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BISHOP v. LOMENZO

September 7, 1972

Leah N. BISHOP, on her own behalf and on behalf of all others similarly situated, namely, qualified voters wishing to register to vote in the forthcoming presidential election during the month of September, et al., Plaintiffs,
v.
John P. LOMENZO, Secretary of State of the State of New York, et al., Defendants



The opinion of the court was delivered by: MANSFIELD

MANSFIELD, Circuit Judge.

This suit, instituted under the federal civil rights law, 42 U.S.C. § 1983, asks us to declare § 355 of the New York Election Law, *fn1" McKinney's Consol.Laws, c. 17 unconstitutional and to enjoin its enforcement, when read with § 354, *fn2" § 355 would have the effect of barring registration of qualified voters during a period of approximately 66 days prior to the Presidential election to be held on November 7, 1972, except for local registration during a few days in the first part of October (October 5, 6, 7 and 10) and for absentee registration as authorized by § 153-a *fn3" of the Election Law. In addition, plaintiffs ask us to enjoin as unconstitutional certain other provisions of the New York Election Law (§§ 39 through 42, and § 353) to the extent that they restrict qualified registrars of voters to teams consisting of one enrolled member of each of the two major political parties (Democratic and Republican) and preclude others, including independent voters, members of other parties (Liberals and Conservatives) and persons who have registered since the last preceding general election, from serving as registrars.

Since the complaint raised substantial questions with respect to the constitutionality of statutes of state-wide application, we were, on August 23, 1972, designated to serve as a statutory three-judge district court by the Acting Chief Judge of the United States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. §§ 2281 and 2284. Following the service and filing by the defendants of answers and motions to dismiss the complaint pursuant to Rule 12(b), F.R.Civ.P., on various grounds (laches, defective papers, lack of standing, lack of jurisdiction over the subject matter and failure to state a claim for relief), we, on August 30, 1972, held a hearing at which testimony, documentary evidence, and stipulated proof were received.

 Concluding that we had jurisdiction over the subject matter, which had been invoked pursuant to 42 U.S.C. § 1983, 28 U.S.C. §§ 1343 and 2201, et seq., we, on August 31, 1972, issued a temporary restraining order directing the defendants, among other things, to continue central registration of voters in accordance with the procedures provided by § 355 of the New York Election Law, until September 15, 1972, or until the filing of our decision, whichever event should first occur.

 Plaintiff Leah N. Bishop, a Nassau County resident recently enfranchised by the Twenty-Sixth Amendment, will be able to register personally only during a period of approximately two weeks in September, as she is employed and attends school in Massachusetts. The other plaintiffs are individuals and organizations desiring to engage in volunteer registration activities during September in connection with the forthcoming Presidential election. Except for plaintiff Alan Epstein, an enrolled Democrat, none of the individual plaintiffs is enrolled as Democrat or Republican.

 Upon learning of defendants' proposal to enforce the above-mentioned provisions of the Election Law, plaintiffs, frustrated in their plans to continue their registration activities in September, instituted the present purported class suit on August 17, 1972, on behalf of themselves and all others similarly situated. They claim that the provisions of § 355, which mandate the termination of central registration of voters for a period of 30 days prior to local registration, i.e., from September 2, 1972 (since September 3 and 4 fall on Sunday and Labor Day, respectively) to October 5, 1972, will have the effect of disenfranchising large numbers of the electorate who are qualified to participate in the forthcoming Presidential election, in violation of the First, Fourteenth, Fifteenth and Twenty-Sixth Amendments to the United States Constitution and the Voting Rights Act Amendments of 1970, § 202(d), 42 U.S.C. § 1973aa-1(d) (the "Act" herein). They further assert that the New York statutory provisions restricting registrars to enrolled members of the two major political parties and requiring that registration be conducted by teams of one member each of these two parties discriminate against plaintiffs and others who wish to act as registrars and violate their rights under the same provisions of the Constitution.

 Defendants are the Governor and Secretary of State of New York and the Commissioners of Election of Nassau County and of the City of New York. Although David N. Dinkins, Commissioner of Elections for New York City and Marvin D. Cristenfeld, Commissioner for Nassau County, are named as defendants, they not only do not oppose the relief sought but have appeared and testified in favor of it. Counsel for the New York City Board of Elections filed an affidavit to the effect that it takes no position on the merits of the action but will abide by any order of this Court affecting the validity of the statutes under attack. The Commissioner of Elections of Rockland County filed an affidavit generally favoring the continuation of central registration of voters during September 1972. All defendants other than Dinkins and Cristenfeld, however, oppose the suit and seek its dismissal. Defense counsel, furthermore, offered to furnish testimony of commissioners of elections from other counties of New York opposing continuation of registration in September. *fn4"

 At the outset we face certain threshold questions, the first of which is the contention that equitable relief should be denied because of laches. Unquestionably plaintiffs, who have been actively engaged in registration activities as early as mid-July, were or should have been aware of the general provisions of the statutes now under attack. Their delay in bringing suit until August 17, 1972, has imposed a heavy burden not only on the Court but on the defendants who, if the action had been commenced earlier, would have been afforded more time to prepare for any contingency, e.g., to explore the issues and to prepare the administrative and clerical force required to continue registration activities in September, if it should be so ordered. In reply plaintiffs urge that they believed until they were first advised to the contrary in mid-August that they would be permitted to continue their activities (i.e., registration by voluntary unpaid registrars) in September since they were not using the services of regular paid employees of the Boards of Elections and hence did not consider their activities to be "Central Registration" as that term is used in § 355. While we do not doubt plaintiffs' good faith, it is apparent that the New York City Board of Elections, in permitting unpaid volunteers to function as registrars, was acting pursuant to authority granted by § 355 to provide "branch offices of the central registration board in any county" and plaintiffs could have clarified the matter by asking the boards for their view at an earlier date. However, in view of our conclusion that § 355 does violate the Voting Rights Act Amendments of 1970 -- a violation which could, unless restrained, affect the rights of thousands of qualified voters -- we believe that the public interest in enforcement of such an important federal law is paramount and should not be defeated because of laches on the part of the named plaintiffs. Any inability due to the short notice, to provide the clerical or administrative assistance required to comply fully with the Act, although relevant to determination of the nature and extent of the relief to be granted, would not provide a basis for denial of any relief at all.

 Turning to the question of plaintiffs' standing, we are satisfied that plaintiffs have a sufficient personal stake in the outcome and are seriously enough affected by the enforcement of the statutes in question to insure presentation of the issues in an adversary context that is capable of judicial resolution as a case or controversy within the meaning of Article III, § 2 of the Constitution. See Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663; Flast v. Cohen, 392 U.S. 83, 101, 20 L. Ed. 2d 947, 88 S. Ct. 1942; Abele v. Markle, 452 F.2d 1121, 1124-1125 (2d Cir. 1971). Plaintiffs here have far more than an academic interest of the type found insufficient in Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). Except for Ms. Bishop, who desires to register in September, they are now all currently engaged in registration activity, either as registrars or as organizations promoting such ends, and if they prevail in this lawsuit, they propose to continue these activities. Lastly, if plaintiffs were denied standing, it is difficult to conceive of any person who would have standing.

 With respect to plaintiffs' application for a determination that the action may be maintained as a class action pursuant to Rule 23, F.R.Civ.P., it appears from the evidence that there are at least several thousand voluntary unpaid registrars having the same interests as the named plaintiffs and that there are probably thousands of qualified voters who would register if afforded the opportunity in September but would probably not do so during the few days scheduled for local registration in October. In addition to the numerosity of the members, which renders joinder impractical, it further appears that there are questions of law and fact common to all members, that the claims are typical of those of other members, and that the named plaintiffs will fairly and adequately protect the interests of the class. Accordingly we conclude that the prerequisites prescribed by Rule 23 have been met for prosecution of the action on behalf of the members as a class.

 Turning to the merits, we first consider the claim that § 355 violates § 202 of the Act, 42 U.S.C. § 1973aa-1, to which it must give way under the Supremacy Clause of the Constitution. Although "Supremacy Clause cases are not within the purview of § 2281," Swift & Co. v. Wickham, 382 U.S. 111, 122, 86 S. Ct. 258, 265, 15 L. Ed. 2d 194 (1965), and constitutional claims of substance under the First, Fourteenth and other Amendments formed the basis for convening this three-judge court, Florida Lime and Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80 S. Ct. 568, 4 L. Ed. 2d 568 (1960), we have been instructed that where a case can be disposed of by a three-judge court through adjudication of a statutory or Supremacy Act claim, it should adjudicate that claim in preference to making a constitutional ruling. Rosado v. Wyman, 397 U.S. 397, 402-403, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970); Wyman v. Rothstein, 398 U.S. 275, 90 S. Ct. 1582, 26 L. Ed. 2d 218 (1970); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 80 L. Ed. 688, 56 S. Ct. 466 (Brandeis, J., concurring), pp. 346-348, 297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 688 (1936); Peters v. Hobby, 349 U.S. 331, 75 S. Ct. 790, 99 L. Ed. 1129 (1955). Since in our view the present case lends itself to such an adjudication, we proceed accordingly.

 To understand the purpose and effect of those provisions of the Act which, in our view, govern the present case, knowledge of certain background facts is essential. In recent years all three branches of our federal Government have been concerned about the non-participation of qualified electors in national elections. *fn5" This lack of participation has been attributed largely to state laws restricting voters' eligibility or access to the polls. In the 1968 Presidential election, for instance, although 89.4% of the nation's registered electorate went to the polls, those voting represented only approximately 60.6% of the nation's qualified persons of voting age. Hearings before the Committee on Post Office and Civil Service Voter Registration, 92nd Cong., 1st Sess. on S. 1199, S. 2445, S. 2457, and S. 2574 (1971) (the "McGee Hearings"), p. 93. This nonparticipation is due in large measure to the fact that many millions of qualified voters failed to register. On the basis of census figures it is estimated that approximately 47 million qualified persons of voting age will be ineligible to participate in the 1972 election due to their failure to register.

 The failure of qualified persons of voting age to register is more serious in New York than nationally. The percentage of participation by eligible New York State electors in the 1968 election was less than the national figure of 60.6%. In New York, Bronx, and Kings Counties, for instance, less than 50% of the eligible electors voted in 1968.

 It is unchallenged, and hardly needs mention, that there is a correlation between the number of persons who register and the number who vote. The record of national elections reveals that the great majority of Americans who do register will vote. If more people register, therefore, more will vote. It is equally axiomatic that the greater the opportunity to register during periods when voter interest in a forthcoming election is highest the greater will be the number of qualified electors who will register. Lastly, it is clear that as a major political campaign "heats up," or captures the attention of the electorate in any community, the greater will be the demand on the part of the populace to register. Indeed, this has been the rationale behind the efforts of nonpartisan organizations, such as the League of Women Voters, to promote voter registration through such slogans as "If you do not register, you cannot vote in November." *fn6"

 Although the percentage figures may vary from community to community, it is undisputed that the foregoing observations may properly be applied to registration of voters in New York. For instance, defendants do not question the fact that if the present system of registration were continued through September 1972, a substantially greater number of qualified electors would register and vote in the November election than if registration were restricted as required by § 355. Although local registration will be made available for four days in early October, many voters who would register in September would for one reason or another fail to register on those days. The latter phenomenon may be attributed to such factors as oversight, lack of motivation, lethargy, low literacy, or unexpected absence from the county of residence on those four dates. Although absentee registration is made available by § 153-a of the Election Law to those who are out of the city at times when the opportunity to register is afforded, the absentee registration process is cumbersome. Furthermore, many qualified electors are unaware of its availability or of the procedure required for such registration. The voter must first obtain a lengthy form of application from his Board of ...


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