# Brief for Respondent — Rosario v. Rockefeller > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0119%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Respondent - **Published:** January 1, 1973 - **Citation:** 410 U.S. 752 ## Text 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0119%3A10. Public record. Not legal advice.