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Butts v. City of New York

December 13, 1985

REVEREND CALVIN O. BUTTS, III AND DIGNA SANCHEZ, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLEES,
v.
CITY OF NEW YORK, NEW YORK CITY BOARD OF ELECTIONS, ELECTION COMMISSIONERS MATTEO LUMETTA, FERDINAND C. MARCHI, ROSEMARY A. MILLUS, JOSEPH J. PREVITE, MARTIN RICHARDS, JAMES S. BASS, ALICE SACHS, ANTHONY SADOWSKI, BETTY DOLEN, EXECUTIVE DIRECTOR, ROBERT S. BLACK, PRESIDENT, AND ORLANDO VELEZ, SECRETARY, DEFENDANTS-APPELLANTS



Appeal from judgment of the District Court for the Southern District of New York, Charles L. Brieant, Jr., Judge, permanently enjoining defendants from giving effect to the primary run-off provision of the New York Election Law. Judgment reversed with direction to dismiss the complaint.

Author: Lumbard

Before: LUMBARD, OAKES and NEWMAN, Circuit Judges.

LUMBARD, Circuit Judge:

The City of New York appeals from a judgment entered by Judge Brieant (S.D.N.Y.) following a bench trial, declaring that New York Election Law § 6-162 violates both the Equal Protection Clause of the fourteenth amendment to the U.S. Constitution, and Section 2 of the Voting Rights Act, 42 U.S.C. § 1973.*fn1 Judge Brieant's order permanently enjoined the City from giving effect to § 6-162, more commonly known as the "primary run-off law." See 614 F. Supp. 1527, 1556. The City argues, first, that the district court clearly erred in finding that § 6-162 was enacted with a racially discriminatory purpose; and that therefore there is no Equal Protection violation. Second, the City argues that the district court's finding of discriminatory effect sufficient to constitute a violation of the Voting Rights Act rests both on clearly erroneous factual findings, and on misapplication of legal standards. Because the records shows that the primary run-off law was never intended to deny minority voters--and does not have the effect of denying them--an equal opportunity to participate in the political process, we reverse.

BACKGROUND

Political observers are agreed that the adoption of the run-off law was prompted by the unusual results of the 1969 New York City mayoral election. In the Democratic primary that year, two candidates--Herman Badillo and Robert Wagner--split the votes of the party's mainstream (Badillo receiving 28%, and Wagner 29%); as a result, the nomination went to Mario Proccacino (with 33% of the votes), who had run on a "safe streets" platform. Proccacino lost in the general election to incumbent John Lindsay, the nominee of the Independent and Liberal parties.

In 1972, Democratic State Assemblymen Stanley Steingut and Albert Blumenthal sponsored a primary run-off law. The run-off bill speedily passed the State Senate by a vote of 49-8, and the Assembly by a vote of 104-5. Governor Rockefeller subsequently signed it into law. As amended in 1976 and 1978, the law provides that if no candidate for the offices of Mayor, City Council President, or Comptroller of the City of New York receives 40% or more of the votes cast in a party's general primary, then the Board of Elections must conduct a run-off between the two top vote-getters in the general primary.*fn2

Senator Bloom and other proponents of the bill argued that it was designed to avoid a repeat of the 1969 "fluke" Proccacino result, when a candidate who clearly did not represent the views of a majority of the members of his party secured the nomination because of the vicissitudes of vote division. The bill's few opponents in the Senate argued that it could have the effect of preventing blacks and Hispanics from ever electing their own candidates to the three City-wide offices covered by § 6-162. They argued, first, that the underlying motive for the law was the "Badillo scare" of 1969--that is, his garnering of 28% of the votes in the initial primary. Second, they pointed out that the 40% threshold figure was just above the percentage of black and Hispanic combined population in New York City at the time. Despite this criticism, and following strong rebuttal by the bill's proponents, the Senate passed it overwhelmingly. It is important to note that Senator Garcia--a leading Hispanic legislator and a Badillo supporter for the 1973 mayoralty--spoke in favor of § 6-162 in the Senate debates, and claimed that then-Congressman Badillo supported the bill. Furthermore, the bill passed in the Assembly virtually without opposition, all five black and Hispanic Assemblymen present voting aye.

The original version of § 6-162 survived constitutional challenge in Procaccino v. Board of Elections, 73 Misc. 2d 462, 341 N.Y.S.2d 810 (Sup. Ct. N.Y. Co. 1973). Proccacino argued that the law violated the "Home Rule" provision of the New York State Constitution (Art. IX, § 2(b)), which allows municipalities to pass on State laws directed at the municipalities' "property, affairs, or government"; he also argued that the law violated the Due Process and Equal Protection Clauses of the fourteenth amendment to the U.S. Constitution. The court rejected the home rule claim on the ground that the state legislature had acted validly with regard to a matter of state concern. See 73 Misc.2d at 464-67, 341 N.Y.S.2d at 813-17 (citing Adler v. Deegan, 251 N.Y. 467, 167 N.E. 705 (1929)). As to the federal challenges, the court first rejected Proccacino's claim that § 6-162 deprived him of his due process rights as a voter, holding that the law embodied a rational process aimed at better reflecting "a more valid consensus of the party members." 73 Misc.2d at 470, 341 N.Y.S.2d at 818. Second, the court rejected Proccacino's claim that, because it applied only to New York City, the law violated the Equal Protection clause. The court noted that the application to New York City alone was reasonable. See 73 Misc.2d at 470, 341 N.Y.S.2d at 818-19.

The run-off law has been triggered in three New York elections. In the 1973 mayoral race, the initial standings in the primary were:

Beame 34.5%

Badillo 29.0%

Biaggi 20.5%

Blumenthal 16.0%

The run-off totals were:

Beame 61.0%

Badillo 39.0%

In 1977, seven candidates sought the Democratic mayoral nomination. The results of the initial primary were:

Koch 20.0%

Cuomo 19.0%

Beame 18.0%

Abz ug 16.5%

Sutton 14.0%

Badillo 11.0%

Harnett 1.5%

Ed Koch defeated Mario Cuomo in the run-off, 55% to 45%. Also in 1977, five candidates sought the Democratic nomination for City Council President. The initial standings in the primary were:

O'Dwyer 31.0%

Bellamy 25.0%

Burden 20.0 %

Hirschfeld 17.0%

Stavisky ...


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