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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 ...

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