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FALLON v. STATE BD. OF ELECTIONS OF NEW YORK

February 18, 1976

Bernard R. FALLON et al., Plaintiffs,
v.
The STATE BOARD OF ELECTIONS OF the STATE OF NEW YORK, Defendant



The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

 Some candidates for the position of delegate to the Democratic National Convention to be held in July of this year, describing themselves as pledged to Presidential Primary Candidate James E. Carter, Jr., sue to require that delegate candidates be identified on the primary ballot by the name of the presidential candidate for whom they propose, at least initially, to vote. Nobody has a good word to say for the ballot practices plaintiffs attack. All seem agreed that the use of normally unknown delegates' names, without identifying them with the known presidential candidates whom they prefer or to whom they are pledged, is not a satisfactory means of giving the most vital information to the average voter in a primary election. Nevertheless, this seems to be one of the many cases in which arguably unsatisfactory state laws are best remedied by state legislatures, or perhaps state courts, rather than a federal court. At least as construed in a recent decision binding here, neither the Constitution nor statutes of the United States provide for the kind of relief plaintiffs seek.

 Four years ago, other plaintiffs sought an order permitting candidates for delegate to the then impending Democratic National Convention to have placed alongside their names a designation of the presidential candidate they preferred. The Second Circuit held that the question did not present a substantial constitutional question upon which federal jurisdiction might be predicated. New York State Democratic Party v. Lomenzo, 460 F.2d 250 (2d Cir. 1972). As in the cited case, defendant State Board of Elections *fn1" again asserts that state law does not permit -- and, therefore, this being an area of ministerial action, effectively forbids -- the kind of designation plaintiffs demand. Undaunted by the Lomenzo decision, plaintiffs urge that changes in the law require a different conclusion now. In this posture, with the facts simple and undisputed, it seems sufficient to consider the specific grounds upon which plaintiffs would distinguish the precedent defendants invoke.

 I.

 In their main line of argument, defendants cite Cousins v. Wigoda, 419 U.S. 477, 95 S. Ct. 541, 42 L. Ed. 2d 595 (1975), for the undisputed proposition that a national political party vindicates vital rights of free political association when it regulates the selection and seating of delegates to its convention. Proceeding from that sound premise, plaintiffs cite Rule 10 of the Delegate Selection Rules of the 1976 Democratic National Convention, which says:

 
"All candidates for delegate in caucuses, conventions, committees and on primary ballots shall be identified as to presidential preference, uncommitted, or no preference status."

 The quoted language, plaintiffs say, as it is fortified by Cousins, destroys the state practice here in question.

 Unfortunately for plaintiffs, however, Rule 10 goes on to say:

 
"In primary states where state law does not permit candidates for delegate to indicate their presidential preference on the ballot * * * the State Party shall undertake to publicize to all eligible voters the candidates for delegates approved by each presidential candidate."

 And the defendant State Board urges now, precisely as was argued four years ago, see 460 F.2d at 251, that the State Election Law governing it does not permit the practice plaintiffs demand. *fn2" This is erroneous, plaintiffs say, but their view in this respect does not help them in federal court.

 The only arguable way this case could present any federal question is on the interpretation of the Election Law followed by the State Board. But that interpretation, as has been mentioned and as is more fully explained below, raises no substantial federal question.

 Read most liberally in plaintiffs' favor, Cousins, supra, held no more than that the policy of a national political party in setting qualifications for delegates to its convention may, in some circumstances, prevail over contrary state law. *fn3" As indicated above, however, the policy of the Democratic Party is to defer to state law which "does not permit candidates for delegate to indicate their presidential preference on the ballot * * *." Indeed, specific alternate procedures for informing the electorate of such preferences are prescribed when state law forbids showing these preferences on the ballot. *fn4" The accommodation thus accepted defeats plaintiffs' attempt to distinguish Lomenzo, supra, on the supposed conflict between the policy of the Democratic Party and state law.

 II.

 The foregoing discussion treats of plaintiffs' complaint as an attack upon the constitutionality of the State Election Law, which would be, of course, a fit subject for the federal court. Strictly speaking, however, plaintiffs seem to have come here with no federal question of any kind. Their primary thesis actually is that defendant Board has misconstrued the state statutes, and that showing candidate preferences is actually permitted. With that as their complaint, plaintiffs had not, by the time of oral argument, requested a three-judge court. There was understandable doubt in their minds as to whether their suit was to enjoin enforcement of a state statute since they urge that the state enactments in question do not have the undesired meaning for which defendant contends. Suggesting that this analysis might not be sufficient to authorize a decision now in plaintiffs' favor by one judge, the court invited a motion for the convening of a three-judge court. The motion was duly made. It is ...


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