The opinion of the court was delivered by: SOFAER
Plaintiff George W. Miller was an unsuccessful candidate for the assembly seat in New York's 71st Assembly District ("the district"). Dissatisfied with the manner in which the Board of Elections conducted the primary and general elections, and denied relief by the courts of New York, plaintiff alleges various violations of the Voting Rights Act of 1965, 42 U.S.C. §§ 1971 to 1973bb-4 ("the Act"), and of other federal statutory and constitutional provisions. His claims purport to rest in part upon section 5 of the Act, 42 U.S.C. § 1973c, and he requests that a three-judge court be convened to adjudicate those claims. Because the section 5 claims are insubstantial and meritless, the request is denied, and those portions of the complaint are dismissed.
I. Background and Allegations
Plaintiff was the incumbent Assemblyman in the 71st Assembly District, located in Harlem. In the Democratic Party primary for that seat held on September 9, 1980, plaintiff ran against defendants Daniels, Davis, and Gadsden. All four of the candidates were black. Defendant Daniels won the Democratic nomination; plaintiff later won the Republican nomination. The general election was held on November 4, 1980, and Daniels was elected, by a margin of four to one.
After the primary, but before the general election, plaintiff petitioned the New York Supreme Court (New York County) to overturn the Democratic primary result because of voting irregularities. The Court assigned the case to a referee. The referee held hearings on plaintiff's allegations and ruled that plaintiff had failed to establish even half of the number of irregularities necessary to impugn the integrity of the election under New York law. The Supreme Court confirmed the referee's recommendation and dismissed the petition. The Appellate Division (First Department) and the Court of Appeals each unanimously affirmed that dismissal. Associate Justice Thurgood M. Marshall denied interim relief.
Over one month after the general elections, plaintiff filed the complaint in this action. He sues in his own behalf and as the representative of various putative classes. Named as defendants are the successful candidate (Daniels), the two other candidates in the Democratic primary, and the Members of the New York City Board of Elections ("the Board").
On December 30, 1980, plaintiff moved for a temporary restraining order to prevent defendant Daniels from assuming her seat on January 1. In a memorandum and order issued on December 31, this Court denied that motion because plaintiff had failed to establish a likelihood of success on the merits, irreparable injury, or a balance of hardships tilting in his favor. Defendants thereafter moved to dismiss the complaint for lack of subject-matter jurisdiction, Fed.R.Civ.P. 12(b)(1), but that motion is not yet ripe for decision.
The issue presently before the Court whether a three-judge court should be convened to hear plaintiff's section 5 claims requires a rather detailed recitation of his allegations. The complaint consists of four counts. Count one involves three aspects of defendants' voter-registration practices. First, New York Election Law § 5-406 requires the Board to strike the registration of persons who did not register, have their registration reinstated, or vote in at least one election during the preceding two years. Complaint para. 9. Plaintiff alleges that 2,000 persons in the 71st Assembly District who met that requirement were improperly stricken from the rolls, id. para. 11, and that 1,000 persons who failed to meet that requirement were not stricken, id. para. 12. Second, Election Law §§ 5-102, 5-712 require the Board to strike the registration of voters who are not resident at their recorded addresses thirty days prior to the election. Id. paras. 13-15. Defendants purportedly allowed 2,500 persons in the district to remain on the list even though cards mailed to their recorded addresses were returned as undeliverable. Id. para. 16. Third, Election Law §§ 5-200, 5-202 set deadlines after which new voters may not be registered. Defendants allegedly registered 10,000 persons in the district after those deadlines and prior to the general election. Id. para. 17. Plaintiff alleges that these various actions violated the Equal Protection Clause, 42 U.S.C. § 1983 ("section 1983") and 42 U.S.C. § 1971(a)(2)(A) ("section 1971(a)(2)(A)"). Id. para. 18.
Count two involves two aspects of the Democratic primary election. First, plaintiff alleges that the Board violated Election Law §§ 8-302, 8-304 by allowing persons in the district who were not members of the Democratic Party to vote in its primary. Id. para. 23. In the September 9 election in which plaintiff lost to defendant Daniels, 500 non-party members allegedly voted in the Democratic primary, id. para. 25; fifteen percent of the voters in the March 25, 1980 Democratic presidential primary allegedly were not enrolled in the party, id. para. 24. Second, in violation of the two-year rule discussed above (Election Law § 5-406), defendants allegedly permitted 6,000 persons who should have been stricken from the list to vote in the presidential primary, and 2500 to vote in the September 9 primary; these persons were removed from the rolls prior to the general election. Id. para. 26. These actions are said to violate the Equal Protection Clause, section 1983, and section 1971(a)(2)(A). Id. para. 27.
Count three involves four aspects of the Board of Elections' tabulation of votes. First, plaintiff alleges that voting machines in the district regularly record vote totals in excess of the number of voters that sign in. Id. para. 32. Second, election inspectors in the district certify returns that are left blank and later completed by other persons; in the September 9 primary, one-fourth of the returns in the district were certified even though blank, and they were never completed. Id. para. 33. Third, although Election Law § 9-124 requires the Board to declare the election results within 120 hours after the polls close, defendants do not declare the outcome in elections in the district for eleven to fourteen days. Id. para. 34. Fourth, although candidates must challenge voting irregularities within fourteen days after the polls close, defendants delay publication of the results and access to voting records, thereby vitiating candidates' right to protest irregularities. Id. para. 36. These actions purportedly violate the Due Process Clause, the Equal Protection Clause, section 1983, section 1971(a)(2)(A), and section 5 of the Act. Id. para. 42.
The fourth count appears to allege a conspiracy to evade the Act. Plaintiff states that, despite a decrease in the district's population, the number of registered voters has increased. Id. paras. 43, 46. He alleges that defendants have falsified voting records to escape the section 5 trigger and to facilitate voter manipulation. Id. para. 47. Plaintiff claims that the will of the majority no longer controls elections in the district, id. para. 48, and he attributes the situation to racial discrimination against a black and Hispanic district, id. para. 49.
Plaintiff prays for various types of declaratory and injunctive relief, including nullification of the elections that he lost and an order requiring new elections to be held. Id. para. 53.
The only allegations in the complaint relevant to the convening of a three-judge court are those that implicate section 5. Plaintiff appears to allege that the violations recited in the complaint involve changes covered by section 5, and that those changes have not been precleared pursuant to the statutory procedures.
Assuming for present purposes that the acts complained of were not in effect on November 1, 1968,
the issue is whether those acts are changes within the meaning of section 5.
II. The Three-Judge Court and Section 5
Section 5 of the Voting Rights Act provides in pertinent ...