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GREEN v. BOARD OF ELECTIONS OF NEW YORK

October 5, 1966

Gilbert GREEN, Plaintiff,
v.
BOARD OF ELECTIONS OF the CITY OF NEW YORK, Louis J. Lefkowitz, Attorney General of the State of New York, and Frank S. Hogan, District Attorney of the County of New York, Defendants



The opinion of the court was delivered by: TYLER

TYLER, District Judge.

 Plaintiff has applied to this court for an order to convene a three-judge court pursuant to 28 U.S.C. §§ 2281, 2284 for a hearing and determination of his application for a declaratory judgment that Article II, Section 3 of the Constitution of the State of New York, Section 152 of the New York State Election Law, McKinney's Consol.Laws, c. 17, and Section 510-a of the Penal Law of New York, McKinney's Consol.Laws, c. 40, are unconstitutional. In his complaint, he seeks both a preliminary and permanent injunction against enforcement of the aforementioned statutory provisions by the defendants or their agents. He also seeks an order directing the Board of Elections of the City of New York to permit him to vote in the next general election.

 Green was convicted in this court of conspiracy to overthrow the government of the United States. 18 U.S.C. § 2385. On October 21, 1949, he was sentenced to a term of five years and fined $10,000. Thereafter he was convicted in this court of contempt for failing to surrender to the authorities following his conviction. As a result of this contempt conviction, he was sentenced on March 26, 1956, for a term of three years to run consecutively with his conspiracy sentence.

 On July 29, 1961, Green was granted a conditional release on parole. His parole status was concluded on August 23, 1963. It is conceded that Green has not received a Presidential Pardon. It is also conceded that under federal law, the crimes for which Green was convicted constitute felonies.

 The constitutional and statutory provisions which plaintiff here assails are set forth as follows:

 Article II, Section 3 of the New York State Constitution provides in pertinent part:

 
"§ 3. Persons excluded from the right of suffrage.
 
* * *
 
The legislature shall enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime."

 Section 152 of the New York Election Law provides in pertinent part:

 
"3. No person who has been convicted of a felony in a federal court, if the offense would constitute a felony under the laws of this state, shall have the right to register for or vote at any election unless he shall have been pardoned or restored to the rights of citizenship by the president of the United States.
 
4. No person who has been convicted of a felony in a federal court of an offense of which such court has exclusive jurisdiction, shall have the right to register for or vote at any election unless he shall have been pardoned or restored to the rights of citizenship by the president of the United States."

 Section 510-a of the New York Penal Law provides in pertinent part:

 
"§ 510-a. Restrictions on voting; persons ...

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