting and association have been closely

scrutinized by the courts; eg., Dunn v. Blumstein, 40 U.S.L.W. 4269

(March 21, 1972); Kramer v. Union Free School District No. 15, 395

U.S. 621 (1969); William v. Rhodes, 393 U.S. 23 (1968); Reynolds v.

Sims, 377 U.8. 533 (1964); and primaries as well as general elections

have been subjected to this exacting scrutiny, e.g., Bullock v. Carter,

40 U.B.L.W. 4211 (Feb. 24, 1972); Smith v. Allwright, 321 U.8. 469

(1944) ; United States v. Classic, 313 U.8. 299 (1941).

Applying this standard to our review of section 186, we find that the

statute advances a compelling state interest and that it does so in a

manner calculated to impinge minimally on First and Fourteenth Amend-

ment rights.

Opinion of Second Circuit

- Moreover, section 186 is carefully designed to infringe

minimally on First and Fourteenth Amendment rights.

The statute works indirectly to its end of having only

voters in general sympathy with the party vote in that

party’s primary. By requiring enrollment some seven to

nine months prior to the primary and also prior to the

general election, it takes full advantage of the facts: that

long-range planning in politics is quite difficult and that

neither politician nor voter wishes to give the impression

that he is deliberately engaging in fraud. Thus the no-

tion of raiding, its potential disruptive impact, and its

advantages to one side are not likely to be as apparent

to the majority of enrolled voters nor to: receive as close

attention from the professional politician just prior to a

November general election when concerns are elsewhere

as would be true during the “primary session,” which,

for the country as a whole, runs from early February

until the end of June. Few persons have the effrontery or

the foresight to enroll as say, “Republicans” so that they

can vote in a primary some seven months hence, when

they full well intend to vote “Democratic” in only a few

weeks. And, it would be the rare politician = could

successfully urge his constituents to vote for him or his

party in the upcoming general election, while at the same

time urging a cross-over enrollment for the purposes of

upsetting the opposite party’s primary. Yet the opera-

tion of section 186 requires such deliberate inconsistencies

if large-scale raiding were to be effective in New York.

Because of the statute, it is all but impossible for any

group to engage in raiding. Allowing enrollment any time

after the general election would not have the same de-

terrent effect on raiding for it would not put the voter

in the unseemly position of asking to be enrolled in one

party while at the same time intending to vote imme-

diately for another.

Opinion of Second Circuit

- Plaintiffs have argued, however, that even if the ef-

fectiveness of section 186 as a deterrent on raiding be

established, still the statute must be struck down for it

also keeps from voting in a primary the registrant who

has only inadvertently failed to enroll prior to the gen-

eral election and who has no intention of “raiding” one

of the parties. Plaintiffs argue that section 332 of the

Election Law which allows for a direct challenge to en-

rollees would -be sufficient to accomplish the antiraiding

purpose of section 186 and would, at the same time, allow

the nonraiding late enrollee to vote in the primary. While

it is true that section 186 and section 332 are aimed at

the same evil of raiding, it is obvious that the use of

382 to prevent raiding would be far too cumbersome to

have any deterrent effect on raiding in a primary. Cf.

Bullock v. Carter, 40 U.S.L.W. 4211, 4214 (Feb. 24, 1972).

- Section 332 is a narrowly drawn statute appropriate

for striking from the enrollment rolls only one name at

atime. Each such challenge requires a full judicial in-

quiry, with its high cost in money, time and manpower

for the challenging party. Its efficacy, even in the single

ease is not clear for proof of a man’s allegiance to one

party or another is often difficult to secure. Unlike proof

of residence, for which objective evidence, ¢.g., ownership

of a dwelling, car registration, or a driver’s license, is

easily at hand, proof of allegiance to one party or an-

tther demands inquiry into the voter’s mind. The very

great majority of voters have no closer contact with their

political party than pulling the lever or marking the bal-

bt in the voting booth. In the absence of the availability

wf evidence regarding a voter’s party preference and

iced with large-scale raiding, party officials relying only

section 332 would be virtually impotent. By contrast,

Section 186 has a broad deterrent effect. The burden of

lange is placed upon the raider not the party and the

Opinion of Second Circuit

statute requires the cross-over at a particularly difficult

time. In requiring that the state use to a proper cnd

the means designed to impinge minimally upon funda-

mental rights, the Constitution does not require that the

state choose ineffectual means. We think section 186 is

a proper means to safeguard a valuable state interest. |

We are supported in our conclusion by the Supreme

Court’s recent decision in Lippitt v. Cipollone, 40 U.S.L.W.

3334 (Jan. 17, 1972). There-the Court affirmed without

opinion a decision of the Northern District of Ohio de-

claring constitutional Ohio Rev. Code §3513.191 whicl: pro-

vides “(nJo person shall be a candidate for nomination

or election at a party primary if he voted as a member

of a different political party at any primary election

within the next preceding four calendar years.” Holding

the statute constitutional the lower court found that it

preserved “the integrity of all political parties and men-

bership therein” by “prevent[ing] ‘raiding’ of one party

by members of another party and [by] preclud[ing] can-

didates from ‘. . . altering their political party affiliations

for opportunistic reasons.’” Lippitt v. Cipollone, 71-667

(N.D. Ohio, Nov. 5, 1971). The Supreme Court’s affirmance

indicates beyond dispute that the prevention of raiding

is a compelling state interest and that a reasonable ex-

tended period of time before an enrollment can be changed

is a proper means to halt this practice.‘

5 New York does allow post-genera] election enrollment in certain cases.

Section 187 of the Election Law allows late enrollment if, for example,

the enrollee came of age after the past gencral election or if he was

ill during the enrollment period. The import of section 187 is that New

York is not opposed to later enrolment per se.

6 Defendants have argued that the Supreme Court’s dismissal for want

of a substantial fedcral question of a case ostensibly raising the same

issues as the instant case, Jordan v. Meisser, 40 U.8.L.W. 3398 (Feb. 22,

1972), is controlling in this litigation. However, in Jorden v. Meisser,

the New York Attorney General argued to the Court that the plaintiff

ad ~

Opinion of Second Circuit

Plaintiffs’ final argument is that section 186 is in direct

conflict with 42 U.S.C. §1973aa-1(d) which provides: “each

State shall provide by law for the registration . . . of all

duly qualified residents . . . not later than thirty days

immediately prior to any presidential election ....” Plain-

tiffs argue that “presidential election” includes presiden-

tial primary. We disagree.

- Section 1973aa-1(d) was passed as part of the Voting

Rights Act of 1970. The statute itself makes no reference

to primary, elections speaking only of “voting for the

offices of President and Vice President,” §1973aa-1(a), or

“vot[ing] for the choice of electors for the President and

Vice-President,” §1973aa-1(d) and the more usual meaning

of “presidential election” is the quadrennial November elec-

tion rather than the party primaries. On its face, then,

the statute is not applicable to primary elections. The

legislative history is silent on whether section 1973aa-1(d)

was intended to apply to primaries. 1970 U.S. Cong. Code

and Admin, News 3277, 3285. However, at the same time

Congress enacted section 1973aa-1(d), it also passed into

law section 1973bb reducing the voting age to eighteen in

federal, state and local elections. See Oregon v. Mitchell,

400 U.S. 112 (1970). In so doing, Congress specifically

addressed itself to “voting in any primary or in any elec-

tion.” 42 U.S.C. §1973bb. The deliberate inclusion of the

word “primary” here coupled with its absence in section

1973aa is further indication that Congress was not dealing

with primaries in section 1973aa. We conclude that sec-

tion 1973aa has no application to this case.

Reversed.

Jordan had fajled to utilize the provisions of section 187 of the N

York Election Law under which he could have enrolled in a party

the general election in order to participate in the primary election.

tion 187, however, allows post-general election enrollment only

narrowly-defined circumstances and none of the plaintiffs here has

alternate route of enrollment presently available to him.

this

Judgment of Second Circuit Reversing District Court

in Rosario

UNITED STATES COURT OF APPEALS

For THe Szconp Crmcuit

Ata Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Courthouse in the City of New York, on the seventh day of

April one thousand nine hundred and seventy-two.

Present:

Hon. J. Epwarp Lumbasp,

Hon. Water R. Mansrrexp,

Hon. Wruu1am H. Moicay,

Circuit Judges.

——<-—

{CAPTION OMITTED]

—>-—

Appeal from the United States District Court for the

Eastern District of New York.

This cause came on to be heard on the transcript of rec-

ord from the United States District Court for the Eastern

District of New York, and was argued by counsel.

ON CONSIDERATION WHEBREOF, it is now hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby is reversed in accordance with the

opinion of this court with costg to be taxed against the

appellees.

A. Dantex F'usano

Clerk

‘Judgment of Second Circuit Reversing District Court

in Eisner

UNITED STATES COURT OF APPEALS

For tHe Seconp Circuir

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Courthouse in the City of New York, on the seventh day of

April one thousand nine hundred and seventy-two.

Present:

Hon. J. Epwarp Lumparp,

Hon. Water R. Mansrietp,

How. Wiiitum H. Motiiaan,

Circuit Judges.

[CAPTION OMITTED]

Appeal from the United States District Court for the

Eastern District of New York.

This cause came on to be heard on the transcript of rec-

ord from the United States District Court for the Eastern

District of New York, and was argued by counsel.

. Ow ConsmERATION WHEREO?, it is now hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby is reversed in accordance with the

Opinion of this court with costs to be taxed against the

gpelices.

~—

A. Dantet Fuséro

’ Clerk

Order Denying Motion to Stay and

Denying Petition for Rehearing

UNITED STATES COURT OF APPEALS

Ssconp Criecurr

[CAPTION OMITTED]

—

A petition for rehearing together with a motion in the

‘alternative to stay the issuance of the mandate pending

application for a writ of certiorari to the Supreme Court

of the United States having been filed herein by counsel

for the appellees,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is Denizen.

J. Eywarp LumsBarpD

Wattre R. MansFietp

WruusMm H. Moiiiean

April 24, 1972

Order Denying Supplemental Petition for Rehearing

in Eisner

UNITED STATES COURT OF APPEALS

Seconp Cicurr

{CAPTION OMITTED]

———

A supplemental petition for a rehearing having been filed

herein by counsel for the appellees,

Upon consideration thereof, it is

Ordered that said supplemental petition be and it hereby

is DeniEp.

J. Epwarp Lumparp —

(per WRM)

Water R. MansFiretp

Wim H. Moriican

U.8. Circuit Judges

Dated: April 19, 1972

Order Denying Petition for Rehearing in Banc

With Judges Feinberg and Oakes Dissenting

UNITED STATES COURT OF APPEALS

Szconp Cimourr

—<~

[caPTION OMITTED]

: \

A petition for rehearing and supplemental petition for

rehearing both containing a suggestion that the action be

reheard en banc having been filed herein by counsel for the

appellees, a poll of the judges in regular active service

having been taken at the request of such a judge, and there

being no majority in favor thereof.

Upon consideration thereof, it is

Ordered that said petitions be and they hereby are

denied. Judges Feinberg and Oakes dissent.

Henry J. FrienpDiy

Chief Judge

April 24, 1972

79:

Temporary Stay of Second Circuit Judgment

Issued by Mr. Justice Marshall

SUPREME COURT OF THE UNITED STATES

No. A-1126

(No. 71-1371)

Pepro J. Rosario, et al.,

Petitioners,

—V.—

Netson RocKEFELLER, GdvERNOR OF THE

Srate or New York, e¢ al.

ORDER

__ Upor consmeration of the application of counsel for the

petitioners,

Ir 1s onpeRED that the judgment of the United States

Court of Appeals for the Second Circuit in cases Nos. 72-

1182 and 72-1183 be, and the same is hereby, temporarily

stayed until the matter can be considered by the full Court.

Txurcoop MarsHaLL

Associate Justice of the Supreme

Court of the United States.

Dated this 26th day of April, 1972.

Order Granting Certiorari But Denying Motion for

Summary Reversal, Expedited Consideration and a Stay

The petition for a writ of certiorari is granted. The

motion for summary reversal or, in the alternative, for

expedited consideration on the merits is denied. Mr. Jus-

tice Stewart would expedite consideration on the merits.

The application for stay, presented to Mr. Justice Mar-

shall and by him referred to the Court, is denied. Mr. Jus-

tice Douglas, Mr. Justice Brennan, Mr. Justice Stewart

and Mr. Justice Marshall would grant the stay.

The motion of Lawyers for McGovern for leave to file a

brief, a8 amicus curiae, is granted.

Supreme Court of the Anited States

No. Plol $71 ooeLdcdahen Tews nid.

Pedre J. Resario, et al.,

Petitioners,

¥.

Neleon Rockefeller, Governor of the seste

of Mew York, et al.

“Ones, ALzowne CEnTionant Filed May 90 wrennnnwconenen , 19 78,

The petition herein for a writ of certirart to the United States Court of

Appeals for the §eggmd soscencccccsn | Circuit is granted.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.