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July 29, 1974

Ramsey CLARK and Chandra Carr, Plaintiffs,
Alex ROSE et al., Defendants

The opinion of the court was delivered by: TYLER

TYLER, District Judge.

On July 11, 1974, a three-judge court was convened pursuant to 28 U.S.C. §§ 2281 and 2284, to consider the constitutionality of the Wilson-Pakula Law, New York Election Law § 137 (McKinney's Consol.Laws 1964, c. 17, 1973-74 Supp.) *fn1" (the "statute"), which provides that a person who is not a member of a political party may not receive that party's nomination or run in its primary unless that person receives the authorization of the majority of the party's State Committee *fn2" or of such other group as the party rules may provide.

Plaintiffs in this action are Ramsey Clark, an enrolled Democrat who has unsuccessfully sought the 1974 nomination of the Liberal Party of the State of New York for United States Senator, and Chandra Carr, an enrolled member and "district leader" of the Liberal Party. Defendants are the Liberal Party; the State Executive Committee of that party; certain officers of the party; Jacob K. Javits, a member of the Republican Party and its candidate who has been designated, pursuant to § 131(2)(b) of the Election Law, as candidate of the Liberal Party for the office of United States Senator for the State of New York; and members of the State Board of Elections. Because of the alleged unconstitutionality of the state, plaintiffs have asked this court to enjoin the State Board of Elections from processing the designation of Javits as candidate of the Liberal Party.

 On July 17, 1974, the statutory court heard argument from counsel. The court has also considered an affidavit submitted on behalf of several defendants and various letters, submitted by plaintiffs, which amount to an exchange of correspondence between plaintiff Clark, defendant Javits and defendant Donald Harrington, Chairman of the Liberal Party. For reasons hereinafter discussed, we conclude that plaintiffs' requested relief must be denied.

 Plaintiffs have argued that the statute is unconstitutional because it denies to Clark equal protection of the law and because it interferes with Carr's right to vote. Before this court addresses itself to the merits, the issue of the standing of these plaintiffs to bring this action must be discussed.

 What plaintiffs object to is the fact that under subdivision (4) of the statute, the State Executive Committee *fn3" is empowered to authorize the candidacy of one non-member candidate while denying other non-party members a place on the ballot in the primary election, if it so chooses. In theory, before Clark could be eligible for such authorization, however, he would have had to fulfill certain prerequisites. As plaintiffs have admitted in their complaint, there are three basic methods under New York law by which a candidate may secure a party's nomination or designation as a candidate at a primary election, including a federal office such as that of Senator. One method is by receiving the majority vote of the State Committee. N.Y. Election Law § 131(2)(b)(1) (McKinney Supp.1973-74). Another is by receiving twenty-five percent or more of the vote cast by the State Committee and then making the prescribed written demand to the Secretary of State for entry of one's name as a candidate. N.Y. Election Law § 131(2)(b)(3) (McKinney Supp.1973-74). The third is by securing a designating petition signed by "not less than twenty thousand or five per centum, whichever is less, of the then enrolled voters" of the particular party in question. N.Y. Election Law § 136(5) (McKinney Supp.1973-74). A candidate, who is a member of the party need do no more. A non-member candidate, however, as mentioned heretofore, must receive authorization from, in this case, the State Executive Committee. Such authorization must be filed no later than four days following filing of the designating petition. § 137(4).

 As all parties concede, Clark unsuccessfully sought to receive the majority vote of the State Committee of the Liberal Party at its meeting on June 15, 1974. At that meeting, the Committee considered and voted on three nominations of non-party candidates for the office of Senator. Javits received 85.7% of the votes cast, Clark received 8.8% and another candidate, also an enrolled Democrat, received 3.4%. Since Clark received less than twenty-five percent of the votes cast, he was ineligible, under §§ 131(2)(b)(3) and 137(4) of the Election Law, to seek authorization to run in the Liberal Party primary on September 10, 1974, based on the results of the State Committee meeting.

 Clark, moreover, has not attempted to secure the petitions required under § 136(5). Indeed, by July 15, 1974, it was too late to do so. See Ch. 9 § 149-a(4), N.Y. Session Laws 24 (McKinney March 10, 1974). Plaintiffs have argued that it would have been futile for Clark to have pursued this route since, even if he had secured the requisite number of petitions, the State Executive Committee would have refused to authorize his candidacy in the primary. They point out that at the June 15 meeting, a resolution was defeated which would have provided that any non-member candidate who could comply with the provisions of § 136(5) would automatically receive the required authorization to run in the Liberal Party primary. That denial of a blanket authorization, however, does not appear to have been aimed specifically at Clark. We, therefore, are left to speculate whether or not, had he thereafter obtained the number of signatures of Liberal Party members required to comply with § 136(5), his request for authorization would have been viewed more favorably by the State Executive Committee. For these reasons we have been troubled by the possibility that Clark lacks standing to urge that subdivision (4) of the statute is unconstitutional. See Storer v. Brown, 415 U.S. 724, 94 S. Ct. 1274, at 1281, 39 L. Ed. 2d 714 (1974). Similarly, we have considered that Carr also may lack standing to attack the authorization provision since Clark, for want of the twenty-five percentum vote, or a valid designating petition, was not qualified to receive authorization. Storer, 94 S. Ct. at 1282.

 Nonetheless, we prefer not to rest our decision upon lack of standing of plaintiffs. As plaintiffs' counsel in effect has argued, it can be reasoned that the events of the meeting of the State Committee on June 15 effectively rendered futile any attempts by Clark or on his behalf to obtain the requisite designating petition signed by rank and file Liberal Party members. The defeat of the general resolution offered by Merrill, apparently one of Clark's supporters, and the disappointingly small vote for Clark at that meeting may have been a sufficient indication that the State Executive Committee, if later presented with a valid designating petition before July 15, would have denied authorization to Clark under the statute. With this assumption, we turn to the merits.

 We conclude that plaintiffs' constitutional arguments, though possessing plausibility, must fail. Preliminarily, we assume that subdivision (4) places some "burden" on the electoral process because it delegates to the political parties the power to discriminate as between non-member candidates, granting authorization to one and denying it to others. From this undeniable proposition, it can be said further that the subdivision potentially limits the number of candidates on the primary ballot and the freedom of choice at least theoretically available to party members in this state. Recognizing all of this, the difficulty with plaintiffs' argument is that it requires that once one non-member candidate has been authorized to appear on the Liberal Party line in the primary, an infinite number should be allowed to do so, at least where they satisfy the designating petition requirements of § 136 of the Election Law.

 The Supreme Court has held that a state such as New York has a "legitimate interest in regulating the number of candidates on the ballot," Bullock v. Carter, 405 U.S. 134, 145, 92 S. Ct. 849, 857, 31 L. Ed. 2d 92 (1972), and "in avoiding confusion, deception, and even frustration of the democratic process . . ." that can result from an excessive number of non-party candidates. See Jenness v. Fortson, 403 U.S. 431, 442, 91 S. Ct. 1970, 1976, 29 L. Ed. 2d 554 (1971). The Liberal Party and the State of New York have a vital interest in regulating the qualification of candidates for office, including federal office. Storer, 94 S. Ct. at 1280; Jenness, supra, at 442, 91 S. Ct. 1970; Art. I, § 4 cl. 1 of the Constitution.

 Subdivision (4), in our view, is a discreet mechanism designed to satisfy a compelling state interest, the avoidance of voter confusion and possible weakening and even usurpation of party organization. See Storer, 94 S. Ct. at 1279; Rosario v. Rockefeller, 410 U.S. 752, 761-762, 93 S. Ct. 1245, 36 L. Ed. 2d 1 (1973). As the New York courts have recognized, subdivision (4) was designed "to protect the integrity of political parties and to prevent the invasion into or the capture of control of political parties by persons not in sympathy with the principles of such political parties." *fn4" Werbel v. Gernstein, 191 Misc. 275, 78 N.Y.S.2d 440 (Sup.Ct.Kings Co.), aff'd., 273 App.Div. 917, 78 N.Y.S.2d 926 (2d Dept. 1948).

 The State Committee of the Liberal Party is elected pursuant to §§ 13 and 136 of the New York Election Law on a basis designed to insure that it accurately reflects the views of the Liberal Party members. Such a Committee, which has the responsibility of party leadership, may be trusted to determine which non-member candidate can properly advance the political philosophy of the party members. It is true that, according to the Rules of the Liberal Party, the State Executive Committee has been empowered to authorize the candidacy of non-party members. Further, we assume, at least arguendo, that the authorization of a non-party candidacy is not a private internal party matter but rather a public electoral function. Seergy v. Kings County Republican County Committee, 459 F.2d 308, 314 (2d Cir. 1972). Nevertheless, under the statute, the State Committee as a whole also has the power to authorize the candidacy of a non-party member. Given the conceded events of the meeting of June 15, there has been no showing here that the statute by its terms has worked a denial of the one-man, one vote principle. Pursuant to § 131(2), members of the State Committee vote on a weighted vote basis in the nomination of candidates for state office; indeed, the vote heretofore described on June 15 proceeded on that basis. We must presume, therefore, that the Committee's vote of authorization would have proceeded on the same basis had Clark presented prior to July 15 a valid designating petition.

 Even were the Liberal Party, by its delegation of its powers of authorization to the State Executive Committee, acting unconstitutionally, a point we need not reach, this assumption would not necessitate invalidation of the statute. Nor would it require the invalidation of the nomination of Javits as candidate for Senator. As has been readily admitted, Javits had the backing of the great majority of the State Committee. Moreover, ...

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