Petitioners Brief — Rosario v. Rockefeller

Supreme Court brief1973

Ask Donna

What actually matters in this document.

Text

- Bupreme Court of the United Stathy 14 i

fee Ocroser Tzrm, 1971

No. 71-1371 : MICHAEL RODAK, 3

—

Pepro J. Rosario, Wituiam J. FrEepMAN and Karen Lee Gorrss-

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

: Petitioners,

—against—

ROCKEFELLER, Governor of The State of New York, JoHN

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

Maurice J. O’Rourke, James M. Power, THomas MALLEE and

J. J. DUBERSTEIN, consisting of the Boarp or ELECTIONS IN THE

Crry or New YorE,

Respondents.

——

Steven Ersner, on his own behalf and on behalf of all others

similarly situated,

: Petitioners,

—against—

Ngtson ROCKEFELLER, Governor of The State of New York, Jonn

P. LomEnzo, Secretary of State of The State of New York, WiL-

uiaM D. MerssNEr and Marvin D. CHRISTENFELD, Commissioners

of Elections for Nassau County,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

New York Civil Liberties Union

84 Fifth Avenue

New York, New York 10011

ME.vIn WouuF

American Civil Liberties Union

156 Fifth Avenue

New York, New York 10010

Seymour FrmepMAan

26 Court Street

Brooklyn, New York 11201

Attorneys for Petitioners

Jurisdiction

Questions Presented

Statutory Provisions Involved

The Operation of New York’s Statutory Scheme Regu-

lating Affiliation With a Political Party

Statement of ‘Case

SumMarRy OF ARGUMENT

I. New York’s Refusal to Permit Petitioners to Vote

in a Primary Election Unless They Enrolled in a

Political Party at Least 30 Days Prior to the Last

Preceding General Election Constitutes an Un-

lawful Abridgment of the Franchise

A. The Right to Vote in a Primary Election Is an

Integral Part of the Right to Vote

B. State Action Restrictive of the Franchise Must

Advance a Compelling State Interest by the

Least Drastic Means

C. New York’s Deferred Enrollment Scheme Does

Not Advance a Compelling State Interest by

the Least Drastic Méans

1. New York May Not “Lock” a Voter Into an

Unwanted Pre-Existing Political Affiliation

2. New York May Not “Lock” Previously Un-

affiliated Voters Out of the Parties of Their

Choice

PAGE

II. New York’s Refusal to Permit Petitioners to Af.

filiate With the Democratic Party Unconstitu-

tionally Abridges Their Right of Free Associa-

tion - B

IIT. Section 186 of New York’s Election Law Estab-

lishes an Unconstitutional Durational Residence

Requirement for Voting in a New York Primary

Election . 2

IV. Section 186 of New York’s Election Law Oper-

ates as an Unconstitutional “Grandfather Clause”

in Violation of the Fourteenth, Fifteenth and

Twenty-Sixth Amendments 14

ARGUMENT

Introduction 14

I New York’s Refusal to Permit Petitioners to

Vote in a Primary Election Unless They Enrolled

in a Political Party at Least 30 Days Prior to the

Last Preceding General Election Constitutes an

Unlawful Abridgment of the Franchise ....__ 17

A. The Right to Vote in a Primary Election Is an

Integral Part of the Right to Vote... 18

B. State Action Restrictive of the Franchise Must

Advance a Compelling State Interest by the

Least Drastic Means 19

C. New York’s Deferred Enrollment Scheme Does

Not Advance a Compelling State Interest by

the Least Drastic Means 24

. New York May Not “Lock” a Voter Into an

Unwanted Pre-Existing Political Affiliation

. New York May Not “Lock” Previously Un-

affiliated Voters Out of the Parties of Their

Choice

IL New York’s Refusal to Permit Petitioners to Af-

filiate With the Democratic Party Unconstitu-

Bonally Abridges Their Right of Free Association

Ii. Section 186 of New York’s Election Law Estab-

lishes an Unconstitutional Durational Residence

Requirement for Voting in a New York Primary

Election

. New York’s Deferred Enrollment Scheme Which

Conditions Full Participation in the 1972 Elec-

toral Process Upon Past Participation in the

1971 Electoral Process Is an Unconstitutional

“Grandfather Clause” in Violation of the Four-

teenth, Fifteenth, and Twenty-sixth Amendments

A. “Grandfather Clauses” and the Right to Vote

B. The Impact of New York’s Statutory Scheme

Upon Hitherto Unregistered Members of

Racial Minorities

C. The Impact of New York’s Statutory Scheme

on Persons Having Recently Attained Voting

Age

Conciusion

Taste oF AUTHORITIES

PAGE

Cases:

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

den. 380 U.S. 915 (1964) 5

Baker v. Carr, 369 U.S. 186 (1962) 17

Bates v. Little Rock, 361-U.S. 516 (1960) 35, 38

Beare v. Smith, 321 F. Supp. 1100 (S.D. Texas, 1971) 25

Boorda v. Subversive Activities Control Board, 421

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

(1970) 37

Bullock v. Carter, —— U.S. ——, 31 L. ed2d 92

. (1972) 11, 17,18

Burke v. Terry, 203 N.Y. 293 (1911) 18

Carrington v. Rash, 380 U.S. 89 (1965) 17, 21, 30

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

aff’d sub nom. Bullock v. Carter, —— U.S. ——, 31

L, ed.2d 92, (1972) 36, 37

Cipriano v. City of Houma, 395 U.S. 701 (1969) 17, 22

City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970) ..17, 23

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

(N.J. Super. 1960) 44

DeGregory v. Attorney General, 383 U.S. 825 (1966) ..35, 38

Drueding v. Devlin, 234 F. Supp. 721 (D. Md. 1964)

aff’d per curiam 380 U.S. 125 (1965) 19

Dunn v. Blumstein, —— U.S. ——, 31 L. Ed.2d 274

(1972) 7, 11, 13; 17, 19, 20,

23, 36, 38, 40, 41

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

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

Bx parte Siebold, 100 U.S. 37 (1879)

Ex parte Yarbrough, 110 U.S. 651 (1884)

Flast v. Cohen, 392 U.S. 83 (1968)

Gangemi v. Rosengard, 44 N.J. 166, 207 A.2d 665

(1965)

Gibson v. Florida Legislative Investigations Commit-

tee, 372 U.S. 539 (1963) 35, 38

Goetsch v. Philhower, 60: N.J. ince tape 582, 160 A.2d 60

(N.J. Super. 1960)

Gomillion v. Lightfoot, 364 U.S. 339 (1960)

Gordon v. Executive Committee of the Democratic

Party of Charleston, 335 F. Supp. 166 (D. S.C.,

1971) 12, 26, 31, 33

Gray v. Sanders, 372 U.S. 368 (1963) 17

_ Guinn v. United States, 238 U.S. 347 (1915) ....17, 42, 43, 45

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

(1966) ee

~~,

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

(Feb. 22, 1972)

Katzenbach v. Morgan, 384 U.S. 641 (1966)

Kelly v. New York City Board of Elections, Supreme

Court, New York County, 72-11640

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) ....

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

621 (1969) 17, 21, 36

PAGE

Lane v. Wilson, 307 U.S. 268 (1939) ................. 17, 42, 43, 45

Lippitt v. Cippollone, —— U.S. ——,, 40 U.S.L.W. 3334

(January 17, 1972) 28, 3:

Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293

(1961) 35

Louisiana v. United States, 380 U.S. 145 (1965) ........ 8

McGowan v. Maryland, 366 U.S. 420 (1961)

Moore v. Ogilvie, 394 U.S. 814 (1969)

Nagler v. Stiles, —— F. Supp. —— (D. N.J., May 24,

1972) * 12, 27, 31

NAACP v. Alabama, 357 U.S. 449 (1958) ....20-21, 35, 37, 38

Nixon v. Condon, 286 U.S. 73 (1932) 17, 18, 23

Nixon v. Herndon, 273 U.S. 536 (1927) 17, 18, 23

Oregon v. Mitchell, 400 U.S. 112 38

Passenger Cases, 7 How. 283 (1849) 38

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

aff'd per curiam 393 U.S. 14 (1968) 35, 37

Pontikes v. Kusper, —— F. Supp. —— (N.D. Ill,

March 9, 1972) 12, 26, 27, 31, 33

Reynolds v. Sims, 377 U.S. 533 (1964) 17, 20

Rice v. Elmore, 165 F.2d 387 (4th Cir. 1947), cert. den.

333 U.S. 875 (1948) 18

Shapiro v. Thompson, 394 U.S. 618 (1969) ...............20, 38

Shelton v. Tucker, 364 U.S. 479 (1960) 21, 38

Sherbert v. Verner, 374 U.S. 398 (1963) 21

Skinner v. Oklahoma, 316 U.S. 535 (1942) 19, 20

PAGE

Smith v. Allwright, 321 U.S. 649 (1944) 17,18

Socialist Workers Party v. Rockefeller, 314 F. Supp.

984 (S.D.N.Y.), aff'd 400 U.S. 806 (1970)

Southern Pacific Terminal Co. v. Interstate Commerce

Commission, 219 U.S. 498 (1911)

Speiser v. Randall, 357 U.S. 513 (1958)

Terry v. Adams, 345 U.S. 461 (1953) 11, 15, 17, 18

Thornhill v. Alabama, 310 U.S. 88 (1940) 41

Turner v. Fouche, 396 U.S. 346 (1970) 23

United States v. Classic, 313 U.S. 299 (1941) —........... 17,18

United States v. Mosley, 238 U.S. 383 (1915)

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

‘United States v. Saylor, 322 U.S. 385 (1944)

Wesberry:.v. Sanders, 376 U.S. 1 (1964)

Williams v. Rhodes, 393 U.S. 23 (1968) 13, 17, 23, 33,

35, 36, 37

Yiek Wo v. Hopkins, 118 U.S. 356 (1886) 20

Constitutional Provisions :

United States Constitution

First Amendment 21, 35, 36, 37

Fourteenth Amendment 14, 19, 42

Fifteenth Amendment 14, 42, 43, 45

Twenty-sixth Amendment 14, 42, 43, 45

Federal Statutes:

8 U.S.C. §1254(1)

42 U.S.C. §1973(a) (a)

42 U.S.C. §1973(e) (1)

State Statutes:

California Election Code §§22, 203, 311-312 .............

Illinois Annotated Statutes §$5-30 ;

Annotated Laws of Massachusetts, ch. 53, §§37, 38

Michigan Compiled Laws Annotated, §§168.570, .575-

576

New Jersey Statutes Annotated, 19 :23-45

New York Election Laws

$173

$174

§186

§187

§332 12, 28, 32, 33

§369 : 5,6

§385 5,6

Ohio Revised Code, §3513.19 33

Other Authorities:

Hamilton, The Federalist #9 14

Hofstadter, The Idea of a Party System (1970) ........14, 15

Lipset, Political Man: The Social Bases of Politics

(1960) 15

Madison, The Federalist #10 14

Merriam end Overacker, Primary Elections (1928) ..... 16

Note, Developments in the Law—Equal Protection,

82 Harv. L. Rev. 1065 (1969)

Peterson, The Day of the Mugwumps (1961)

Purdon’s Pennsylvania Statutes Annotated, Title 25,

§§291 et seg.

Vernon’s Annotated Texas Statutes, Title 9, Article

13.0la

In THE

Supreme Court of the Anited States

Ocroser Term, 1971

No. 71-1371

Pzpro J. Rosario, Wom J. Freepman and Karen Lee

GoTTEsMAN, individually and on behalf of all others

similarly situated,

Petitioners,

—against—

Netson Rockere.tter, 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.

Power, THomas Matuez and J. J. DusBERsTEIN, con-

sisting of the Boarp or ELEcTiIons In THE City or NEw

York,

Respondents.

. _

Sreven E:sner, on his own behalf and on behalf of all

others similarly situated,

Petitioners,

—against—

Netson Rockere.ter, Governor of The State of New

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

State of New York, Witti1am D. Metssner and Marvin

D. CuristeNFELD, Commissioners of Elections for Nas-

sau County,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

_ —-

ihe,

BRIEF FOR PETITIONERS

The decision of the United States District Court for the

Eastern District of New York, Chief Judge Jacob Mishler

presiding, declaring Section 186 of New York’s Election

Law unconstitutional has not yet been officially reported,

It is reproduced in the Appendix at 2147. The Memo.

randum of Decision and Order of Chief Judge Mishjer

denying respondents’ application for reargument has not

yet been officially reported. It is reproduced in the Ap-

pendix at 49-56. The decision of the United States Court

of Appeals for the Second Circuit reversing the District

Court has not yet been officially reported. It is repro.

duced in the Appendix at 64-73.

Jurisdiction

The judgment of the Court of Appeals for the Second

Circuit was entered on Friday, April 7, 1972. A motion

for a rehearing in banc was made on Monday, April 10,

1972 and was denied on April 24, 1972. The petition for

certiorari herein was docketed on April 24, 1972. Certiorari

was granted on May 30, 1972. Jurisdiction is conferred

upon this Court pursuant to 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 enrolling in a

political party from participating in a primary election

unless their enrollments were completed 30 days prior to

the last preceding general election?

~2. Do less drastic alternatives exist to the disenfran-

chisement of voters situated similarly to petitioners?

8. Does Section 186, by deferring the effective date of

petitioners’ affiliation with the Democratic Party for at

least eleven months, impose an unconstitutional restraint

upon petitioners’ freedom of association!

4. Does Section 186 impose an unconstitutional dura-

tional residence requirement for voting in a New York

primary election?

5. Does Section 186. constitute an unconstitutional

“grandfather clause” conditioning full participation in the

current electoral process upon some degree of participa-

tion in a preceding election?

Statutory Provisions Involved

New York State Exection 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-

;

wen

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’ ab-

sentee registration board shall at the same time be opened

by the board of elections and the names of the party desig.

nated by each such voter shall likewise be entered by the

board, provided such party continues to be a party, as

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 en-

rollment 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 enrollments shall be transcribed from the blanks

to the register, the board of elections shall make a cer.

tificate upon the form printed in such registers, to the

effect that it has correctly and properly transcribed the

enrollment indicated on the blank of each voter to such

registers. Such enrollment shall be complete before the

succeeding first day of February in each year. 1.1949, ¢.

100; amended L.1955, ¢.41, eff. March 7, 1955.

The Operation of New York’s Statutory Scheme

Regulating Affiliation With a Political Party

Registered voters in New York State desiring to asso-

ciate with one of the four political parties currently recog-

nized under New York law must cope with a cumbersome

and archaic party enrollment process dating from the 19th

century. Each prospective enrollee must complete an en-

rollment blank containing the following declaration:

ad Fe , do solemnly declare that I am a quali-

fied 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 ie

of the party which I have designated by my mark

hereunder; and that it is my intention to support gen=

_ erally at the next general election, state or national,

the nominees of such party for state or national of-

fices.” Election Law, §174. See also §§369; 385-389.

Once the enrollment blank has been completed, it must

be deposited in an enrollment box in such a manner as

to conceal the identity of the party involved. Election

~ Law §173. The enrollment box into which the enrollmént

blank is deposited must remain locked until the TueSday

following the next general election. Election Law §186.'

No action finalizing an enrollment can occur while the

enrollment blank is locked in the enrollment box. Once

the enrollment boxes have enjoyed their annual mid-No-

vember airing, the respective party affiliations set forth on

the enrollment blanks are entered 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 on the register books,

the voter involved is not deemed to be enrolled in the

party of his or her choice. Election Law §186.

Applying New York’s statutory scheme to petitioners’

attempt to associate with the Democratic Party, the fol-

lowing events must occur before they will be recognized.

by New York State as affiliated with the political party of

their choice.

1In 1972, the date for the annual opening of the ‘aia boxes

falls on November 14, 1972.

1) They must duly register to vote.

2) They must complete an enrollment blank at which

they “solemnly declare” their general sympathy with the

party with which each wishes to associate. Election Law

§§174; 369; 385-389.

3) They 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 $186.

5) Sometime between November 14, 1972 and February

1, 1973, petitioners’ names must be entered on the official

6) Until the register book entry is made, petitioners

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

way, in the affairs of the Democratic Party. Election Law

$186."

Thus, despite the fact that each petitioner formally ex-

pressed his or her intention to associate with the Demo-

cratic Party in early December 1971, and “solemnly de-

clared” his or her general sympathy with the principles

of the Democratic Party, they will not be permitted to

associate with the Democratic Party until a date some-

where between November 14, 1972 and February 1, 1973,

and, therefore, were barred from voting in the June 1972

Presidential Primary.

New York’s deferred enrollment procedure also disen-

franchises persons seeking to re-register after having es-

tablished a new residence in New York.

Thus, an established member of a political party who

moves from Brooklyn to Nassau County may not partici-

pate in the affairs of his party or vote in a primary until

his new enrollment blank has been taken from the locked

enrollment boxes and re-entered on the voting registers

pursuant to Section 186.

In addition, an established member of a political party

who moves from a sister state into New York State may

not participate in the affairs of his party until his new

. enrollment blank has been removed from the locked en-

rollment box and processed pursuant to Section 186.

Accordingly, no person who established a residence in

New York State subsequent to October 2, 1971° was eligible

to vote in the June 1972 Presidential primary. Cf., Dunn

y. Blumstein, —— U.S. ——, 31 L. Ed.2d 274 (1972).

The issue posed by this case is whether New York may

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

to travel and the right to associate for the advancement of

political beliefs.

2, 1971 was the last date on which enrollment blanks

completed in time for the annual November 1971

Enrollment blanks received after October

‘light of day until November 14, 1972.

_— Statement of the Case

Petitioners are duly qualified voters who were barred

from voting in New York’s June 20, 1972, Presidential

primary because they failed to enroll in the Democratic

Party on or before October 2, 1971.

Petitioners registered to vote for the first time in New

York State early in December 1971 and immediately sought

to enroll in the political party of their choice.* Each peti-

tioner duly completed an enrollment blank designating his

or her respective affiliation with the Democratic Party

and affirming his or her intention to support the candi-

dates of the Democratic Party at the next general election

(A 3, 4, 9). The completed enrollment blanks were, there-

upon, deposited in a locked enrollment box maintained for

that purpose. Each petitioner was informed that his or her

‘ Petitioner, Pedro J. Rosario, is 18 years old. He registered to

vote for the first time on December 3, 1971 in Kings County, New

York, and completed an enrollment blank designating his iation

with the Democratic Party. He was not permitted to vote in the

Democratic Primary held in New York on June 20, 1972 (A 3).

- Petitioner, William J. Freedman, is 21 years old. He registered

to vote for the first time on December 3, 1971, in Queens County,

New York, and completed an enrollment blank designating his

affiliation with the Democratic Party. He was not permitted to vote

U iy Democratic Primary held in New York on June 20, 1972

A 3).

Petitioner, Karen Lee Gottesman, is 21 years old. She registered

to vote for the first time on December 3, 1971, in Queens County,

New York, and completed an enrollment blank designating her

affiliation with the Democratic Party. She was not permitted to vote

mite Democratic Primary held in New York on June 20, 1972

(A 4).

Petitioner, Steven Eisner, is 22 years old. He registered to vote

for the first time on December 18, 1971, in Nassau County, New

York, and completed an enrollment blank designating his affiliation

with the Democratic Party. He was not permitted to vote in the

Democratic Primary held in New York on June 20, 1972 (A 7-9).

attempted enrollment in-the Democratic Party would be

deferred, pursuant to Section 186 of New York’s Election

Law, until the next physical opening of the locked enroll-

ment boxes, scheduled for November 14, 1972 (A 5, 9).

Since petitioners’ enrollment in the Democratic Party

could not become effective until the physical opening of

the enrollment boxes on November 14, 1972, petitioners

were declared ineligible to participate in the June 20, 1972

New York State Presidential Primary (A 5, 9).’

Petitioners’ initial challenge to the constitutionality of

Section 186 met with success. On February 10, 1972, Chief

Judge Jacob Mishler of the United States District Court

for the Eastern District of New York declared that Sec-

tion 186 unconstitutionally abridged petitioners’ rights to

participate in the electoral process and petitioners’ free-

‘dom to associate with the political party of their choice.‘

In addition, Chief Judge Mishler found that Section 186

imposed a durational residence requirement for voting in

a Presidential Primary in violation of Title 42 U.S.C.

§1973(a) (a). (Chief Judge Mishler’s opinion is reproduced

in the Appendix at pp. 21-47.)

5 In order to have voted in the June 20, 1972 primary, petitioners

would have to have completed their enrollment blanks on or before

October 2, 1971—in time to have qualified for the November 1971

opening of the locked enrollment boxes. None of the petitioners

registered to vote in the November 1971 general elections, at which

‘the highest office at stake was County Executive.

* Petitioners initially sought the convocation of a statutory three

judge Court. However, petitioners withdrew their request for

junctive relief and Chief Judge Mishler accepted jurisdiction as

a single District Judge. Cf. Kennedy v. Mendoza-Martinez, 372

US. 144 (1963). Chief Judge Mishler’s Memorandum of Decision

describing the facts and circumstances surrounding petitioners’

withdrawal of their request for injunctive relief is reproduced in

the Appendix at pp. 49-56.

Respondents secured a stay of Chief Judge Mishler’s

declaratory judgment on February 22, 1972 and were

granted an expedited appeal by the Second Circuit, which

was argued on February 24, 1972 (A 63).

On April 7, 1972, a panel of the Second Circuit con.

sisting of Judges Lumbard, Mansfield and Mulligan, re.

versed Chief Judge Mishler and ruled that Section 186

constituted a valid attempt to shield political parties from

bad faith “raiding” by persons who were not truly in ac.

cord with the principles of the party in question. (The

Second Circuit’s opinion is reproduced in the Appendix

at pp. 64-73.)

Petitioners’ application for a rehearing in banc was

denied on April 24, 1972, with Judges Oakes and Feinberg

dissenting (A 78).

On April 26, 1972, Mr. Justice Marshall granted a tem-

porary stay of the Second Circuit’s judgment pending

consideration by the full Court. On May 30, 1972, the full

“Court granted the petition for.a writ of certiorari herein,

but by a 5-4 vote declined to stay the decision of the Sec.

ond Cireuit pending plenary consideration on the merits

(A80)." ——

tition ; yet

SUMMARY OF ARGUMENT

‘New York’s Refusal to Permit Petitioners to Vote in

a Primary Election Unless They Enrolled in a Political

Party at Least 30 Days Prior to the Last Preceding Gen-

eral Election Constitutes an Unlawful Abridgment of

the Franchise.

A. The Right to Vote in a Primary Election Is an Integral

Part of the Right to Vote.

It is no longer open to serious question that the right to

yote in a primary election is as protected against state

encroachment as is the right to vote in a general election.

E.g., Bullock v. Carter, —— U.S. ——, 31 L. Ed.2d 92

(1972); Terry v. Adams, 345 U.S. 461 (1953). Therefore,

New York’s refusal to permit voters to participate in a

primary election must be measured by the same constitu-

tional standard which would test its refusal to permit them

to vote in a general election.

B. State Action Restrictive of the Franchise Must Advance

a Compelling State Interest by the Least Drastic Means.

This Court has ruled that state statutes which selectively

distribute the franchise must advance a compelling state

interest by the least drastic means in order to pass judicial

serutiny under the Equal Protection Clause. E.g., Dunn v.

preenstcin, — US. —, 31 L. Ed.2d 274 (1972).

‘to rule on the constitutionality of Section 186. E.g., Dunn v.

Blumstein, —— U.S. ——, 31 L. Ed.2d 274, 279 n. 2; Moore v.

| Ogilvie, 394 U.S. 814, 816 (1969); Southern Pacific Terminal. Co.

v. Interstate Commerce Commission, 219 U.S. 498 (1911).

Cc. New York’s Deferred Enrollment Scheme Does Not

Advance a Compelling State Interest by the Least

Drastic Means.

New York claims that Section 186 is necessary to guard

against bad faith raiding. However, by establishing a

virtually absolute ban on party affiliation during the eight

months preceding a Presidential primary, New York has

chosen the most drastic means to guard against raiding.

1. New York May Not “Lock” a Voter Into an

Unwanted Pre-Existing Political Affiliation.

_ The lower federal courts have unanimously rejected at-

tempts to lock voters into pre-existing political affiliations.

Gordon v. Executive Committee of the Democratic Party

of Charleston, 335 F. Supp. 166 (D. S.C., 1971) ; Pontikes v.

Kusper, —— F. Supp. —— (N.D. Ill., March 9, 1972);

Nagler v. Stiles, —— F. Supp. —— (D. NJ., May 24,

1972). The less drastic alternatives of loyalty oaths

(Section 174) and summary disenrollment (Section 332)

render the blanket prohibition upon party enrollment con-

tained in Section 186 unnecessary, and, therefore, uncon-

stitutional.

2. New York May Not “Lock” Previously Unaffiliated

Voters Out of the Parties of Their Choice.

Even if New York may constitutionally regulate the

alteration of pre-existing party affiliations, it possesses no

legitimate interest whatever in impeding newly registered

previously unaffiliated voters from effecting their initial

party affiliation. Whatever the views of the various states

on regulating the alteration of pre-existing party affilia-

tion, no state, with the exception of New York, has deemed

it necessary to impose crippling restrictions upon new

voters making an initial party affiliation.

Il.

“New York’s Refusal to Permit Petitioners to Affiliate

With the Democratic Party Unconstitutionally Abridges

Their Right of Free Association.

New York’s statutory scheme imposes a waiting period

of eleven to fourteen months between petitioners’ initial

attempt to join the Democratic Party in December,

1971 and their final acceptance as party members sometime

between November 14, 1972 and February 1, 1973. Such a

waiting period unduly impinges upon petitioners’ constitu-

tional right to associate with the political party of their

choice. Williams v. Rhodes, 393 U.S. 28 (1968). Certainly,

New York cannot contend that it possesses an overriding

societal interest in protecting political parties against

previously unaffiliated new voters who seek merely to

declare their initial party affiliations.

Il.

Section 186 of New York’s Election Law Establishes

an Unconstitutional Durational Residence Requirement

for Voting in a New York Primary, Election.

Section 186 singles out all persons who have established

a residence in New York: subsequent to New York’s last

preceding general election and prohibits them from voting

in a primary election in direct violation of Dunn v. Blum-

stein, —— U.S. —, 31 L. Ed.2d 274 (1972).

Section 186 of New York’s Election Law Operates as

an Unconstitutional “Grandfather Clause” in Violation

of the Fourteenth, Fifteenth and Twenty-Sixth Amend.

ments.

In order to participate in the Julie 1972 Presidential

Primary, New York’s statutory scheme required 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.

ARGUMENT

Introduction

The draftsmen of the Constitution did not foresee the

development of political parties in the United States. In-

deed, they viewed the rise of political parties as an evil,

tending to foment strife and discord in the body politic.

Hofstadter, The Idea of a Party System (1970); see

generally, The Federalist #9 (Hamilton) ; The Federalist

#10 (Madison).

However, contrary to the experience of many European

democracies and the fears of the Founding Fathers, the

“formation of political parties in the United States has not

exerted a fragmenting effect upon our political life.

Pluralism within partiesf rather than pluralism among

parties, has been a hallmark of American ‘polities. Thus,

political parties in the American tradition have not been

viewed as ideological refuges for “true believers”, but

rather as groupings of diverse interests joined together

in a coalition for the purpose of achieving shared political

goals. Only under such a pragmatic view of the nature and

function of a political party could men of such diverse

ideologies as George Wallace and Allard Lowenstein and

Pete McClosky and John Ashbrook share the same party

affiliation.

Given such a non-ideological tradition in party politics,

it is not surprising that inter-party mobility has been &

fact of American political life. Peterson, The Day of the

Mugwump (1961) ; Lipset, Political Man: The Social Bases

of Politics (1960). The limits of permissible state inter-

ference with such inter-party mobility is what much of this

ease is about.

A second unforeseen impact of the political party system

has been its dominance of the nominating process. In most

elections, participation in the political party nominating

process is a sine qua non to meaningful participation in the

electoral process. Cf. Terry v. Adams, 345 U.S. 461 (1953).

As the impetus for increased popular participation in the

nominating process has grown, the traditional party caucus

has been replaced by popularly elected nominating conven-

tions and by the increasing use of direct primaries. Mer-

riam and Overacker, Primary Elections (1928). Since many

states, including New York, require that participants in the

party nominating process be members of the political party

in question, the requirements of party membership exert a

direct impact upon the ability of voters to participate in

primary elections. The limits of permissible state inter-

ference with such participation in the nominating process

poses the second major issue herein. :

It should be noted that since the petitioners herein are

all previously unaffiliated voters seeking to register and

enroll in a political party for the first time, this Court

need not reach the arguably more difficult issue of voters

seeking to alter an established party affiliation in order

to associate with a newly chosen political party. No issue

of party “switching” or “cross-over voting” is present in

this case.

Thus, the narrow issue posed herein is the permissible

scope of state imposed restrictions upon duly qualified,

previously unaffiliated voters seeking to enroll in‘a political

party for the first time in order to participate in a Presi-

dential primary. Given the non-ideological nature of our

political party system and the criticil importance of

participating in the nominating process, New York’s

restrictions go far beyond the sphere of legitimate state

regulation of the electoral process.

- New York’s Refusal to Permit Petitioners to Vote in

a Primary Election Unless They Enrolled in a Political

Party at Least 30 Days Prior to the Last Preceding Gen-

eral Election Constitutes an Unlawful Abridgment of

the Franchise.

This Court’s interest in protecting the right of franchise

against state abridgment is neither new, nor terribly sur-

prising, given the core position which the franchise occu-

pies in our democratic form of government. E.g., Ex parte

Stebold, 100 U.S. 37 (1879) ; Ex parte Yarbrough, 110 U.S.

651 (1884); Guinn v. United States, 238 U.S. 347 (1915);

United States v. Mosley, 238 U.S. 383 (1915); Nixon v.

Herndon, 273 U.S. 536 (1927); Nixon v. Condon, 286 U.S.

73 (1932); Lane v. Wilson, 307 U.S. 268 (1939); United

States v. Classic, 313 U.S. 299 (1941); Smith v. Allwright,

321 U.S. 649 (1944); United States v. Saylor, 322 U.S. 385

(1944) ; Terry v. Adams, 345 U.S. 461 (1953); Gomillion v.

Lightfoot, 364 U.8. 339 (1960) ; Baker v. Carr, 369 U.S. 186

(1962); Gray v. Sanders, 372 U.S. 368 (1963); Wesberry

v. Sanders, 376 U.S. 1 (1964); Reynolds v. Sims, 377 U.S.

533 (1964) ; Carrington v. Rash, 380 U.S. 89 (1965) ; Harper

v. Virginia Board of Elections, 383 U.S. 663 (1966); Wil-

liams v. Rhodes, 393 U.S. 23 (1968) ; Kramer v. Union Free

School District No. 15, 395 U.S. 621 (1969); Cipriano v.

City of Houma, 395 U.S. 701 (1969); Evans v. Cornman,

398 U.S. 419 (1970); City of Phoeniaz v. Kolodziejski, 399

U.S. 204 (1970); Socialist Workers Party v. Rockefeller,

314 F. Supp. 984 (S.D.N.Y.), aff'd 400 U.S. 806 (1970) ;

Bullock v. Carter, U.S. ——, 31 L. Ed.2d 92 (1972);

Dunn v. Blumstein, —— U.S. —, 31 L. Ed.2d 274 (1972).

a ne ee

A. The Right to Vote in a Primary Election Is an Integral

Part of the Right to Vote.

It is no longer open to serious question that the right

to vote in a primary election is as protected against state

encroachment as is the right to vote in the general election.

E.g., Bullock v. Carter, —— US. —, 31 L. Ed.2d 92

(1972) ; Nixon v. Herndon, 273 U.S. 536 (1927) ; Nizon v.

Condon, 286 U.S. 73 (1932); United States v. Classic, 313

U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649 (1944);

Terry v. Adams, 345 U.S. 461 (1953) ; Rice v. Elmore, 165

F.2d 387 (4th Cir. 1947), cert. den. 333 U.S. 875 (1948).

Our courts have consistently recognized that the right to

vote may be rendered meaningless in the absence of a

correlative right to participate in the nominating process

by which candidates are selected. E.g., Socialist Workers

Party v. Rockefeller, 314 F. Supp. 984 (S.D.N.Y.), aff’d

400 U.S. 806 (1970).

Thus, as long ago as 1944, in Smith v. Allwright, supra,

this Court held:

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

vote in such a primary for the nomination of candi-

dates without discrimination by the State, like the

right to vote in a general election, is a right secured

by the Constitution.” 321 U.S. at 661-662.

Therefore, New York’s reftisal to permit petitioners to

participate in a primary election must be measured by

the same constitutional standards which would test its re-

fusal to permit them to vote in the November general elec-

tions. Burke v. Terry, 203 N.Y. 293 (1911) at 295; Bullock

v. Carter, supra. :

_B. State Action Restrictive of the Franchise Must Advance

_ @Compelling State Interest by the Least Drastic Means.

»* This Court has imposed a rigorous “Equal Protection”

standard in testing the constitutionality of state statutes

which restrict the franchise. In order to justify denying

the vote to some of its citizens while permitting the re-

mainder to vote, a state must demonstrate that the statute

involved advances a compelling state interest by the least

drastic means. E.g., Dunn v. Blumstein, —— US. —.,

31 L. Ed.2d 274 (1972).

Traditionally, state statutes challenged as violative of

the Equal Protection Clause of the Fourteenth Amendment

were sustained if they were rationally related to the ad-

vancement of a legitimate state interest. E.g., McGowan v.

Maryland, 366 U.S. 420 (1961). Indeed, this standard was

once applied by this Court to measure the constitutionality

of state durational residence requirements for voting.

Drueding v. Devlin, 234 F. Supp. 721'(D. Md. 1964), aff’d

per curiam 380 U.S. 125 (1965). However, two major ex-

ceptions to the permissive “rational relationship” test have

emerged in recent years. See, generally, Note, Develop-

ments in the Law—Equal Protection, 82 Harv. L. Rev. 1065

(1969). If a statute purports to erect suspect classifica-

tions based upon such discredited criteria as race; or, if a

statute is restrictive of the exercise of a “fundamental”

right, this Court has employed a far more rigorous stand-

ard of review in determining its constitutionality. To pass

scrutiny under the Equal Protection clause, such a statute

must not merely be rationally related to the advancement

of a legitimate state interest, but must also be found neces-’

sary to advance a compelling state interest by the least

drastic means possible. E.g., Skinner v. Oklahoma, 316

U.S. 535 (1942).

enna

}

The right to vote is the assumption upon which the en-

tire fabric of our political system is premised. Without

the right to vote, freedom of speech and assembly would be

relegated to meaningless anachronisms. It is not surpris-

ing, therefore, that this Court has explicitly recognized

the right to vote as one of the “fundamental” rights, en-

titled to plenary protection against state encroachment.’

~~ Thus, Chief Justice Warren, writing for this Court in

Reynolds v. Sims, 377 U.S. 533 (1964) stated:

“Undoubtedly, the right of suffrage is a fundamental

matter in a free and democratic society. Especially

since the right to exercise the f ise in a free and

unimpaired manner is preservati of other basic civil

and political rights, any alleged infringement of the

right of citizens to vote must be carefully and meticu-

lously scrutinized. Almost a century ago, in Yick Wo

vy. Hopkins, 118 U.S. 356, the Court referred to ‘the

political franchise of voting’ as ‘a fundamental politi-

cal right, because preservative of all rights. 118 U.S.

at 370.” Id. at 561-62. ,

Having characterized the free exercise of the franchise

as a fundamental right, this Court has applied the com-

pelling state interest test to a number of state statutes

restrictive of the franchise.’

® This Court has identified at least the following as “funda-

mental” interests: (1) “procreation” Skinner vy. Oklahoma, 316

US. 535 (1942); (2) “voting” eg., Yick Wo v. Hopkins, 118 U.S.

356 (1886); and (3) “travel” Shapiro v. Thompson, 394 U.S. 618

(1969) ; Dunn v. Blumstein, supra.

® Practically speaking, there seems little difference between a

compelli state interest analysis under the Equal Protection

clause and the recognition of a substantive right to vote subject to

the traditional “balancing” test. Cf. NAACP v. Alabama, 357 U.S.

‘21

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

Stewart, writing for this Court, invalidated a provision of

the Texas Constitution which disabled servicemen from

voting in Texas. Mr. Justice Stewart, in words appropriate

to the instant case, stated:

“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, 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 because of some remote administrative

benefit to the state.” 380 U.S. at 96.

In Kramer v. Union Free School District No: 15, 395

US. 621 (1969), this Court invalidated a New York law

which limited the franchise in School Board elections to

property owners and parents. Chief Justice Warren,

writing for the Kramer Court, stated:

“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 substantially affect their lives. Therefore, if a

challenged state statute grants the right to vote to

some bona fide residents of requisite age and citizen-

ship 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 626-

627.

449 (1958). Thus, the compelling state interest test applied to

statutes restrictive of fundamental rights is similar to the analysis

utilized by this Court in a First Amendment context to invalidate

overbroad state statutes. E.g., Shelton v. Tucker, 364 U.S. 479

(1960); Speiser v. Randall, 357 U.S. 518 (1958); Sherbert v.

Verner, 374 U.S. 398 (1963).

In Cipriano v. City of Howma, 395 U.S. 701 (1969), this

Court invalidated a Louisiana law restricting the franchise

in municipal bond elections to property owners. In a per

curiam opinion, the Court stated:

“The challenged statute contains a classification which

excludes otherwise qualified voters who are as sub-

stantially affected and directly interested in the matter

voted upon as are those who are permitted to vote.

_ When, as in this case, the State’s sole justification for

the statute is that the classification provides a ‘rational

basis’ for limiting the franchise to those voters with a

‘special interest,’ the statute clearly does not meet

the ‘exacting standard of precision we require of stat-

utes which selectively distribute the franchise.’” /d.

at 706.

In Evans v. Cornman, 398 U.S. 419 (1970), this Court

unanimously invalidated Maryland’s refusal to permit

residents at the National Institute of Health to vote in

Maryland elections.. Mr. Justice Marshall, writing for the

Court, stated:

“ . . ‘ence the franchise is granted to the electorate,

lines may not be drawn which are inconsistent with

the Equal Protection Clause of the Fourteenth Amend-

ment’ [citations omitted]. Moreover, the right to vote,

as the citizen’s link to his laws and government, is

protective of all fundamental rights and privileges

[citations omitted]. And before that right can be

restricted, the purpose of the restriction and the

assertedly overriding interests served by it must meet

close constitutional scrutiny.” 398 U.S. at 422.

In City of Phoenia v. Kolodgiejski, 399 U.S. 204 (1970),

- this Court, applying a compelling state interest test, in-

validated Arizona’s attempt to restrict the franchise in

_ general obligation bond elections to property owners. See

also, Turner v. Fouche, 396 U.S. 346 (1970) ; Nixon v. Hern-

don, 273 U.S. 536 (1927); Nixon v. Condon, 286 U.S. 73

(1932) ; Louisiana v. United States, 380. U.S. 145 (1965) ;

-Kateenbach v. Morgan, 384 U.S. 641 (1966); Williams v.

Rhodes, 393 U.S. 23 (1968).

The spate of Supreme Court decisions applying a com-

pelling state interest test to state statutes restrictive of

the franchise culminated in Dumn v. Blumstein, —— U.S.

——, 31 L. Ed.2d 274 (1972), in which this Court invali-

dated Tennessee’s one year and 90 day durational resi-

dence requirements. Mr. Justice Marshall, writing for the

Court in Dunn v. Blumstein, supra, stated:

“It is not sufficient for the State to show that dura-

tional residence requirements further a very substan-

tial state interest. In pursuing that important in-

terest, the State cannot choose means which

unnecessarily burden or restrict constitutionally pro-

~~ teeted activity. Statutes affecting constitutional rights

must be drawn with ‘precision,’ NAACP v. Button,

371 U.S. 415, 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, rea-

sonable 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.’”

31 L. Ed.2d at 285.

Thus, in order to pass constitutional scrutiny, New York

must demonstrate that its disenfranchisement of petition-

ers is necessary to promote a compelling governmental

interest.

C. New York’s Deferred Enrollment Scheme Does Not

Advance a Compelling State Interest by the Least

_ Drastic Means.

The Court below accepted New York’s contention that

Section 186 is “necessary” to guard against bad faith “raid-

ing” of a political party by enrollees who do not share the

principles of the party (A. 64-73).

It is highly doubtful whether the Court below applied

the appropriate standard of judicial review to Section 186.

Instead of finding that Section 186 advanced a compelling

state interest by the least drastic means, the Court below

was content merely to recite that Section 186 appeared

“calculated to impinge minimally on First and Fourteenth

Amendment rights” (A. 69 n. 4). Such a finding is ‘scant

solace to the tens of thousands of young voters who were

barred from the 1972 June primary pursuant to Section

186. Nor is such a finding supported by an analysis of the

statute. Far from acting in a “manner calculated to im-

pinge minimally on First and Fourteenth Amendment

rights,” Section 186 is unnecessarily broad and imposes

maximum, rather than minimum disenfranchisement.

By creating an absolute ban on party affiliation during

the eight months preceding a Presidential primary, New

York has chosen the most drastic means to guard against

raiding. The Court below made no attempt to canvass the

numerous less drastic alternatives open to New York and

never even discussed the fact that Section 186 makes no

distinction between newly’ registered voters declaring

their initial party affiliation and established members of

one political party attempting to “cross over” into a new

political party.

1. New York May Not “Lock” a Voter Into an

Unwanted Pre-Existing Political Affiliation.

Even if one concedes that the prevention of bad-faith

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

that the virtually absolute ban on party affiliation imposed

by Section 186 during the eight months preceding a Presi-

dential Primary or the eleven months preceding a non-

Presidential Primary is the least drastic means of promot-

ing such an interest." Such an absolute ban upon party

affiliation, imposed before prospective voters have knowl-

edge of the issues or candidates which will be the subject

of the primary election in question, far exceeds a state’s

power to regulate the electoral process. Cf. Beare v. Smith,

321 F. Supp. 1100 (S.D. Texas, 1971) at 1107.

In a series of cases, the lower Federal courts have invali-

dated similar restrictions, which act to lock voters into pre-

existing party affiliations, as violative of the right to vote.

*° It should be noted that those in control of a political party

often perceive any threat to their continued exercise of power as

unjustified and, hence, a species of “raiding.” One man’s raiding

* The eight-month cordon sanitaire erected by New York to guard

the purity of its June Presidential pri ran from October 2,

1971, the last day on which patitieneny’ anecitnash could have been

effective, to June 20, 1972, the date of the primary. In non-Presi-

“dential years, the quarantine period runs from early October to

the following September.

In Gordon v. Executive Committee of the Democratic

Party of Charleston, 335 F. Supp. 166 (D. 8.C., 1971), a

unanimous three-judge coprt invalidated a South Carolina

statute which barred an otherwise qualified voter from par-

ticipating in a party primary if he had voted in the primary

of another party within the past year. The Court stated:

“No sound or compelling purpose can possibly justify

‘locking’ a citizen into a party and denying to him fora

full year freedom to change parties. Such an arbitrary

restraint upon the voter is both unreasonable and un-

constitutional. Our system of government is based on

the consent of the governed, and such consent is only

illusory when voters are prevented by artificial restric-

tions for significant periods of time from changing

political parties even though events or the actions of

elected representatives may have convinced the voter

that a change in party allegiance is warranted.” 335

F. Supp. at 169.

The operation of Section 186 unconstitutionally “locks”

New Yorkers into the political parties to which they be-

longed as of the last preceding general election and, for a

period of one year, disables qualified voters from changing

party allegiance to reflect changes in the political climate.

In Pontikes v. Kusper, —— F. Supp. —— (N.D. Il,

March 9, 1972), a three-judge District Court invalidated

an Illinois statute which prohibited a voter from participat-

ing in a party primary if he had voted in the primary of

another party within the past 23 months. The Court stated

in Pontikes:

“(T]he statute sweeps too broadly, impeding both de-

ceptive conduct and constitutionally protected activ-

ities. If Section 7-43(d) were not in effect, massive

party switching could occur either because of the well-

planned raiding of one party, or because of the massive

dissatisfaction with the prevailing policies of any ex-

isting party. The state’s interest upon which this

tute is grounded could be characterized as ‘compell-

ing’ only if the former alternative is more likely to

occur than the latter, or if raiding constitutes a more

important danger to constitutionally protected rights

however often it occurs. There is no evidence to indi-

cate that raiding is more likely to take place than

‘honest’ switches of affiliation. Forty-four states do

not impose post election restraints on changing affilia-

tion. This would indicate that raiding is not a serious

threat to the multi-party system.”

The Pontikes court recognized that to disenfranchise

thousands of concededly bona fide voters in order to avoid

the possibility of large-scale raiding was to exchange a

certain evil for a potential evil which might well never

occur.

Finally, in Nagler v. Stiles, —— F. Supp. —— (D. N.J.,

May 26, 1972), a three-judge District Court invalidated

& New Jersey statute which prohibited alterations in party

affiliations for a 23 month period. The Court in Nagler

accepted the state’s contention that it possessed a compell-

ing state interest in guarding against bad faith raiding,

but ruled that New Jersey was obliged to promote its

interest by a less drastic means.

Thus, apart from the panel of the Second Circuit below,

no court has sustained state restrictions on party affiliation

which act to prohibit an otherwise bona fide voter from

effecting a good faith alteration of his party affiliation.”

Petitioners do not contend, however, that New York is

powerless to enact “precise,” narrowly drawn, regulations

governing party affiliation. Indeed, New York has provided

a series of less drastic regulatory measures to guard

against “raiding” which render the absolute ban on party

affiliation imposed by Section 186 unnecessary and, there-

fore, unconstitutional.

First, New York requires that all enrollees in a political

party execute an oath that they are in general sympathy

with the principles of the party in question. Election Law

§174. Such a requirement prevents casual party affiliation

in New York and it isan 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. Coupled with New York’s comprehensive

criminal sanctions directed at election fraud, Section 174

provides a meaningful protection of the integrity of party

membership.

Second, Section 332 of the Election Law provides for a

summary disenrollment process permitting a political party

to purge itself of unwanted “raiders.” As Chief Judge

Mishler noted below:

12In Lippitt v. Cippollone, —— U.S. ——, 40 U.S.L.W. 3334

(January 17, 1972), this Court summarily affirmed by a 5-4 vote

the constitutionality of an Ohio statute which prohibited a person

from running for office in a party primary if he voted in the pri-

mary of another party within the past four years. The state’s in-

terest in regulating candidacy, as opposed to voting, renders

TAppitt inapplicable.

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.Y.S.2d 698 (3rd

Dept.) aff’d without opinion 298 N.Y. 627, 81 N.E.2d

371, 86 N.Y.S.2d —— (1948); Matter of Werbel v.

Gernstein, 191 Mise. 275, 78 N.Y.S.2d 440 (Sup. Ct.

1948) ; Matter of Newkirk, 144 Misc. 765, 259 N.Y.S. 434

(Sup. Ct. 1931).* [Footnote renumbered.]

However, where a law is subject to the compelling

state interest test it “will be upheld only if it is neces-

sary, and not merely rationally related, to the accom-

plishment of a permissible state policy.” McLaughlin

v. Florida, 379 U.S. 184, 196, 85 S.Ct. 288, 290 (1964).

Assuming, arguendo, that the protection of party in-

tegrity is a “permissible 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 accom-

plish 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 enrollment of a voter may be challenged

by any fellow party member and cancelled by a Jus-

tice of the State Supreme Court upon the determina-

tion of the Chairman of the County Committee of the

* Each of these cases involved the attempted takeover of a party

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

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

enrollment box system was in effect throughout the period during

which these cases arose, and that that system in no way prevented

hundreds of determined voters from organizing prior to the last

general election and changing their party enrollments so as to be

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

enrollments of the raiders were challenged by bona fide party

members.

party in the county in which the challenged voter is en-

rolled that the voter is not in sympathy with the princi-

ples 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.

Such a proceeding, then, is sufficient to protect the

permissible interests of the state. The challenge proce-

dure 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 remote administrative benefit to the State.”

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

780 (A 36-37) .** :

Moreover, at least two additional less drastic means

exist which would permit New York to promote its legiti-

mate interests without unduly infringing upon the right to

vote.

First, New York could confine the strictures of Section

186 to the only class of voters which, even arguably, poses

a danger of organized, large scale, raiding—persons seek-

ing to alter a pre-existing party enrollment.

14 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 was its nominee for public

office on several occasions.

~* a are pen ty +

Second, New York could confine the stricture of Section

186 to those persons whose enrollment has been challenged

as suspect by the political party involved.

The utilization by New York of any or all of the

“less drastic alternatives” suggested above would permit

thousands of concededly bona fide voters to participate in

the nominating process without posing any real danger of

bad faith “raiding.”

2. New York May Not “Lock” Previously Unaffiliated

Voters Out of the Parties of Their Choice.

Even if New York may constitutionally regulate the al-

teration of pre-existing party affiliations, it possesses no

legitimate interest whatever in placing obstacles in the path

of newly registered voters, such as the petitioners herein,

seeking to affiliate with a political party for the first time.

No distinction is made under Section 186 among: (a)

“new voters,” such as the petitioners herein, who are regis-

tering for the first time and declaring their initial party

affiliation; (b) established voters, recently arrived in New

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

York State and who are merely continuing a pre-existing

affiliation with a political party; and (c) established voters,

such as the plaintiffs in Gordon, Pontikes and Nagler, who

are seeking to alter a pre-existing party affiliation. All are

subject to the one year quarantine on party affiliation im-

posed by Section 186. All are prohibited from participating

in @ party primary unless they declared their party affili-

ations 30 days prior to the last preceding general election.

It is difficult to perceive the legitimate—much less com-

_ pelling—state interest served by a statute which prohibits

newly registered, previously unaffiliated voters from freely

associating with the political party of their choice. Surely,

previously unaffiliated young voters, registering for the

first time, do not pose any meaningful danger of organized

bad faith “raiding.”"* Indeed, no other state has imposed

restrictions upon previously unaffiliated voters seeking to

join a political party for the first time which even approach

New York’s in severity.

For example, Massachusetts, Illinois, New Jersey and

Texas all permit previously unaffiliated voters to declare

their initial party affiliation immediately prior to voting in

the primary of their choice.”

California and Pennsylvania permit previously unulfili-

ated voters to declare an initial party preference up to the

close of registration immediately ‘preceding the primary.

California Election Code, §§22, 203, 311-312 (Registratiou

closes in California 53 days before a primary.) ; Purdon’s

Pennsylvania Statutes Annotated, Title 25, §§291 et seq.

18 Bach instance of alleged attempted party raiding in New York

cited by the Attorney General has involved attempts by the en-

rollees of one party to alter their pre-existing enrollments in order

to join a new party. The instances of iding described by the

Attorney Gen arose out of the division of the New York Ameri-

ean Labor Party into two wings, one of which and formed

was the backdrop ich the alleged occurred. Even

in the midst of such a bitter as Chief J Mishler noted,

332 proved an effective an to

Gaunsel hes been able to discover no reported instance of alleged

“raiding” on the part of newly i unaffilia’

voters.

18 See Annotated Laws of Massachusetts, ch. 58, §§37, 38; [Uinois

Annotated Statutes §§5-30; 7-43-45; New Jersey Statutes Anno-

i apa Vernon’s Annotated Texas Statutes, Title 9, Ar-

i 3.0la.

(Registration closes in Pennsylvania 50 days before a pri-

mary).

Michigan permits any registered voter to participate in

the primary of his choice. Michigan Compiled Laws Anno-

tated, §§168.570, .575-.576. Even Ohio, renowned for the

severity of its election laws,” permits previously unafiili-

ated voters to declare an initial party affiliation immedi-

ately before a primary. Ohio Revised Code, §3513.19.

Thus, whatever the views of the various states on per-

mitting established members of one party to switch their

affiliation from one party to another (Compare, Pontikes

v. Kusper, —— F. Supp. —— (N.D. Ill, March 9, 1972)

and Gordon v. Executive Committee of Democratic Party,

335 F. Supp. 166 (D. S.Car., 1971) with Lippitt v. Cip-

pollone, supra), no state, with the exception of New York,

has deemed it necessary to impose crippling restrictions

upon newly registered voters making an initial declaration

of party affiliation.”

Moreover, if the justification of Section 186 is the pre-

vention of bad faith raiding, why does New York persist in

applying the strictures of Section 186 to newly arrived resi-

dents of New York who are merely seeking to continue a

pre-existing affiliation with the identical political party.

Cf. Jordan v. Meisser, —— U.S, —— (1972). The existence

of so irrational an application of Section 186 suggests that

™ See, e.g., Williams v. Rhodes, 393 U.S. 23 (1968) ; Lippitt v.

, —— US. —, 40 USLW 3334 (January 17, 1972).

** It should, of course, be noted that a new voter’s affiliation with

8 political party in New York, whenever it occurs, must be preceded

is signing a loyalty oath (Election Law, §174) and may be

i i tion Law, §332).

additional protec-

its role as an anti-raiding statute may be little more than

an ingenious post hoc rationalization advanced by the state

to shore up an anachronistic remnant of New York’s past

which has long since ceased to serve any rational state

interest.”

Thus, Section 186, by arbitrarily “locking” New Yorkers

into a given party affiliation for at least one year and by

unnecessarily “locking” previously unaffiliated voters out

of the parties of their choice for extended periods of time

ranging up to fourteen months, unconstitutionally deprives

New Yorkers of their right to full participation in the elec-

toral process. By failing to “tailor” Section 186 to guard

“precisely” against bad faith raiding, New York has failed

to utilize the least drastic means to promote its interests.

Accordingly, Section 186 should not be permitted to stand.

New York’s Refusal to Permit Petitioners to Affiliate

With the Democratic Party Unconstitutionally Abridges

Their Right of Free Association.

New York’s statutory scheme imposes a “waiting period”

of from eleven to fourteen months between petitioners’ ini-

tial attempt to join the Democratic Party in December 1971

and their final acceptance as party members which will

*” Another absurd result of Section 186 is that it permits a voter

sellp'G Gaeee tC inten eo seb gerngnre epiadagend

continue to partici; e affairs of his old party for

talent porod of time. Thus, an enrolled Democrat who had

his to the Republican Party and had completed

enrollment blank in December 1971 was eligible to

vote in the June 1972 Democratic primary. It is possible, therefore,

laa age imaarnc el ceca faith raiding than

preven

occur sometime between November 14, 1972 and February

1, 1973. Since the result of such a statutorily imposed wait-

ing period is the abridgement of petitioners’ 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 pro-

cedure did not abridge petitioners’ right to vote, it would,

nevertheless, unquestionably violate their right to associ-

ate freely with the political parties of their 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 vy.

Rhodes, 393 U.S. 23 (1968) ; NAACP y. Alabama, 357 U.S.

449 (1958); Bates v. Little Rock, 361 U.S. 516 (1960) ;

Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293

(1961) ; Gibson v. Florida Legislative Investigations Com-

mittee, 372 U.S. 539 (1963) ; DeGregory v. Attorney Gen-

eral, 383 U.S. 825 (1966) ; United States v. Robel, 389 U.S.

258 (1967); Pollard vy. Roberts, 283 F. Supp. 248 (E.D.

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

In Williams vy. 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 en-

croachment by the First Amendment. Mr. Justice Black,

writing for the Court in Williams vy. 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 pro-

tected 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 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. Jus-

tice Harlan expressly disclaimed reliance upon the equal

protection analysis utilized by the Supreme Court in the

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

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

interference, is at the very ¢ore of our associational free-

doms protected by the First Amendment.

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

aff'd sub nom. Bullock v. Carter, —— US. ——, 81 L. Ed.

2d 92 (1972), this Court ruled that a Texas requirement of

a substantial filing fee in order to participate in a Demo-

cratic Party Primary was unconstitutional. In his concur-

ring 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

20 Mr. Justice Douglas, in language strikingly appropriate to this

case observed in Williams v. Rhodes, supra:

“Cumbersome 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 U.S. at 40.

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 petitioners’ association with

the party or parties of their choice and inhibits them from

voting in the June primary, it impinges upon petitioners’

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 di-

rect 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 associ-

ational freedom can pass rigorous constitutional serutiny

only if they survive a stringent balancing test in which the

state must demonstrate the existence of an overriding so-

cietal interest which may be advanced by no less drastic

means. 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 unconstitu-

tionally overbroad and far more Draconian than necessary.

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

Certainly, New York cannot contend that it possesses an

overriding societal interest in protecting political parties

against previously unaffiliated new voters who seek merely

to declare their initial party affiliation. Indeed, New York’s

interest in deferring petitioners’ affiliation with the Demo-

cratic Party is even weaker than the state interests un-

successfully urged by Alabama, Arkansas, Florida and

New Hampshire, in NAACP v. Alabama, supra; Bates v.

Little Rock, supra; Gibson v. Florida, supra; and DeGreg-

ory v. New Hampshire, supra.” .

iil.

Section 186 of New. York’s Election Law Establishes

an Unconstitutional Durational Residence Requirement

for Voting in a New York Primary Election.

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

recognized that freedom to travel throughout the United

is one of the fundamental personal rights protected

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

283, (1849) (Taney, C.J.) ; Edwargs v. California, 314

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

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

ion of Stewart, Burger and Blackmun, JJ.).

In Dunn v. Blumstein, —— U.S. —, 31 L. Ed. 2d 274

(1972), this Court recognized that durational residence

21 As petitioners have demonstrated, Section 186 is certainly not

the least drastic means available to guard against fraudulent en-

rollments. See Point I(c), supra, at pp. 24-34.

voting requirements directly impinged upon the right to

travel by singling out newly arrived residents and denying

them access to the ballot.

Section 186 of New York’s Election Law singles out all

persons who have established a residence in New York sub-

sequent to New York’s last preceding general election and

prohibits them from voting in a primary election. Thus,

all persons who established a residence in New York after

October 2, 1971 (the last day to register for the November

1971 elections), were barred from voting in the June pri-

mary regardless of the duration of their pre-existing politi-

eal affiliation.”

Chief Judge Mishler explicitly noted that Section 186

imposes a durational residence requirement for primary

voting in New York. He stated:

“Tt also needs little explanation that the waiting period

mandated by the enrollment box system before an

enrollment can become effective is a durational resi- -

dency requirement. This residency requirement may

vary in duration from one to eleven months, depend-

"In Jordan v. Meisser, US. , 40 USLW 3398 (Feb.

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

f£

Law. Acting upon the Attorney General’s in-

tation, this Court dismissed Jordan’s appeal for

a substantial Federal question. However, during argu-

before the court below, the Nassau County Attorney correctly

the court that Section 187 applies only to persons whose

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

tion Lew §187(c) (6). The Attorney General does not dispute the

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

the practice followed throughout New York State.

ing on the time of year the enrollment blank is filled

out and put in the box (registration and signing of

‘enrollment blanks are closed during the thirty days

before and after the general election). It is a dura-

tional residency requirement imposed in addition to

the ninety days residence required to vote in a general

election” (A 45).

The court below did not declare Section 186 unlawful as

a durational residence requirement for voting because, re-

versing Chief Judge Mishler, it ruled that the 1970 amend..

ments to the Voting Rights Act of 1965 (42 U.S.C. §1973a-a”

(1)), which invalidated durational residence requirements in

Presidential elections, did not apply to primary elections.”

However, given this Court’s decision in Dunn, the appli-

cability of the durational residence bar contained in the

28 At the time Chief Judge Mishler delivered his opinion, this

Court had not yet announced its decision in Dunn v. Blumstein,

supra. Although the decision in Dunn has rendered Chief Judge

Mishler’s construction of Title 42 U.S.C. 1973a-a(1) largely aca-

demic, it seems infinitely preferable to the narrow reading of the

Voting Rights Act given by the court below. It is inconceivable to

assume that Congress, in enacting major legislation designed to

guaranty i participation in Presidential elections, did not

intend to protect participation in Presidential primaries as well.

Congress, no less than this Court, recognizes that participation in

the nominating process is an integral aspect of voting. Congress

has expressly provided that, for the purposes of the Voting Rights

Act, the right to vote includes the right to participate in a primary.

Title 42 U.S.C. §1973(c) (1), the definitional section of the Voting

Rights Act, provides that the term “voting” “shall include all action

necessary to make a vote effective in any primary, special or general

election . . .” (Emphasis added.)

Since the provisions of Title 42 U.S.C. §1973(a)(a) speak in

terms of “voting” for president and vice-president, there is no

reason to suppose that Congress intended to use the phrase “voting”

in other than its statutorily defined sense. Thus, “voting for presi-

dent and vice-president” must mean participating not only in the

general election, but in the nominating process as well.

Voting Rights Act is no longer determinative. After Dunn,

Section 186 is unlawful, not because it imposes a durational

residence requirement in violation of the Voting Rights

Act, but because this Court has ruled that such durational

residence requirements unconstitutionally impinge upon

fundamental constitutional rights. Thus, Section 186 is in

direct contravention of Dunn v. Blumstein, supra.

New York asserts that although Section 186 con-

cededly barred all persons who established a residence in

New York after the general election in November 1971 from

voting in the June 1972 primaries, petitioners lack standing

to urge the obvious conflict between Section 186 and Dunn

v. Blumstein, supra. However, petitioners, as otherwise

qualified voters who were concededly barred from voting in

the June 1972 Presidential Primary solely because of the

operation of Section 186, possess unquestioned standing to

attack the statutes’ deferred enrollment procedures and to

raise all arguments demonstrating their unconstitutional-

ity. Once a prospective voter is demonstrably injured by

the operation of a statute restrictive of the franchise, he

must be permitted to demonstrate that the statute’s uncon-

stitutional impact is felt across the entire spectrum of the

electorate, cf. Thornhill v. Alabama, 310 U.S. 88, 98 (1940) ;

Flast v. Cohen, 392 U.S. 83 (1968). Moreover, as repre-

sentatives of the class of people affected by the presently

written statute, petitioners, in this class action,” possess

classic standing to discuss the unconstitutional impact of

Section 186 upon all members of the class.

Atte

“Chief Judge Mishler explicitly recognized the class action

aspects of this case (A 22).

IV.

New York’s Deferred Enrollment Scheme Which

Conditions Full Participation in the 1972 Electoral

Process Upon Past Participation in the 1971 Electoral

Process Is an Unconstitutional “Grandfather Clause”

in Violation of the Fourteenth, Fifteenth, and Twenty.

sixth Amendments.

In order to participate in the June 1972 Presidential

Primary, New York’s statutory scheme required 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 has 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 partici-

pated in a pre-Civil War election or had registered during

& 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, speak.

ing through Mr. Justice Frankfurter, declared the statute

unconstitutional because its effect was to frustrate the im-

plementation of the Fifteenth Amendment. In words ap-

propriate to this case, Mr. Justice Frankfurter stated:

“The [Fifteenth] Amendment nullifies sophisticated as

well as simple-minded modes of discrimination. It hits

onerous procedural requirements which effectively

handicapped exercise of the franchise by the colored

race although the abstract right to vote may remain

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

Just as the Oklahoma grandfather clauses condemned by

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

inevitably foll with disproportionate effect upon the bene-

ficiaries of the Fifteenth Amendment, so New York’s grand-

father clause unduly abridges the ability of the beneficiaries

of the Fifteenth and Twenty-Sixth Amendments to partic.

ipate in the electoral process.

44.

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

N.J. 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.

It is universally agreed that the overwhelming incidence

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

Puerto Rican ghettos. Indeed, conservative estimates indi-

cate that over one million qualified members of racial mi-

norities 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 des-

pair. 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

unregistered members of racial or ethnic minorities wish

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 registered to vote in past elections, is in clear viola-

tion of the Fifteenth Amendment. Guinn v. United States,

supra; Lane v. Wilson, supra.

CG 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 prohibited the beneficiaries of the Twenty-Sixth

Amendment who attained the age of eighteen prior to No-

vember 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

beneficiaries of the Twenty-Sixth Amendment in New York

State were 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 nullified the

Twenty-Sixth Amendment as applied to the June Presi-

dential Primary, it is clearly an abridgement of the fran-

chise. Moreover, since the abridgement is based upon a

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

election of limited interest’ (the only election for which he

ever qualified), it is a discriminatory abridgement based

upon age.

‘CONCLUSION

The decision of the United States Court of Appeals

for the Second Circuit should be reversed and the judg-

ment of the United States District Cotirt for the Eastern

District should be reinstated.

Respectfully submitted,

Burst NEvBOBNE ~

Asruur EISENBERG

New York Civil Liberties Union

84 Fifth Avenue

New York, New York 10011

(212) 924-7800 |

Szymoun FRizpMaNn

26 Court Street

Brooklyn, New York 11201

(212) 522-0222 —

Of Counsel

Sruvex K. Weusserc

Dated: June 30, 1972

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