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March 18, 1980

GREGORY W. FAULKNER and CARMEN I. RODRIGUEZ, Plaintiffs, against ANTHONY SADOWSKI, FRANK X. GARGIULO, JAMES F. BASS, ROBERT S. BLACK, HERBERT J. FEUER, MATTEO LUMETTA, JOSEPH J. PREVITE, MARTIN RICHARDS, ALICE SACHS, and SALVATORE SCLAFANI, Commissioners of the Board of Elections in the City of New York, as Members of, and constituting, the said Board of Elections, Defendants, and PETER FONTANES and LANA CONOR, Intervenor-Defendants.

The opinion of the court was delivered by: WARD

Plaintiffs brought this action against the Commissioners of the New York City Board of Elections ("the Board") alleging that in violation of 42 U.S.C. § 1983 the Board deprived them of their due process right to appear on the September 11, 1979, primary election ballot as candidates for Assembly District Leaders in part D of the 71st Assembly District. Peter Fontanes and Lana Conor, who would have opposed plaintiffs in the September 11th primary, intervene as defendants. Intervenors contend that plaintiffs' complaint fails to state a claim upon which relief can be granted and move to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., or in the alternative for summary judgment pursuant to Rule 56, Fed.R.Civ.P. Defendants join in intervenors' motion. Plaintiffs cross-move for summary judgment, seeking injunctive relief in the form of a new primary election.

On September 6, 1979, after granting intervenors' motion to intervene, the Court denied plaintiffs' application for a temporary restraining order. The order, if granted, would have placed plaintiffs' names on the September 11th primary ballot. At a subsequent appearance on September 21, 1979, the parties advised the Court that they would stipulate to an agreed statement of facts and file cross-motions for summary judgment. However, no agreed statement of facts has been filed, and the record discloses that material facts remain in issue. Accordingly, both motions for summary judgment are denied. *fn1"

 Section 6-136(2) of the New York Election Law requires that a petition designating a candidate for party nomination at a primary election

. . . be signed by not less than five per centum, as determined by the preceding enrollment, of the then enrolled voters of the party residing within the political unit in which the office or position is to be voted for, provided, however, that for the following public offices the number of signatures need not exceed the following limits: . . .
(i) For any office to be filled by all voters of any assembly district, five hundred signatures.

 Plaintiffs filed designating petitions containing 672 signatures. The Board conducted a hearing at which it considered the objections to plaintiffs' petitions filed by intervenor Conor. After finding 387 of the signatures valid, the Board determined that plaintiffs had obtained valid signatures of the required five percent of the enrolled Democrats and validated the petitions.

 However, in a further attempt to invalidate plaintiffs' designations, intervenor Conor brought an action in the New York State Supreme Court, New York County. A special referee appointed by the state court, after conducting an evidentiary hearing, found that 318 of the 672 signatures were valid. During the course of this hearing a question apparently arose as to the precise number of valid signatures plaintiffs needed to attain the five percent minimum required by Election Law § 6-136. According to the parties here, a Board representative in attendance at that proceeding testified that 314 signatures were necessary. The parties apparently agreed to this figure. Finding, then, that plaintiffs had secured 318 valid signatures and that 314 signatures were required, the special referee reported to the court that plaintiffs' designating petitions were valid. The referee's report was confirmed.

 Intervenor Conor appealed this decision to the Appellate Division of the New York Supreme Court. The Appellate Division, reviewing the matter de novo, reconsidered the validity of the signatures on plaintiffs' petitions and found only 309 signatures were valid. Apparently relying on the requirement of 314 signatures applied below, the Appellate Division reversed and declared plaintiffs' designations invalid.

 After their loss in the Appellate Division, plaintiffs inspected the registration records for part D of the 71st Assembly District. Plaintiffs allege that their inspection revealed only 5560 enrolled Democrats and consequently that only 278 valid signatures were required for designation. Application was made to the state trial court to modify the finding that 314 signatures were required so this would conform to the 278-signature requirement plaintiffs allege was applicable. The trial court refused to modify its findings, apparently on the grounds that plaintiffs' appeal to the Appellate Division had divested it of jurisdiction. Plaintiffs' subsequent appeal to the New York Court of Appeals was rejected on the ground that the Court of Appeals had no jurisdiction to consider questions of fact. This action followed.

 Plaintiffs' contention that they were deprived of their due process right to run for election is based on the claim that the Board misled them when it represented that 314 valid signatures were required for designation. They maintain that, in giving their consent to the 314-signature figure testified to at the hearing before the special referee, they assumed that the Board had complied with its statutory mandate and updated the voter registration lists before considering their petitions. Plaintiffs direct the Court's attention to section 5-406 of the New York Election Law, which in subsections (1) and (2) provides:

1. Beginning the second week in December in each calendar year and ending not later than the third week in the succeeding January, the board of elections shall determine which of the registrants under its jurisdiction had been registered under permanent personal registration throughout the two preceding calendar years and while so registered did not during such two years either vote in at least one general, special or primary election or have his registration reinstated under the procedure hereinafter prescribed in this section.
2. If any such registrant has not voted in at least one general, special or primary election since a previous reinstatement under the procedure of this section, the board shall cancel his registration and shall notify him of such cancellation. The board shall forthwith notify each other such registrant by mail that he has not voted in at least one general, special or primary election within such two year period and that unless he fills out, signs and returns an affidavit request form within three weeks of the date of the postmark on the notification his registration will be cancelled.

 Final cancellation is not effected until the registrant is sent a second notice indicating that he or she has been stricken from the registration list. Celler v. Larkin, 71 Misc.2d 17, 335 N.Y.S.2d 791 (Sup.Ct., Kings Co.) aff'd, 31 N.Y.2d 658, 336 N.Y.S.2d 251, 288 N.E.2d 135 (1972).

 Section 5-604(1) of the Election Law requires the Board to publish a list of registered voters for each election district before April 1st of each year. *fn2" Plaintiffs contend that section 5-406 contemplates that the annual updating of registration lists will be completed by the end of February. They argue that the April 1st list ...

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