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August 13, 1985


The opinion of the court was delivered by: BRIEANT


Brieant, Judge.

 Plaintiffs, suing in behalf of a class consisting of all present and/or potentially eligible Black and Hispanic voters residing in New York City, seek injunctive and declaratory relief holding that New York, seek injunctive and declaratory relief holding that New York Election Law § 6-162 violates the United States Constitution, the Voting Rights Act, 42 U.S.C. § 1973, and the Civil Rights Act, 42 U.S.C. §§ 1981, 1983. The challenged New York statute is a run-off primary law, applicable only to the City of New York and there only to the three city-wide offices. It states in full:

"In the city of New York, when no candidate for the office of mayor, city council president or comptroller receives forty per cent or more of the votes cast by the members of a political party for such office in a city-wide primary election, the board of elections of such city shall conduct a run-off primary election between the two candidates receiving the greatest number of votes for the same office."

 This statute was enacted originally in 1972 and made applicable to cities with a population of one million or more. New York is the only such city. In 1976 and 1978 the state legislature amended the statute to read as quoted above. In every other city in the state, and in elections for noncity-wide offices in New York City, New York Election Law § 6-160 applies. It provides that in any contested primary, whoever wins the most votes becomes the party nominee.

 Since 1972, a total of three run-off primary elections have been held in New York City pursuant to the statute. All were held for the Democratic Party. Two run-offs were for the mayoral nomination and the third was for nomination for the office of City Council President.

 Plaintiffs Calvin O. Butts and Digna Sanchez are representatives of a class consisting of all present and/or potentially eligible Black and Hispanic voters residing in New York City. This action was certified as a class action pursuant to Rule 23, F.R.Civ.P., following a February 11, 1985 hearing at which this Court made oral findings. Adequate notice of the pendency of the class action was published; no plaintiff class members requested exclusion.

 As originally filed on October 15, 1985, this action named the State of New York and its Governor as defendants. On December 21, 1984 the Attorney General of New York submitted a consent order dismissing the State and the Governor as defendants. This was proper. On January 3, 1985, the Clerk of the Court provided statutory notice, required under 28 U.S.C. § 2403(b), informing the Attorney General that plaintiffs here challenge the constitutionality of New York Election Law § 6-162. Since that date the Attorney General has declined to appear or defend the validity of the statute in this Court. See Endorsement Order of January 3, 1985 in this action. *fn1"

 This Court conducted a non-jury trial beginning on June 3, 1985 and concluding on June 10, 1985. The parties were permitted to submit post-trial memoranda which have been filed and considered. there follows the Court's findings of the fact and conclusion of law.

 Plaintiffs essentially contend that the run-off primary law infringes upon the constitutional rights of Black and Hispanic voters to equal protection and due process, and that the operation of the run-off statute was intended to and does make it more difficult for a Black or Hispanic candidate to emerge as the party nominee. Plaintiffs offered evidence in support of the theory that the effect of the run-off statute is to give class members less opportunity than other members of the electorate to participate successfully in the electoral process to the extent of nominating members of their class. Defendants claim that the statute has no discriminatory impact on any particular social, racial or ethnic group in New York City.

 As will be anticipated by any reader vaguely familiar with New York City politics, the evidence in this case included animated testimony concerning the recent history of Democratic party affairs, the ever changing atmosphere of race relations in the City, and the recent campaigns of various office seekers. Plaintiffs offered the testimony of three prominent political figures, Herman Badillo, a Hispanic, and Basil Paterson and Percy Sutton, both of whom are Black. Each witness described his personal experience in city-wide election campaigns in terms both vivid and trenchant. In addition, experts appeared for both plaintiffs and defendants to express their opinions from a more academic perspective. The facts which have emerged from the trial testimony and the documentary exhibits are these. In 1973, there were four candidates in the initial primary for Mayor--Mario Biaggi, Albert Blumenthal, Herman Badillo, and Abraham Beame. The percentages of total votes obtained by each of the candidates were: Abraham Beame 34.5% Herman Badillo 29.0% Mario Biaggi 20.5% Albert Blumenthal 16.0% A run-off election was held in which Mr. Beame resoundingly defeated Mr. Badillo, by the following percentages of the total votes cast: Abraham Beame 61% Herman Badillo 39% In 1977, there were seven candidates seeking the Democratic Party nomination for Mayor --Edward Koch, Mario Cuomo, Abraham Beame, Bella Abzug, Percy Sutton, Herman Badillo and Joel Harnett. The results of the initial primary election were as follows: Edward Koch 20.0% Mario Cuomo 19.0% Abraham Beame 18.0 Bella Abzug 16.5% Percy Sutton 14.0% Herman Badillo 11.0% Joel Harnett 1.5%

 Mr. Koch was the winner of the 1977 run-off primary, defeating Mr. Cuomo. He received 55% of the total votes cast. In the third-party run-off primary, held in 1977 for the office of City Council President, the results were as follows. In the initial primary there were five white candidates who received these percentages of total votes cast: Paul O'Dwyer 31% Carol Bellamy 25% Carter Burden 20% Abraham Hirschfield 17% Leonard Stavisky 7%

 Ms. Bellamy won the run-off election with 59% of the vote, defeating the incumbent, Paul O'Dwyer. Ms. Bellamy, who also won the general election, is currently serving as City Council President and is a candidate for the 1985 Democratic nomination for Mayor.

 As can be gleaned from the figures stated above, except for Mr. Badillo, no Black or Hispanic candidate has participated in a run-off primary under this statute. In recounting his political career, Mr. Badillo told the Court that he held his first elective office beginning in 1965 when he served as Borough President of the Bronx. In 1970, Mr. Badillo began the first of four elected terms as a United States Congressman. In 1970 he was elected to Congress as a representative of a tri-borough district covering a portion of the South Bronx, a portion of Manhattan in East Harlem, and Astoria, a portion of Queens. For his second, third and fourth terms he was elected from a Congressional District covering only the South Bronx. In 1969, prior to the adoption of the challenged statute, there was a contested primary for the Democratic nomination for Mayor. Mr. Badillo, the only minority candidate, nearly won. the results were as follows: Mario Procaccino 33% Robert Wagner 29% Herman Badillo 28% James Scheur 5% Norman Mailer 5%

Mr. Badillo testified that:
"The general view of the campaign is that I lost to Mario Procaccino by 38,000 votes, which was astonishing because of the fact that Norman Mailer got about 42,000 votes and Norman Mailer carried -- not carried but got votes in the [Greenwich] Village and other areas which I had done very well in, so it was clear that if Mailer had not been a candidate I would have won the primary.
That was surprising because of the fact that since no Puerto Rican had ever run for citywide office before, people suspected I would only get 5 or 10 percent of the vote. No one thought I would come within that narrow a margin of winning." (Tr. 81).

 The final results of the 1969 general election for Mayor were that incumbent John Lindsay, running that year as an Independent and Liberal party candidate, won in a three way race, receiving about 42% of the total vote. The Democratic nominee, Mario Procaccino, was defeated. The experience of 1969 inspired the enactment of the run-off statute, which was known in Albany legislative circles as the "Badillo bill", or perhaps more properly the "anti-Badillo bill".

 Mr. Badillo made a second try for the mayoral nomination in 1973, after the enactment of the run-off statute, and achieved the second highest percentage of votes cast. According to this testimony, which we consider credible since it can be assumed that a political candidate can and will review and evaluate his own election results with some reasonable degree of accuracy, Mr. Badillo received support from essentially the same groups of voters in 1973 as he had in 1969. That is, most of his votes came from the Bronx, where he had served as Borough President and Congressman, and from "Manhattan and the black, Hispanic and so-called liberal areas of Brooklyn and Queens." (Tr. 79). Mr. Badillo received votes from white voters whom he described as "the liberals which were then known as reformers. . . ." (Tr. 88) This testimony is generally in conformity with the testimony of other witnesses to the effect that there exists a significant constituency of liberal white New York Democratic voters who will support a qualified Black or Hispanic candidate.

 In describing his 1973 campaign experiences, Mr. Badillo provided support for one of plaintiffs' dominant factual arguments underlying their legal theory -- the importance of campaign funding and its enhanced importance during a short run-off campaign period as provided for here. First, Mr. Badillo explained that his political philosophy and platform and indeed that of most minority candidates and those who support them, do not appeal to most wealthy donors or special economic interests because it focuses on "liberal" or redistributive policies such as rebuilding poor areas of the City and developing educational and employment programs for the poor at the expense of and sometimes to the detriment of other interests in the body politic. Mr. Badillo described his campaign as a "street campaign", dependent, not on big money oar big media, but rather upon persona appearances which reach voters without substantial expenditures of money. For example, while campaigning for the Bronx Borough Presidency, Mr. Badillo set as his goal shaking 5,000 hands every weekday and 9,000 hands on Saturdays and Sundays. According to his testimony, "there are two types of campaigns. One is media campaign based on money. The other one is a street campaign based upon your physical presence in the neighborhoods. The media campaign can be a short campaign, and that's what the run-off is geared for." (Tr. 90).

 In addition to testifying that as a representative of minority and poor interests Mr. Badillo did not generally have the support of wealthy campaign contributors, and therefore lacked the ability to purchase radio and television time, Mr. Badillo stated that he also faced difficulty obtaining "free" media coverage. According to this witness, a candidate who tries to call a press conference in a poor urban area, or who wants to talk about problems of the poor at a press conference, does not receive the media attendance enjoyed by conferences held in midtown Manhattan, or the attention paid to other issues. .

 Finally Mr. Badillo described personal experiences in campaign events characterized by their racial tone, which took place during the short 1973 run-off period, but not during the longer initial campaign period. During the 21 day run-off period between the initial primary election on June 4, 1973 and the secondary primary election on June 26, Badillo's opponents distributed literature misrepresenting or emphasizing Badillo's position on issues said to have racial connotations, such as scatter site subsidized housing and employment quotas and busing of students. There were flyers distributed connecting Badillo to "slum country" and to groups perceived as violent such as the Black Panthers and the Young Lords, a Puerto Rican organization which had recently captured and occupied the Lincoln Hospital and a Baptist Church in East Harlem under threat of force.

 This "campaign literature" speaks eloquently as to how a short run-off campaign may be made nasty by direct appeals to racial or ethnic bias. Exhibit 26, used in the run-off is a two-sided flyer or handbill, featuring a picture of slum dwellings, accompanied by the caption "This is the Bronx Herman Badillo helped to build. Don't let him do this to New York." The reverse side of Exhibit 26 states: "Elect Abe Beame, a Mayor for all the people on June 26. Our last chance to save New York City."

 Exhibit 27 used also in the 1973 run-off is a flyer printed both in Italian and English which states:

"If you don't vote for Abe Beame on Tuesday, blame yourself on Wednesday. Abe Beame's opponent supports . . .scatter-site housing. . .busing. . .quotas in hiring and education. . .[and] Abe Beame's opponent is supported by the Black Panthers and Young Lords."

 According to the witness, Badillo, Exhibit 27 was distributed in Italian-American neighborhoods in New York City, and was designed to frighten such residents into voting for Beame in the run-off to protect their neighborhood and life style. (Tr. 107). An examination of this exhibit would seem to indicate on its face that it was printed with the run-off primary in mind, and after the field had narrowed to two candidates. It is probably insignificant whether the flyer contained patently false statements as to Mr. Badillo's actual position on any particular issues. He testified, however, that his true position was well publicized through debates with other candidates and news coverage insofar as concerns issues such as busing and quotas. Although in favor of busing he had never endorsed quotas and has always supported the merit system of job employment. (Tr. 107, 114) Whether completely false or only partly false the campaign literature used in the run-off primary contains rather unsubtle racial appeal aimed at misleading white voters who are against quotas in hiring and education and constitutes a rather naked appeal to the racial prejudice which many majority voters are reliably believed to possess. (See Tr. 55-61).

 We do not suggest that this leaflet or any of the similar materials presented at trial were actually the work of Abraham Beame, or persons acting with his authority. Mr. Beame is generally perceived to be of moderate political views and indeed was described at trial as being essentially a "technocrat". This point itself is of significance, however, because in a short run-off campaign it is possible for the question of the authenticity of a particular statement to be fudged until after the election is over. In a lengthy campaign, such as the ordinary primary contest, unfair appeals to racial bias are generally counter productive because they can be investigated, exposed and criticized; but in the short period of a run-off this usually cannot be done and an unauthorized blow strikes just as hard as one which was issued with authority.

 Exhibit 29 is essentially in the same vein. It is a paid political advertisement in a local Brooklyn newspaper, The Canarsie Courier, which appeared five days before the Beame-Badillo run-off election. This advertisement falsely describes Badillo as a supporter of "a quota system rather than a merit system" and represents Mr. Badillo as associated with on Luis Fuentes, a Puerto Rican school district official who had been involved in a recent dispute concerning the affairs of a community school district in Manhattan's Lower East Side, which dispute had negative racial or ethnic overtones.

 Exhibit 30 calls on voters to "Vote for Beame on June 26, 1973. Vote as if your life depends on it, because it does. He will save New York City." This piece of literature, an advertisement in The Jewish Press, dated Friday, June 22, 1973, was, according to the witness, also an appeal to prejudice made during the run-off campaign period:

"Q. The phrase that to "vote as if your life depends on it, because it does," what did you take that to mean?
A. An appeal to racism. An appeal to threaten the life style of the Jewish community if they were to vote for me, and therefore it was an appeal for jewish people to vote for Abe Beame on the grounds that he would preserve that life style, and I wouldn't which of course is absolutely false." (Tr. 116).

 Exhibit 31 is a phony page from a non-existent newspaper, "The Brooklyn News", also dated during the run-off period. This piece of literature contains statements such as "Badillo wants Forest Hills type projects throughout the city except where he lives." At the time there was a public controversy over a proposal to erect subsidized "scatter-site" housing in a luxury neighborhood. It also features a photograph of slums with the label, "Badillo Country."

 In addition to the literature distributed during the 1973 run-off period, Mr. Badillo testified that his opponents devised another novel tactic, a flatbed truck carrying a group of Black and Hispanic bongo drum players, reportedly playing drums from ten o'clock at night until one o'clock in the morning while driving through white, residential areas of Brooklyn, the Bronx and Queens, and saying "Vote for Badillo so we can take over City Hall." Mr. Badillo testified that an investigative reporter for the weekly newspaper Village Voice, tagged the flatbed truck "the Stanleymobile" because the idea was said to have originated with Stanley Steingut, then Speaker of the Assembly and also chief sponsor of the bill which became N.Y. Election Law § 6-162. (Tr. 96). *fn2"

 In Mr. Badillo's opinion racial appeals to voters are only effective in New York during a one to one campaign:

"The first primary, there were four people involved, and since nobody knew who was going to come off first or second, if I had been eliminated there would be no need for it. This material was obviously held in the event that I would come out first or second in the first primary, because this is what is called negative campaigning. Negative campaigning, any media person will tell you, is most effective in one to one campaigning. It is not effective where ...

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