Petition for a Writ of Certiorari — Rosario v. Rockefeller

Supreme Court brief1973

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MICHAEL RODAK, In. ci E

Supreme Court of the Utiten States

Ooronnn Tze, 1971

„

— — a

Pxpro J. Rosario, WILLIAM J. FREEDMAN and Karen Ler Gorrzs-

MAN, individually and on behalf of all others similarly situated,

Petitioners,

—against—

Steven Eisner, on his own behalf and on behalf of all others sim

ilarly situated,

: Petitioners,

—against—

NELSON ROCKEFELLER, Governor of The 8

P. LomEnz0, Secretary of State of Th

LAM D. MEIssner an

of Elections for Nassau County,

INDEX

PAGE

Motion for Summary Reversal or, in the Alternative,

for Expedited Consideration on the Merits . 1

Opinions Below

Jurisdiction

Questions Presented

Statutory Provisions Involved

Statement of the Case

The Operation of New York’s Statutory Scheme 8

Reasons for Granting the Writ and for Summarily Re-

versing the Decision of the Court Below W. 11

I. The Decision Below Is in Direct Conflict With

Recent Decisions of This Court Protecting the

Right to Vote 11

II. The Decision Below Is in Direct Conflict With

Recent Decisions of This Court Invalidating

State Action Impinging Upon the Right to

Travel 17

III. The Decision Below Is in Direct Conflict With

Recent Decisions of This Court Protecting the

Freedom to Associate for the Advancement of

Political Aims 19

IV. New York’s Deferred Enrollment Scheme

Which Conditions Full Participation in the

1972 Electoral Process Upon Past Participa-

tion in the 1971 Electoral Process Is an Uncon-

stitutional “Grandfather Clause” in Violation

of the Fourteenth, Fifteenth, and Twenty-sixth

Amendments 23

Wen K fF

A. “Grandfather Clauses” and the Right to

Vote

B. The Impact of New York’s Statutory

Scheme Upon Hitherto Unregistered Mem-

bers of Racial Minorities

C. The Impact of New York’s Statutory

Scheme on Persons Having Recently At-

tained Voting Age

v. The Need for Expeditious Relief Herein

ConcLusion

APPENDIX

Opinion of the United States Court of Appeals

for the Second Circuit

Opinion of the United States District Court, East-

ern District of New York

TaBLE or AUTHORITIES

Cases:

Alexander v. Todman, 337 F.2d 962 (3rd Cir.), cert.

den. 380 U.S. 915 (1964)

Beare v. Smith, 321 F. Supp. 1100 (SD Texas, 1971)

Boorda v. Subversive Activities Control Board, 421

F.2d 1142 (D. C. Cir., 1969), cert. den. 397 U.S. 1042

(1970)

Bullock v. Carter, —— U.S. ——, 40 USLW 4211

(Feb. 24, 1972)

Carrington v. Rash, 380 U.S. 89 (1965)

PAGE

Carter v. Dies, 321 F. Supp. 1358 (N.D. Tex., 1970),

PAGE

af d sub nom. Bullock v. Carter, —— U.S. —, 40

USLW —— (Feb. 24, 1972) 21

Cipriano v. City of Houma, 395 U.S. 701 (1969) ........ 12

City of Phoenix v. Kolodziejeski, 399 U.S. 204 (1970) 12

Cottingham v. Vogt, 60 N.J. Super. 576, 160 A.2d 57

(N.J. Super. 1960) 25

Dunn v. Blumstein, —— U.S. ——, 40 USLW 4269

(Mar. 21, 1972) 12, 13, 14, 17,

Edwards v. California, 314 U.S. 160 (1941)

Evans v. Cornman, 398 U.S. 419 (1970) 12, 20

Gengeni v. Rosengard, 44 N. J. 166, 207 A. 2d 665 (1965) 25

Goetsch v. Philhower, 60 N. J. Super. 582, 160 A. 2d 60

(N. J. Super. 1960) 25

Guinn v. United States, 238 U.S. 347 (1915) ........23, 24, 26

Harper v. Virginia Board of Elections, 383 U.S. 663

(1966) 11-12

Jordan v. Meissner, —— U.S. ——, 40 USLW 3398

(Feb. 22, 1972) 18

Kramer v. Union Free School District No. 15, 395 U.S.

621 (1969) 12, 20

Lane v. Wilson, 307 U.S. 268 (1939) 23, 24, 26

Lippitt v. Cippollone, —— U.S. ——, 40 USLW 3334

(Jan. 17, 1972) 14

NAACP v. Alabama, 357 U.S. 449 (1958) 19, 22

Oregon v. Mitchell, 400 U.S. 112 17

Passenger Cases, 7 How. 283 (1849) 17

Pollard v. Roberts, 283 F. Supp. 248 (E.D. Ark., 1968),

af d per curiam 393 U.S. 14 (1968) 19, 22

: PAGE

Pontikes v. Kusper, —— F. Supp. —— (ND Ul. 1972) 13

Shapiro v. Thompson, 394 U.S. 618 (9 17

Shelton v. Tucker, 364 U.S. 479 (1960) 22

Socialist Worker’s Party v. Rockefeller, 314 F. Supp.

984 (SDNY), aff'd 400 U.S. 806 (1990) — 11, 12

United States v. Robel, 389 U.S. 258 (1967) ——19, 21, 22

Williams v. Rhodes, 393 U.S. 23 (1968) .........--12, 19, 20, 21

Constitutional Provisions:

United States Constitution

First Amendment 20, 21, 22

Fourteenth Amendment 11, 22, 23

Fifteenth Amendment 23, 24, 26

Twenty-sixth Amendment 23, 24, 26

Federal Statutes:

28 U.S.C. 61254 (1)

42 U.S.C. 6197 3a (1)

State Statutes:

New York State Election Laws

$187 (o) (6)

$332

$369

§§385-389

CCC

Iy THe

= Supreme Caurt of the United States

Octoser TEN, 1971

—

Pepro J. Rosario, WIA J. FreepMan and Karen Lee

individually and on behalf of all others sim-

_ ilarly situated,

: Petitioners,

: —against—

NELson Rockere.ier, Governor of The State of New York,

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

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

Tomas MALLxE and J. J. DvBerstEm, consisting of the

Boarp or ELecrions N THE Crry or New York,

Respondents.

‘ — —

Sreven Eisen, on his own behalf and on behalf of all

others similarly situated,

Petitioners,

—against—

NELsSon Goverar of The State of New York,

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

New York, Wau D. MEIssNeEr and Marvin D. CT-

ENFELD, Commissioners of Elections for Nassau County,

Respondents.

— —

MOTION FOR SUMMARY REVERSAL OR, IN

THE ALTERNATIVE, FOR EXPEDITED

CONSIDERATION ON THE MERITS

Petitioners respectfully move, pursuant to Rule 35 of

this Court, for summary reversal of the decision of the

United States Court of Appeals for the Second Circuit

below, or, in the alternative, for expedited consideration of

this matter on the merits. Petitioners have, simultaneously

with the filing of the instant motion, filed a petition for a

writ of certiorari herein which petitioners request be

deemed a brief in support of their motion.

Wuenzrore, petitioners respectfully request that, upon

consideration of the petition for a writ of certiorari herein,

the decision of the court below be summarily reversed, or,

in the alternative, that the petition for certiorari herein be

granted and the matter be scheduled for expedited consid-

eration on the merits.

UBORNE

ArtTHur EISENBERG

New York Civil Liberties Union

84 Fifth Avenue

New York, New York 10011

Seymour FrRrepMaNn

26 Court Street

Brooklyn, New York

Attorneys for Petitioners

5 Ir tHe

Supreme Caurt of the United States

Ooronnn Tze, 1971

— ———

Pzpro J. Rosario, WIA J. FReepMan and Karen LR

_ Gorrzsmay, individually and on behalf of all others sim-

ilarly situated,

Petitioners,

: —against—

Netson Rockersiize, Governor of The State of New York,

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

New York, Mavzice J. O’Rourke, James M. Powe,

THomas Mauer and J. J. DuBERSTEIN, consisting of the

Boakp or Execrions N THE Crry or New York,

Respondents.

—

Sreven Eraxnn, on his own behalf and on behalf of all

others similarly situated,

Petitioners,

—against—

Netson Rock ETRLLxRA, Governor of The State of New York,

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

New York, Wia D. Merssner and Marvin D. CRT.

ENFELD, Commissioners of Elections for Nassau County,

Respondents.

——

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

— —ä—k—

Petitioners respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Second Circuit entered in

this proceeding on April 7, 1972, reversing the judgment

and opinion of the United States District Court for the

Eastern District of New York entered on February 10,

1972.

The opinion of the panel of the United States Court of

Appeals for the Second Circuit, consisting of Judges Lum-

bard, Mansfield and Mulligan, is not yet reported and is

reproduced in the Appendix hereto at pp. 2a-10a. The

opinion of Chief Judge Jacob Mishler of the United States

District Court for the Eastern District of New York is not

yet reported and is reproduced in the Appendix hereto at

pp. IIa-37a.

Jurisdiction

The judgment and opinion of the Court of Appeals for

the Second Circuit was entered on Friday, April 7, 1972.

A motion for a rehearing in banc and for a stay of mandate

was made on Monday, April 10, 1972 and was denied on

April dA, 1972. This Court’s jurisdiction is invoked under

28 U.S.C. §1254(1).

Questions Presented

1. Is Section 186 of New York’s Election Law uncon-

stitutional insofar as it prohibits persons registering to

vote in New York for the first time from participating in

New York’s June 20, 1972 Presidential Primary unless

they registered and enrolled by October 2, 1971, in time to

participate in New York’s last preceding general election?

= 2. Did the Court below apply an improper test to gauge

the constitutionality of Section 1867

3. Do “less drastic alternatives” exist, short of disen-

franchising the members of petitioners’ class, by which the

allegedly “compelling state interest” served by Section 186

may be advanced?

Statutory Provisions Involved

New York State Election Law, §186

§186. Opening of enrollment box and completion of en-

rollment

All enrollment blanks contained in the enrollment box

shall remain 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 there-

from by the board, and the names of the party designated

by each voter under such declaration, provided such party

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

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

appropriate column of the two copies of the register con-

taining enrollment numbers for the election district in which

such voter resides. The enrollment blanks marked by

voters, who enrolled before a central or veterans’ absentee

registration board shall at the same time be opened by the

board of elections and the names of the party designated

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

provided such party continues to be a party, as defined in

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

circles 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 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

plank of each voter to such registers. Such enrollment shall

be complete before the succeeding first day of February in

each year. L.1949, ¢.100; amended L. 1955, ¢.41, eff. March

7, 1955.

Statement of the Case

Stephen Eisner, a representative petitioner herein, is a

senior at the University of Buffalo who registered to vote

for the first time on December 13, 1971 at his parents’ home

in Nassau County. Petitioner first became eligible to vote

on December 30, 1970, when he attained his twenty-first

birthday. He failed to register for the November, 1971

general election in Nassau County because, as a student in

Buffalo, he was unfamiliar with the essentially local issues

posed in the 1971 Nassau County elections. On December

13, 1971, petitioner completed an enrollment blank “sol-

1No statewide or national offices were at stake in New York's

1971 general elections. Pursuant to New York law, petitioner was

prevented from registering to vote at his college residence. Election

Law, Section 151.

- emnly declaring” his affiliation with the Democratic Party

and deposited the enrollment blank in a sealed box main-

tained for that purpose. He was informed, however, that

his enrollment in the Democratic Party would be deferred,

pursuant to Section 186 of New York’s Election Law, until

the next scheduled physical opening of the enrollment box

on November 14, 1972. He was further advised that since

his enrollment in the Democratic Party was deferred pend-

ing the physical opening of the enrollment box, he would

be ineligible to participate in the Presidential Primary

Election scheduled for June 20, 1972. Finally, he was told

that, in order to have qualified to vote in the June primary,

he should have registered and enrolled on or before October

2, 1971, the last date to register for the November, 1971

general election.

In this action, petitioners challenge the legality of New

York’s “deferred enrollment” system, codified by Section

186 of the Election Law, which. provides that all enroll-

ments in a political party made subsequent to a general

election may not become effective, at the earliest, until one

week after the next succeeding general election. No distinc-

tion is made under Section 186 among a) initial enrollments

by “new” voters (such as petitioners herein) registering

for the first time; b) cross-over enrollments by established

voters seeking to alter a pre-existing enrollment; and ce)

re-enrollments by established voters newly arrived in New

York State who merely wish to continue a pre-existing re-

lationship with a political party.* All are required to un-

*The exceptions to New York’s deferred enrollment procedure

are set forth in Section 187. The two major exceptions are voters

who were too ung to register for the last election and persons

re-enrolling establishing a new residence within the same

county, both of whom are permitted to enroll immediately in the

party of their choice.

dergo a waiting period of up to fourteen months between

their attempt to associate with the political party of their

choice and the recognition by New York State of their

membership in that party.’

Petitioner is representative of the approximately 950,000

newly enfranchised young voters in New York State. It

is estimated that no more than 20 per cent of that total

registered to vote in the local 1971 New York elections.‘

Accordingly, approximately 750,000 qualified young voters

are precluded from participating in the June Presidential

Primary by the operation of Section 186. In addition, the

operation of Section 186 renders all persons who estab-

lished a new residence in New York State after October

2 1971 ineligible to vote in the June primaries, even though

they may have had long established ties with the political

party in question.

The Operation of New York’s Statutory Scheme

* » do solemnly declare that I am a

qualified voter of the election district in which I have

been registered and that my resident address is

; that I am in general

sympathy with the principles of the party which I have

designated by my mark hereunder; and that it is my

intention to support generally at the next general elec-

tion, state or national, the nominees of such party

for state or national offices.” Election Law, §§174;

369 ; 385-389,

Once the enrollment blank has been completed, it must be

deposited in an enrollment box in such a manher as to con.

eeal the identity of the party and enrollee involved. Elec-

tion Law §173. The enrollment box into which the enroll-

ment blank was deposited must remain locked until the

Tuesday following the day of the next preceding general

eleetion. Election Law 6186. No action finalizing an enroll-

ment can occur while the enrollment blank is locked in the

enrollment box. Once the enrollment boxes have enjoyed

their annual mid-November airing, the respective party

affiliations set forth on the enrollment blanks are noted on

the official election registers “before the succeeding first

day of February.” Election Law §186. Until the boxes

have been opened and the party affiliation formally entered

om the register books, the voter involved is not deemed to

be enrolled in the party of his or her choice. Election Law

186. Once the enrollment boxes are opened, any person

doubting the validity of a given enrollment may challenge

the sincerity of the voter involved and can disenroll him

“Upon a showing that “the voter is not in sympathy with

the principles of such party.” Election Law 6332.

Tuns, applying New York’s statutory scheme to peti-

toner Eisner's attempt to attempt to associate with the

Democratic Party, the following events must occur before

a prospective voter will be recognized by New York State

as affiliated with the political party of his choice:

1) He must duly register to vote.

2) He must complete an enrollment blank at which he

“solemnly declares” his general sympathy with the party

with which he wishes to associate. Election Law §§174;

369; 385-389.

3) He must deposit the completed enrollment blank in a

locked enrollment box. Election Law §173.

4) The completed enrollment blank must remain locked

in the enrollment box until November 14, 1972. Election

Law 9186.

5) Sometime between November 14, 1972 and February

1, 1973, petitioner’s name must be entered on the official

6) Until the register book entry is made, petitioner may

not vote in a primary election or participate in any way,

in the affairs of the Democratic Party. Election Law §186.

7) If, after the enrollment boxes are opened a member

of the Democratic Party doubts the validity of petitioner’s

declaration of sympathy, he may move to dis-enroll him.

Election Law. §332.

Thus, despite the fact that petitioner formally expressed

his intention to associate with the Democratic Party on

December 13, 1971, and “solemnly declared” his general

sympathy with the principles of the Democratic Party, he

will not be permitted to associate with the Democratic

Party until a date somewhere between November 14, 1972

and February 1, 1973, and, therefore, cannot vote in the

June Presidential Primary.

The issue posed by this case is whether New York may

impose such a drastic curb on the right to vote, the right to

associate for the advancement of political beliefs and the

right to travel.

Reasons for Granting the Writ and for Summarily

Reversing the Decision of the Court Below’

The Decision Below Is in Direct Conflict With Recent

Decisions of This Court Protecting the Right to Vote.

No distinction is made under New York law among a)

“new voters,” such as the petitioner herein, who are regis.

tering for the first time; b) established voters, recently

arrived in New York State, who are registering for the

first time in New York and who are continuing a pre-

existing affiliation with a political party; and e) established

voters who are seeking to alter a pre-existing party affilia-

tion. All are subject to the strictures of Section 186.

All are prohibited from voting in the June Presidential

Primary unless they registered and enrolled in New York

on or before October 2, 1971.

In a series of decisions, this Court has enunciated the

principle that state action restrictive of the franchise must

advance a compelling state interest by the least drastic

means in order to pass judicial scrutiny under the Four-

teenth Amendment. E. g., Carrington v. Rash, 380 U.S. 89

A motion for Summary reversal has been made simultaneously

the filing of the petition for a writ of certiorari herein. In

new of the motion for Summary reversal, counsel has submitted a

More extensive certiorari petition than would ordinarily be appro-

priate. See, e. g., Socialist Worker's Party v. Rockefeller, 314 F.

Supp. 984 (SDNY), aff'd 400 U.S. 806 (1970).

(1965); Harper v. Virginia Board of Elections, 383 U.S.

663 (1966); Williams v. Rhodes, 393 U.S. 23 (1968);

Kramer v. Union Free School District No. 15, 395 US.

621 (1969); Cipriano v. City of Howma, 395 U.S. 701

(1969); Evans v. Cornman, 398 U.S. 419 (1970); City of

Phoeniz v. Kolodziejeski, 399 U.S. 204 (1970); Bullock v.

Carter, —— U.S. —, 40 USLW 4211 (February 24,

1972); Dunn v. Blumstein, —— US. —-, 40 USLW 4269

(March 21, 1972). In the present case, since the “benefit

withheld” by New York is the right to vote in a Presidential

primary and since the “basis for the classification” involves

both recent interstate travel and a requirement of past

participation in the electoral process, New York must dem-

onstrate that Section 186 advances a compelling state in-

terest by the least drastic means. Dunn v. Blumstein,

supra, 40 USLW at 4271.

The Court below accepted New York’s contention that

Section 186 was designed to advance an important state

interest by preventing bad faith participation by members

of one party in the primary of another. By requiring all

enrollments to be made at least nine months prior to a

Presidential primary, the Court below ruled that New York

was appropriately guarding against such bed-faith raiding

„But see, Beare v. Smith, 321 F. Supp. 1100 (SD Texas, 1971),

im which the District Court, commenting on a Texas law which

closed registration on January 31st for a November election, stated:

ing to register do not even know for sure who the candidates

are and what the issues might be.” 321 F. Supp. at 1107.

See Socialist Worker's Party v. Rockefeller, 314 F. Supp.

984 (8 a 197) where a similar restriction

contained in Section 136 Law was declared uncon-

stitutional in connection with the minority party nominating proce

es in New York.

Even if one assumes that the prevention of bad-faith

“raiding” is a compelling state interest,’ it does not follow,

as the Court below seemed to believe, that Section 186 is

constitutional merely because it is “rationally related” to

the prevention of raiding. As Mr. Justice Marshall noted

in Dunn v. Blumstein, supra:

“It is not sufficient for the State to show that durational

residence requirements further a very substantial state

interest. In pursuing that important interest, the State

cannot choose means which unnecessarily burden or

restrict constitutionally protected activity. Statutes

affecting constitutional rights must be drawn with

‘precision,’ NAACP v. Button, 371 US. 419, 438

(1963); United States v. Robel, 389 U.S. 258, 265

(1967), and must be ‘tailored’ to serve their legitimate

objectives. Shapiro v. Thompson, supra, 394 U.S. at

631. And if there are other, reasonable ways to achieve

those goals with a lesser burden of constitutionally

protected activity, a State may not choose the way of

greater interference. If it acts at all, it must choose

‘less drastic means.’” 40 USLW at 4273.

An analysis of the scope and impact of Section 186 re-

deals that far from being a “precise” statute “tailored” to

gard against bad faith “raiding,” it is a classic example

of an overbroad regulatory provision which unnecessarily

impinges upon fundamental constitutional rights.

First, if the purpose of Section 186 is to prevent mem-

bers of one party from crossing over in bad faith to vote

"In this regard, it might be noted that one man’s “rgiding” is

man’s “reform”. See, generally, Alexander v. Te , 337

E2a 962 (3rd Cir.), cert. den. 380 U.S. 915 (1964); Pontikes v.

„ F. Supp. —— (ND In. 1972).

in the primary of another, why does New York insist upon

applying its strictures to newly enfranchised voters (such

as petitioners herein) who are registering and enrolling for

the first time? Surely, newly enfranchised voters register-

ing their initial party affiliation do not pose any substantial

threat of organized, large scale “raiding.” Why would it

not be sufficient for New York to advance its alleged in-

terest in deterring “raiding” by applying the strictures of

Section 186 only to those persons seeking to alter a pre-

existing party affiliation. Cf. Lippitt v. Cippollone, ——

U.S. ——, 40 USLW 3334 (Jan. 17, 1972).

Second, if the purpose of Section 186 is to prevent mem-

bers of one party from crossing over in bad faith to vote

in the primary of another, why does New York insist upon

applying its strictures to newly established residents of

New York, who are registering in New York for the first

time and who seek merely to continue a pre-existing affilia-

tion with a political party.“ Once again, why would it not

As Chief Judge Mishler noted, Section 186 acts as a durational

ya . requirement when applied to recent arrivals in New

“Tt also needs little explanation that the waiting period man-

dated by the enrollment box system before an enrollment can

idency requirement. This

required )

Viewed as a durational residence irement for primaries, See-

tion 186 is a clear violation of Du v. Blumstein, supra. See,

Point II, infra, at pp. 17-19.

Tt should be noted that Section 186 also disenfranchises not only

newly arrived residents of New York, but all New Yorkers who

have moved across county lines since the last preceding general

be sufficient to restrict Section 186 to persons seeking to

alter a pre-existing party enrollment.

Finally, if the purpose of Section 186 is to prevent mem-

bers of one party from crossing over in bad faith to vote in

the primary of another, why does New York insist upon ap-

plying its strictures to voters who, concededly, are in good

faith in seeking to enroll. Why would it not be sufficient to

restrict Section 186 to those enrollees whose bona fides have

been challenged by the affected political party?

Moreover, New York has already provided a comprehen-

sive system of regulation to guard against bad-faith “raid-

ing” rendering the Draconian measures which have disen-

franchised petitioners wholly unnecessary.

First, New York requires all prospective enrollees to

“solemnly declare” their allegiance to their chosen political

party. Election Law, Section 174. Thus, casual party affili-

ations are impossible in New York and it is an affront to

the integrity of the electorate to assume, as did the court

below, that large numbers of New Yorkers are likely to

falsify the required “solemn declaration” in order to cast a

primary ballot in bad faith.

Second, New York has enacted a comprehensive series of

criminal sanctions outlawing fraud in the electoral process.

Tt is simply inconceivable that the large scale, fraudulent

“raiding” of a political party in violation of Section 174

¢onjured up by the court below, could exist without a clear

—

pattern of fraud. The threat of criminal sanction would,

Merefore, drastically deter any attempt at raiding.

3 ‘Finally, and most importantly, New York has equipped

political parties with an expeditious and efficient dis-

rollment process to enable them to protect themselves

against bad faith “raiders.” Election Law, Section 332.

Pursuant to Section 332, an initial dis-enrollment hearing

may be held before a party functionary, thus enabling a

political party more than ample self-protection against

“raiders.” Moreover, contrary to the wholly unsupported

assertions of the court below, Section 332 has proven an

extremely effective defense against “raiding.” As Chief

Judge Mishler“ noted:

“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. Sec-

tion 332 of the New York Election Law provides that

the party enrollment 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 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,

Zuckman, Werbel, and Newkirk. Each of those cases

involved challenges to the enrollment of party mem-

bers. Each case involved an attempted takeover of one

party by members of another. Challenges in each of

the three cases were successful.

It should be noted that Chief Judge Mishler is far from un-

aware of the realities of political life in New York. For many years

prior to his elevation to the bench in 1961, he was a leader of the

Queens County Republican Party and a candidate for public office

on several occasions.

“Such a proceeding, then, is sufficient to protect the

permissible 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 be-

cause of some remote administrative benefit to the

State. Carrington v. Rash, supra, 380 U.S. at 96, 85

S. Ct. at 780.“ (A 26a-27a).

Thus, by failing to restrict the scope of Section 186 to

persons altering a pre-existing party affiliation, and by

failing to utilize the already existing alternative statutory

defenses against bad faith raiding, New York has “un-

necessarily” and, therefore, unconstitutionally, deprived

petitioners (and the hundreds of thousands of voters

similarly situated) of the opportunity to participate in a

critical phase of the 1972 Presidential election.

II.

The Decision Below Is in Direct Conflict With Recent

Decisions of This Court Invalidating State Action Im-

pinging Upon the Right to Travel.

In Shapiro v. Thompson, 394 U.S. 618 (1969), this Court

Tecognized that freedom to travel throughout the United

States is one of the fundamental personal rights protected

by the Constitution. See also, e. g., Passenger Cases, 7 How.

288, 492 (1849) (Taney, C.J .); Edwards v. California, 314

US. 160 (1941); Oregon v. Mitchell, 400 U.S. 112, 237

(opinion of Brennan, White and Marshall, JJ.), 285-286

(opinion of Stewart, J.). :

“In Dunn v. Blumstein, . U.S. —, 40 USLW 4269

(March 21, 1972), this Court recognized that durational

voting requirements directly impinged upon the right to

travel by singling out newly arrived residents and denying

them access to the ballot.

Since Section 186 of New York’s Election Law dis-

qualifies from the June Presidential primary all persons

who have established a residence in New York subsequent

to New York’s last preceding general election, it operates

as an unconstitutional durational residence requirement in

direct violation of Dunn v. Blumstein, supra. See note 8

supra, at p. 14.“ f

The Court below did not attempt to deal with the fact

that Section 186 imposes a durational residence require-

ment because it found that the 1970 amendments to the

Voting Rights Act of 1965 (42 USC 1973aa (1)), invalidat-

ing durational residence requirements in Presidential elec-

tions, did not apply to primary elections (A 9a). However,

given this Court’s decision in Dunn, petitioners submit that

the issue of the applicability of the Voting Rights Act has

become academic. After Dunn, Section 186 is unlawful, not

because it imposes a durational residence requirement in

10 In Jordan v. Meissner, —— U.S. ——, 40 USLW 3398 (Feb.

22, 1972) this Court dismissed the appeal of a Georgia resident

who had moved to New York and sought to re-establish his long

time affiliation with the Democratic Party, but who was barred

by Section 186. Unfortunately, in Jordan, the Attorney General

of New York inadvertently misstated New York law by asserting

that Jordan was eligible for special enrollment pursuant to Section

187 of the Election Law. Acting upon the Attorney General’s in-

correct representation, this Court dismissed Jordan’s appeal for

want of a substantial Federal question. However, during argu-

ment before the court below, the Nassau County Attorney correctly

informed the court that Section 187 applies only to persons whose

new residence is within the same county as his old residence. Elec-

tion Law 5187 (e) (6). The Attorney General does not dispute the

Nassau County Attorney’s reading of the statute, which, indeed,

reflects the practice followed throughout New York State.

violation of the Voting Rights Act, but because all dura-

tional residence requirements for voting unconstitutionally

impinge upon fundamental constitutional rights. Thus,

whether or not Section 186 is in violation of the Voting

Rights Act, it is in clear violation of Dunn v. Blumstein,

supra.’ -

III.

The Decision Below Is in Direct Conflict With Recent

Decisions of This Court Protecting the Freedom to Asso-

ciate for the Advancement of Political Aims.

New York’s statutory scheme imposes a waiting period”

of eleven to fourteen months between petitioner Eisner's

initial attempt to associate with the Democratic Party and

his final acceptance as a party member.

Since the result of such a statutorily imposed waiting

period is the abridgement of petitioner’s right to vote in

the June Presidential Primary, New York’s statutory

scheme effects an unlawful abridgement of the franchise

and is, therefore, invalid. See generally, Point I, supra.

However, even if New York’s deferred enrollment procedure

did not abridge petitioner’s right to vote, it would, never-

theless, unquestionably violate his right to freely associate

with the political party of his choice. No state may impose

onerous restrictions upon an individual’s ability to associate

with the political party of his choice for the advancement of

political goals. E. g., Williams v. Rhodes, 393 U.S. 23

(es): NAACP v. Alabama, 357 U.S. 449 (1958); Pollard

Roberts, 283 F. Supp. 248 (E.D. Ark., 1968), aff d per

curiam 393 U.S. 14 (1968) ; United States v. Robel, 389 U.S.

258 (1967 J.

8 a See footnote 8, supra, p. 8.

In Williams v. Rhodes, supra, this Court recognized that

the right to associate with a political party for the advance-

ment of political goals was protected against state encroach-

ment by the First Amendment. Mr. Justice Black, writing

for the Court in Williams v. Rhodes, supra, stated:

“In the present situation the state laws place burdens

on two different, although overlapping, kinds of rights

—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 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 encroachment by the First Amend-

ment is entitled under the Fourteenth Amendment to

the same protection from infringement by the States.”

393 U.S. at 30-31. See also, Mr. Justice Douglas’

concurrence, 393 U.S. at 35-38."

In his concurring opinion in Williams v. Rhodes, supra,

Mr. Justice Harlan described the role which freedom of

association plays in the political process. Indeed, Mr.

Justice Harlan expressly disclaimed reliance upon the

equal protection analysis utilized by this Court in the

Kramer-Evans-Dunn line of authority. Thus, he recognized

that the right to join a political party, free from undue

18 Mr. Justice Douglas, in language strikingly appropriate to

this case observed : ‘

“(:ymbersome election machinery can effectively suffocate the

right of association, the promotion of political ideas and pro-

grams of political action, and the right to vote.” 393 US.

state interference, is at the very core of our associational

freedoms protected by the First Amendment.

In Carter v. Dies, 321 F. Supp. 1358 (N.D. Tex., 1970),

af d sub nom. Bullock v. Carter, —— U.S. ——, 40 USLW

(February 24, 1972), this Court ruled that a Texas require-

ment of a substantial filing fee in order to participate in a

Democratic Party Primary was unconstitutional. The

Court recognized that the right to participate in a primary

election is protected against state encroachment by the

First Amendment’s guaranty of freedom of association.

In his concurring opinion, in the District Court, Judge

Thornberry stated:

“At the very core of this dispute lies the First Amend-

ment’s guarantee of the right to engage in association

for the advancement of beliefs and ideas. .” 321 F.

Supp. at 1363.

Thus, to the extent that New York’s statutory scheme

places obstacles in the path of petitioner’s association with

the Democratic Party and inhibits him from voting in the

June primary, it impinges upon his First Amendment

associational rights.

State statutes, such as New York’s Election Law, which

inhibit free association have been declared unconstitutional

under two analyses. Many courts have ruled that such

direct restraints on free association are absolutely invalid.

E.g., United States v. Robel, 389 U.S. 258 (1967); Boorda

v. Subversive Activities Control Board, 421 F. 2d 1142 (D.C.

Cir., 1969), cert. den. 397 U.S. 1042 (1970); Williams v.

Rhodes, 393 U.S. 23, 35 (1968) (Mr. Justice Douglas con-

curring). Other courts have ruled that restraints on

associational freedom can survive constitutional scrutiny

only if they advance a compelling state interest by the least

drastic means. E. g., NAACP v. Alabama, 357 U.S. 449

(1958); Pollard v. Roberts, 283 F. Supp. 248 (E.D. Ark.,

1968), aff’d per curiam 393 U.S. 14 (1968).

If the “absolute” analysis of United States v. Robel,

Supra, is applied to New York’s deferred enrollment scheme,

it is, of course, unconstitutional as a direct abridgement on

free association.

If the “balancing” analysis of NAACP v. Alabama, supra,

is applied, it is clear that New York’s scheme is uncon-

stitutionally overbroad and far more Draconian than

necessary. See Shelton v. Tucker, 364 U.S. 479 (1960).*

Chief Judge Mishler, in his District Court opinion,

expressly recognized the associational values at stake herein

and expressly rested his opinion on First as well as Four-

teenth Amendment grounds (A 28a). Unfortunately, how-

ever, the opinion of the court below reversing Chief Judge

Mishler failed to discuss the First Amendment associa-

tional aspects of the instant case at all. The failure of the

court below to even attempt to grapple with the First

Amendment problems raised by the refusal to permit

petitioners to associate with the political party of their

choice is yet another basis for summarily reversing its

opinion.

18 Ags petitioner has demonstrated in Point I, supra, Section 186

is certainly not the least drastic means available to guard against

fraudulent “raiding”.

— e — © -—«

EPE

IV.

New York’s Deferred Enrollment Scheme Which Con-

ditions Full Participation in the 1972 Electoral Process

Upon Past Participation in the 1971 Electoral Process

Is an Unconstitutional “Grandfather Clause” in Viola-

tion of the Fourteenth, Fifteenth, and Twenty-sixth

Amendments.

In order to participate in the June 1972 Presidential

Primary, New York’s statutory scheme requires petitioners

to have been registered to vote in the November 1971 local

elections. In effect, therefore, New York has established a

“grandfather clause” which conditions full participation in

the 1972 Presidential election upon past participation in

1971 local elections. Since such “grandfather clauses”

inevitably fall with disproportionate force upon hitherto

unregistered members of racial or ethnic minorities and

persons having recently attained voting age, they violate

the Fourteenth, Fifteenth, and Twenty-Sixth Amendments.

A. “Grandfather Clauses” and the Right to Vote

Grandfather clauses are, unfortunately, not unknown to

the American experience, In two cases, this Court un-

equivocally ruled that to the extent grandfather clauses act

to inhibit full participation in the electoral process, they

are unconstitutional. Guinn v. United States, 238 U.S. 347

(1915) ; Lane v. Wilson, 307 U.S. 268 (1939).

In Guinn, this Court was faced with an Oklahoma grand-

father clause which confined registration without a literacy

test to those persons who could demonstrate that a lineal

ancestor had participated in an election prior to the Civil

War. Although the clause was non-discriminatory on its

face, it obviously fell with disproportionate force upon

that segment of the electorate enfranchised by the Fifteenth

Amendment. Accordingly, this Court declared it uncon-

stitutional.

In Lane v. Wilson, supra, this Court dealt with a second

Oklahoma grandfather clause, passed in response to Guinn,

which confined registration in the absence of a literacy test

to those persons whose lineal ancestors either had

participated in a pre-Civil War election or had registered

during a grace period in 1916. It was conceded that the

clause was non-discriminatory on its face and was being

applied in an even-handed manner. Nevertheless, this

Court, speaking through Mr. Justice Frankfurter, declared

the statute unconstitutional because its effect was to

frustrate the implementation of the Fifteenth Amendment.

In words appropriate to this case, Mr. Justice Frankfurter

stated:

he [Fifteenth] Amendment nullifies sophisticated as

well as simple-minded modes of discrimination. It hits

onerous procedural requirements which effectively in-

hibit exercise of the franchise by the colored race

although the abstract right to te may remain un-

restricted as to race.” 307 U.S. at 275.

Just as the Oklahoma grandfather clauses condemned by

Guinn v. United States, supra, and Lane v. Wilson, supra,

inevitably fell with disproportionate effect upon the

beneficiaries of the Fifteenth Amendment, so New York's

grandfather clause unduly abridges the ability of the

beneficiaries of the Fifteenth and Twenty-Sixth Amend-

ments to participate in the electoral process.

See generally, Gangemi v. Rosengard, 44 N.J. 166, 207

A.2d 665 (1965) ; Goetsch v. Philhower, 60 N.J. Super. 582,

160 A.2d 60 (N.J. Super. 1960); Cottingham v. Vogt, 60

NJ. Super. 576, 160 A.2d 57 (N. J. Super. 1960), invalidat-

ing similar provisions of New Jersey’s election laws.

B. The Impact of New York’s Statutory Scheme Upon

Hitherto Unregistered Members of Racial Minorities

It is a stark reality that fewer than 50 percent of the

qualified voters in New York, Kings and Bronx Counties

participated in the 1970 general elections. Accordingly,

New York has been officially designated as subject to the

Voting Rights Act of 1965, designed to apply solely to

those sectors of the country where non-participation in the

electoral process has reached crisis proportions.

It is universally agreed that the overwhelming oO

of non-registration occurs in New York City’s black and

Puerto Rican ghettos. Indeed, conservative estimates

indicate that over one million qualified members of racial

minorities have failed to register to vote in New York City

alone. Therefore, it is axiomatic that provisions condition-

ing full participation in the current electoral process upon

some degree of past participation in past elections must

inexorably bear most heavily upon the mass of black and

Puerto Rican electors who have failed to participate in

prior elections for reasons ranging from ignorance to

despair. Instead of encouraging this mass of unregistered

voters to participate in the 1972 Presidential election, New

York’s statutory scheme perpetuates their exclusion from

the democratic process by rendering them ineligible to vote

in the June primaries. Thus, to the extent that hitherto

Mregistered members of racial or ethnic minorities wis!

to involve themselves in the democratic process—perhaps

because a particular Presidential candidate has captured

their affections or loyalty—New York prohibits them from

doing so. Such a prohibition, keyed as it is to a failure to

have participated in past elections, is in clear violation of

the Fifteenth Amendment. Guinn v. United States, supra;

Lane v. Wilson, supra.

C. The Impact of New York’s Statutory Scheme on

Persons Having Recently Attained Voting Age

The United States Census Bureau estimates that approxi-

mately 950,000 persons between the ages of 18-21 were

enfranchised by the passage of the Twenty-Sixth Amend-

ment in New York State. However, New York’s statutory

scheme prohibits beneficiaries of the Twenty-Sixth Amend-

ment who attained the age of eighteen prior to November

2, 1971, from participating in the June primary elections

unless they registered to vote in the November 1971 local

elections. Thus, approximately 80 percent of the bene-

ficiaries of the Twenty-Sixth Amendment in New York

State will be disqualified from participating in the June

Presidential Primary solely because they failed to register

to vote in local 1971 elections.

The Twenty-Sixth Amendment expressly prohibits the

denial or abridgement of the franchise on account of age.

Since New York’s statutory scheme virtually nullifies the

Twenty-Sixth Amendment as applied to the June Presi-

dential Primary, it is clearly an abridgement of the

franchise. Moreover, since the abridgement is based upon

a young voter’s failure to have registered for one local

election of limited interest (the only election for which he

ever qualified), it is a discriminatory abridgement based

upon age.

The Need for Expeditious Relief Herein.

Unless expeditious relief is forthcoming, thousands of

newly enfranchised young voters will be unable to par-

ticipate in a critical phase of the June Presidential pri-

mary currently underway in New York.

New ‘York provides that nominating petitions for can-

didates for delegate to the Republican and Democratic

National Conventions must be circulated from April 4

May 11. Thus, the nominating process for convention dele-

gate (as well as all other offices contested in the June

primary) has already begun throughout New York State.

However, as a direct consequence of the decision of the

court below, literally tens of thousands of young voters

who wish to participate in the delegate nomination process,

either by signing a delegate nominating petition, or by

actually seeking designation as a candidate for convention

delegate, are prevented from doing so solely because they

were not registered to vote on October 2, 1971.

In addition, registration books for the June 20, 1972

primary close on May 20, 1972. The wide publicity at-

tendant upon the panel’s reversal of Chief Judge Mishler

will undoubtedly deter large numbers of voters from reg-

istering to vote because they now believe themselves in-

eligible to participate in the forthcoming Presidential

Primary. Thus, unless the panel’s decision is reversed

Prior to May 20, 1972, thousands of voters will be de-

prived of an opportunity to register for the June primary,

even if the panel’s decision is ultimately found to be

erroneous.“

The need for immediate relief is in no way attributable to

Petitioners’ failure to proceed expeditiously. Petitioner Eisner at-

The effect of the Second Cirenit’s decision upholding

Section 186 is to bar the following classes of voters from

8 New York’s June Presidential Primary:

(1) newly enfranchised voters between the ages of 18-21,

who failed to register for the first time on or before

October 2, 1971;

(2) all “new” residents of New York who established

their residences on or after October 2, 1971; and

(3) hitherto unregistered members of racial or ethnic

minorities who have been drawn into the democratic

process for the first time in 1972.

Although the undoubted aim of the Second Circuit was

the strengthening of the democratic process, its decision

has had precisely the opposite result. Indeed, given the

exclusions sanctioned by the court’s opinion, New York's

June primary is now open to an artificially truncated seg:

ment of the electorate from which have been excluded

bona fide voters. Such a primary, excluding as it will,

large segments of the electorate, can be but a dismal shadow

of democracy.

ond Cireuit's opinion was announced on Friday, April 7, 1972.

Petitioners moved for a * 1 mandate and rehearing in bane

motion on April A. 1972. The instant petition was filed on

8 A !

8 . f 8

CONCLUSION

For the reasons stated above the petition for a writ

of certiorari should be granted and the decision of the

court below should be summarily reversed, or, in the

alternative the matter scheduled for expedited consid-

eration on the merits.

Respectfully submitted,

Burt NEvBORNE

AnrRUn EISENBERG

New York Civil Liberties Union

84 Fifth Avenue

New York, New York 10011

Seymour FrmepmMan

26 Court Street

Brooklyn, New York

Attorneys for Petitioners

APPENDIX

Opinion of the United States Court of Appeals

for the Second Circuit

UNITED STATES COURT OF APPEALS

For tHe Szconp Circurr

“or

Nos. 632, 633—September Term, 1971.

ued February 24, 1972 Decided April 7, 1972.)

Docket Nos. 72-1182-83

= 0 J. Rosanto, WELA J. Freepman and Karen Lan

| Gorresman, individually and on behalf of all others

| Similarly situated,

Plaintiffs-A ppellees,

8 —

Be. >

1 on RooRETxLLAn, Governor of the State of New York,

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

New York,

2 Defendants-A ppellants,

mon J. O’Rovexe, James M. Power, TROMAS Mater

"and J. J. Dunzasrrix, constituting the Board of Elec-

Mons in The City of New York,

Defendants.

= =

Sreven E:swer, on his own behalf and

on behalf of all others similarly situated,

Plaintiffs-A ppellees,

— —

ow Rooxzrziizr, Governor of the State of New York;

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

VAN D. Meissner and Marvin D. CHRISTENFELD,

Commissioners of Elections for Nassau County,

3 | Defendants- A ppellants.

Before:

Lumpazp, Manar and Mutiican,

Circuit Judges.

allt

or,

Appeal from a decision in the Eastern District of New

York, Mishler, J., declaring New York Election Law 6186

unconstitutional on grounds that it violated plaintiffe’ First

and Fourteenth Amendment rights and that it was in con-

flict with 42 U.S. C. §1973aa-1(d).

Reversed. f

~~ ==

— err

Szymour Farmpmax, Brooklyn, New York, for

Plaintiffs-Appellees Pedro J. Rosario, Wi

liam J. Freedman and Karen Lee Gottes

man, et al.

A. Sern Garenwap, 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. Lomeneo

and Pro Se pursuant to New York Execw

tive Law §71.

Burr Nsvsorxe, New York Civil Liberties Un-

ion, Brooklyn, New York (Arthur Eisen-

berg, on the brief), for Plaintiff s-Appellees

Steven Eisner, et al.

J. Kemp Hannon (Joseph Jaspan, County At

torney of Nassau County, Mineola, New

York, on the brief), for Defendants-Appe-

lante William D. Meissner and Marvin D.

Christenfeld.

Luna, 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

aa ä Section 186 provides:

$186. Opening of enrollment box and completion of enrollment

All enrollment blanks contained in the enrollment box shall remain

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 desig-

nated by each voter under such declaration, provided such party

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

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

column of the two copies of the register containing enrollment

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

enrollment blanks marked by voters, who enrolled before a central

or veterans’ absentee registration board shall at the same time be

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

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

45 provided such party continues to be a party, as defined in this law.

ys If cross marks are found in more than one of the circle 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

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

U.S.C. $1343(3), §2281, and 62284, plaintiffs sought the

convening of a three-judge court and requested declaratory

and injunctive relief against the enforcement of section

186. Subsequently, they dropped their demand for injuno-

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

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

2 Defendants have argued that the district court had no power to refuse

district judge quite properly determined the issue. See Merced Bose ¥.

Herrero, 423 F.24 591, 593 (1st Cir. 1970).

elaratory 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 6332 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,

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. Blumstein, 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

Liberalsas 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.

a 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; e. g., Dunn v. Blumstein, 40 U.S.L.W. 4269

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

V. G. 621 (1969); William v. Rhodes, 398 U.S. 23 (1968); Reynolds v.

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

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

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

(1944); United States v. Classic, 318 U.8. 299 (1041).

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

statute advances a compelling state interest and that it does vo in 2

manner calculated to impinge minimally on First and Fourteenth Amend-

ment rights.

Moreover, 1 * 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 who 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.

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

a time. Lach 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

case 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, e. g., ownership

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

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

other 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-

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

of evidence regarding a voter’s party preference and

faced with large-scale raiding, party officials relying only

on section 332 would be virtually impotent. By contrast,

section 186 has a broad deterrent effect. The burden of

change is placed upon the raider not the party and the

r ES

—

. r , ee a a ae ae a

_ tx»

9a.

statute requires the cross-over at a particularly difficult

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

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-

daring constitutional Ohio Rev. Code §3513.191 which 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 mem-

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 & proper means to halt this practice.‘

— —-— —

5 New York does allow post-general 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 general election or if he was

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

g York is not opposed to later enrollment per se.

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

* oba substantial federal question of a case ostensibly raising the same

une as the instant case, Jordan v. Meteser, 40 U.8.L.W. 3898 (Feb. 22,

- 1972), 0 controlling in this litigation. However, in Jordan v. Meisser,

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

10a

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

ichts 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,” 41973aa-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

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 failed to utilize the provisions of section 187 of the New

York Election Law under which,he could have enrolled in « party afte

the general election in order to participate in the primary election Bee:

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

sarrowly-defined eireumstances and none of the plaintiffs here has ts

ila

Opinion of the United States District Court,

Eastern District of New York

February 10, 1972

UNITED STATES DISTRICT COURT

Eastern District or New Tonk

—

No. 71-C-1573

FPxnno J. Rosario, WILIA J. Freepman and Karen Lee

Gorrrsxax, individually and on behalf of all others sim-

ilarly situated,

Plainti fs,

—against—

NELsoN Rockere.er, Governor of The State of New York,

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

New York, Mavaice J. O’Rovexe, James M. Pow,

~ Tomas MaTLxx and J. J. Dusersrem, consisting of the

pe Boazp or Exxctions ux rae Crry or New York,

Defendants.

—

No. 71-C-1621

Sreven Ersnezsr, on his behalf and on behalf of all

others similarly situated,

Plaintif's,

Netsow Rocxereiizr, Governor of The State of New York,

5 Jonx P. Lomenzo, Secretary of State of The State of

New York, WLAN D. Messer and Mazvin D. CRE.

, Commissioner of Elections for Nassau County,

1 Defendants.

—

12a

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 Novem-

ber 7, 1972.7

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-

1The Court consolidated the actions as provided in Rule 42A.

2 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 dor 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

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 3

13a

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

be entered

i in

first day

55, ¢.41, eff. March 7, 1955.

_*Plaintiffs originally moved for the convening of a three Judge

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

14a

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, 1972 primary, running for party

office, or signing designating petitions for candidates wish-

ing to enter the primary.

I. Equat PRorecrion

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.

533, 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 a free and

Party officials are also elected in the primary election.

15a

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

grounds 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,

85 L.Ed. 1368, that this Court has been so zealous to

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

casually deprive a class of individuals of the vote be-

cause of come remote administrative benefit to the

State. (880 U.S. at 96, 855 at 780) [Emphasis sup-

plied.)

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

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

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

that

We have long been mindful that where fundamental

rights and liberties are asserted under the Equal

Protection Clause, classifications which might invade

or restrain them must be closely scrutinized and care-

16a

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 given by the Court in Mc-

Gowan v. 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 U.S. 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

17a

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

US. 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 t6

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

184

laws taken as & 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 a

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).

19a

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, 198 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.]

It is evident from the Court’s opinion in Kramer that

once a state has imposed basic voting requirements of

titizenship, age, and residency, all further requirements

a by their nature must be viewed as restrictions)

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 eitizenship, 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. Kolodgiejski, 399 U.S. 204, 90

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

+t in not 80 included, arguing that a primary is an internal

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

organization.

21a

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

entire 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

§.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, e. 392, 36

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

27, 1918. The Court found that Congress exceeded the

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

to determine “the times, places and manner of holding

élections for Senators and Representatives... since the

word “elections” did not include primaries. The Court

held:

The Seventeenth Amendment, which directs that

Senators be chosen by the people, neither announced

nor requires a new 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

which party adherents agree upon candidates whom

they intend to offer and support for ultimate choice

by all qualified electors. General pro isions 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 in a

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.

23a.

party primary which invariably, sometimes or never

.. determines the ultimate choice of the representative.”

1313 U.S. at 318, 61 S.Ct. at 1039). [Emphasis

supplied.

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

757 (1944), the Supreme Court found itself able to say

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

vote in such a primary for the nomination of candidates

without discrimination by the State, like the right to vote

in a 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

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

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

cludes voting in all elections, both primary and general,

dealing with the choice of federal legislators.

However, the provisions of the Equal Protection Clause

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

discrimination in the allocation of federal rights, but also

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

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

it is to be noted that the State of New York has included

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

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

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

of 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:

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

‘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

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

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). Rr.

That primary elections are “an integral part of the

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

from the extensive statutory provisions regulating such

elections. 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

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

to rely on the second leg of the Classic statement quoted

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

an integral part of the procedure of choice in New York

and that this suffices.

Applying the standards of Kramer, then, it is clear

that the voting requirement embodied in 6186 of the New

York Election Law is a requirement neither of age, nor

of citizenship, nor of residence and is thus an additional

requirement which is subject to examination under the

compelling state interest test. Section 186 in effect re-

quires voters who have met the basic state requirements

of age, citizenship, and residence, to have enrolled in a

Political party prior to the last general election preceding

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

in that primary.

The state interest propounded by the defendants in

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

terest in insuring the integrity of its political parties and

i preventing inter- party raiding. Defendants argue that,

6 t the enrollment box provisions of §186, voters not

basic sympathy with the principles of a specific party

mld find it easy to organize and enroll in that party

it large numbers before a primary so as to be able to

26a.

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

terests. ‘ee

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

Zuckman v. Donohue, 191 Misc. 399, 79 N.Y.S.2d 169 (Sup.

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

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

2d —— (1948); Matter of Werbel v. Gernsteim, 191 Mise.

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

144 Misc. 765, 259 N. V. S. 434 (Sup. Ct. 1931).

However, where a law is subject to the 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

Each of these cases involved the attempted takeover of a party

hundreds of determined voters from organizing prior to the last

general election and changing their party enrollments 90 as to be

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

members.

27a

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. Bach case

involved an attempted takeover of one party by members

of another. Challenges in each of the three cases were

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 reason of their failure to

enroll 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-

1 vant circumstances and likely consequences.” (Footnote

emitted). Brady v. United States, 397 U.S. 742, at 748,

90 8. Ot. 1463, at 1469 (1970). See also Brookhart v. Janis,

28a

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.

II. Fmst 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

® Although these principles were announced in criminal cases,

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

free association are any less fundamental and sacred than the

rights reserved to those accused of imes. These rights ought not

lightly to be considered forfeited. is perhaps most important

that a right not need burdensome administrative renewal when

the eritiesl nature of current situation sparks a citizen to speak

out. See, eg. Beare v. Smith, 321 F. Supp. 1100 (1970) (Three

Judge Court).

29a

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 inf ringe-

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-

lute 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),

however, the Supreme Court expressly declined to use

such a test. In striking down an overbroad federal statute,

the Court stated:

We are concerned solely with determining whether

_ the statute before us has exceeded the bounds imposed

buy the Constitution when First Amendment rights are

30a

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 U.S.

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).

1 Sr 2

Another line of cases has settled upon the “compelling

state interest” test whenever it is alleged that state action

3la

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

US. 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

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

Rated 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

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

32a

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.

which is protected against state infringement under the Due

grounds.

eee

33a

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

reason to believe that they would not protect whatever

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

tenance of “party integrity.”

III. Tue Voriwe Ricuts Act or 1965

AND THE 1970 AweNDMENTS

Section 1973aa-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.

1. 91-285, 66, 84 Stat. 315, 42 U. S. C. A. §1973aa) provides:

(le) No citizen of the United States who is otherwise

~ qualified to vote in any election for President and Vice

_ President shall be denied the right to vote for electors

5 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

2 requirement of such State or political subdivision .

—

wee

34a

(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

u The legislative history shows that the Act. was intended to

apply to primary elections and particularly elections of delegates

to conventions. House Report No. 439, in explanation of the

Section of the Voting Rights Act [42 U.8.C. 519731 (e)

contains a definition of the term

of the act. The definition makes

35a

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

eonventions. 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. n

eit 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

dosed during the thirty days before and after the general

e ion). It is a durational resideney requirement imposed

= —

lt is noted that absentee balloting is not available in primary

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

U.S. 112, 91 S.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.

u Section 150 provides in part that

“Tal qualified voter is a citizen who is or will be on the day of

election twenty-one years of age or over, and shall have been

a resident of this state, and of the county, city or village for

three months next preceding an election and has been duly

in the election district of his residence. See

footnote 10, supra. .

37a

IV. Summary or Prior Proceepinas

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. Conciusion

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.

Jacos MisRLRR

U.S. D. J.

38a

Order Denying Hearing en Banc

UNITED STATES COURT OF APPEALS

Seconp Crovuit

72-1182 & 72-1183

——

Sreven EisRun, on his own behalf and on behalf of all

others similarly situated,

Plaintiff s-Appellees,

— V —

Netson Rooxereiize, Governor of the State of New York;

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

Wuium D. Memsner and Marvin D. CHRISTENFELD,

Commissioners of Elections for Nassau County,

Defendants-Appellants.

—

A petition for rehearing and supplemental petition for

rehearing both containing a suggestion that the action be

reheard en bane 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.

Hewry J. FRIENDLY

Chief Judge

April 24, 1972

- 39a

Order Denying Stay

UNITED STATES COURT OF APPEALS

Seconp Cimovurr

72-1182 & 72-1183

—

Sreven Eisxxn, on his own behalf and on behalf of all

others similarly situated,

Plaintiff s-Appellees,

—v.—

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

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

WAN D. Meissen and Marvin D. CRRISTRNTEL o,

Commissioners of Elections for Nassau County,

Defendants-Appellants.

A petition for a rehearing together with a motion in

the alternative to stay the issuance of the mandate pend-

ing 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 Denmp.

J. Epwarp Lumparp

Waurer R. Mansrietp

Wu H. Morziaax

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