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November 18, 1977

CALVIN WILLIAMS, GILBERTO GERENA VALENTIN, SALVADOR CARTAGENA, MIDGE BROWN, and FELIX BERRIOS, on their own behalf and on behalf of all others similarly situated, Plaintiffs,
SALVATORE SCLAFANI, HERBERT J. FEUER, ALICE SACHS, CHARLES A. AVARELLO, ELRICH A. EASTMAN, ELIZABETH A. CASSIDY, MATTEO LUMINA, JOSEPH J. PREVITE, ANTHONY SADOWSKI, and JAMES BASS, Commissioners of the Board of Elections in the City of New York, as Members of, and constituting, the said Board of Elections, Defendants, STATE OF NEW YORK, RAMON S. VELEZ, STEPHEN KAUFMAN, and HON. MARY PINKETT, Intervenor-Defendants

The opinion of the court was delivered by: WARD

WARD, District Judge

Plaintiffs Gilberto Gerena Valentin ("Valentin") and Felix Berrios ("Berrios") *fn1" move before this three-judge court under § 5 of the Voting Rights Act, 42 U.S.C. § 1973c, for summary judgment against the defendant Commissioners of the Board of Elections in the City of New York, individually and collectively, ("City Board of Elections") in connection with a federal temporary restraining order of September 2, 1977 directing defendants to list Valentin as the Democratic nominee for the City Council from the 11th Councilmanic District in the South Bronx. In addition, plaintiffs move for leave to file a second amended complaint adding a cause of action under 42 U.S.C. § 1983 and another plaintiff. Jurisdiction over the Voting Rights Act and the Civil Rights Act claims is based on 28 U.S.C. § 1343. Intervenor-defendant Ramon S. Velez ("Velez") cross-moves for summary judgment and for an order vacating or modifying the order of September 2, 1977. *fn2" For the reasons hereinafter stated, the three-judge court denies plaintiffs' motion for summary judgment and grants Velez' cross-motion for summary judgment on the Voting Rights Act claim, grants plaintiffs' motion to file a second amended complaint, and denies as moot Velez' cross-motion to vacate or modify the temporary restraining order. *fn3"


 Intervenor-defendant Velez is the Democratic incumbent New York City Councilman representing the 11th Councilmanic District in the South Bronx. He and plaintiff Valentin sought the Democratic nomination for that position on the November 8, 1977 ballot in the primary election, which was held this year on September 8, 1977. As a prerequisite to placement on the primary ballot, a candidate must make a minimum showing of voter support. The showing required in this case was 1500 signatures on designating petitions. The period for collecting these signatures was June 7, 1977 to July 7, 1977.

 Sometime prior to the signature-gathering period, plaintiff Valentin communicated with the City Board of Elections to inquire whether persons registering on the street pursuant to New York's recently enacted mail registration statute, New York Election Law § 153 (McKinney Supp. 1976), could simultaneously sign his designating petitions. *fn4" It is undisputed that he was informed by Ms. Betty Dolan, Executive Director of the City Board of Elections, that street registrants could validly sign a designating petition so long as the registration was stamped in at the City Board of Elections on or before receipt of the designating petition at the City Board. There is also no dispute that Ms. Dolan was convinced that she was giving the correct interpretation of what was permissible under the new mail registration statute and, accordingly, she consistently gave this advice to whoever inquired about petition gathering. *fn5" This advice was also given to candidates, including Valentin, by Ms. Beatrice Berger, Chief Clerk of the Bronx Office of the City Board of Elections. *fn6"

 Valentin followed the instructions of the City Board of Elections with respect to simultaneous signing of mail registrations and designating petitions, collected more than the required 1500 signatures, and submitted the designating petitions to the City Board. On August 1, 1977, the City Board by formal resolution validated Valentin's designating petitions over the objection of Velez that the 343 signatures of street registrants should be invalidated because they "signed before registration" ("SBR's"). *fn7"

 On or about August 1, 1977 a number of suits were filed in New York State Supreme Court by various candidates challenging inter alia the validity of SBR's. On or about August 5, 1977 the City Board of Elections changed its position on the validity of SBR's after being advised by the State Board of Elections that its earlier position was erroneous. *fn8" Thereafter, on August 22, 1977, the State Supreme Court invalidated the 343 SBR's on Valentin's designating petitions. Velez v. Board of Elections and Valentin, 59 A.D.2d 513, 397 N.Y.S.2d 907 (Sup. Ct., Bx. Co.). That brought Valentin below the 1500 required signatures; the State Court therefore directed that Valentin's name be removed from the primary ballot. *fn9"

 The Court's decision regarding the SBR's was based on its adoption of the report of Special Referee Lloyd I. Paperno. That report had concluded that the interpretation of the mail registration statute which Dolan and Berger had been publicly disseminating "would not be binding upon the court in any event inasmuch as they pertain to the interpretation of the statute." *fn10" Similarly, in the related case of Cartagena v. Board of Elections, Index No. 14489/77 (Sup. Ct., Bx. Co.), Justice William P. McCooe concluded, in a decision dated August 22, 1977, that the oral opinion of the Executive Director of the City Board of Elections was of no force and effect for two reasons. First, he concluded that the oral advice was inconsistent with Sections 153(7) *fn11" and 135 *fn12" of the New York Election Law which he construed to require that the signatory actually be enrolled as a voter at the time of signing the designating petition. Second, he concluded that the oral advice, in addition to being wrong, was unauthorized because only the State Board of Elections is authorized to make regulations *fn13" and such regulations have force and effect only when written and filed with the Secretary of State. *fn14"

 On August 25, 1977, the Appellate Division, First Department, unanimously affirmed without opinion the Supreme Court determination. The New York Court of Appeals denied leave to appeal on August 30, 1977. Valentin has appealed to the United States Supreme Court.


 Plaintiffs commenced this suit by bringing on an order to show cause before Judge Ward, to whom the case was assigned, on Friday, September 2, 1977, to restrain the City Board of Elections from removing the names of Valentin, Calvin Williams, and Salvador Cartagena from the ballot. The entire afternoon was devoted to argument on that application, which was on notice to the members of the City Board of Elections, the only defendants at that point. *fn15" At the argument, the City Board was represented by counsel to the Board of Elections and an Assistant Corporation Counsel. Ms. Dolan, and her assistant, Mr. Danny DiFrancisco, were also present.

 The theory advanced by plaintiffs at that time was that the New York courts' invalidation of the SBR's of Valentin, Williams and Cartagena resulted in non-compliance with § 5 of the Voting Rights Act and, therefore, the invalidation must be enjoined. Section 5 of the Voting Rights Act, which concededly applies to Bronx County, renders unenforceable "any voting qualification . . . or standard, practice or procedure with respect to voting" different from that in force and effect in Bronx County on November 1, 1968, unless it has previously been approved by the United States Attorney General or the Attorney General has failed to act within 60 days after submission to him, or unless in a suit brought by the State or subdivision a United States District Judge for the District of Columbia has issued a declaratory judgment that such change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." *fn16" Plaintiffs argued primarily on the basis of Perkins v. Matthews, 400 U.S. 379, 27 L. Ed. 2d 476, 91 S. Ct. 431 (1971) and Allen v. State Board of Elections, 393 U.S. 544, 22 L. Ed. 2d 1, 89 S. Ct. 817 (1969), that the advice given by the City Board of Elections constituted a qualification, standard, practice or procedure and that the New York courts' interpretation of the Election Law changed the qualification, standard, practice or procedure previously adopted by the City Board of Elections. It followed, they argued, that the decision of the New York courts constituted a new qualification, standard, practice or procedure requiring pre-clearance by the Attorney General or by a declaratory judgment from a federal district judge in the District of Columbia. Until such pre-clearance was obtained, they argued, the change was unenforceable.

 The § 5 argument raised by plaintiffs was not free from doubt, but appeared to Judge Ward to raise serious questions going to the merits in the light of the broad pronouncements of Allen and Perkins, supra. Further, Judge Ward believed that plaintiffs demonstrated a clear showing of irreparable harm and a balance of hardships tipping decidedly in their favor, cf., Sonesta International Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir. 1973), insofar as the cost of reinstating Valentin, Williams and Cartagena on the ballot at that point was de minimus when compared with the injury the City, Valentin, Williams, Cartagena, and the voters would suffer if this Court were to determine sometime later that the candidates should not have been removed from the ballot. The remedy in the latter case would in all likelihood have been a new primary, see Starr, Federal Judicial Invalidation as a Remedy for Irregularities in State Elections, 49 N.Y.U.L. Rev. 1092 (1974), which would have involved added costs and inconvenience to the City and candidates, and which would have been inadequate in that it could not have duplicated the circumstances which existed on the original primary date. Furthermore, Judge Ward believed that granting the restraining order would not prejudice the opposing candidates because if Williams, Cartagena and Valentin were defeated this action would be moot; if any of them won there would be ample opportunity for this Court to examine the merits further, if necessary, and to order appropriate remedial measures. Accordingly, at 5:40 P.M., Judge Ward signed the temporary restraining order.

 On September 6, 1977, attorneys for the opposing candidates moved before Judge Vincent L. Broderick, in Part I, to intervene in this suit and to vacate the temporary restraining order. *fn17" Judge Broderick granted the motions for intervention and denied the motion to vacate the restraining order. On September 8, Valentin defeated Velez by a margin of less than 2%.

 Four days later, on September 12, Velez filed a cross-motion to vacate or modify the temporary restraining order and the Court heard counsel for plaintiffs, the City Board of Elections, and the intervenor candidates argue the question of whether a three-judge court must be convened pursuant to 42 U.S.C. § 1973c to decide if the alleged change in qualification, standard, practice or procedure was covered by § 5 of the Voting Rights Act. See United States v. Board of Supervisors, 429 U.S. 642, 51 L. Ed. 2d 106, 97 S. Ct. 833 (1977) (per curiam); Perkins v. Matthews, 400 U.S. at 383-87; Allen v. State Board of Elections, 393 U.S. at 559. At that time the Court suggested that the State of New York, which under 28 U.S.C. § 2284 was required to be notified of this suit, might want to intervene as a defendant. It has done so.

 On September 16, the United States of America submitted an amicus curiae brief taking the position that the decision of the New York courts was subject to the § 5 requirement of federal pre-clearance. At that time Judge Ward also heard further argument from all parties on the question of whether to convene a three-judge court. Following the argument, Judge Ward announced that he would formally request that a three-judge court be convened and, on October 3, 1977, the Chief Judge of the Court of Appeals signed an order convening a three-judge court. The panel heard argument on the applicability of § 5 on October 12, 1977.


 Voting Rights Act Claim

 Assuming that the conduct of the City Board of Elections here amounted to a qualification, standard, practice or procedure with respect to voting, *fn18" this three-judge court is of the view that § 5 was not intended to cover a change in such a qualification, standard, practice or procedure brought about by a state court decision construing or interpreting an already pre-cleared state voting statute. This holding is based on judicial precedent, the text of the statute and its legislative history and strong policy considerations.

 Plaintiffs and the Government amicus rely on City of Richmond v. United States, 422 U.S. 358, 45 L. Ed. 2d 245, 95 S. Ct. 2296 (1975); Perkins v. Matthews, supra ; and Citizens Committee to Oppose Annexation v. City of Lynchburg, 400 F. Supp. 68 (W.D. Va.), aff'd in part and vacated in part, 528 F.2d 816 (4th Cir. 1975), injunction denied, 423 U.S. 1043, 46 L. Ed. 2d 632, 96 S. Ct. 766 (1976), for the proposition that court decrees are subject to review under § 5.

 The Court believes that the cases cited do not warrant the broad reading plaintiffs give them. With respect to City of Richmond, Perkins and City of Lynchburg, plaintiffs fail to recognize that the real concern was with what change had been effected, i.e., enlargement of municipalities by annexation. Thus, Perkins held, and City of Richmond and City of Lynchburg followed the holding, that annexations constitute a standard, practice or procedure with respect to voting. However, those cases were not directly concerned with, and consequently did not specifically speak to, how the change -- the annexation -- was brought about. Thus, the courts did not hold that court decrees per se are, or are not, subject to § 5.

 Moreover, that there was court involvement in those cases is of no precedential value here inasmuch as the court involvement in those cases is readily distinguishable from the involvement of the New York courts in this case. For example, in Perkins there was a Mississippi statute which provided that before a municipality could expand or contract its corporate limits it must petition the Chancery Court where any party in interest may object and litigate his objections. 301 F. Supp. 565 at 567 n.3 (S.D. Miss. 1969). Since an annexation took place in Perkins, presumably it was pursuant to court order. Thus, the court could be considered to have participated in the annexation. Cf., Shelley v. Kraemer, 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 836 (1948). Similarly, in City of Richmond and City of Lynchburg there was a Virginia statute permitting municipal annexations only upon obtaining a favorable judgment from a specially constituted three-judge annexation court determining that specified statutory standards had been satisfied. 422 U.S. at 362; 400 F. Supp. at 71 n. 2, 75.

 Clearly these "annexation courts" were not acting in a strict judicial capacity, e.g., construing statutes, but were acting in a quasi-legislative or quasi-executive capacity, advising on, approving, implementing or vetoing legislation. See generally Comment, The State Advisory Opinion in Perspective, 44 Fordham L. Rev. 81 (1975). Inasmuch as the state courts in the instant case acted in a strict judicial capacity in simply construing a pre-cleared state statute -- and were not even enforcing an unsubmitted statute -- it is apparent that the annexation cases relied upon by plaintiffs and the Government amicus are readily distinguishable, if not sui generis.

 Plaintiffs, in addition, rely on Allen v. State Board of Elections, supra, for the broad proposition that every change in practice is covered by § 5 irrespective of how that change was brought about. They cite the change that occurred in Allen as an example of the breadth of § 5's application. That change was brought about by a bulletin issued by the Virginia Board of Elections to all election judges in an attempt to modify the statutory practice. Since the change was caused by administrative rather than judicial action, that illustration lends no support to plaintiffs' position. Furthermore, the broad language plaintiffs quote from Allen evidences a concern with administrative and legislative action, not court decrees. *fn19" This is understandable in view of the fact that the Court was faced only with legislative enactments and administrative regulations. As a result, Allen does not necessarily foreclose application of § 5 to state court decrees; but, on the other hand, it certainly cannot be read to support plaintiffs' contention -- a proposition which was not before it and which involves distinct policy and constitutional considerations.

 Thus, plaintiffs have failed to cite any controlling or persuasive precedent for their position. Furthermore, there is authority to the contrary. Gangemi v. Sclafani, 506 F.2d 570 (2d Cir. 1974); Webber v. White, 422 F. Supp. 416 (N.D. Tex. 1976).

 More importantly, the text of § 5 and what little legislative history there is seems to indicate that the statute was directed against the legislative and executive branches of state governments, and certainly does not indicate that it was intended to cover state court decrees. The statute by its terms applies "[whenever] a State or political subdivision . . . shall enact or seek to administer " a covered qualification, standard, practice or procedure that has not been pre-cleared. Since courts do not "enact or seek to administer," on its face § 5 appears inapplicable to court decrees. Moreover, the legislative history in so many words indicates that this was the intent of the draftsmen: "This section deals with attempts by a State or political subdivision with respect to which the prohibitions of section 4 are in effect to alter by statute or administrative acts voting qualifications and procedures in effect on November 1, 1964." H. Rep. No. 439, 89th Cong., 1st Sess. (1965), reprinted in 1965 United States Cong. Code and Admin. News 2437, 2457-58 (emphasis added). Thus, the text and legislative history of § 5 do not support plaintiffs' contention that § 5 applies to state court decrees. *fn20"

 Most importantly, there are strong policy reasons why state court decrees, as discussed in Webber v. White, supra, should not be covered by § 5. The most important of these considerations is that to hold state court decrees per se subject to § 5 would mean that the State executive could be required to collaterally support, in a federal district court in a foreign forum, innumerable state court rulings, with which the executive might not even agree and which resulted from purely private suits. The Court believes that such a requirement would pose at the very least serious problems of comity, if not constitutionality. See Webber v. White, supra.

 For all the foregoing reasons, this Court holds that § 5 was not intended to apply to state court decrees which simply construe an already pre-cleared statute.

 Perhaps in anticipation of this ruling plaintiffs filed a first amended complaint in which they alleged that it was the City Board of Elections' August 5, 1977 change in position as well as the court decrees which constituted the change that brought about the new qualification, standard, practice or procedure. They alleged that the City Board's change of position, which occurred after the City Board had validated Valentin's petitions and while the matter was pending in State Supreme Court, was communicated to various judicial officers involved in the invalidation proceedings and influenced the outcome of the State proceedings. These allegations are repeated in the proposed second amended complaint. Assuming the truth of these allegations, the Court holds that they are legally insufficient to state a claim under § 5 of the Voting Rights Act. Plaintiffs clearly do not allege that the courts' construction of the Election Law was arrived at in bad faith, or that the judicial officers conspired, for example, with the City or State Boards of Election, to racially discriminate against plaintiffs. Thus, even assuming the State courts' awareness of the City Board's conferring with the State Board and then changing its position, and assuming that this influenced the judicial officers interpreting the law, it still remains that the practical effect of accepting plaintiffs' position would be to require pre-clearance of a state court decision involving no more than a good faith statutory construction. Since this Court has already held that such a procedure was not contemplated by Congress, it will not compel this result under the guise of plaintiffs' "new theory."

 There being no genuine issues of material fact, see Rule 56, Fed. R. Civ. P.; Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975), summary judgment on the Voting Rights Act claim is granted in defendants' favor.

 Motion to Amend

 Plaintiffs, following a suggestion made by the panel at oral argument, seek leave under Rule 15(a), Fed. R. Civ. P., to serve and file a second amended complaint to add a claim under 42 U.S.C. § 1983 for deprivation without due process of their respective rights to vote and to appear on the ballot. *fn21" It is well settled that "leave of court shall be freely given when justice so requires." Rule 15(a). The rights which plaintiffs claim were infringed are so fundamental that it is clearly in the interests of justice to permit these claims to be adjudicated in this suit. Therefore, absent prejudice to defendants, the Court would be inclined to grant the motion to amend.

 No objections to this amendment have been interposed by the defendant City Board of Elections or by the intervenor-defendant State of New York. However, intervenor-defendant Velez objects on the grounds that the amendment is futile and will cause delay, to his prejudice, and raises various defenses going to the merits.

 The Court believes that it is premature to address the merits or Velez' defenses. At this point, however, it is prepared to rule that plaintiffs' § 1983 claim is not so insubstantial that the Court can conclude that the amendment would be futile. As to delay, it is true that the amendment will delay the disposition of this case. However, when due process allegations are made, seriously challenging the invalidation of a candidate's nominating petitions and raising doubts, if not suspicions, as to the integrity of an election, it is this Court's duty to act, even if some delay attends. This is particularly true when the prejudice, if any, to Velez still can be remedied by a court order setting aside the election and ordering a new election between Velez and the other party candidates, should Velez ultimately prevail on the merits. See Starr, Federal Judicial Invalidation as a Remedy for Irregularities in State Elections, 49 N.Y.U.L. Rev. 1092 (1974). See also Developments in the Law -- Elections, 88 Harv. L. Rev. 1111, 1298-1339 (1975). Accordingly, the motion to amend is granted. Plaintiffs are granted leave to serve and file the second amended complaint within ten days of the date of this decision.

 The three-judge court having been convened pursuant to 42 U.S.C. § 1973c and 28 U.S.C. § 2284 to hear the Voting Rights Act claim, and that claim having been disposed of by summary judgment in defendants' favor, the statutory three-judge court is hereby dissolved and the § 1983 claim alleged in the second amended complaint is remanded to the single district court judge to whom this case is assigned.

 It is so ordered.

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