SECOND CIRCUIT REVIEW STATE ELECTION LAW MARTIN FLUMENBAUM - BRAD S. KARP P A U L, W E I S S, R I F K I N D, W H A R T O N & G A R R I S O N

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1 P A U L, W E I S S, R I F K I N D, W H A R T O N & G A R R I S O N SECOND CIRCUIT REVIEW STATE ELECTION LAW MARTIN FLUMENBAUM - BRAD S. KARP PUBLISHED IN THE NEW YORK LAW JOURNAL NOVEMBER 2000

2 PAUL, WEISS, RIFKIND, WHARTON & GARRISON With the eyes of the nation trained on the electoral process and the somewhat arcane idiosyncracies of state election laws, we discuss a significant decision, issued last week, in which the United States Court of Appeals for the Second Circuit struck down as unconstitutional a portion of New York Election Law That provision required, in part, that the designating petition a City Council candidate must file to get his name on the primary ballot, containing signatures from at least 5 percent of the registered party members within his election district, also must contain a statement that each signature was witnessed by a resident of that district. The Second Circuit held that requiring a witness to be a resident of the contested district severely burdens interactive political speech and association rights protected by the First Amendment, and does so without advancing any compelling state interest. All Politics Is Local In Lerman v. Board of Elections, 1 in an opinion written by Judge Chester J. Straub and joined by Judges Wilfred Feinberg and Dennis Jacobs, the Second Circuit ruled that 2 of N.Y. Elec. L (McKinney 1998) places an unconditional burden on political speech and freedom of association rights protected by the First Amendment. Section 2 requires that the designating petition a City Council candidate must file to get his name on the primary ballot must have appended to it a statement that each signature was witnessed by a person who is both a member of the signatory s party and a resident of the election district. 2 In an opinion that opens with former Speaker of the House Tip O Neill s famous saying that all politics is local, the Second Circuit granted plaintiffs standing, found that the witness residency requirement substantially burdens the free speech and association rights of those individuals affected by the law and applied strict scrutiny in holding that that law lacked a meaningful relationship to the stated government goal of protecting the signature process. The litigation stems from the City Council primary election of Sept. 14, 1999, for the 50th Council District seat in Staten Island. John Sollazo, a registered member of the Independence Party of New York, sought the nomination and sought to satisfy N.Y. Elec. L , 6-136(2), which requires that a candidate file a designating petition containing valid signatures from at least 5 percent of the registered party members within his election district. This article is reprinted with permission from the January 24, 2001 edition of the New York Law Journal NLP IP Company. (Read more American Lawyer Media news on the Web on law.com)

3 PAUL, WEISS, RIFKIND, WHARTON & GARRISON 2 In Mr. Sollazo s case, it was necessary to obtain 38 valid signatures from among 760 registered Independence Party voters in his district; one of his supporters, plaintiff Anita Lerman, served as witness to a total of 58 signatures, including those of plaintiffs Angelo D Angelo and Pio D Agostino, both of whom were residents of the 50th District. Significantly, however, Ms. Lerman was a resident of the neighboring 49th Council District. On Aug. 3, 1999, defendant Board of Elections of the City of New York ruled that these signatures were invalid. Because Ms. Lerman was neither a resident of the 50th Council District, nor a notary or a commissioner of deeds as provided by 6-132(2), Mr. Sollazo s petition was deemed invalid and the primary occurred without Mr. Sollazo s name on the ballot. Plaintiffs commenced their action, pro se, in August 1999 against the New York City Board of Elections (the NYC Board), the New York State Board of Elections (the NYS Board) and Governor George Pataki, seeking declaratory and injunctive relief on the grounds that violates the First and Fourteenth Amendments on its face by permitting only district residents to be eligible to witness signatures to a candidate s designating petition. After oral argument on Aug. 31, 1999, Judge Frederic Block dismissed plaintiffs complaint in its entirety under Fed. R. Civ. P. 12(b)(6); the Second Circuit reviewed this dismissal de novo, 3 with an eye to whether pro se plaintiffs could prove a set of facts in support of his claim which would entitle him to relief. 4 Preclusive Effect of Molinari Prior to examining the merits of the claim before it, the Second Circuit turned to another, widely noted New York ballot access case 5 before Judge Korman in the Eastern District of New York, which had resulted in a stipulation between the NYC and NYS boards, on the one side, and plaintiffs affiliated with the presidential campaign of Senator John McCain, on the other side, providing that and 6-132(2) placed an undue burden on the right to vote under the First Amendment. 6 The parties in that case also agreed to waive their right to appeal from any order issued by the district court based on that decision 7 and the district court proceeded to accept the stipulation and rely upon it in ordering preliminary injunctive relief. 8 Thus, it was asserted by plaintiffs in the instant action that the boards were precluded from defending the constitutionality of 6-132(2) and that their efforts to do so were motivated by a desire to negate the Molinari precedent as applied to 6-132(2). While noting that it was not untroubled by the possibility that the defendants have attempted to evade their stipulation in Molinari, the court declared that the preclusion issue is close and ruled that the case would be disposed of independently on its merits. The prominence given to this contemporaneous district court decision, however, shows that the court was mindful of the skepticism with which Judge Korman viewed 6-132(2),when he wrote: [ 6-132(2)] was adopted before the lists of registered voters in New York were computerized. The boards of elections in New York State now keep track of voters on computerized lists, so it is easy to determine the witness s or signer s congressional district. Indeed, it can be done with

4 PAUL, WEISS, RIFKIND, WHARTON & GARRISON 3 greater ease than in the pre-computer days... [t]he disqualification in this instance is akin to disqualifying a petition in New York City because the witness listed Brooklyn instead of New York City as the city of his or her residence. Since everyone knows that Brooklyn is in New York City, it would be absurd to invalidate a petition containing the signatures of otherwise qualified voters because of an asserted impediment to checking the residence and party registration of the witness. Such a result deprives the voter who signed the petition of the right to participate in the primary process by placing on the ballot candidates whom he or she supports. It also deprives the delegate candidates of a place on the ballot and, here, it deprives a candidate for President of the United States of the opportunity to have an elected delegate pledged to support him at the Convention. Moreover, it does this for no rational, much less compelling, reason. Judge Korman went on to attack the justifications advanced in defense of the witness requirement, stating: This is not the only reason why part of is unconstitutional as applied here... [t]he residence requirement... is itself invalid. The usual justification for a residence requirement is that a witness be answerable to a subpoena or other process. Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 119 S. Ct. 636, 644, 142 L. Ed. 2d 599 (1999). This concern is satisfied, however, if the witness resides anywhere within the State of New York and provides an affidavit listing his or her residence address. Id.... Moreover, while the witness plays some role in insuring the integrity of the petition signing process, there is absent any connection between the residence of a witness in a congressional district and the reliability of the petition gathering process. The reality is that all witnesses are partisan petition circulators whose goal is to convince voters to sign the petitions. Beyond an oral inquiry, they are not legally required to confirm the identities of voters who sign the petitions... [r]esidence provides no assurance that the witness is any less likely to accept false signatures. Indeed, because the witnesses are partisans of the candidates on whose behalf they are circulating petitions, they are motivated entirely by an interest in having their candidates get on the ballot. Molinari v. Powers, 82 F. Supp. 2d 57, (E.D.N.Y. Feb. 4, 2000). Judge Korman s practical and constitutional arguments, only excerpted lightly here, were cited approvingly by the Second Circuit throughout its decision. Mootness and Standing Dismissing the NYC Board s argument that the case was moot because the September 1999 primary election was over, the court pointed out that this case falls into the exception to the mootness doctrine articulated in Roe v. Wade: those issues capable of repetition, yet evading review. Meyer v. Grant, 486 U.S. 414, n.2 (1988).

5 PAUL, WEISS, RIFKIND, WHARTON & GARRISON 4 The court held that both preconditions had been satisfied in this case namely, that the challenged action was too brief to be fully litigated before expiration, and that there was a reasonable expectation that the same parties would be subject to the complained-of action in the future. 9 Standing: Key Issue Standing presented a more difficult issue for the court. The NYC Board argued that, as a resident of the 49th Council District, Ms. Lerman lacked standing under Article III to bring the suit because she would be unaffected by the outcome of the 50th Council District s election, and therefore had suffered no injury as a result of Mr. Sollazo s exclusion from the ballot. Initially, the court noted that the district court had expressed doubt about Ms. Lerman s standing to sue while expressly declining to address the question, and had ruled that plaintiffs lacked prudential standing to challenge the statute on its face, rather than as applied to them. The court disagreed, noting that the district court s apparent assertion of hypothetical jurisdiction that is, assuming there to be Article III jurisdiction for the purposes of deciding the merits of the case had been rejected by the Supreme Court in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, (1998). Any doubts about plaintiffs standing, the court held, must be addressed as a threshold question before the district court proceeds to the merits. 10 Rejecting the reasoning of the district court, the court ruled that Ms. Lerman had standing under Article III because she had demonstrated that (1) she had suffered an injury in fact that was concrete or particularized as well as actual or imminent ; (2) the injury was fairly traceable to the challenged conduct; and (3) it was likely, rather than merely speculative, that a favorable decision would redress that injury. 11 The court pointed out that Ms. Lerman had worked for Mr. Sollazo s candidacy and had been denied the opportunity to witness, and therefore gather, petitions on his behalf, and that her injury had been caused by a direct action of the NYC Board striking those designating petitions witnessed by Ms. Lerman. The court noted that it must draw some significance from the fact that Ms. Lerman was challenging the legality of government action and was herself the direct object of the action... at issue. 12 The NYC Board s argument that Ms. Lerman s residence in another district was fatal to her standing was thus described by the court as a basic misunderstanding on defendant s part: as the court put it, from Lerman s perspective, it is the very fact that these speech and associational interests have nothing to do with district boundaries that renders the witness residence requirement problematic. 13 The court also ruled that prudential considerations which often weigh against third-party (jus tertii) standing did not bar the suit either, because although Ms. Lerman was a third party as to the validity of the witness residence requirement on its face, Ms. Lerman s facial challenge to the statute was based on alleged violations of the First Amendment under the overbreadth doctrine; under this doctrine, enunciated in Secretary of State of Md. v. Joseph H. Munson Co., 14 plaintiffs need only demonstrate a substantial risk that application of the provision will lead to the suppression of speech. 15

6 PAUL, WEISS, RIFKIND, WHARTON & GARRISON 5 Because plaintiffs had established the potential for such risk to the rights of other parties not before the court, they had standing to challenge the facial validity of on behalf of all those whose interests might be affected by the statute. Turning to the merits, the court noted with approval both Judge Korman s decision in Molinari and his previous ruling that the witness residence requirement performs [no] essential function, 16 as well as Chief Justice Rehnquist s doubts on the constitutionality of expressed in his dissenting opinion in Buckley v. American Constitutional Law Foundation. 17 As a threshold matter, the court evaluated the extent to which the challenged regulation burdened First or Fourteenth Amendment rights, in order to determine the degree of scrutiny to be applied. 18 Where state election laws subject speech, association or the right to vote to severe restrictions, the regulations must be narrowly drawn to advance a state interest of compelling importance ; 19 in contrast, those election laws that impose only reasonable, nondiscriminatory restrictions upon First and Fourteenth Amendment rights are to be given deference due to the State s important regulatory interests. 20 In those cases in which the regulation dearly and directly restricts core political speech as opposed to mechanics of the electoral process, such restrictions on speech plainly impose a severe burden requiring the application of strict scrutiny. 21 The court held that the petition circulation covered under 6-132, while certainly a part of the election process, clearly constituted core political speech subject to exacting scrutiny. 22 Moreover, even if the regulation were not considered to cover core political speech, the witness residence requirement is a type of regulation which burdens political speech by drastically reducing the number of persons... available to circulate petitions and limiting the number of voices who will convey appellee s message. 23 The court noted that petition circulation bears an intimate relationship to the right to political or expressive association and quoted approvingly the Seventh Circuit s holding in Krislov v. Rednour i.e., that the right to political association is at the core of the First Amendment, and even practices that only potentially threaten political association are highly suspect. 24 In Sollazo s case, the court observed, there should be little doubt that the witness residence requirement dramatically reduced the number of potential petition circulators available to him, given that of approximately 170,000 registered Independence Party members statewide, only 760 reside in the 50th Council District. Moreover, the court noted, such petition signatures are often subsequently challenged, placing a premium on the ability to secure the greatest number of signatures well over the minimum number required. 25 For a minor candidate such as Sollazo, parting with one or two avid circulators could mean the difference between running in the primary and being shut out. 26 Strict Scrutiny Applied Having thus determined that the regulation burdens First and Fourteenth Amendment rights to free speech and free association, the court applied strict scrutiny analysis to Under this standard, the court examined whether is narrowly

7 PAUL, WEISS, RIFKIND, WHARTON & GARRISON 6 tailored to advance a compelling state interest; if not, then the statute fails to pass constitutional muster. 27 The court noted that three interests had been asserted by defendants in both this case and in Molinari in support of the witness residency requirement: (1) ensuring integrity and preventing fraud in the electoral process; (2) ensuring that candidates demonstrate a significant modicum of support before their name is placed on the ballot; and (3) ensuring that non-residents do not impose the cost of a primary on the district. 28 In rejecting all three rationales, the court wrote, we agree with Chief Judge Korman s decision in Molinari and conclude that the witness residency requirement does not bear even a rational relationship to any of these three justifications, let alone the narrowly tailored relationship that strict scrutiny demands. 29 The court concluded that even though the interest in ensuring integrity and preventing fraud is no doubt compelling, the fact that the asserted interests are important in the abstract does not necessarily mean that the means chosen for regulating them will in fact advance those interests. 30 Because the key to ensuring the integrity of the signature collection process is the ability to make the petition witness answerable to a subpoena for any alleged irregularities, and the local Boards of Elections in New York have statewide subpoena power, 31 the court held that the state s interests are already served by the less-burdensome requirements in 6-132(2) that the witness be a resident of New York and provide his or her residence address in an affidavit filed together with the petition. 32 This mechanism thus satisfies the state s goal without imposing the particular district residency requirements of 6-132(2). 33 Lastly, the court rejected the contention that local witnesses would be more familiar with those signing petitions, noting that, in electoral districts containing many thousands of voters, no witness was likely to know the signatories, regardless of their home district, and that electronic signature comparison was far more promising, and narrowly tailored, as a method of preventing fraud. In rejecting the last two arguments that the State must ensure that the candidate possesses sufficient support and is not being foisted off by members of another district the court pointed again to the more narrowly-tailored protections already in place that were free of the First Amendment problems posed by the witness residency requirement of 6-132(2). Because the statute already requires that the minimum number of signatures be collected from members of the candidate s district, the identity of the witness bears no relationship to the amount of support in the district. 34 Similarly, the witness residence is equally unimportant in assessing whether a candidate is local or imposed from outside the district; the signatures still must be local. If the only goal of the regulation is to ensure that those outside the district have no impact whatsoever on the election, the court stated that such an effort would be illegitimate: A desire to fence out nonresidents political speech and to prevent both residents and nonresidents from associating for political purposes across district boundaries simply cannot be reconciled with the First Amendment s purpose of ensuring the widest possible dissemination of information from diverse and antagonistic sources. 35

8 PAUL, WEISS, RIFKIND, WHARTON & GARRISON 7 Conclusion Because the 6-132(2) witness residency requirement was held not to bear any rational relationship to the interests asserted by the State, the Second Circuit held that the statute has no plainly legitimate sweep at all and therefore is facially invalid as a burden on the First Amendment rights of those subject to the statute under the overbreadth doctrine. 36 The ruling thus clears away the 6-132(2) requirement for those who wish to petition to be part of a City Council election. The court s rationale, as well as its skepticism toward limitations on state election processes that effectively limit political speech and place unnecessary roadblocks in the paths of would-be candidates for elective office, will doubtless be significant in the emerging national debate over the future of our election laws. * * * Martin Flumenbaum and Brad S. Karp are partners in the New York office of Paul, Weiss, Rifkind, Wharton & Garrison.

9 PAUL, WEISS, RIFKIND, WHARTON & GARRISON 8 ENDNOTES 1 No , 2000 U.S. App. LEXIS (2nd Cir. Nov. 9, 2000). 2 N.Y. Elec. L (2) reads, in pertinent part: There shall be appended at the bottom of each sheet a signed statement of a witness who is a duly qualified voter of the state and an enrolled voter of the same political party as the voters qualified to sign the petition, and who is also a resident of the political subdivision in which the office or position is to be voted for. However, in the case of a petition for election to the party position of member of the county committee, residence in the same county shall be sufficient. Such a statement shall be accepted for all purposes as the equivalent of an affidavit, and if it contains a material false statement, shall subject the person signing it to the same penalties as if he had been duly sworn. 3 See Posr v. Court Officer Shield No. 207, 180 F.3d 409 (2nd Cir. 1999). 4 See Conley v. Gibson, 355 U.S. 41, (1957); see also Haines v. Kerner, 404 U.S. 519, (pro se petitions to be liberally construed when evaluating their sufficiency). 5 See generally Clifford J. Levy, ARejecting Rules, U.S. Judge Opens New York Ballot,@ N.Y. Times, Feb. 5, 2000, at A1. 6 See Molinari v. Powers, No. 99 Civ. 8447, Stipulation at 2 (E.D.N.Y. Feb. 4, 2000). 7 See id. 8 See Molinari v. Powers, 82 F. Supp. 2d 57, (E.D.N.Y. Feb. 4, 2000) (Korman, C.J.). 9 See Meyer, 486 U.S. at n.2 (1988). 10 See Steel Co., 523 U.S. at See Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992) (internal quotation marks omitted). 12 See Lujan, 504 U.S. 555, Lerman, 2000 U.S. App. LEXIS at * U.S. 947, (1984) (permitting facial challenge under First Amendment overbreadth doctrine as exception to prudential limitations against third party standing.) 15 National Endowment of the Arts v. Finley, 524 U.S. 569, 580 (1998).

10 PAUL, WEISS, RIFKIND, WHARTON & GARRISON 9 16 Rockefeller v. Powers, 917 F. Supp. 155, 161 (E.D.N.Y. 1996) (Korman, C.J.), aff=d, 78 F.3d 44, 46 (2nd Cir. 1996) U.S. 182, 119 S. Ct. 636, 661 & n.1 (1999) (Rehnquist, C.J., dissenting) (stating that the Court=s decision Ainvalidates a number of state laws@ and that 6-132, among other state laws, is now in Aserious constitutional jeopardy@). 18 See Buckley, 525 U.S. 182, 119 S. Ct. at See Burdick v. Takushi, 504 U.S. 428, 434 (1992); see also Prestia v. O=Connor, 178 F.3d 86, 88 (2d Cir. 1999). 20 Burdick, 504 U.S. at 434; see also Prestia, 178 F.3d at American Const. Law Foundation, 119 S. Ct at 650 (Thomas, J., concurring) (internal quotation marks omitted). 22 Lerman, 2000 U.S. App. LEXIS at *28 (citing American Const. Law Foundation, 119 S. Ct. at 651 (Thomas, J., concurring) (applying strict scrutiny to voter registration requirement for initiative petition circulators)); see also Meyer v. Grant, 486 U.S. 414, (1988) (AThe circulation of a petition involves the type of interactive communication concerning political change that is appropriately described as >core political 23 See American Const. Law Foundation, 119 S. Ct. at 643; Krislov v. Rednour, 226 F.3d 851, 860 (7th Cir. 2000). 24 Krislov, 226 F.3d at In the Molinari case, the chairman of the New York State Republican Party stated that a campaign must collect at least six times the required number of signatures in order to Aensure survival against post-petition challenges.@ Molinari, 82 F. Supp. 2d at See Krislov, 226 F.2d at See, e.g., California Democratic Party v. Jones, 120 S. Ct. 2402, 2412 (2000). 28 Molinari, 82 F. Supp. 2d at Lerman, 2000 U.S. App. LEXIS at * See Turner Broadcasting Sys.., Inc. v. FCC., 512 U.S. 622, 664 (1994). 31 See N.Y. Elec. L (I) (McKinney 1998). 32 See N.Y. Elec. L (2).

11 PAUL, WEISS, RIFKIND, WHARTON & GARRISON See also American Const. Law Foundation, 119 S. Ct. at 644 (statewide residence requirement Amore precisely achieves the State s subpoena service objective@ than voter registration requirement). In dicta, the Lehman Court noted that while the portions of requiring that petition witnesses be both members of the candidate=s party and residents of the state had not been challenged and thus were not before the court, those requirements are Amore narrowly tailored to the state=s interest in ensuring the integrity of the ballot access process.@ Lerman, 2000 U.S. App. LEXIS 29286, n.14 at * See Meyer, 486 U.S. at ; Krislov, 226 F.3d at Lerman, 2000 U.S. App. LEXIS at *52 (quoting Buckley v. Valeo, 424 U.S. 1, 49 (1976)); see also Warren v. Fairfax County, 196 F.3d 186 (4th Cir. 1999) (en banc) (invalidating law prohibiting non-residents from using public forum). 36 See Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).