Brief for Respondent — Rosario v. Rockefeller

In THE $ SEP 22 1972

see 3 Supreme Court of the Mn A. Mates JRC

OCTOBER TERM, 1971

No. 71-1371

Pzpro J. Rosario, Wim J. FREEDMAN and Karen Ler Gorrzs-

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

Petitioners,

_ — against —

Ngtson ROCKEFELLER,

P. LomEnzo, See

Seema Hamer, on hin own behalf and on behalf of all others

Petitioners,

— against —

Neigon RockErEe.iEr, Governor of The State of New York, Joun

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

Wurius (Srecommap toa a D. CrisTenretp, Commis-

sioners of Elections for Nassau unty.

Respondents.

BRIEF FOR RESPONDENTS, WILLIAM D.

MEISSER AND MARVIN D. CRISTENFELD,

COMMISSIONERS OF ELECTIONS FOR

NASSAU COUNTY, NEW YORK.

———————

Cou

ene

INDEX

- itatutory Provisions Involved

s Bi ‘ ii ti

j Question Presented

Registration and Enrollment in New York State ____

: Statement of the Case

Bic

Sumniary of Argument - 1a

POINT I—Potitioners’ standing to challenge delayed

re étiroliment is limited to their factual situation

which, in turn, is moot

pour T—The petitioners have waived their right to

, challenge delayed. enrollment -

POINT. ‘I1i—The function of delayed enrollment in

Pe New York State is essential to the primary election

system

oa, Development

B. The Purpose of Delayed Enrollment

“0. - Which is the least drastic alternative?

POINT Iv. —Delayed enrollment is constitutional under

- dither the rational basis test or the compelling state

_. dnterest test

Por V—N ew York 's deferred enrollment system is

yp Rota “‘grandfather clause.’

POINT Vi—Delayed.enrollment does not abridge the

right to travel

ZACK

TABLE OF ease buine aed

ddabbo v. O'Rourke an mores : 27, N.Y. 2a. 645

¢ 61 NE. " , appl 'v dism’d sub nom.

Sf Friedman. v.-0'Rourke, 400 U.S: 684 (1970) 17, 35

Bachrow v. Rockefeller, 71.C 930. (BD.N.X: ladda

Trott 40

3 tre Ff, Supp. $72, (N-D. Tl, Bsndge =

“ae ow os htssi it) es

Bishop v, Rocket alee, TAG 1088 (EDN.Y. 9/1/12, 3-

BW 97h A

-_ oat States; 397 U8. '742 (1970)

Bullotk vi Garter, rab ge 134 (agray’-

ids ike Board of: Blections of the City of New

bg Rs 343 F. Sapp. 918., {B.D.N.Y. 3-judge court .

Pieri : - Galen, 176 ‘Mise. 466, 17 N-Y.8. 24 900

(Gap. Ot: (1940) uereLin. 29

Grovey® v. 'Towhednd, ’ $00.8 45 (1985)

Guinn v. United States; 238 U8. 347 (1915)

Hall v. Beals; 396°U:8,)45 (1969) -

iB re Mandelose, 407 Athen: wo tits CE S08) a2. 29, 30

Irish vi ‘Dethoctatic-Farmer-Labir Party, /287 F. Supp.

Ob 794 (D_Minn..1968),-aff’d, 399 F. 24119 (6th Cir.

e, 1968) -- 35

Jordan v. Meisser, 405 U.S. 907, 30 L. ed. 24778

1972) 2... 14, 35, 40, 41

Kramer v. Union Free School District, 395 U.S. 621

(1969) 32, 33, 34

Lake v. Power, 9 A.D. 2d 997, 177 N.Y.8. 2d 899 (2d

Dept.), aff’d, 5 N.Y. 2d 755, 153 N.E. 2d 391

(1958)

“aga Page

Fane vy. Wilson, 307 U.8.. 268 (1939) --.. sibiidilieaaineggien 38

Lent.y, Farrell, 34 A.D. 2d 978, 313 N.Y.8, 2d 965 (2d

se Dept. 1970) 28

Lippitt v. Cipollone, 404 U.S. 1032, aff’g, 337 F. Supp.

~~ 872 (N.D. Il. 3-judge court 1972) 25

Mattie of Davis v. Board of Hlections, § N.Y. 2d 66,

“© 153 N.E. 2d 879 (1958) 21

“Water of Goldshein v. D’Angelo, 34 2d 991, 313 N.Y.S.

9 975° (2d Dept), aff’d, 27 N.Y. 2d 658, 261 N-E.

& 24.908 (1970) * 30

Matter of Newkirk, 144 Misc. 765, 259 N.Y. Supp. 434

(Sup. Ct. 1931) 29, 31, 36

Matter of Titus, 117 App. Div. 621, ae N.Y. Supp.

861 (1st Dept. 1907) -..---...-22.---22--2-2.- 30

" Matter of Werbel v. Gernstein, 191 Misc. 274, 78 N.Y.S.

2d 440 (Sup. Ct. 1940) . 29

Matter.of Zuckman v. Donohue, 191 Misc. 399 (Sup.

Ct.), aff'd, 274 App. Div. 216, 80 N.Y.S. 2d 698

(8d Dept.), aff'd Menn., 298 N.Y. 627, 81 N.E. 2d

a 371 (1948) : 28

Te Chis . ioe U8 tas coaey Commissioners ri os

McGowan v. Maryland, 366 U.S. 420 (1961) -_.... 34

_ Meyers v. Anderson, 238 U.S. 368 (1915) ----..-... 38

Moore v. Ogilvie, 394. U.S. 814. (1969) 18

- Nagler v. Stiles, 343.F. Supp. 415 (D.N.J. 1972) ---. 25

_ Wixon.y, Condon, 286.U.8, 73 (1932) - .- 8

al Herndon, 273. U.S. 536 (1927) 35

iv

Gasms’

HRs |

Oregon. v.- Mitchell, 406'U8: 449 1970)

Pontikes‘¥!' Riuspet -“ ‘F. Supp.” “(ud ML, March

ae 9; 1972) - i ine sh ital orien tiep es 108 oo = Cyt.

Sens tera te —S

Ve ‘Div. 638, i na

aes -- 8,4

Bogoil;ret alvi O'Rourke, ot al., 29.N-Y. a 604, 274

os “NEL 2d 444 (1971). 16

: ic ane »Mise//1007, 100: N-Y.8. 2d

; 2 (Sap. Ct), 277. App. Div. 931, aff'd, 301 N.Y.

662, 94 NE..2d 258, (1950), ------ 30

Shapiro vy. Thompeon, 394 US. 618 (1969) -s--.-' 16, 40

Smith vy. /Adbwright,..321 .0.8, 649. (1944) .

Socialist Labor Party, et al. v. Gilligan, © US.

39;4a eds; 20.817 (4972) (104 2---

Sullivan Vo Power, 24 AD. 20‘709; 4e9 NY. 24 794

teeta caf'a,'16 NY. 2a 854, 216 NE. 2d 652

& 00! ¥." Widkham, $82 US, °111 (1965) |

= (eCRt } Nase “ .

assan Co, Index me,

Tena +. Meier Sop B15 N.S. 2 0 |

8% (2a: Dept:-1970)' _ 22% Fe: “aera .

erry v: Adams, $45 U.S. '461'(1953) —. v

Tinited- States 'v; “Cinsaic,: 813°U.S. 299 (1941) ~

United States v- State of Lonisiana, 380 U.S. 145 (1968)

Sere ee Ae |

Sa (Qe Dept 1972); piu. jie a aS a re: are

<1ohath |

Statutes Cited

= Law of New York:

BATE). hnnewenccccns _— . 9

eetbLetLo-- 1, 10, 12, 14, 16, 17, 21, 82, 85, 40

| : 2, 10, 12, 16, 40

aig

25, 28, 29, 30, 31

9, 37

<a, 87

9

| Statutes Cited

New York Laws of 1898, ch. 179

1899, ch. 473

1911,ch. 891

| 1928, ch. 815

28. U.S.C. 1254 -

42 U.S.C. §1973 _-

42 U.S.C. §1973aa(1)

25 Am. Jur. 2d Elections $49 (1966) _.._-

Annual Report of the Board of Elections, County of

Nassau (1970) el risers

Note, Bode v. National Democratic Party, Apportion-

ment of Delegates to National Political Conven-

tons, 85 Harv. L. Rev. 1460, 1470

Hearimgs Before the Committee on Post Office and

Civil Service Vote Registration, 92nd Cong., ist

sess. on S. 1199, 8. 2445, S. 2437 and S. 2574 (1971),

ibdnsiedt Parties and Politics, 1958

New York Post, 7/12/72, 27 -

328 Ops. Atty. Gen. 1915 (New York)

Stern and Gressman, Supreme Court Practice, 4th ed.,

1969, §5.18 at 233

In THE

Supreme Court of the Rnited States

OCTOBER TERM, 1971

-—_

es

No. 71-1371

Prpro J. Rosario, Winu1AM J. FREEDMAN and Karen Lee GorTrss-

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

Petitioners,

NeLtson ROCKEFELLER, Governor of The State of New York, JoHN

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

Maurice J. O’RourKE, JaMEes M. Powsr, THomas MALLEE

and J. J. DUBERSTEIN, consisting of the Boarp or ELECTIONS

In THE City or NEw York,

: Respondents.

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

Petitioners,

NELson RocKEFELLER, Governor of The State of New York, Joun

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

Wuuiiam D. Messer and Marvin D. CrisTENFELD,

sioners of Elections for Nassau County.

Respondents.

BRIEF FOR RESPONDENTS, WILLIAM D.

MEISSER AND MARVIN D. CRISTENFELD,

COMMISSIONERS OF ELECTIONS FOR

NASSAU COUNTY, NEW YORK.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

Statutory Provisions Involved

New York Stare Execrion Law §186 & §187.

$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 shail then be opened by the board of

elections and the blaitks contained therein shall be re-

moved therefrom 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 ¢litered 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 enroll-

ment 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 enroliment 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 blank of each voter to such registers. Such enroll-

ment shall be complete before the succeeding first day of

February in each year.

§187. Application for special enrollment, transfer or

correction of enrollment. 1. At any time after January

first and before the thirtieth day preceding the next fall

primary, except during the thirty days preceding a spring

primary, and except on the day of a primary, a voter may

3

enroll with a party, transfer his enrollment after moving

within a county, and under certain circumstances, correct

his enrollment, as hereinafter in this section provided.

2. A voter may enroll with a party if he did not enroll

on the day of the annual enrollment. (a) because he be-

came of age after the preceding general election, or (b)

because he was naturalized subsequent to ninety days prior

to the preceding general election, or (¢) because he did

not have the necessary residential qualifications as pro-

vided by section one hundred fifty, to enable him to enroll

in the preceding year, or (d) because of being or having

been at all previous times for enrollment a member of

the armed forces of the United States as defined in section

three hundred three, or (e) because of being the spouse,

child or parent of such member of the armed forces and

being absent from his or her county of residence at all

previous timiés for enrollment by reason of accompany-

ing or being with such member of the armed forces, or

(f) because he was an inmate or patient of a veterans’

bureau hospital located outside the state of New York at

all previous times for enrollment, or the spouse, parents

or child of such inmate or patient accompanying or being

with such inmate or patient at such times, or (g) because

he was incapacitated by iHness during the previous enroll-

ment period thereby preventing him from enrolling.

3. A voter so desiring to enroll shall file, within the

times specified in subdivision one of this section, with the

board of elections of the county in which he resides, his

affidavit setting forth substantially the following: the county

and the city or town in. which he resides, the election

district, the ward or assembly district, if any, and the

street and number, if any, of such residence; a statement

that he is, or will be, a qualified voter of the election

district stated at the next general election; the name of

the party with which he desires to enroll and a statement

that he is in general sympathy with its principles and

intends to support generally its nominees at such elections;

4

a statement that he is not enrolled and the reason there-

for which shall be one of those set forth in clauses (a),

(b), (c), (a), (e), (£) or (g) of subdivision two. A voter

desiring so to enroll whose status falls into any of the

classifications set forth in any of such clauses, except those

in clauses (d), (e) and (f), shall file his affidavit in person.

4. A voter desiring s0 to enroll who is a new voter

as defined in section one hundred fifty, shall, additionally,

produce proof of literacy as provided in section one

hundred sixty-eight.

5. If the voter applies for special enrollment under

the classification set forth in clause (b) of subdivision

two, his naturalization papers or a certified copy there-

of shall be submitted to the board for inspection and his

affidavit shall contain a statement that the deponent is

the person named in the paper so submitted.

6. Special enrollment under the classification set forth

in clause (c) of subdivision two is hereby expressly limited

to a voter otherwise qualified, who did not have the quali-

fications to vote at the previous general election and such

special enrollment is restricted to the same county the

voter resided in at the preceding year.

7. If the voter applies for special enrollment under

the classification set forth in clause (g) of subdivision

two, he shall file an additional affidavit setting forth the

following: a statement that he,was incapacitated by illness;

the nature and times of which shall be stated in an affidavit

of a duly licensed physician or in a certificate from the

superintendent or other person in charge of a hospital,

from registering for the preceding general election in

respect to a personal registration district, or from voting

at the preceding general election in respect to a non-

personal registration district.

5

8. If, after being regularly enrolled in an election

district as a member of a party pursuant to the provisions

of subdivision five of section one hundred fifty-four, or

subdivision six of section one hundred fifty-five, or section

one hundred seventy-three or section two hundred three,

or section three hundred three, a voter shall move into

another election district of the same county, city or vil-

lage, he may have his enrolment transferred to such

new. district, as a member of the same party, by filing

with the board of elections within the times specified in

subdivision one of this section, his affidavit showing the

name of the party with which he is enrolled, and the town

or city, election district, and when required, the ward

or assembly district, in which he is enrolled, the street

address, if any, from which he was enrolled, the town

or city, election district, and when required, the ward or

assembly district thereof into which he has moved and

the street address, if any, of his residence therein, stating

that he resides in the last mentioned place and desires to

have his enrollment with such party transferred thereto.

9. In a city of one hundred seventy-five thousand in-

habitants or more, the voter must appear and file his

affidavit in person and also answer such questions affect-

ing his identity as the board may deem necessary. In such

a case the board shall compare the voter’s signature, if

any, on the affidavit, with his signature on the register,

or if he be unable to write, shall submit to him the questions

required for an identification statement on a.day of reg-

istration, and, in the city of New York shall have his

answers written down in the book for identification state-

ments for the election district of his new residence. In

the city of New York, the voter, if able to write, shail

sign his name in the appropriate column of the signature

copy of the register to which he has moved.

10. In any case not hereinbefore in subdivisions eight

and nine provided for, the board in its discretion, may

require a voter applying for such transfer to appear in

person and answer questions affecting his identity.

U1, Such transfer of the enrollment of any voter in

any year shall be made but once in such year.

12. If, after being regularly enrolled in an election

district as a member of a party pursuant to the provisions

of subdivision five of section one hundred fifty-four, or

subdivision six of section one hundred fifty-five, or section

one hundred seventy-three, or section two hundred three,

or section three hundred three, a voter discovers he has

made a mistake when enrolling, he may apply within the

times specified in subdivision one of this section, to the

board of elections of the county in which he resides, for

a correction of the mistake made by him when marking

his enrollment blank, by filing his affidavit setting forth

substantially as follows: the name of the party with

which he is enrolled, and the town or city, election district,

and when required, the ward or assembly district, in

which he is enrolled, the street address, if any, from which

he was enrolled, a statement, substance, that his current

enrollment blank was cross marked X in a circle under

the name and emblem of a party but that such marking

was done by mistake and that he did not intend to enroll

with that party; the name of the party with which he did

intend to enroll and which he desires to be substituted on

the register for the one opposite his name; a statement

that he has been duly and regularly enrolled with the

party whose name he desires substituted for at least five

years immediately preceding the enrollment at which such

mistake occurred, specifying the county or counties and

the addresses at which he resided where he was enrolled;

that he is in general sympathy with the principles of the

party with which he requests to be enrolled and intends

7

to support generally its nomimees at the next primary

and general election, and that he has not participated in

any primary election or convention of any party other

than with which he requests to be enrolled during such

period of five years, or since. If, for any such period, the

registers or enrollment books in the office, of such board

do not show the applicant to have been enrolled therein

with the party with which the applicant requests to be

enrolled, the board shall require the applicant to produce

a certified transcript of his enrollment with such party

elsewhere within the state accompanied with proof, by affi-

davit, showing his identity with the person whose name

appears in such transcript.

13. Except where a voter is expressly required under

subdivisions two, three, four, five, six, seven, eight, nine,

ten or twelve of this section to file his affidavit in person

or to appear in person, his affidavit required under any

of such subdivisions may be filed either in person or by

agent or sent by mail. Mailing within the state and with-

in the times prescribed for filing shall be sufficient, if the

affidavit be received by the board. The postmark shall be

sufficient proof of the date of mailing. If. mailed outside

of the state, the affidavit must be received by the board

within the times so prescribed for filing.

14. The board shall prepare forms for the various

affidavits required under this section and, upon application,

shall furnish a copy of the appropriate form to or for

any voter desiring to use the same, and an additional

-copy if required. Copies also may be sold by the board, at

cost, to any qualified voter.

in the Appendix at 21-45, The denial,

Mishler, of the respondents’ application fo

has not been officially reported. It is reproduced in the Ap-

pendix at 49-56. The reversal of the District Court’s de-

cision by the United States Court of Appeals for the

Second Circuit is reported as Rosario et al. v. Rockefeller,

et al., 458 F. 2d 649. It is also reproduced in the Appendix

at 69-73.

Jurisdiction

The jurisdiction of this Court rests on 28 U.S.C.

§1254(1). .

Question Presented

Do the New York State’s political party enrollment stat-

utes unconstitutionally abridge the petitioners’ right to

vote in a primary election?

Registration and Enrollment in New York State

The issue before this Court concerns the question of

what requirements may be set for an individual who wishes

to enroll in a political party. Under New York’s system

of permanent personal registration and enrollment, New

York residents follow two separate and distinct procedures

for registration and for enrollment; there being as a pre-

requisite for enrollment the requirement that an individual

be registered to vote. New York has adopted as of 1967,

permanent personal registration, Election Law $350. Under

this system an individual, once he has registered, keeps

such registration effective so long as he votes in the gen-

eral election at least once every two years. Election Law

$352.

Registration is available via three methods:

(1) Central registration (Election Law §355), which —

is available at the Central Board of Elections during

regular office hours for approximately nine months every

year. :

(2) Local Registration Law (§§365-368,) which pro-

vides the opportunity to register, at each polling place

throughout the County, on at least two days each year

and on four days during Presidential years.

(3) Absentee registration (lection Law 4§117-a.)

which allows an individual, who expects to be absent from

the County on Local Registration days, to register to

vote up to 30 days prior to the general election, via the

United States mails.

Enrollment in a political party occurs after an indi-

vidual has registered to vote. He must complete a party

enrollment blank (Election Law §174); entering on it his

choice of the political party with which he wishes to affi-

liate himself by ‘‘solemnly declaring’’ himself to be ‘‘in

general sympathy with the principles of the party’’ which

he has designated. A political party is defined as ‘‘any

political organization which at the last preceding election

for governor polled at least fifty thousand votes for gov-

ernor.’’ (Election Law §2(4)). New York State has four

political parties under this statute: Conservative, Demo-

- eratic, Liberal and Republican. An individual may decline

to enroll in a political party and he will thereafter be listed

as ‘‘blank’’. Once an individual has completed his enroll-

4>

vidual does not become officially affiliated with a party,

however, until his name is formally entered on the enroll-

ment book; since, however, such listing must be completed

by the following February lst, there is no impediment to

the individual by said listing as no activities requiring party

enrollment take place during such time.

This system has exceptions to the principle of delayed

enrollment. These exceptions, known as special enrollment

(Election Law §§187, 388), are designed to allow the im-

mediate full participation in party affairs to certain classes.

A person is eligible for special enrollment upon:

1, Attaining voting age after the preceding general

election.

2. Becoming a naturalized citizen by ninety (90) days

prior to the preceding general election.

3. Being a member of (or a spouse, child or parent

residing with an individual who is a member of) the armed

forces at all previous times to enrollment. —

4, Being an inmate or patient of a veterans hospital

located outside of New York, or a spouse, child or parent

accompanying such patient.

being: a resident of the State and of the County, dlty

or Village for three months next preceding an destin.

This last provision is limited to those who had resided

during the preceding year within the same county in which

they now desire to enroll.

_ (Summary of Election Law §187, §388).

11

Throughout 1971, a period when each of the petitioners,

Pedro J. Rosario, William J. Freedman, Karen Lee Gottes-

man and Steve Eisner, first became eligible to vote, special

enrollment was available to them*. Each petitioner, there-

fore, could have easily availed himself or herself of this

opportunity and as a result would have been eligible for

participation in the June 1972 primary. It should be noted

that an individual does not have to be of voting age at the

time of registration — rather, he merely must demon-

strate that he will be of voting age on Election Day, so that

each petitioner could have registered.

In 1971, Nassau County began the year with 635,390

registered voters. During the year 54,141 individuals reg-

istered via central registration, 32,669 of whom were eligi-

ble for special enrollment. The remaining 21,472 fell under

the operation of delayed enrollment. Following the Septem-

ber 14, 1971 primary election, 47,219 persons registered to

vote on the three days of local registration. Since this was

the post-primary period, there was no need by any of these

47,219 persons to enroll in a political party. During 1971,

therefore, only 21,472 individuals were directly affected by

delayed enrollment out of a total of 736,750 voters who

ultimately completed the process of registering and enroll-

’ ing to vote during 1971.

The foregoing statistics also demonstrate that over

100,000 Nassau County voters registered for the first time

during 1971 in Nassau County (54,141 voters during central

registration and 47,219 voters during local registration).

. If petitioner Eisner had joined his over 100,000 fellow

Nassau County residents in registering and enrolling dur-

ing 1971, he would not have been barred, by delayed enroil-

ment, from voting in the June 1972 primary election.

or twenty-one 1971,

Amendment to the United

voting age after the

12

Statement of the Case

The petitioners seek to challenge New York State’s

closed primary election system. A closed primary is one

in which only the bona fide members of a political party

may participate in that party’s primary election.*

New York State utilizes the method of delayed enroll-

ment in that a person who enrolls must wait until after

the next general election for such enrollment to become

effective, Election Law §186. If, however, a person is

eligible for special enrollment, Election Law §187, the

person’s enrollment is effective immediately.

Enrollment in a political party is a qualification in

order to: vote in a party’s primary election; sign, and

to be a subscribing witness to, designating petitions which

place a candidate on the primary election ballot, Election

Law §§135, 136; enrollment is also a qualification for most

candidates in a party primary election, Election Law

§137. This latter qualification can be waived, Election

Law §137(4). (Candidates not only appear on the general

election ballot by winning a party’s nomination at a

primary election, but candidates may also appear on the

general election ballot by the means of independent nomi-

nating petitions, Election Law §138). .

Petitioners are duly registered voters in New York

State and they registered after the 1971 general election

when registration reopened on December 1, 1971. They also

enrolled at that time and thes completed enrollment blanks

which were deposited in a sealed box pursuant to Section

186. Each petitioner could have registered and enrolled

prior to the 1971 general election ~ they would have

*The methods of determining membership vary from state to

state, see V.O. Key, Politics, Forties

(1964) 389-392.

and Pressure Groups, 5th Ed.

18

been eligible to vote in the 1972 New York State Primary

Election. Three days after the Rosario petitioners reg-

istered, they filed their complaint herein and two days

after petitioner Eisner registered, he filed his complaint.

This action was originally sought to (a) convene a

three judge District Court, (b) declare Section 186 of the

Election Law unconstitutional, and (c) grant plaintiffs

(petitioners herein) appropriate equitable relief. Rosario

complaint, Append. 6; Eisner complaint, Append. 10-11. A

claim was also made in regard to the unconstitutionality

of New York State’s absentee ballot procedure, because it

did not apply to primary elections. This latter claim was

formally dropped, as it was the sole issue in another case

in the Eastern District, N.Y. Fidell v. Board of Elections

of the City of New York, 71C 1577—(three-Judge Court.)

On the return date of the motions in the District Court on

December 17, 1971, the petitioners dropped their request for

injunctive relief and agreed that the action would be

‘solely one for declaratory judgment.’’ Decision and Order

of the District Court, Append. 50-51.

The class action aspect of this case is ambiguous. No

claim for class action relief was present in the Eisner

complaint, although the Rosario complaint did, but the

relief for such request was never pressed. Moreover, no

evidence was submitted to the District Court to support a

finding that Rosario was a class action under Rule 23 of

the Federal Rules of Civil Procedure. Nor was such a

determination by order made as is required by Rule 23(c).

Judge Mishler began his opinion, however, by stating:

‘‘Plaintiffs in these class actions [sic] 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.’’ Append. 22.

14

This latter statement served only to confuse the scope of

Jtidge Mishler’s decision inasmuch as it does not include

newly arrived residents of New York State (see Jordan v.

Meisser, 405 US. 907, 30 L. Ed 778), nor does the state-

ment include voters who were already enrolled but who

desired to switch their party enrollment. Yet Judge Mishler

concluded his opinion by granting judgment in favor of.

the plaintiffs and declaring §186 unconstitutional without

any qualifications. The Court of Appeals did not go into

the class action question as their decision upheld §186’s

constitutionality.

On February 10, 1972 Judge Mish'er handed down his

opinion, which dcclered that Section 186 of the New York

State Election Law was uncoustituticnal. (App. 21-45)

On February 22, 1972 a stay was granted by the Second

Circuit and argument on the expedited appeal was set

for February 24.

On April 7, 1972, the panel of the Second Circuit,

which consisted of Judges Lumbard, Mansfield and Mul-

ligan reversed the District Court and ruled that Section

186 was constitutional. (App. 64-73) Petitioners’ application

for a rehearing é banc was denied April 24, 1972 with

Judges Oakes, Feinberg dissenting. On April 26, 1972 Mr.

Justice Marshall granted a temporary stay pending con-

sideration by the full Court.

On May 30, 1972 the petition for writ of certiorari was

granted and the motion for summary reversal was denied;

a motion for expedited relief was denied with Mr. Justice

Stewart dissenting and the application for a stay was

denied with Justices Douglas, Brennan, Stewart and

Marshall dissenting.*

*The New York Court of last considered the constitutionality

of Section 186 on June 14, in Vann v. Duberstein, 30 N.Y. 873,

which affirmed the decision of the te Division, of the Supreme

Court, 39 A.D. 2d 930 (2nd Dept.) The Court affirmed for the reasons

stated in the United States Court of Appeals decision herein.

-—

Summary of Argument

Petitioners lack standing to challenge all aspects of

delayed enrollment. No proper finding of class representa-

tion was ever made pursuant to Federal Rule of Civil

Procedure 23(c). For the aspects of delayed enrollment

which petitioners can challenge, the matter is moot.

The petitioners had sufficient opportunity during 1971

to enroll but failed to do so; they have lost their right to

challenge delayed enrollment.

The predominant method of nominating a candidate for

general office in New York State is the primary election.

To insure that only bona fide political party members par-

ticipate in that party’s primary, delayed enrollment has

been a longstanding requirement. Due to the current exist-

ence of a four party system in New York, there is a con-

tinued need for delayed enrollment to maintain the integrity

of the two minor parties. A suggested alternative to de-

layed enrollment proves, upon analysis, to be a harsh and

questionable alternative.

Under any constitutional test, delayed enrollment is

valid although the compelling state interest test should not

be applied since it has never been used in determining a

primary election case.

Delayed enrollment does not require previous participa-

tion in any election, nor has it been proved that delayed

enrollment has a disproportionate effect on any class or

group. The concept of a ‘‘grandfather clause’’ is, there-

fore, not applicable.

The petitioners do not factually present the issue of

the right to travel. Delayed enrollment, moreover, is dif-

ferent from previous right to travel cases in that it focuses

on the passage of an event ‘( pynra election) rather than

on a fixed time period (waiting period).

16

POINT I

Petitioner’s standing to challenge delayed enroll-

ment is limited to their factual situation, which in

turn is moot.

The petitioners, in seeking to have Section 186 of

New York State’s Election Law. declared unconstitutional

im toto, go far beyond the manner in which Section 186

affects them. The claim is made that petitioners represent

‘‘newly enfranchised voters’’, yet this could not be cor-

rect as individuals in New York State who have attained

voting age since the last general election are eligible for

special enrollment (Election Law §187(2).

Nor is the petitioner’s right to travel, Shapiro v. Thomp-

son, 394 U.S. 618 (1969); Dunn v. Blusteim, 405 U.S. 330

(1972) affected by Section 186. Although delayed enroll-

ment applies to recently arrived residents of New York

State, none of the petitioners falls in that category (indeed

no such claim is even made, Petitioners Brief, 8 n. 4).

Having been New York State residents for the entire

period relevant to this case (petitioner Eisner has resided

in New York for at least 15 years), no infringement on

any petitioner’s right to travel has been presented to this

Court.

No claim is made that petitioners either have moved

from one county te another county within New York State

or between New York City and another New York county

—moves which would bring them under the aegis of

delayed enrollment for the purposes of voting or being

a candidate in a primary.* See Rogoff, et al v. O’Rourke,

et al, 29 N.Y. 2d 664 (1971) (allowed inter-county migrants

are to transfer their enrollments,

"Faction Lew or to specially enroll, Election Law $187 2 (c) §6.

17

to be the subscribing witness to designating petitions which

are circulated to place a candidate on the primary election

ballot, Election Law §4§135, 136). Nor do petitioners fall in

the class of individuals who seek re-enrollment, because

after having changed residences, they had failed to trans-

fer their enrollment, see Addabbo v. O’Rourke and Fried-

man, 27 N.Y. 2d 645 (1970), app’l dismd sub nom. Fried-

man v. O’Rourke, 400 U.S. 884 (1970).

Finally petitioners do not claim that they have at-

tempted to change their enrollment from one party to

another.

Assuming that the procedural and evidentiary objec-

tions to the class action aspect are suspended for the

moment, the petitioners still cannot, logically, represent

a class to which they do not belong. The previous dis-

cussion demonstrates the various effects which §186 has

upon different groups of New York State residents; peti-

tioners simply have not experienced such effects.

From this discussion of non-representation, it can be

seen that there are many effects of delayed enrollment

which are not presented to this Court. For such issues,

it has been recently said:

‘“‘This Court recognized in the past that even

when jurisdiction exists it should not be exercised

unless the case ‘tenders the underlying constitutional

issues in cleancut and concrete form'... Problems

of prematurity and abstractness may well present

‘insuperable obstacles’ to the exercise of the Court’s

jurisdiction, even though that jurisdiction is techni-

cally present.’’

Socialist Labor Party, et al v. Gilligan, US.

32 L. Ed. 2d 317, 321-322 (Cases cited omitted).

(Emphasis added), (1972).

18

Consideration of delayed enrollment should be limited to

the factual situation presented to this Court.

In regard to the class in which the petitioners are

situated, namely, those who were eligible for special enroll-

ment but who waived such right, the issue is now moot.

The completed enrollment blanks of the petitioner were

removed from the sealed box on November 14, 1972*

and they are now entitled to full — in their

political party’s primaries:

‘‘The case has therefore lost its character of the

kind that must exist if we are to avoid advisory

opinions on abstract propositions of law.’’ Hall

v. Beals, 396 U.S. 45, 48 (1969)

And even Moore v. Ogilvie, 394 U.S. 814 (1969), does not

allow a case of this nature to be heard (‘‘the problem is

therefore capable of repetition, yet evading review’’, 394

U.S. at 816) since Moore was also heard for a second reason.

The Court determined that there was a ‘‘continuing con-

troversy in the Federal-State area where our ‘one-man,

one vote’ decisions have thrust’? (at 816.) These two

reasons are not present in the instant case. And in Moore,

the same restriction which adversely affected the appellant

originally was capable of affecting him again, Hall v.

Beals, supra, 49. Here, instead, petitioners will not be

barred from future participation in a political party. (But

see Dumn, supra, 332, n. 2.)

*In fact, once the June, 1972

19

POINT I

The Petitioners have waived their right to chal-

lenge delayed enrollment.

Prior to the enactment of Permanent Personal Reg-

istration (PPR), New York had employed an annual reg-

istration system in that all individuals, in order to be able

to vote at the general election and to be able to vote at

the primary succeeding the general election, were required

to register anew each year. Two main criticisms were

leveled at this system. First of all, there was enormous

inconvenience to a voter who had to duplicate his efforts

each year merely to cast his vote. Secondly, there was

overwhelming work for a Board of Elections. Under a

system of annual registration (which had been used in

over half of the election districts in upstate New York)

often there was insufficient time to complete an updated

voter list. Under such system, ‘‘In 1950, registration in

10 of the 57 upstate counties of New York exceeded the

number of citizens-21 and over as reported by the census.

In another 11 counties, registrants numbéred between 90

and 100% of the citizenry of voting age.’’ V.O. Key,

Politics, Parties and Pressure Groups, 5th ed., 1964, 629,

n. 7.

New York adopted the reform of PPR in 1967. The

driving idea behind the change was that it is the voter

who would benefit from a registration system and an

enrollment system which would make it easier for a voter

to register and remain so registered and to enroll and

to remain so enrolled. Under this system, an individual’s

opportunity to participate in an election was greatly in-

creased. Moreover, there was more time for election offi-

cials to complete the checking and purging provisions of

the Election Law in order to prevent any abuses which

might occur. Even now, however, new registrations pres-

ent a formidable work load for a Board of Elections. For

instance, Nassau County had over 100,000 new a

in 1971,

Under Permanent Personal Registration, with voters

remaining on the books from year to year, election officials

are better able to purify registration lists. This can be

accomplished in a number of ways. First, there is the

annual postcard check, Election Law §394. This section

requires the ‘Board of Elections to send a postcard with

voting and polling place information to each listed voter.

Wlienever a card, that has been mailed to a registered

voter, is returned to the Board of Elections as undeliver-

able, then the Board must cancel forthwith the registration

and the enrollment of the individual whose name appeared

on the card, Election Law §394(3).

The ability of the Board of Elections to utilize the

police investigation, Election Law §399, is also strength-

ened under Permanent Personal Registration, simply

since there is more time available to carry out this task.

Finally, the failure to vote in a two-year period results

in a purge of a voter from the registration and the enroll-

ment lists, Election Law §405, thus dropping voters who

have died or have moved elsewhere. (In no instance, how-

ever, do these processes cut down the possibility of fraudu-

lent enrollment.)

Permanent Personal Registration, therefore, consti-

tutes a reform over the previous method of registration.

So long as the system of voter registration in the United

States places the duty to register upon an individual

(as opposed to certain other countries where the task

of registering is left to the government, i.e. Canada

and Great Britain, Hearings before the Committee on

Post Office and Civil Service, Voter Registration, 92nd

Cong., 1st sess. on 8.1199, 8.2445, 8.2437, and 8.2574

21

(1971), 267), there is going to have to be effort by the

voter to register and to enroll; and there is going to

have to be a mechanism whereby fraud and irregularities

can be systematically forestalled on an overall basis

(as opposed to an individual, case by case basis). Per-

manent Personal Registration is such a mechanism for

registering voters for a general election and delayed enroll-

ment is such a mechanism for enrolling voters for a

primary election.

Petitioners herein were eligible to register and to

enroll for almost 9 months in 1971, either by personally

appearing at Local or Central registration or absentee

registration. Such was the finding of Judge Mishler in

the District Court, Opinion, Append. 22. For some reason,

which has never been explained, the petitioners passed

up their opportunity to register and to enroll in 1971.*

New York State under permanent personal registration,

provided petitioners with more than sufficient time to

register and to enroll.

It can only be said, therefore, that the petitioners

have waived their right to challenge delayed enrollment

as set forth in section 186.

The New York Court of Appeals has stated in regard

‘to a similar challenge to the duty imposed by the State’s

Election Law that:

‘‘The franchise conferred by the [N.Y.] Con-

stitution gives rise not only to a right but also a

duty, and this statute [Election Law $138] merely

attaches reasonable consequences to the non-per-

formance of that duty in the interest of administra-

tive necessity.’’ Matter of Davis v. Board of Elec-

tions, 5 N.Y. 2d 66,69 (1958).

*Not would the ioners have been for the 1972

= ee rae

In the face of this established duty, the petitioners

offered no reason in the courts below as to why they

failed to exercise the duty imposed upon them by the

statutes to timely enroll. From this silence, there can be

an inference, if not an absolute conclusion, that their ad-

mitted failure to enroll during 1971 was a knowing waiver

of their right to become eligible for the June 1972 primary

election. This ‘‘knowing, intelligent’’ waiver of the right

to enroll now bars petitioners from asserting that their

constitutional privileges have been abridged. Brady v.

United States, 397 U.S. 742,748 (1970).

POINT III

_~~The Function of Delayed Enrollment in New York

State is essential to the Primary Election System.

A. Development

Prior to use of primary elections, a political party

utilized committees, conventions or caucuses to select its

nominees for office in a general election. Although New

York State still utilizes committees (Election Law §131[1]),

conventions (Election Law §132) and caucuses (Election

Law §146), the predominant method of nominating party

candidates is by direct primaries (Hlection Law §136[6]).

Only those who are enrolled members of a political

party may vote at that party’s primary (Election Law

§131).

In 1898, the first comprehensive primary statute was

enacted (Law of March 29, 1898, ch. 179 [1898], N.Y.

Laws 331-359), although this was limited to certain offices

and geographical areas. In 1911, a modern direct primary

statute was enacted (Law of October 18, 1911, ch. 891 [1911],

N.Y. Laws 2657-2726).

23

The qualifications for party enrollment were set forth

in the 1898 law in almost the identical fashion as are the

present qualifications (Laws of 1898, supra, ch. 179, §3).

An individual's opportunity to register and enroll was dif-

ferent, however, since the annual registration could occur

each year on only four days (‘‘meetings’’) every fall (the

equivalent of the current ‘‘local registration days’’), while

enrollment could occur on the four registration days or,

initially, during certain supplemental periods*.

When the first comprehensive primary law was enacted

in 1911, it stated:

‘*$19. No voter who has once enrolled in a politi-

cal party shall be permitted to enroll in another

political party before the first day of the next regis-

tration.’’ L. 1911, ch. 891.

Supplemental and special enrollments were abolished

by the 1911 law although special enrollment provisions were

added gradually over the succeeding years.

When enacted, the original delayed enrollment consti-

tuted a high hurdle for those seeking both to register and

to enroll. Registration days were limited to four, whereas

*In the 1898 law, the supplemental period for special enrollment con-

sisted of the month of December and the second Tuesday of

who

be permitted to enroll in another tical before

he test of the next four days of of registration.” @3(9). oe

Sen? See ee ee 1 oe Be ee Lave

of 1904, 350, provided judicial to cancel enrollments

because of false declarations, death or change in This

law applied only to New York City. In 1905 (Laws of 1905, 111),

the special enrollment periods of and June were ended in N

York City; and for second-class cities, the same was done

of 1905, ch. 674.

ew

we

1911, no enrolment time remained, but in the

Me ce aur earl ones were aaa tes 1915 Op.Atty Gen. 328.

24

now we have both local registration and central registration

(which was begun in 1928 for 2% months per year ([Laws

of 1928, ch. 815]). Central registration was gradually ex-

tended so that now it is available from 30 days after a

general election and continues ‘until the September 1st pre-

ceding the next general election, except for 10 days prior

to and 5 days after a primary election.*

Delayed enrollment, when enacted, presented another

hurdle in that annual registration and enrollment for each

and every voter was required. Now, of course, New York

has universal Permanent Personal Registration, so that the

only effort required of an individual, once he has initially

registered and enrolled, is to vote once every two years.

B. The Purpose of Delayed Enrollment

New York’s procedure for delayed enrollment prevents

a politician from trying to ‘‘successfully urge his consti-

tuents to vote for him or his party in the upcoming gen-

eral election, while at the same time urging a cross-over

enrollment for the purposes of upsetting the opposite party’s

primary.’’ Opinion of the 2d Circuit, Append. 70. Allowing

enrollment during any period after the general election

would, however, permit such raiding as voters would not

be asked to do two contradictory things at once. Prevention

of party raiding enables members of one party to feel

assured that their nominee will truly represent the elec-

toral consensus of all that party’s members. Prevention of

party raiding prevents another party from seeking to as-

sure the nomination of a weak candidate who can be de-

feated in a general election. Delayed enrollment also allows

a maintenance of orientation which differentiates between

the two parties. One commentator has suggested that politi-

"Hy fe Bishop v ge TIC 1088 (E.D, N.Y. 3-judge oo

the 4 i York General, central registration is to remain

open until September 1972, for 4 business days per week.

25

cal parties should not only have some discretion in order

to determine how their convention delegates will be ap-

portioned, see: O’Brien v. Brown, 41 U.S. L.W. 4001 (U.S.

July 7, 1972) but that they should also have some discretion

to determine who may participate in their processes.* This

is done in New York by delayed enrollment.

The New York system of delayed enrollment is depen-

dent upon events, i.e. the occurrence of a general election,

rather than on a fixed time period, ¢.g., a two-year wait. It

also sets the minimum number of events which must occur,

i.e., only one primary. New York’s statute thus presents far

less of a resulting time period than the 4 years which have

been upheld by this Court in Lippitt v. Cipollone, 404 U.S.

1032, aff’g, 337 F. Supp. 1405 (N.D. Ohio 3-judge court

1972);‘or the two years set forth by Illinois (Bender v.

Ogilvie, 335 F. Supp. 572 [N.D. Ill. 3-judge court 1971));

Pontikes v. Kusper — F. Supp. — (N.D. IIL, 3/9/72);

or the two successive primaries which are required in New

Jersey (Nagler v. Stiles, 343 F. Supp. 415 [D.N.J. 1972]).

New York State does not desire to prevent party mem-

bership changes since that is a most legitimate goal for a

citizen to have; yet there is a compelling need to have this

done in an orderly manner. The alternative cited by the

petitioners will be shown to be no alternative at all. The

petitioners, furthermore, have not suggested any alter-

natives besides the use of Election Law procedure §332.

The removal of the right of New York State to have delayed

enrollment would have.a deleterious effect’ on the vigor-

ous 4-party system which the state now enjoys.

There is strong motivation currently for party raid-

ing to occur in the State of New York. The nomination

of the minor parties at times serves as the vehicle to

*See Note, Bode v. National Democratic Party.

Doletaion ia Nationel Poutices Contentions, tar’ L. man L. Rev. 146

26

achieve major elective posts in New York State. In 1969,

John V. Lindsay, who lost the Republican party nomi-

nation in a primary, was still able to become Mayor of

New York City because of his Liberal party nomination.

In 1970, James Buckley, the nominee of the Conservative

party, was elected United States Senator from New York

State.

Currently the New York State Assembly which consists

of 157 seats is almost evenly divided between the two

major parties. Every two years it is a question who will

be the majority party; usually, only a few Assemblymen

make the difference. Minor party endorsements play a

large and significant role in this balance of power. Exami-

nation of the vote for Assemblyman in one Nassau County

district illustrates this point.* The 18th Assembly District

of Nassau County, which in 1970 basically was comprised

of the northwestern portion of Nassau County, contained

24,838 enrolicd Republicans, 21,491 enrolled Democrats,

485 enrolled Conservatives and 526 enrolled Liberals. The

total number of registered voters was 58,031, of which

there were 10,741 blank (é¢., declined to enroll), void or

missing‘ enrollments, leaving a total.of 47,290 enrolled

voters. In November 8, 1970, 52,505 voters entered the

general election voting booth of whom 48,289 cast a ballot

for one of the nominated\asscmbly candidates. The results

of the election were:

Vincent R. Balletta, Jr. Republican | 21,696

Irwin J. Landes ,Democratic 19,624

Nelson J. Gammans Conservative 4,307

Irwin J. Landes Liberal 3,661

’ All statistics are taken from the Annual Report of the Board of

Elections, County of Nassau, 1970. The enrollment statistics are those

enrollments as of F 1, 1970, which were reported to the

New not reflect special enrollees

27

Thus, the Liberal nomination of Irwin J. Landes was criti-

cal to victory and the failure of Vincent Balletta to gain

the Conservative Party nomination was instrumental in

his loss. Moreover, it can be seen that the power of each

of the minor parties, despite its paucity of enrolled voters

in such party, is magnified many times at the general

election.

It is even more interesting that the victor in the general

election won his Liberal designation in a primary where

only 213 votes were cast, of which Irwin J. Landes re-

ceived 119 write-in votes, Jack Tenzer received 32 and other

candidates received 2 votes. After a judicial challenge on

‘the results (Tenzer v. Meisser, Sup. Ct. Nassau Co. 1970,

Index No. 6851/aff’d, 35 A.D. 2d 670), the Supreme Court,

Nassau County, found that 20 for Landes and 3 votes for

Tenzer were irregular, but that such changes were insuffi-

cient to change the result of the primary. Thus, a difference

of 10 votes in the primary ultimately determined 3,661

votes for Landes on the Liberal line at the general election,

and was the key to his victory. The incentive for party raid-

a

ing which is present, in the face of such statistics, ie ry!

obvious. fossa ih

Other Assembly races in Nassau County also ms

a minor party nomination which proved the key to either

defeat or victory, while in still other races, a minor party

nomination played no part in the result, e.g., the 12th

Assembly District, Joseph M. Margiotta, who received a

plurality of 18,839 votes.

Minor party nominations were not only the key in

Assembly races, but also they figured prominently in the

Nassau County State Senate races. In the 7th District,

State Senate, the Republican victor, Norman Levy, gained

*When a “pe to ballot in a primary election”

(Election feu “Oa8) i is f egy AR ph FB per may write

in any individual’s name, even a non-party member such as Mr.

Landes who was an enrolled Democrat.

his victory as a result of almost 13,000 votes on the Con-

servative line and was thus able to overcome his Democratic

opponent’s 57,435 votes. In both the 4th Senatorial District

and the 5th Senatorial District in Nassau County, had the

Democratic nominee also had the Conservative nomination,

it would have been victoriou3. Here again, in akon, dis-

tricts, the minor party nomination was not a faetor, e.g.,

in the 6th District, John R. Duane, received a

of just over 40,000 votes.

lurality

The same analysis holds true for U.S. Congressional

races, e.g., Rep. Norman F’.. Lent defeated Allard K. Lowen-

stein by 93,824 votes to 84,738. Congressman Lent had the

Conservative Party nomination and received 23,856 votes on

that line. (Lent won the Conservative primary election

because the other person seeking the Conservative nomina-

tion had had his petitions invalidated by the courts. Lent

v. Farrell, 34 A.D. 2d 978 [2d Dept. 1970].)

From these examples, the motive for party raiding is

clear, and on all levels of government in New York State.

It can also be seen that it is the low number of enrolled

minor party members in Assembly, Senate and Congres-

sional districts which presents the possibility of raiding

— not just the state-wide enrollment figures which show

that both the Liberal and ‘Conservative parties have slightly

over 100,000 enrollees.

C. Which is the least drastic alternative?

Presently two statutory means exist to prevent party

raiding. The first is the delayed enrollment procedure.

The second is the procedure established by Election Law,

§332, whereby an individual’s enrollment may be chal-

lenged, and if a hearing upholds the challenger’s conten-

tions, the individual may be-purged from the party rolls,

subject to judicial review. The usevof §332 is cited by the

petitioners as the ‘‘least drastic alternative’’ to the wider

scope of delayed enrollment. Matter of Zuckman v. Dono-

hue, 191 Misc. 399, (Sup. Ct.), aff’d, 274 App. Div. 216 (3rd

Dept.), aff’d without opinion, 298 N.Y. 627, 81 N.E. 2d 371

(1948); In re Mendelson, 197 Misc. 993 (Sup. Ct., 1950);

Matter of Werbel v. Gernsteim, 191 Misc. 274, (Sup. Ct.

1948) ; Greenberg v. Cohen, 175 Misc. 405 (Sup.Ct., 1940) ;

Matter of Newkirk, 144 Misc. 765 (Sup. Ct., 1931).

Judge Mishler stated that the §332 procedure is ‘‘highly

effective even on short notice before a primary.’’ Append.

37. However, in the Court of Appeals decision, Judge

Lombard noted:

“‘Section 332 is a narrowly drawn statute appro-

priate for striking from the enrollment rolls only one

name at a time. Each such challenge requires a full

judicial inquiry, 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 dwell-

ing, car registration, or a driver’s license, is easily

at hand, proof of allegiance to one papty or another

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 mark-

ing the ballot 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.’’

Two points should be made in light of J udge Lombard’s

concise summary of §332. The first point demonstrates

that if §332 were to be the sole method of preventing party

raiding, then its application would be so harsh on an in-

dividual’s rights that it would probably be unconstitutional ;

and the second point indicates, through an analysis of one

of the above-cited raiding cases, how such an abuse of §332

would occur.

30

Under §330 of the Election Law, a procedure is set

forth for legal challenges to the designating petitions

which are required to place a candidate on the primary

ballot. Each year the Courts of New York are deluged by

Election Law cases brought on by primary candidates who

seek to invalidate their opponent’s designating petitions.

If this can be done, the petitioners will win their party’s

nomination, because Election Law §149 provides, in essence,

that an individual is deemed nominated if his petitions are

the only valid petitions filed for a vacancy to be filled at

a primary. Thus, the legal proceedings can result in gain-

ing a party’s nomination without having to run a campaign.

Many times these legal challenges are initiated as a political

strategy in order to tie up the supporters of a candidate

in the courtroom while his opponents are out campaigning.

When §332 is examined, it is obvious that it is another

potential weapon with which to fight an opponent in a

campaign. Moreover, unlike §330 cases, a §332 case can tie

up the opponent himself for extended hearings, both in

Court and before the initial committee which considers

the question of a valid enrollment. See In re Mendelson,

supra, supplemental opinion.

A §332 proceeding is far more draconian than a §330

proceeding in that it attempts to delve into an individual’s

tenets and political principles. Thus, §332 is capable of

being a chilling instrument of abuse by the ‘‘regular or-

ganization’’ of a political party which is engaged in a fight

against genuine party insurgents.* This abuse is a reality,

as evidenced by a series of cases which have arisen under

this section. Sullivan v. Power, 24 A.D. 2d 709, aff’d, 16

N.Y. 2d 854, 210 N.E. 2d 652 (1965) (see the Appellate

Division) ; Lake v. Power, 9 A.D. 2d 997, aff’d, 5 N.Y. 2d

755 (1958; Rhatigan v. Power, 282 App. Div. 838 (1953) ;

Scarfone v. Ruggiero, 277 App. Div. 931 aff’d, 301 N.Y. 662,

93 N.E. 254 (1950); Matter of Titus, 117 App. Div. 621

(1907); also see the series of cases reported as Matter of

Goldshein v. D’ Angelo, 34 A.D. 2d 991 (1970).

*Moreover, who is to decide in such a case as.to what are the true

. principles of the party . Election Law $174.

31

The second point demonstrates that even in the case

where $332 was used to stop party raiders, §332 turned

out not to be ‘‘highly effective’’, as Chief Judge Mishler

contended. In 1931, certain Democrats in the City of Utica,

New York, sought to raid the Socialist Party in that city

in order to gain the Socialist nomination for candidates who

already had the Democratic nomination. Matter of Newkirk,

supra, There, approximately 75 individuals had, during

1930, decided to raid the Socialist Party. This was not

discovered until the August, 1931, preceding the fall pri-

mary. The Chairman of the Socialist Party of Oneida

County, after receiving a challenge to the 75 enrollments,

appointed a subcommittee pursuant to §332 to make an

initial determination. After reviewing the report of the

subcommittee, he found that 21 purported enrollees had

signed written renunciations of their enrollment, and that

an additional 47 enrollees were not valid. Thereafter,

judicial review was sought and the Court upheld the County

political chairman’s determination in 27 of the 68 cases.

Of those who had not signed renunciations, however, the

Court upheld only nine of the cancellations. Approximately

79% (38 individuals) of the political Chairman’s determin-

ations, for those who had not signed renunciations, were

fouzd to be erroneous.

There are three inferences which could be drawn from

this case. First, §332 is not a viable means to prevent

party raiding; or second, §332 is unworkable inasmuch

as the evidence required, (¢.e., an individual’s intent,) ‘‘is

in practice unworkable.’’ Swift & Co. v. Wickham, 382

U.S. 111, 123, opinion Harlan, J. (1965) ; or third, the county

political chairman in Newkirk was engaging in the very

abuse of $332 described above.

Thus, Election Law §332 sets forth a proceeding which

has a number of drawbacks. First, it requires an extra-

ordinary amount of money, time and manpower; second,

it requires an examination into an individual’s intent — a

_ 82

-- process fraught with the potential for chilling the right of

free speech; and third, it is a likely instrument for abuse.

Indeed, it is a logical conclusion that a §332 proceeding is

an invasion of an individual’s constitutional rights than

is the conclusion that $186 is unconstitutional.

POINT IV

Delayed Enrollment is Constitutional under either

the Rational Basis Test or the Compelling State

Interest Test. 6

The initial issue which must be decided by this Court

is which constitutional test is to be applied to the New

York State enrollment statutes. In dealing with a state

primary election where suspect class, race or wealth dis-

crimination is absent*® and where there is a vigorous two-

party system, the applicability of the compelling state

interest test is tenuous, both in light of the facts and

the precedents.

The compelling state interest test is one which gained

its present status literally by its own bootstraps. Dunn v.

Blumstein, supra, Blackman, J., concurring opinion; see

Kramer v. Union Free School District, 395 U.S. 621 (1969),

Stewart, J., dissenting opinion at 639.

The compelling state interest test came into full force

for Election Law cases in Kramer, supra. The majority

in Kramer (opinion by Justice Warren) relied upon the

court’s previous opinion in Carrington v. Rash, 380 U.S. 89

(1965), opinion by Justice Stewart. In Kramer, however,

*The White Primary cases and Bullock v. Carter, 405 U.S. 134 (wealth),

involves those areas which have traditionally been protected by con-

33

Justice Stewart dissented on the ground that the classifica-

tion therein was rationally related to a permissive legisla-

tive end. Moreover, in enunciating the compelling state

interest test, Kramer, supra, at 627, cited Carrington,

‘supra, at 96. Yet, Carrington, at 96, only found that ‘‘states

may not casually deprive a class of individuals of the vote

because of some remote administrative benefit to the state.’’

(Cases cited omitted.) Thus, Carrington found that the

Texas Constitution, by absolutely preventing a soldier ever

to controvert the presumption of non-residence, imposed

an invidious distinction in violation of the Fourteenth

Amendment. There is, therefore, somewhat of a gap between

. the seed of the test in Carrington and the flower of the

test in Kramer.

Such analysis is of current validity since Dunn, supra,

restated almost word for word the test set forth

by Kramer. See Dunn v. Blumsteim, 405 U.S. at —, 40

U.S.L.W. at 4272; Kramer v. Union Free School District,

395 U.S: at 627.

Although Kramer seemed to exempt primaries from the

compelling state interest test*, the court below utilized the

compelling state interest test in determining that delayed

enrollment advanced a valid interest of the state. Yet, the

Court of Appeals should not have found it necessary to

utilize the compelling state interest test since in Bullock

v. Carter, 405 U.S. 134, 143 (1972), the Court stated,

‘“‘Of course, not every limitation or ingidental

burden on the exercise of voting rights is subject to

a stringent standard of review.’’

And, in this case involving a primary election, the Court

of Appeals had the opportunity presented to utilize the

Bullock exception. The court below was faced with a statute

*“We need express no opinion as to whether the state, in some circum-

stances, might limit the exercise of the franchise to those primarily

interested or primarily affected.” Kramer, supra, at 632.

34

which presents an additional voter qualification to the

three qualifications upheld in Krqmer and presents the

additional qualification in an election which, by its very

definition (closed rig inherently demands the added

requirement.

In Kramer, the Court found that states have the power

‘*to impose a reasonable citizenship, age and residency

requirements on the availability of the ballot.’’ (Cases

cited omitted.) 395 U.S. at 625. However, the instant case,

involving a closed primary where only members of a

political party may participate in that party’s primaries,

demonstrates that an additional qualification is absolutely

required® to insure that the members are bona fide.

Since the case herein does not involve the ‘‘denial’’ of

a vote found in Kramer and involves a closed primary

election, the compelling state interest test did not have to

be used, especially since the test has never been used be-

fore for a primary election case. Instead, the traditional

‘rational basis’’ test could have been used:

‘‘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 equality. A statutory dis-

crimination will not be set aside if any state of facts

reasonably may be conceived to justify it.’’ McGow-

an v. Maryland, 366 U.S. 420, 425-426 (1961)

Ja :

The use of this test in McDonald v. Board of Election

Commissioners of Chicago, 394 U.S. 802 (1969) shows

the inappropriateness of the compelling state interest

35

test herein, especially since the McDonald statutes were

not shown to be discriminating or ‘‘to have an impact on

appellants ability to exercise the fundamental right to

vote’’ at 807 (Emphasis supplied).

Even if the rational state interest test may not be suffi-

cient in this case to strike the correct balance between the

interest of the State and the interest of an individual to

participate in that primary, this Court could use the ‘‘close

scrutiny’’ test set forth in Bullock, supra:

‘<[T jhe laws must be closely scrutinized and found

reasonably necessary to the accomplishment of leg-

itimate state objectives in order to pass constitution-

al muster.’’ 405 U.S. at—, 31 L. Ed. 2d at 100.

Under either standard, the constitutionality of 4186

is clear as the avoidance of party raiding serves a rational

basis of the Legislature and has been shown to be reason-

ably necessary.

Assuming, arguendo, that the compelling state interest

test does apply ,and that the Jordan, supra, and Addabbo,

supra, cases do not apply, the decision below should be

upheld by this Court.

It has already been pointed out that the recent stringent

tests for voting in a general election cannot be mechanically

applied to a primary election by citing the previous

‘Supreme Court decisions which involved primaries. In

such cases special circumstances were always present.*

cases v. Adams, 345 US. 461 (1953) ; Smith v.

“Avorn 321 US, 649 (1944); United States v. Classic, 313 US. 295

iF Townsend, 295 US. 45 (1935); Nizon v. Condon,

ioe U8. 73 (1932): Nizon v. Herndon, 273 US. 536 (1927). Even in

vision concerning primary

ai not involve suspect classification of race, wealth or discrimination,

the Court ld a limitation for entering a primary. v. Blair,

343 U.S. 214 (1952). Yet in Ray, angry it was poin out that

the “real election takes place in the [Alabama] primary,” so be

“limitations as to entering o_o

general election.” 343 US. a

36

What is at stake herein is the method by which a State

political party chooses to protect the integrity of the nom-

inating system that it uses. New York State has four

methods: committees, conventions, caucuses and primary

elections, with the latter being the predominant. In other

states, caucuses or conventions may predominate.*

New York State’s deferred party membership provis-

ions were established with the first primary law and remain

' basically unchanged. Throughout this period, indications

of enrollment fraud have cropped up, ¢.g., the purging

provisions of 1904, supra, when supplemental enrollment

periods still existed and the attempts at party raiding

in 1931. Matter of Newkirk, supra. Presently, with two key

minor parties, Liberal and Conservative, whose nomina-

tions are frequently the decisive factor in general elections,

the motivation for party raiding is quite strong.

Delayed enrollment is a fundamental element in the

enrollment system in order to avoid fraud. Such purpose

was upheld by this Court in Dunn v. Blumstein, supra, 40

U.S.L.W. at 4274 (March 21, 1972). And delayed enrollment

is as needed for primary elections just as a voter registra-

tion system is needed in general elections; so that the recog-

nition in Dunn, supra, of the value of voter registration

systems to deter fraud should be extended to similar recog-

nition of delayed enrollment. In Dunn, supra, the purpose

of preventing ‘‘a fraudulent evasion of state voting stan-

dards ... in most... states .. is served by a system of

voter registration. " 40 U.S.L.W. at 4274. Under these con-

ditions, New York State has shown the highest and most

compelling need for delayed enrollment.

*See Irish v. Democratic-Farmer-Labor Party, 287 F. Supp. 794 (D.

Minn. 1968), aff'd, 399 F. 24119 (8th Cir. 1968); 25 Am. Jur. 2d

Blections, $49 (1966).

37

POINT V

New York’s deferred enrollment system is not

a “grandfather clause.”

Under New York State’s registration and enrollment

procedure, there is no requirement that the petitioners

had to be involved in the 1971 elections whatsoever. The

petitioners, however, contend under New York State’s

election statutes that ‘‘the petitioned [had] to have been

registered to vote in the 1971 local elections.’’ Petitioners’

Brief, p. 42. Instead, under the provisions of permanent

person registration, Election Law, Article 15, once an

individual has registered to vote and has enrolled in a

political party, such registration and enrollment continues

so long as a person votes in a general election ‘‘at least ~

once in each period of two successive calendar years.’’

Election Law §352. Permanent personal registration was

adopted throughout New York State in 1967, Election Law,

§350(2), although certain counties, e.g., Nassau County and

the five counties which comprise New York City, adopted

permanent personal registration during the early fifties.

Thus, the petitioners were merely required to register and

to enroll during 1971; they were not required to participate

in the 1971 elections. |

The petitioners misconceive the workings of delayed

enrollment; in no instance is participation in the 1972

primary election conditioned upon past participation in

the 1971 elections.

A. Delayed enrollment and grandfather clauses

The relation of a grandfather clause concept to delayed

enrollment is an illogical attempt to apply past decisions

of this Court to the instant matter. Delayed enrollment

applies equally to all individuals. There is no ancestry

provision, either implicit or explicit, in its operation. Past

38

decisions of this Court, such as Guinn v. United States,

238 U.S. 347 (1915); Lane v. Wilson, 307 U.S. 268 (1939),

Meyers v. Anderson, 238 U.S. 368 (1915) and United States

v. State of Louisiana, 380 U.S. 145 (1968), show that the

effect of a grandfather clause was unequal in its application

to the electorate in general.

To cloak delayed enrollment with the threads of the

term ‘‘grandfather clause’’ is to overlook the goals and

legal application of delayed enrollment.

It has already been outlined that enrollment and regis-

tration are separate processes. The petitioners have used

statistics which stem from participation in the 1968 general

elections in an attempt to claim a ‘‘disproportionate effect

on minority groups by delayed enrollment.’’ The fact that

less than 50% of the qualified voters in the Counties of

New York, Kings and Bronx participated in the 1968

general elections (statistics compiled pursuant to the 1965

Voting Rights Act, 42 U.S.C. §§1973), bears no logical con-

nection to delayed enrollment. Conceivably, a defect could

exist in the voter registration system and thus lead to the

low voter turnout, Equally likely as an inference, however,

is the premise that there is a defect in the system used

for physically casting one’s ballot at the polling place.

Other inferences are also possible, ¢.g., rain or a damp

overcast sky, on the day of general election lowered voter

turnout. Even to grant the presence of some defect in the

registration or general voting system, though, does not

lead to any conclusion with regard to delayed enrollment,

since the enrollment process is separate from the registra-

tion process. The petitioners’ contentions in this regard

are, therefore, not valid.

The fallacy in the petitioners’ argument is pointed out

by another line of thought. An individual, duly registered

and enrolled under permanent personal registration for

calendar year 1968, could have failed to cast a ballot in

39

the 1968 general election. Thus, he would be included in

the statistic that fewer than 50% voted in the 1968 election.

Yet, this same individual could have remained eligible, both

to vote in the forthcoming 1972 general election and in

the June 1972 primary, by having cast a ballot in the

general elections from any of the aforementioned counties,

thereby fulfilling the permanent registration requirement

of voting once every two years.

The conclusion to be drawn from this analysis is that

delayed enrollment has not been demonstrated, either logic-

ally or by evidence to have a disproportionate effect on

minority group participation in the primary election

process.

The petitioners have also failed at any point throughout

this case to demonstrate that delayed enrollment has a

deleterious effect on the turnout for a primary. In fact,

the experience over a long period of time would weaken

the petitioners’ case if it had been raised.

Participation in the nomination process (i.e., the basic

raison d'etre for primaries) has historically ranged be-

tween 25 and 30% of the electorate. Such studies are based

on actual voter turnout and opinion surveys. Leiserson,

Parties & Politics, 1958, pp. 147 and 294. Such studies also

reveal that voter turnout in the primaries varies significant-

ly in terms of the strength of the two major parties in a

state; so that as one party over a period of yeara becomes

dominant within a state, the percentage of individuals

voting in the primary of the weaker party declines, While

at the same time there is a corresponding increase in the

percentage in the primary of the dominant party. Leiserson,

p. 147, citing V.0. Key, American State Politics, 1956, pp.

99-118. We can draw the conclusion that delayed enrollment

does not play a part in such turnout.

40

~ POINT VI

Delayed enrollment does not abridge the right

to travel.

This Court has recognized that freedom to travel is a

right protected by the Constitution, Shapiro v. Thompson,

394 &S. 618 (1969); Dunn v. Blumstem, 405 U.S. 330, 31

L. Ed. 2d 274 (1972). Delayed enrollment under Election

Law §186 is not a durational residency requirement such

as was encountered in Dunn, supra.

It has been shown previously that the petitioners do

not present a right to travel controversy to this Court be-

cause they have never lacked residency in New York for

the time period applicable to this case. This claim of an

abridgement to the petitioners’ right to travel could only

be brought forth by an individual who is a recent New

York State resident or who has moved from one county

to another since the last general election. This claim was

present in a case previously brought by the same attorneys,

Bachrow v. Rockefeller, 71 C 930 (E.D.N.Y. 9/8/71,

three-judge Court).

Bachrow was dismissed as moot, as there were no

primary contests in which the plaintiffs therein could vote.

Moreover, this Court has considered the very issue of a

recently arrived New York State resident and dismissed

the case for want of a substantial federal question in

Jordan v. Meisser, 405 U.S. 907, 30 L, Ed. 2d 778 (1972)

The dismissal in Jordan was on the merits and controls

in regard to a recently arrived New York resident, Stern

and gressman, Supreme Court Practice 4th Ed. 1969,

§5.18 at 233. Furthermore, since Wayne P. Jordan was not

eligible for special enrollment under §187, he then fell

under the rule of delayed enrollment of $186 (i.e., if one

41

is not eligible for an exception to the general rule, the

general rule applies). Thus, Jordan not only is precedent

for this point, but also is precedent for the entire case.*

In the decision of the District Court, Chief Judge

Mishler found that both the Voting Rights Act Amend-

ments of 1970 invalidated durational residency require-

ments and that delayed enrollment fell under this prohibi-

tion. The (‘ourt of Appeals correctly reversed this holding,

finding that the abolition of durational residency require-

ments in 42 U.S.C. §1973 aa-1(d) referred solely to general

Presidential elections and not to primary elections. Rosario,

supra, 654.

In Oregon v. Mitchell, 400 U.S. 112 (1970), the prohibi-

tion of durational residency requirements by the Voting

Rights Act Amendments of 1970 was upheld. Nowhere in

Oregon's various opinions did the Court pass upon presi-

dential primaries, since they were obviously not included

in the 1970 Act.

Congress, moreover, did not intend primary elections

to be included under the purview of the durational resi-

dency prohibition for a very practical reason. Presidential

primaries are conducted, in the several states of the Union

from February (New Hampshire) to June (New York and

special enrollment (Election 9 $187(2}(c], (in direct con

to the specific — in the New York S Court's opinion),

Whereas the MOTE TO DISMISS OR AFFIRM

Attorney oe ee eis correctly cited the bar of Election Law

$187(6) uf the right of Mr Jordan to enroll.

ty

. titioner’s attorneys a copy of the Jordan

MOTION TO DISMISS O AFFIRM of the Nassau County Board

of Elections

fn 1972, U.S. Senator Hubert Hi received more votes from

all the presidential primaries than Senator George McGovern.

California) during Presidential election years. Short dura-

tional residency requirements would allow a relatively small

bloc of voters to vote in more than one state’s primary elec-

tion and thereby multiply the psychological effect, that

winning or losing by a few thousand votes, has upon the

somewhat informal process — and the surely non-system-

atic method — which constitutes the selection of a political

party’s nominee for President. It should be noted that the

total votes which a candidate receives in all the various

presidential primary elections*® is not as important as is

the number of state presidential primary elections which

are won.

Unlike the delay in voting eligibility which is caused

by a durational residency requirement, delayed enrollment

results in a wait solely from the fact that there is only one

primary election and only one general election held each

year. Under a durational residency requirement, the wait

is a fixed period of time. Under delayed enrollment, the

wait can vary in duration from one month to eleven months,

District Court opinion, Appendix 45. The delay which re-

sults from §186 is therefore inherent in the design of the

statute which prevents would-be raiders from doing two

things at once. Indeed, the inherent delay can be seen from

the fact that it petitioner Eisner had specially enrolled

when he first became of voting age on his 21st birthday

in December 1970, he would have had to wait over nine

months from his enrollment to his participation in the Sep-

tember 14, 1971, primary.

The New York statute therefore does not abridge the

right to travel, since it fixes no specific time period. Instead,

the duration of any wait is a result of an individual’s

timing of his enrollment — not of an individual’s exercising

his right to travel.

*In 1972, U.S. Hubert tes fro

1 he candhaeatel gehuserten Gham U. ee. oe

43

CONCLUSION

The opinion and judgement of the Court of

Appeals should be affirmed.

Dated: September 14, 1972.

Respectfully submitted

JOSEPH JASPAN

County Attorney of Nassau County

Attorney for Respondents William D. Meisser

and Marvin D. Cristenfeld

Commissioners of Elections for Nassau County

Nassau County Executive Building

Mineola, New York 11501

(516) 535-3603

J. Kemp Hannon,

Deputy County Attorney,

Of Counsel.