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September 8, 1980

William E. ECCLES, Ronald G. King, Uriel Griffin, Louis Bowman, Allene Haynes, Shellie D. Anderson, Aljurita D. Smith, Ida M. Scott, Alice Baez, Vernelle B. Albury, Wilma E. Maynard, Sadie Banister, Albert Vann, Annette M. Robinson, on behalf of themselves and others similarly situated, Plaintiffs,
Frank X. GARGIULO, James F. Bass, Robert S. Black, Hector Diaz, Matteo Lumetta, Joseph J. Previte, Martin Richards, Alice Sachs, Anthony Sadowski, and Salvatore Sclafani, Commissioners of Elections of the City of New York in their capacity as the Board of Elections in the City of New York, Defendants

The opinion of the court was delivered by: NEAHER

Plaintiffs in this action are candidates for public and Democratic Party offices, and persons representing the class of those who signed petitions on behalf of these candidates, whose names have been stricken by defendants from the ballots of the primary election scheduled to be held September 9, 1980, in the 56th Assembly District, Kings County. Defendants are the Commissioners of Election of the City of New York (hereinafter "Board of Elections"). Claiming a violation of the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq., as amended (the Act), and a violation of their rights to due process and equal protection, plaintiffs seek an order directing that the stricken names be restored to the ballot or, in the alternative, an order enjoining the holding of the primary until a three-judge court may hear the merits of the action.

The Voting Rights Act, as applied to New York State by a determination of the United States Attorney General, 35 Fed.Reg. 12354, July 24, 1970, comes into play

"whenever (the) State or political subdivision ... shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different to that in force or effect on November 1, 1968, ...." 42 U.S.C. § 1973c.

 Under the Act, before the State or subdivision may deny anyone the right to vote for failure to comply with the post-1968 procedure, it must obtain from the United States District Court for the District of Columbia

"a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure 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, ...." Id.

 Alternatively, the new procedure may be enforced if it has been submitted to the Attorney General and he does not interpose an objection within sixty days. Id. Actions under § 1973c may be heard before a three-judge court in accordance with 28 U.S.C. § 2284. Id.

 It is plaintiffs' basic claim that the actions of defendants voiding their petitions on the basis of fraud and removing the names of plaintiff candidates from the primary ballots constituted a change in election procedure since 1968 that has been approved by neither the District Court for the District of Columbia nor the Attorney General, in violation of 42 U.S.C. § 1973c. However, for the reasons which follow, the court is of opinion that it lacks jurisdiction to grant the relief plaintiffs seek and the complaint must consequently be dismissed.

 Although severe time constraints imposed by the imminence of the primary have deprived the court of a fully developed record, the following facts are taken to be not seriously in dispute from the papers submitted and representations of counsel made at argument on the application for preliminary relief.

 Plaintiff Albert Vann, a black citizen, is seeking to contest the nomination of the regular Democratic Party's choice for the office of Assemblyman representing the 56th Assembly District in the County of Kings as well as Male Member of the Democratic State Committee from that District. His co- plaintiffs, also black citizens, are seeking various party offices and support Mr. Vann in his effort. All plaintiffs claim to represent a class of over 3,000 registered voters who also support Mr. Vann and his co-plaintiffs for the offices they seek. Designating petitions were printed and circulated in behalf of the named plaintiffs and others and some 3,000 signatures were obtained in time for filing as required by law. The Board of Elections initially accepted them as in conformity with legal requirements.

 Thereafter, a proceeding was brought in the Supreme Court, Kings County, by petitioners Amitah Fisher and Greer Peacock, also black citizens, acting on behalf of nominees opposed to plaintiffs and naming as defendants Albert Vann, Annette Robinson and others who are plaintiffs in this action. The State court petitioners asserted claims of fraud in the nominating petitions presented by these plaintiffs in that (1) persons named for party posts had not consented to the use of their names, and (2) the petitions bore dates of signing that antedated the dates when the blank petitions were printed.

 The Supreme Court, following extensive testimony and examination of documents, found several of plaintiffs' petitions to be fraudulent based upon two independent types of impropriety. First, the court found taint in the appearance on the petitions of the names of persons who in fact had never consented to their being listed as candidates. This finding was in accordance with the view of the New York courts that presumes that voters are deceived by this device into believing that the non-consenting persons have purposefully lent their names and support to the other persons on the petition. Application of Maisel, 23 N.Y.S.2d 420 (Sup.Ct., Kings County, 1940); Richardson v. Luizzo, 64 A.D.2d 942, 408 N.Y.S.2d 532 (App.Div.2d Dept.1978). The courts of New York have applied this rule in numerous instances both before and since the passage of the Act. See, e.g., Application of Maisel, supra; Richardson v. Luizzo, supra. See also Matter of Lutfy v. Gangemi, 35 N.Y.2d 179, 359 N.Y.S.2d 273, 316 N.E.2d 710 (1974).

 Secondly, the Supreme Court found many of plaintiffs' petitions to be fraudulent upon determining that numerous signatures had in fact been pre-dated. This practice has also been long considered by the New York courts to be a species of fraud. See, e.g., Collins v. Heffernan, 187 Misc. 165, 63 N.Y.S.2d 692 (Sup.Ct., N.Y.County, 1946).

 Although the Supreme Court found fraud in the petitions for only some of the 59 election districts within the 56th Assembly District, since all of plaintiffs' petitions for the Assembly District had been bound together, as permitted by N.Y. Election Law § 6-134, the court apparently determined that the taint permeated the entire set of petitions for the Assembly District and ordered defendants to disqualify the whole "petition," thereby requiring the invalidation of plaintiffs' candidacies.

 It is manifest that although defendant Board of Elections took the ministerial action of disqualifying plaintiff candidates, they acted upon an express direction of the New York Supreme Court following the hearing above-mentioned. Indeed, it appears that the Board of Elections has no authority to rule on a question of fraud (Mulhearn Aff., dated September 5, 1980, at 2-3); and ...

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