PRELIMINARY STATEMENT. as unconstitutional a rule adopted on February 22, 2001, by Defendant KINGS COUNTY

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------------------------x DAVID YASSKY, STEVEN BANKS, CHARLES BARRON, JOHN W. CARROLL, BILL DE BLASIO, LESLIE MARSHALL, CHARLES MONAGHAN, DAVID REISS, and LAWRENCE R. TIERNEY, Plaintiffs, -against- KINGS COUNTY DEMOCRATIC COUNTY COMMITTEE; THOMAS J. GARRY, Treasurer, Kings County Democratic County Committee; JEFFREY C. FELDMAN, Executive Director, Kings County Democratic County Committee; EXECUTIVE COMMITTEE OF THE KINGS COUNTY DEMOCRATIC COUNTY COMMITTEE; CLARENCE NORMAN, JR., Chair, Executive Committee of the Kings County Democratic County Committee; NEW YORK CITY BOARD OF ELECTIONS; WEYMAN A. CAREY, MICHAEL J. CILMI, MARK B. HERMAN, DOUGLAS A. KELLNER, FREDERIC M. UMANE, NANCY MOTTOLA-SCHACHER, TERRENCE C. O CONNOR, VINCENT J. VELELLA, and STEPHEN H. WEINER, Commissioners, New York City Board of Elections, Defendants. -------------------------------------------------------------------------------x PRELIMINARY STATEMENT COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 01 Cv. 3372 (NG) 1. Plaintiffs are political candidates running for New York City Council in districts in Kings County who want to use Democratic Party members living outside of these districts as petition witnesses in the candidates efforts to get on the September 11, 2001 Democratic primary ballot, as well as individual Democrats who want to serve as petition witnesses for candidates running for office in Kings County outside of their districts, and an enrolled Democrat in Kings County. Plaintiffs challenge as unconstitutional a rule adopted on February 22, 2001, by Defendant KINGS COUNTY DEMOCRATIC COUNTY COMMITTEE ( KCDCC ). The rule is now codified at Section 6 of

Article VIII of the Rules for the Government of the KCDCC ( the KCDCC Rule or the Rule ). Specifically, Plaintiffs challenge that the KCDCC Rule, which prohibits registered Democrats in New York from witnessing petitions for candidates running in districts in which the party members are not registered, violates the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. 1983. JURISDICTION AND VENUE 2. The Court has jurisdiction of the subject matter of this action pursuant to 28 U.S.C. 1331, 1343(a)(3), and 2201. 3. Venue of this action is properly in this district, pursuant to 28 U.S.C 1391(b), on the ground that the claims herein alleged arose in this district and all the Defendants may be found in this district. In addition, this lawsuit is related to another action arising in this district, Lerman v. Board of Elections, No. CV-99-4901 (NG) (E.D.N.Y. Aug. 31, 1999) (Block, J.), rev'd, 232 F.3d 135 (2d Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3594 (U.S. Feb. 28, 2001) (No. 00-1360). THE PARTIES The Plaintiffs 4. Plaintiff DAVID YASSKY is a candidate for the Democratic nomination for the 33rd New York City Council district. The 33rd district includes the neighborhoods of Brooklyn Heights and DUMBO, as well as parts of Greenpoint, Williamsburg, Boerum Hill, and Park Slope; other portions of these neighborhoods are included in the 34th, 38th, and 39th districts. Plaintiff YASSKY, a registered Democratic voter who lives in Brooklyn Heights, satisfies all the requirements 2

for running for the 33rd district. He will need to gather at least 900 signatures in order to gain access to the ballot for the September 11, 2001 Democratic primary, as provided in N.Y. Elec. Law 6-118, 6-130 to 6-136 (McKinney 1998). Plaintiff YASSKY has supporters who are not notaries or commissioners of deeds but are registered Democratic voters who reside in other City Council districts and are willing to gather signatures to help him gain access to the ballot. For example, there are registered Democrats who have worked with Plaintiff YASSKY on gun control or as colleagues in Senator Charles Schumer s office who would petition for him. In addition, he has received endorsements from two neighborhood Democratic clubs. One of these clubs main functions is to collect signatures for candidates they support, and the clubs have members outside his district who would be available to carry petitions on Plaintiff YASSKY s behalf. Although they satisfy the requirements for petition witnesses specified by New York law, see N.Y. Elec. Law 6-132, these supporters are not eligible to serve as petition witnesses for Plaintiff YASSKY under the new petition witness rule adopted by Defendant KCDCC. By disqualifying some of Plaintiff YASSKY s strongest supporters from carrying petitions for him and in the process advocating his candidacy, the KCDCC Rule will make it more difficult for him to obtain the signatures he needs to get onto the Democratic primary ballot. The Rule also directly impairs his ability to get his political message out and garner public support for his candidacy. 5. Plaintiff STEVEN BANKS is a candidate for the Democratic nomination for the 39th City Council district. The 39 th district, located in Kings County, includes portions of the neighborhoods of Red Hook, Borough Park, Windsor Terrace, Kensington, and Park Slope. Plaintiff BANKS, a registered Democratic voter who lives in Windsor Terrace, satisfies all the requirements for 3

running for the 39th district. He will need to gather at least 900 signatures in order to gain access to the ballot for the September 11, 2001 Democratic primary, as provided in N.Y. Elec. Law 6-118, 6-130 to 6-136. Plaintiff BANKS has supporters who are not notaries or commissioners of deeds but are registered Democratic voters who reside in other City Council districts and are willing to gather signatures to help him gain access to the ballot. These supporters share the same concerns regarding housing, parks, public transportation and education as his supporters who reside within the 39th district. Although they satisfy the requirements for petition witnesses specified by New York law, see N.Y. Elec. Law 6-132, these supporters are not eligible to serve as petition witnesses for Plaintiff BANKS under the petition witness rule adopted by Defendant KCDCC. By disqualifying some of Plaintiff BANKS s strongest supporters from carrying petitions for him and in the process advocating his candidacy, the KCDCC Rule will make it more difficult for him to obtain the signatures he needs to get onto the Democratic primary ballot. The rule also directly impairs his ability to get his political message out and garner public support for his candidacy. 6. Plaintiff CHARLES BARRON is a candidate for the Democratic nomination for the 42nd City Council district. The 42nd district, located in Kings County, contains portions of four neighborhoods: East New York, Brownsville, East Flatbush, and Canarsie. Plaintiff BARRON, a registered Democratic voter who lives in East New York, satisfies all the requirements for running for the 42nd district. He will need to gather at least 900 signatures in order to gain access to the ballot for the September 11, 2001 Democratic primary, as provided in N.Y. Elec. Law 6-118, 6-130 to 6-136. Plaintiff BARRON, a community activist for over 30 years, has supporters who are not notaries or commissioners of deeds but are registered Democratic voters who reside in other City Council 4

districts and are willing to gather signatures to help him gain access to the ballot. Although they satisfy the requirements for petition witnesses specified by New York Law, see N.Y. Elec. Law 6-132, these supporters are not eligible to serve as petition witnesses for Plaintiff BARRON under the petition witness rule adopted by Defendant KCDCC. By disqualifying some of Plaintiff BARRON s strongest supporters from carrying petitions for him and in the process advocating his candidacy, the KCDCC Rule will make it more difficult for Plaintiff BARRON to obtain the signatures he needs to get onto the Democratic primary ballot. The rule also directly impairs his ability to get his political message out and garner public support for his candidacy. 7. Plaintiff JOHN W. CARROLL is a candidate for the Democratic nomination for the 39th City Council district. Plaintiff CARROLL, a registered Democratic voter who lives in Kensington, satisfies all the requirements for running for the 39th district. He will need to gather at least 900 signatures in order to gain access to the ballot for the September 11, 2001 Democratic primary, as provided in N.Y. Elec. Law 6-118, 6-130 to 6-136. Plaintiff CARROLL has supporters who are not notaries or commissioners of deeds but are registered Democratic voters who reside in other City Council districts and are willing to gather signatures to help him gain access to the ballot. For example, he has extensive connections to individuals and community organizations throughout Park Slope, Windsor Terrace, and Kensington, including in those portions of these neighborhoods that lie outside of the 39th district. Plaintiff CARROLL is also a past president of the Central Brooklyn Independent Democrats, a political club that has members who reside outside of the 39th district and who would be willing to carry petitions on his behalf. Although they satisfy the requirements for petition witnesses specified by New York Law, see N.Y. Elec. Law 6-132, these 5

supporters are not eligible to serve as petition witnesses for Plaintiff CARROLL under the petition witness rule adopted by Defendant KCDCC. By disqualifying some of Plaintiff CARROLL s strongest supporters from carrying petitions for him and in the process advocating his candidacy, the KCDCC Rule will make it more difficult for Plaintiff CARROLL to obtain the signatures he needs to get onto the Democratic primary ballot. The rule also directly impairs his ability to get his political message out and garner public support for his candidacy. 8. Plaintiff BILL DE BLASIO is a candidate for the Democratic nomination for the 39th City Council district. Plaintiff DE BLASIO, a registered Democratic voter who lives in Park Slope, satisfies all the requirements for running for the 39th district. He will need to gather at least 900 signatures in order to gain access to the ballot for the September 11, 2001 Democratic primary, as provided in N.Y. Elec. Law 6-118, 6-130 to 6-136. Plaintiff DE BLASIO has supporters who are not notaries or commissioners of deeds but are registered Democratic voters who reside in other City Council districts and are willing to gather signatures to help him gain access to the ballot. For example, he has strong personal and political ties to the neighborhoods that the 39th district traverses, including portions of those neighborhoods that lie outside of the district. In addition, some of his supporters are active in P.S. 321, a school that draws students from inside and outside of the district. Although they satisfy the requirements for petition witnesses specified by New York law, see N.Y. Elec. Law 6-132, these supporters are not eligible to serve as petition witnesses for Plaintiff DE BLASIO under the petition witness rule adopted by Defendant KCDCC. By disqualifying some of Plaintiff DE BLASIO s strongest supporters from carrying petitions for him and in the process advocating his candidacy, the KCDCC Rule will make it more difficult for him to obtain the signatures he needs to get onto the 6

Democratic primary ballot. The rule also directly impairs his ability to get his political message out and garner public support for his candidacy. 9. Plaintiff DAVID REISS is a candidate for the Democratic nomination for the 33rd City Council district. Plaintiff REISS, a registered Democratic voter who lives in Park Slope, satisfies all the requirements for running for the 33rd district. He will need to gather at least 900 signatures in order to gain access to the ballot for the September 11, 2001 Democratic primary, as provided in N.Y. Elec. Law 6-118, 6-130 to 6-136. Plaintiff REISS has supporters who are not notaries or commissioners of deeds but are registered Democratic voters who reside in other City Council districts and are willing to gather signatures to help him gain access to the ballot. For example, some of his strongest supporters are high school, college, and graduate students who live in other parts of New York but share his concerns regarding access to affordable housing, good education, and public transportation. Although they satisfy the requirements for petition witnesses specified by New York law, see N.Y. Elec. Law 6-132, these supporters are not eligible to serve as petition witnesses for Plaintiff REISS under the petition witness rule adopted by Defendant KCDCC. By disqualifying some of Plaintiff REISS s strongest supporters from carrying petitions for him and in the process advocating his candidacy, the KCDCC Rule will make it more difficult for him to obtain the signatures he needs to get onto the Democratic primary ballot. The rule also directly impairs his ability to get his political message out and garner public support for his candidacy. 10. Plaintiff LESLIE MARSHALL is a registered Democratic voter who lives at 14 Wyckoff Street in the Cobble Hill section of Kings County. Plaintiff MARSHALL has known Plaintiff YASSKY for over twenty years and strongly supports his candidacy for City Council. In October 7

2000, Plaintiff MARSHALL held a fundraiser for Plaintiff YASSKY and she is eager to serve as a petition witness on his behalf. However, because she lives three blocks outside the 33rd City Council district and is not a notary or commissioner of deeds, Plaintiff MARSHALL is prevented from witnessing candidate petitions for Plaintiff YASSKY under the KCDCC Rule. Plaintiff MARSHALL previously resided within the 33rd district and is a member of Grace Church, located in the district in Brooklyn Heights.. She also has two children who attend school in Brooklyn Heights within the 33rd district, and participate in sports leagues involving children who live in both Cobble Hill and Brooklyn Heights. As a result, Plaintiff MARSHALL has frequent interactions with residents of the 33rd district. She is also very familiar with local issues that are of concern to the Cobble Hill and Brooklyn Heights communities, such as the development of a park along the waterfront in Brooklyn Heights. The KCDCC Rule prevents Plaintiff MARSHALL from lending her support to Plaintiff YASSKY s campaign in the most effective way available. Moreover, as Plaintiff MARSHALL is an enrolled Democratic voter, the positions taken by the Democratic candidate for the 33rd district impacts on her by affecting public perception of the Party and the Party s stance on important local issues. Further, since Plaintiff MARSHALL lives in New York City and is subject to the City Council s governance, she is directly affected by the way the representative of the 33rd district votes. 11. Plaintiff CHARLES MONAGHAN is a registered Democratic voter who lives at 534 3rd Street in the Park Slope section of Kings County. Plaintiff MONAGHAN has known Plaintiff CARROLL for more than twenty years and strongly supports his candidacy for City Council. However, since Plaintiff MONAGHAN lives less than a block outside of the 39th City Council district and is not a notary or a commissioner of deeds, he is prevented by the KCDCC Rule from witnessing 8

candidate petitions for Plaintiff CARROLL. By virtue of his residence s proximity to the border of the 39th district, Plaintiff MONAGHAN has frequent interactions with residents of the district and is familiar with the district s issues. The KCDCC Rule prevents Plaintiff MONAGHAN from lending his support to Plaintiff CARROLL s campaign in the most effective way available. Moreover, as Plaintiff MONAGHAN is an enrolled Democratic voter, the positions taken by the Democratic candidate for the 39th district impacts on him by affecting public perception of the Party and the Party s stance on important local issues. Further, since Plaintiff MONAGHAN lives in New York City and is subject to the City Council s governance, he is directly affected by the way the representative of the 39th district votes. 12. Plaintiff LAWRENCE R. TIERNEY is a registered Democratic voter in the 33rd City Council District. Plaintiff TIERNEY wishes to vote for Plaintiff YASSKY in the Democratic primary on September 11, 2001. However, Plaintiff YASSKY s likelihood of appearing on the September ballot is threatened by the KCDCC Rule forbidding supporters outside of the 33rd district from witnessing petitions. Thus, the KCDCC Rule hinders Plaintiff TIERNEY s opportunity to vote for his preferred candidate. The Defendants 13. Defendant KCDCC is a county committee created and existing pursuant to N.Y. Elec. Law 2-104. It has its principal office at 16 Court Street, Brooklyn, New York, 11241. KCDCC acts under color of state law when it acts in connection with elections in Kings County. 9

14. Defendant THOMAS J. GARRY is Treasurer and duly elected member of Defendant KCDCC. Defendant GARRY is sued in his official capacity in connection with actions taken under color of state law with respect to candidate petitioning in elections in Kings County. 15. Defendant JEFFREY C. FELDMAN is Executive Director and duly elected member of Defendant KCDCC. Defendant FELDMAN is sued in his official capacity in connection with actions taken under color of state law with respect to candidate petitioning in elections in Kings County. 16. Defendant EXECUTIVE COMMITTEE OF THE KCDCC ( EXECUTIVE COMMITTEE ) is a standing committee of Defendant KCDCC that exercises all the rights, privileges, powers and duties not vested exclusively in Defendant KCDCC whenever Defendant KCDCC is not in actual session. See Rules for the Gov t of the KCDCC, art. V, 1, 7. Defendant EXECUTIVE COMMITTEE acts under color of state law when it acts in connection with elections in Kings County. 17. Defendant CLARENCE NORMAN, JR. is Chair and duly elected member of Defendant EXECUTIVE COMMITTEE. Defendant NORMAN is sued in his official capacity in connection with actions taken under color of state law with respect to candidate petitioning in elections in Kings County. 18. Defendant NEW YORK CITY BOARD OF ELECTIONS ( CITY BOARD ) is the entity duly authorized under and acting under color of state law to certify candidates for primary election ballots, to supervise the conduct of elections, and to hear and determine challenges 10

to the eligibility of candidates to appear on the Democratic primary ballot in districts in Kings County. See N.Y. Elec. Law 3-200, 4-114, 6-144, 6-154. 19. Defendants WEYMAN A. CAREY, MICHAEL J. CILMI, MARK B. HERMAN, DOUGLAS A. KELLNER, FREDERIC M. UMANE, NANCY MOTTOLA-SCHACHER, TERRENCE C. O CONNOR, VINCENT J. VELELLA, and STEPHEN H. WEINER are the duly designated commissioners of Defendant CITY BOARD. Each of them is sued in his or her official capacity solely in connection with actions taken under color of state law. STATUTORY AND REGULATORY PROVISIONS GOVERNING PARTY RESPONSIBILITIES AND PETITION WITNESSING New York Election Law Provisions Governing Party Responsibilities 20. New York gives political parties a special role in elections. Candidates nominated by political parties, defined as political organizations receiving 50,000 votes at the last gubernatorial election, are guaranteed a position on the general election ballot. See N.Y. Elec. Law, 1-104(3), 7-116. 21. Party nominations generally must be made through a primary election, although state and county committees are authorized to nominate candidates for the general election in some circumstances. See id. 6-110, 6-160(1); see also, e.g., 6-104(2) (party state committee can designate party candidate for statewide office, potentially subject to subsequent primary); 6-116 (party nominations to fill vacancies in office occurring after the close of petitioning are made by party committee). Primary elections are held by the state, which has promulgated numerous regulations 11

governing access to primary ballots and the conduct of primary elections. See, e.g., id. 6-118 to 6-136, 7-114, 7-116. 22. In addition, the two political parties who polled the highest and next highest number of votes for the office of governor, which in practice means the Democratic and Republican Parties of New York, recommend candidates for membership on the New York State Board of Elections ( State Board ) and Defendant CITY BOARD to the Governor and City Council. See id. 3-200, 3-204. New York Election Law Provisions Governing Petition Witnessing 23. Under New York law, candidates for party nomination in City Council races gain access to the primary ballot by means of designating petitions. See id. 6-118. Only registered voters who are enrolled party members residing in the same political subdivision as the office being voted for are eligible to sign petitions. See id. 6-132(1); 6-136(2). In addition, only a registered voter who is enrolled in the party, or an individual who is a notary public or a commissioner of deeds, is entitled to witness candidate petitions. See id. 6-132(2)-(3). If an individual is determined to be ineligible to witness petitions for a particular candidate, all of the signatures contained on petitions witnessed by that individual are not counted in calculating whether the candidate has obtained sufficient signatures to gain access to the ballot. See Lerman v. Board of Elections, 232 F.3d 135, 139 (2d Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3594 (U.S. Feb. 28, 2001) (No. 00-1360). 24. The text of 6-132(2) also contains a requirement that petition witnesses must reside in the same political subdivision as the office for which the candidate is running. This 12

provision was initially adopted in 1951 and according to the bill s sponsor its purpose was to limit party raiding even more specifically, to limit the political power of the American Labor Party. See Bill Jacket at 12-13, Ch. 351 1 of N.Y. Laws of 1951 (Letter from Assemblyman Anthony J. Travia). In December of 2000, the petition witness residency provision was held unconstitutional in Lerman, 232 F.3d at 153. 25. New York law imposes numerous other requirements on candidate petitioning. For example, petitioning is only allowed during a 37 day period ending nine weeks before the primary. See N.Y. Elec. Law. 6-134(4), 6-158(1). In the case of the September 11, 2001 primary, this 37 day period will commence on June 5, 2001 and end on July 12, 2001. See State Board, Official Political Calendar 2001,<http://www.elections.state.ny.us/law/calendar/ htm> (visited on May 23, 2001). Petitions cannot be filed with Defendant CITY BOARD before July 9th or after July 12th. See id. Where an election is for a single member position, a voter is only allowed to sign petitions for a single candidate; subsequent signatures for additional candidates are invalid. See N.Y. Elec. Law 6-134(3); see also Lerman, 232 F.3d at 148 & n.13. An individual is eligible to carry petitions for more than one candidate for a single member office provided the individual has not signed any candidate s petitions; once the individual has signed a petition, however, he or she is only eligible to carry petitions for that candidate. As a result, after signing one candidate s petition, all of the signatures the witness gathers for another candidate are invalid and none will be counted. See Brock v. Sands, 924 F. Supp. 409, 411-12 (E.D.N.Y. 1996). 26. New York also allows notaries public and commissioners of deeds to carry petitions even if they reside outside of the candidate s district and are not party members. See N.Y. 13

Elec. Law 6-132(3). However, in practice using such witnesses is far more burdensome than using regular petition witnesses: notaries and commissioners of deeds must individually swear each signatory, and must be paid for the time they spend collecting signatures unless they are willing to do so free of charge. It is also difficult for an individual to become either a notary or commissioner of deeds within the short time period allowed for petitioning, so that a candidate s supporters are sometimes unable to take advantage of this provision. Furthermore, signatures gathered by notaries or commissioners of deeds are particularly prone to challenge, based on the requirement that such witnesses must individually swear each signer for the signature to be valid. 27. Currently, there is no provision of state law that expressly authorizes a political party to establish additional requirements for petition witnessing or party membership beyond those stated in the Election Code. However, the Election Code does authorize adoption of party rules. Section 2-114 provides that [e]ach committee may prepare rules for governing the party within its political unit and that such rules are effective when filed with the State Board. The Challenged KCDCC Petition Witnessing Rule 28. On February 22, 2001 Defendant EXECUTIVE COMMITTEE adopted a rule imposing new restrictions on who can witness candidate petitions in a Democratic Primary election in Kings County. The KCDCC Rule, codified at Section 6 of Article VIII of the Rules for the Government of the KCDCC, was filed with the State Board and with Defendant CITY BOARD on April 16, 2001. Defendants FELDMAN and KCDCC have stated that the Rule is authorized by N.Y. Elec. Law 2-114. 14

29. In addition, the new KCDCC Rule was submitted to the United States Department of Justice ( DOJ ) for preclearance under 5 of the Voting Rights Act, 42 U.S.C. 1973c, on April 13, 2001. Under 5, the Department of Justice has 60 days within which to object to the Rule only on the grounds that it has either a purpose or effect of denying or abridging the right to vote on account of race or color or [membership in a language minority group.] Id. If DOJ makes no objection, the KCDCC Rule can be enforced at the end of this 60 day period. The Rule can also become effective earlier if DOJ affirmatively indicates that it has no objection to the Rule before the 60 day period has elapsed. In its preclearance submission, Defendant KCDCC requested that DOJ review the Rule on an expedited basis and stated that the Rule would take effect immediately upon 5 preclearance. If DOJ objects to the Rule, Defendant KCDCC would need to obtain a declaration from the Federal District Court for the District of Columbia that the Rule did not have a purpose of denying or abridging the right to vote on account of race and would not have such an effect before it could be enforced. See id. 30. The stated purpose of the new Rule is to maintain discipline and comity among members of the Party; and to prevent members from participation in elective contests in which they are not legally permitted to vote. See Rules for the Gov t of the KCDCC, art. VIII, 6(a). In like vein, the preclearance submission to DOJ justifies the Rule in part on the grounds that the ability to raid or carpet bag in districts where petition subscribers are not residents would undermine the collegiality and discipline afforded to representatives and voters of the subject communities. 31. The new Rule provides that [n]otwithstanding any inconsistent or contrary law, ordinance, regulation, practice or governmentally sanctioned procedure, members of the Party 15

shall only be permitted to sign, subscribe and witness Democratic Party Designating Petitions within the confines of the respective districts in which they are enrolled to vote as members. See id 6(b). It further provides that [n]o member, acting solely in their capacity as a member of the Party, may... witness any instrument which has the legal effect of causing a member of the Party from appearing [sic] on the Ballot of any Primary, General, or Special Election in a district where the member is not domiciled. See id 6(c). According to the Rule, use of a Party member from another district as a petition witness will serve to disqualify all of the signatures on the petition: Petitions subscribed by party members who are... non-domiciliaries of such district.... shall be void and of no effect in relation to candidacies within district(s) wherein the member is not formally enrolled. See id. 6(e). 32. The Rule also adopts a district-based definition of party membership, under which [m]embers of the Democratic Party in Kings County shall be deemed members within the respective Assembly, Senate, Congressional, City Council, Civil (Municipal) Court and Community School Board District wherein they maintain their domicile. See id. 6(c). The apparent effect of this party membership definition is to make party members ineligible under state law to witness petitions in districts where they do not reside, as 6-132(2) of the New York Election Law requires that petition witnesses be party members. 33. Defendant KCDCC plays no role in reviewing candidate petitions, and thus cannot enforce the KCDCC Rule directly. However, candidates and others can challenge petitions witnessed by registered party members residing in other districts as invalid under the KCDCC Rule by filing written objections with Defendant CITY BOARD. See N.Y. Elec. Law 6-154. FACTS 16

The Lerman Decision 34. The KCDCC Rule was adopted in response to the Lerman decision. In Lerman, the Second Circuit held that the political subdivision residency requirement for petition witnesses contained in 6-132(2) was unconstitutional. 232 F.3d at 153. This requirement, like the KCDCC Rule, provided that candidate petition witnesses must be residents of the same political subdivision in which the candidate was running for office. Id. All signatures on petitions witnessed by individuals living in other districts were disqualified, even if the witnesses were registered voters and enrolled members of the Party. Id. 35. In concluding that 6-132(2) s petition witness residency requirement was unconstitutional, the Lerman Court first held that the requirement directly restricts core political speech, as candidate petition circulation activity... clearly constitute[s] core political speech. See id. at 146, 148-49. Thus, the witness requirement would violate the First and Fourteenth Amendments unless it satisfied strict scrutiny and was narrowly drawn to advance a compelling government interest. See id. at 146. The Court also noted that such exacting scrutiny would be required even if the witness requirement were viewed as an electoral process regulation rather than as core political speech, because the requirement severely burdened political speech and political association by drastically reducing the number of persons available to circulate petitions. See id. at 146. 36. The Second Circuit then concluded that the petition witness residency requirement failed strict scrutiny because the requirement does not bear even a rational relationship to any of the[] three justifications offered in its defense, let alone the narrowly tailored relationship that strict scrutiny demands. Id. at 149. These three justifications were: (1) ensuring integrity and 17

preventing fraud in the electoral process; (2) ensuring that candidates demonstrate a sufficient modicum of support before their name is include on the ballot; and (3) ensuring that non-residents may not impose the cost of a primary on the district. Id. (internal quotations omitted). The Request for Repeal of the KCDCC Rule 37. On May 15, Plaintiffs notified the KCDCC of their position that the KCDCC Rule was unconstitutional and requested that the Rule be repealed and the repeal filed with the CITY BOARD and the State Board. On May 17, the KCDCC responded in substance that the rule was not yet in effect because preclearence was pending at the DOJ. The response did not allay Plaintiffs concerns that they must comply with the KCDCC Rule or risk invalidation of their petitions based on the Rule, because the DOJ could preclear the Rule at any time, including during the petitioning time period, and the KCDCC has declared the Rule immediately effective upon preclearance. The Impact of the KCDCC Rule 38. The KCDCC Rule serves to reinstate the petition witness residency requirement struck down in Lerman for Democratic primary elections in Kings County. 39. Although the KCDCC Rule cannot be enforced until the 60 day period required for preclearance under 5 of the Voting Rights Act has elapsed or DOJ indicates it has no objection to the Rule, it nonetheless currently has a chilling effect on candidates petition gathering efforts. Unless DOJ objects to the Rule or seeks an extension of the preclearance period, the Rule will go into effect no later than June 12, 2001, 60 days after the Rule was submitted for preclearance and one week after petitioning for the 2001 Democratic Primary has begun. The Rule therefore may well be in effect for most of the petitioning period. Moreover, the Rule may form the basis for challenges 18

even to petition signatures gathered before June 12th, given that it would be in effect at the end of the 37 day petitioning period, when the validity of challenges to petition signatures is assessed. At least one of the Plaintiff candidates has been advised by his campaign s lawyer, a seasoned expert in New York election law, that he should adhere to the Rule in his signature gathering efforts. 40. Like the petition witness residency Rule of 6-132(2), the KCDCC Rule directly restricts core political speech, as it restricts who can serve as petition witnesses and engage in political speech on behalf of candidates. 41. In addition, like 6-132(2), the KCDCC Rule makes it significantly more difficult for many Democratic candidates to gain access to the primary ballot. New York law requires candidates to obtain valid signatures from 5% of registered voters residing in the district or 900 voters, whichever is lower, in order to gain access to a party primary ballot in a City Council race. See N.Y. Elec. Law 6-136. In City Council Districts, 5% of registered Democratic voters represents more than 900 and thus the 900 signature threshold will apply. However, in practice candidates need to obtain at least two to three times this number of petition signatures to ensure ballot access notwithstanding challenges to the validity of their signatures, which are a regular part of running for office in New York. Thus, the Plaintiff candidates expect to need between 2,500 to 3,000 signatures to guard against the danger of being disqualified through post-petitioning challenges. 42. Candidates such as Plaintiffs YASSKY, BANKS, BARRON, CARROLL, DE BLASIO, and REISS have strong supporters who are willing to serve as petition witnesses and would be eligible to do so were it not for the KCDCC Rule. The supporters would be particularly effective in gathering signatures for designating petitions and in advocating the Plaintiffs candidacies. 19

Not being able to use these individuals as petition witnesses is thus a significant burden to the Plaintiff candidates signature-gathering efforts and ability to communicate their positions on important issues. In addition, the KCDCC Rule will make it necessary for the Plaintiffs to spend additional time and resources locating individuals who are willing and qualified to serve as petition witnesses, and may add costs to their campaigns if it becomes necessary for them to pay individuals to serve as petition witnesses. 43. Moreover, the impact of the KCDCC Rule will be felt particularly strongly by the Plaintiff candidates because they face several opponents in their primary races. Gathering the signatures necessary to gain ballot access is often burdensome, given the large number of signatures required and the short period over the summer in which they can be gathered. New York s requirement that each registered voter in a district can only sign a petition for one candidate in an election means that candidates face a shrinking pool of eligible petition signers as the petitioning season progresses. 44. In addition, the Plaintiffs may be challenging candidates favored by their Party s leadership. For example, one of Plaintiffs YASSKY s and REISS opponents in the Democratic Primary in the 33rd City Council District is Steven Cohn, secretary to Defendant EXECUTIVE COMMITTEE. Although Defendant KCDCC remains officially neutral in primaries, individual party loyalists are more likely to carry petitions for candidates who are closely affiliated with Defendant KCDCC. Lerman, 232 F.3d at 147-48; Molinari v. Powers, 82 F. Supp. 2d 57, 75 (E.D.N.Y. 2000). Although Plaintiffs YASSKY and CARROLL have been endorsed by neighborhood-based clubs, neither expects to be supported by the established Democratic organization. 20

Democrats in New York Excluded from Petitioning Under the KCDCC s Rule 45. The burden imposed by the KCDCC Rule is evident by the reduction in the pool of potential petition witnesses it causes. As of April 2001, there are 47,424 registered Democratic voters in the 33rd City Council District, 44,496 in the 39th district, and 55,383 in the 42nd district. As a result, the effect of the KCDCC Rule for races in these districts is to reduce the pool of potential voters, if measured against the pool of approximately 5.1 million registered Democratic voters in the state who would otherwise be eligible to serve as petition witnesses. The Rule reduces the pool of potential petition witnesses drastically even if only registered Democratic voters in New York City and Kings County are considered. For example, as applied to the 33rd district, the Rule eliminates 98.2% of the approximately 2.7 million registered Democratic voters in New York City and 94.4% of the approximately 854,000 registered Democratic voters in Kings County from serving as petition witnesses for candidates running in the district s Democratic primaries. See State Board, Total Statewide Enrollment, <http://www.elections.state.ny.us/report-output 163479632.htm> (visited May 23, 2001). As the following table indicates, the Rule has a similarly drastic effect on the pool of potential petition witnesses available to Plaintiffs in this lawsuit: City Council District % Disqualified Statewide (5.1 million registered Democratic voters) % Disqualified Citywide (2.7 million registered Democratic voters) % Disqualified Kings County (854,000 registered Democratic voters) 33rd 99.1% 98.2% 94.4% 39th 99.1% 98.4% 94.7% 42nd 98.9% 97.9% 93.5% 21

46. The KCDCC Rule also significantly impairs the ability of many Democratic Party members to advocate effectively for the candidates they support. Democratic Party members are completely precluded from witnessing petitions for candidates running in districts in which they do not reside. This means that Party members who strongly support candidates running in other districts are prohibited from demonstrating their support and associating with these candidates in perhaps the most important manner available, namely ensuring that the candidates make it onto the primary ballot. 47. This infringement on Party members political association rights is all the more significant for registered Democrats such as Plaintiffs MARSHALL and MONAGHAN who live in New York City, even if not in the Kings County City Council districts where the candidates they support are running. Members of the City Council pass laws and govern all City residents, and Democratic City Council members stand as public representatives of the Party. Thus, while registered Democrats cannot vote in Council races outside of their districts, they clearly have a direct interest in the results of other City Council races. 48. Indeed, the KCDCC Rule serves to prohibit Democratic Party members from witnessing petitions in City Council races that are being held in their neighborhoods, albeit in City Council districts other than that in which they reside. For example, Plaintiff MARSHALL, who supports Plaintiff YASSKY, lives only 3 blocks outside of the 33rd City Council District. Despite Plaintiff MARSHALL s familiarity with the neighborhood and with local concerns, she is precluded from carrying petitions on Plaintiff YASSKY s behalf under the Rule. Similarly, Plaintiff MONAGHAN, who supports Plaintiff CARROLL, lives only one block outside of the 39th district in Park Slope, the same neighborhood where Plaintiff CARROLL resides. Despite Plaintiff 22

MONAGHAN s frequent interactions with residents of the 39th district and awareness of local issues, he is precluded from carrying petitions on Plaintiff CARROLL s behalf by the Rule. 49. The KCDCC Rule also burdens the political association and voting rights of Democratic supporters of the Plaintiff candidates who live within their districts, such as Plaintiff TIERNEY, by making it less likely that the Plaintiff candidates will be able to gather the number of signatures they need to gain access to the Democratic primary ballot. 50. Finally, even if they believe the KCDCC Rule is unconstitutional, as a practical matter candidates running in Democratic primaries in Kings County have to try to adhere to the KCDCC Rule in their petitioning efforts or risk not making it onto the ballot if the Rule is subsequently upheld. Candidates who fail to adhere to the Rule can also expect to face petition challenges to petitions witnessed by out-of-district Party members. Such challenges are not only time-consuming and resource-intensive, they can distract candidates from reaching out to voters in the crucial weeks leading up to the primary election. Impact on Rights Protected by 42 U.S.C. 1983 51. By reason of the foregoing, Defendants, acting under color of state law, have deprived Plaintiffs of the rights, privileges, and immunities secured to them under the First and Fourteenth Amendments to the United States Constitution and 1983 of Title 42 of the United States Code to participate in the democratic process free from unreasonable impediments. 23

52. Plaintiffs have no adequate remedy at law for such deprivation of their rights, privileges and immunities. CLAIM FOR RELIEF 53. Plaintiffs hereby reallege and incorporate by reference paragraphs 1 through 52 above. 54. The actions Defendants KCDCC, EXECUTIVE COMMITTEE, GARRY, FELDMAN, and NORMAN take in connection with primary, general, and special elections in New York, including the adoption of the petition witness rule contained in 6 of Article VIII of the Rules for the Government of the KCDCC, constitute state action and actions taken under color of state law. As a result, in regard to such actions Defendants KCDCC, EXECUTIVE COMMITTEE, GARRY, FELDMAN, and NORMAN, are subject to suit for violations of the U.S. Constitution and 42 U.S.C. 1983. 55. As Defendants KCDCC, EXECUTIVE COMMITTEE, GARRY, FELDMAN, and NORMAN are state actors and acting under color of state law when they act in connection with primary, general, and special elections in New York, Defendant CITY BOARD is also subject to suit and responsible for such actions taken by Defendants KCDCC, the EXECUTIVE COMMITTEE, GARRY, FELDMAN, and NORMAN that violate the U.S. Constitution and 42 U.S.C. 1983. 56. The KCDCC Rule represents a direct restraint of Plaintiffs political speech and severely burdens the political speech and political association rights of Plaintiffs, in violation of the First and Fourteenth Amendments of the U.S. Constitution and 42 U.S.C. 1983. 24

PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully ask this Court: (1) To enter a judgment declaring and determining that the KCDCC Rule is in violation of the United States Constitution, both facially and as applied to Plaintiffs, (2) To grant preliminary and permanent injunctive relief enjoining Defendants from implementing and enforcing the KCDCC Rule, including but not limited to enjoining the Defendant CITY BOARD from enforcing the Rule and ordering Defendants KCDCC, EXECUTIVE COMMITTEE, GARRY, FELDMAN, and NORMAN to develop and implement an effective plan for notifying candidates before the June 5, 2001 start of the petitioning period for the September 11, 2001 Democratic Primary ballot that the Rule has been declared unconstitutional and is unenforceable; (3) To award Plaintiffs their costs and disbursements associated with the filing and maintenance of this action, including an award of reasonable attorneys fees pursuant to 42 U.S.C. 1988; and (4) To award such other equitable and further relief as the Court deems just and proper. DATE: May 24, 2001 RESPECTFULLY SUBMITTED, 25

Nancy Northup Gillian Metzger Brennan Center for Justice at NYU School of Law 161 Avenue of the Americas, 12th Floor New York, N.Y. 10013 (212) 998-6730 (212) 995-4550 (fax) Counsel for Plaintiffs 26