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DONOHUE v. BOARD OF ELECTIONS OF NEW YORK

December 7, 1976

Warren DONOHUE, Sandra Weissman, Valda Bramwell, Roy G. Vanasco, John T. Stewart, Nicholas A. Long, Lyndon LaRouche, the Rockland County Conservative Party, and the Labor Party, Plaintiffs,
v.
BOARD OF ELECTIONS OF the STATE OF NEW YORK, Board of Elections of the City of New York, Secretary of the State of New York, Betty Dolan, and Hugh Carey, Defendants.



The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order

MISHLER, Chief Judge.

Plaintiffs, who include Republican and Conservative Party supporters of President Ford, and members of the Labor Party, bring this action pursuant to 42 U.S.C. §§ 1983, 1985(3) and 1988 *fn1" seeking an order: (1) enjoining the Secretary of the State of New York and the Governor from cetifying the Democratic Presidential electors; (2) declaring the Presidential election conducted in New York on November 2, 1976, null and void; and (3) directing that a new election be held. Plaintiffs allege that state officials, acting under the color of state law, committed fraudulent acts in the conduct of voter registration and the subsequent general Presidential election which served to deprive them of their constitutionally protected right to vote. Plaintiffs also assert a claim premised upon a violation of the equal protection clause of the fourteenth amendment, *fn2" arguing that jurisdiction is conferred under 28 U.S.C. § 1331(a). That claim, couched in general terms, is that the ballots cast by legitimate voters were debased and diluted by the illegal votes cast by thousands of unqualified voters.

 The plaintiffs charge that officials of the Board of Elections of the City of New York intentionally committed wrongful acts and used improper and slipshod procedures in the administration of the mail registration *fn3" drive and the conduct of the general Presidential election. The alleged frauds and omissions are said to have resulted in the fraudulent registration of thousands of otherwise ineligible voters, and in turn, the casting of numerous illegal ballots.

 Specifically, plaintiffs cite actions taken by Betty Dolan, executive director of the City Board of Elections, which they claim were designed to undermine the processing and verification of close to 300,000 post card registration applications. Plaintiffs allege that Dolan, armed with the knowledge that partisan groups were submitting falsified applications in the names of nonexistent or unqualified voters, withheld close to 180,000 post card applications gathered by the Central Board, forwardingthem to the local Boards in Brooklyn, Queens, and the Bronx only two and one-half weeks before the election. Moreover, plaintiffs charge that Dolan, in violation of Election Law § 153, unilaterally extended the deadline for receipt of mail applications. *fn4" The consequent surge of late applications is said to have prohibited the transmission of applicant names to computer lists, thus barring their subsequent verification. Dolan, according to plaintiffs, then ordered the preparation of buff cards for all applicants, whether verified or not. The end result, it is argued, was that Board officials indiscriminately sent registration cards to thousands of otherwise ineligible voters, thereby validating their subsequent appearances at polling places and their demands to cast ballots.

 Plaintiffs' allegations focus not only on the processing of registration applications, but on the conduct of the election as well. They seek to hold Board officials responsible for the alleged chaos and confusion on election day. Plaintiffs argue that Dolan's public appearance on television and radio shortly before the election, during which she urged people to appear at polling places and promised they would be permitted to vote, fostered chaotic conditions. This, coupled with the election officials' alleged failure to adequately staff voting places, is claimed to have resulted in the casting of thousands of illegal votes. Plaintiffs allege numerous instances where individuals who registered more than once in turn cast several ballots. As well, they charge that votes were recorded under names of persons who do not exist, mental incompetents and convicted felons. *fn5"

 However, plaintiffs do not claim that the alleged illegal votes were sufficient in number to have changed the outcome of the election. Rather, they assert that the election process was so permeated by fraud that determination of the rightful winner is impossible.

 The defendants have moved to dismiss on various grounds. Defendant City Board of Elections, relying on the district court's holding in Phillips v. Rockefeller, 321 F. Supp. 516 (S.D.N.Y.), aff'd, 435 F.2d 976 (2d Cir. 1970), contends that neither a § 1983 cause of action nor an equal protection claim can be maintained since there is an absence of state action. Defendant's reliance on Phillips is misplaced. This is not a case, as in Phillips, where certification of the prevailing candidate is pursuant to federal authority. *fn6" The statutory scheme existing in New York for the election and subsequent certification of Presidential electors, Election Law § 291, expressly provides for certification by the Secretary of State and the Governor's confirming signature. *fn7" Hence, the ministerial act of certifying the Presidential electors is performed pursuant to state authority. *fn8"

 Defendant Hugh Carey, the Governor of New York, and defendant Secretary of State argue dismissal of the complaint is mandated because neither is subject to statutory duties concerning the registration of voters or the conduct of the election, and as such, they are not proper parties.

 It is well-settled that a state official may properly be made a party to a suit seeking to enjoin the enforcement of an allegedly unconstitutional act if that official plays some role in the enforcement of the act. McCrimmon v. Daley, 418 F.2d 366, 368 (7th Cir. 1969); Oliver v. Board of Education of City of New York, 306 F.Sup&. 1286, 1288 (S.D.N.Y.1969); Coon v. Tingle, 277 F. Supp. 304, 306 (N.D.Ga.1967); Fitts v. McGhee, 172 U.S. 516, 530, 19 S. Ct. 269, 274, 43 L. Ed. 535 (1899). As noted above, Election Law § 291 *fn9" requires the Secretary of State to prepare a certified list of electors after the final canvass is approved by the State Board of Canvassers, and to procure the Governor's signature. Although the function performed by both officials in this context is seemingly ministerial, a reading of the provision indicates that the electors' appointment is not validated until both officials have completed their statutory duties. Since both play a part in the enforcement of the scheme to choose electors, both are clearly proper parties and subject to suit.

 While the point is not raised by defendant City Board of Election, defendant State Board of Election moves to dismiss on the ground that, as a state agency, it is immune from suit under 42 U.S.C. § 1983. Extended discussion is not required of the well-settled principle that counties, municipalities, or their agencies are not "persons" answerable to plaintiffs in an action at law or suit in equity, brought pursuant to the Civil Rights Act of 1871.42 U.S.C. § 1983. Aldinger v. Howard, 427 U.S. 1, 16, 96 S. Ct. 2413, 2421, 49 L. Ed. 2d 276 (1976); City of Kenosha v. Bruno, 412 U.S. 507, 512-513, 93 S. Ct. 2222, 2226, 37 L. Ed. 2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 187-191, 81 S. Ct. 473, 484-486, 5 L. Ed. 2d 492 (1961); Brault v. Town of Milton, 527 F.2d 730, 732 (2d Cir.), on rehearing, 527 F.2d at 736 (2d Cir. 1975) (en banc). Clearly, a § 1983 action is not maintainable against either the City or State Board of Elections.

 The question remains, however, whether a cause of action seeking injunctive relief flows directly from a violation of the fourteenth amendment, rendering a state or municipality subject to the jurisdiction of the court under 28 U.S.C. § 1331(a). *fn10" The granting of equitable relief premised directly upon the Constitution has long been a practice accepted without discussion. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 404, 91 S. Ct. 1999, 2008, 29 L. Ed. 2d 619 (Harlan, J., concurring, 1971); Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532 passim (1972); See, e.g., Loving v. Com. of Va., 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967); Takahashi v. Fish and Game Commission, 334 U.S. 410, 68 S. Ct. 1138, 92 L. Ed. 1478 (1948). *fn11" Where a state or municipal agency is alleged to have deprived individuals of equal protection of the laws, it may be the subject of the federal court's exercise of equitable powers. The City and State Boards of Elections are not immune and may lawfully be enjoined from debasing or diluting the votes of qualified citizens. *fn12"

 The State Board of Elections' reliance on Aldinger v. Howard, supra, in arguing that once it is found immune from suit under § 1983, it should not be brought back into the action under a different theory, is misplaced. This is not a case where plaintiffs seek to premise jurisdiction on a pendent state claim. Clearly an independent basis of federal jurisdiction exists in 28 U.S.C. § 1331(a). Aldinger v. Howard, supra, 96 S. Ct. at 2422.

 Defendant State Board of Elections additionally argues that it is not a proper party to the action since it has little if anything to do with the registration of voters and administration of elections. The court disagrees. Although the County Boards of Election have the primary responsibility for conducting both voter registration and the general election itself, *fn13" it cannot be said that the State Board is entirely removed from the electoral process. Pursuant to § 470 of the Election Law, *fn14" the State Board is vested with the responsibility of enforcing the provisions of the election laws. It was the intent of the Legislature in creating the State Board of Elections that a coordinating agency exist to oversee the execution and enforcement of the laws relating to the elective franchise and to foster citizen confidence in the political process. Election Law § 466. Hence, it can hardly be argued the State Board is not a proper party to this action. McCrimmon v. Daley, supra.

 Finally, it is argued that the action should be dismissed for plaintiffs' failure to join all fifty-seven County Boards of Election, as well as the Democratic Presidential electors, as necessary parties to this action. Although, as defendants contend, a successful candidate is a necessary party under New York law in a suit to recover his position, Matter of Ullman v. Power, 17 A.D.2d 792, 232 N.Y.S.2d 711, aff'd, 12 N.Y.2d 724, 233 N.Y.S.2d 774, 186 N.E.2d 129 (1962); Lohmaier v. Ulster County Board of Elections, 50 A.D.2d 1055, 377 N.Y.S.2d 726 (1975), in this case the federal law governs in procedural matters. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).

 Rule 19 of the Federal Rules of Civil Procedure vests the court with wide discretion in deciding whether to proceed in the absence of necessary parties; application of the joinder rules requires a balancing of interests, Kamhi v. Cohen, 512 F.2d 1051, 1054-1055 (2d Cir. 1975). Determinations of indispensability and necessity are grounded in equitable principles, Toney v. White, 476 F.2d 203, 207 (5th Cir.), modified and aff'd on rehearing, 488 F.2d 310 (1973). Were we blessed with the luxury of time in this matter, the express terms of Rule 19(b) would require joinder since all parties are subject to process and their addition would not defeat the court's power to hear the matter. Yet, where it is only a matter of days within which this court must act, *fn15" and the interests of the successful electors are adequately protected by counsel for the existing defendants, equity demands that the court proceed in their absence, Toney v. White, supra at 207.

 Accordingly, we turn to a consideration of whether the complaint states a claim upon which ...


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