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EAST FLATBUSH ELECTION COMM. v. CUOMO

August 13, 1986

EAST FLATBUSH ELECTION COMMITTEE, et al., Plaintiffs
v.
MARIO CUOMO, et al., Defendants



MEMORANDUM

AND

ORDER

 BEFORE: ALTIMARI, Circuit Judge; MISHLER and PLATT, District Judges

 PER CURIAM:

 THE NATURE OF THE CASE

 The class action complaint in the case at bar alleges violations of § 5 and § 10 of the Voting Rights Act of 1965, codified as amended at 42 U.S.C. §§ 1973c and 1973h (the "Act"), the First, Fourteenth, Fifteenth and Twenty-fourth Amendments to the United States Constitution and the Civil Rights Act of 1871, codified at 42 U.S.C. § 1981, et seq. Jurisdiction is predicated on 28 U.S.C. §§ 1331, 1343 and 42 U.S.C. §§ 1973c and 1973h.

 A. Background

 The complaint and an Order to Show Cause were filed in the Brooklyn Courthouse of the Eastern District of New York on April 29, 1986, and assigned by random selection to Judge Platt. Oral argument on plaintiffs' request for a temporary restraining order enjoining the May 6, 1986 community school board elections was heard on May 2, 1986. At that time Judge Platt refrained from ordering any immediate equitble relief, but issued a formal request to Chief Judge Wilfred Feinberg, pursuant to 42 U.S.C. §§ 1973c and 1973h(c) and 28 U.S.C. § 2284(b)(1), for the designation of a three-judge panel to hear plaintiffs' claims arising under the Voting Rights Act. Letter from Judge Platt to Chief Judge Feinberg (May 6, 1986). The panel was duly designated by Chief Judge Feinberg on May 9, 1986. Before the panel could convene to hear argument, the attorney for the plaintiffs, Mr. Dias Reis, wrote to Chief Judge Weinstein of the Eastern District and Chief Judge Wilfred Feinberg of the Second Circuit regarding the composition of the three-judge court and requested that certain judges be excluded "because of interest, consanguinity or other conflict with one or more of the parties hereto, or their co-conspirators, agents, attorneys, principals or associates." Letter from Agostinho Dias Reis, Esq., to Chief Judges Feinberg and Weinstein (May 25, 1986). According to Mr. Dias Reis, only Judges Sifton, Nickerson and Weinstein in this district and Timbers, Oakes, Newman, Kaufman and Feinberg on the Court of Appeals "lacked real legal bases for either recusal or disqualification." Id. By memorandum dated May 28, 1986, Chief Judge Weinstein, lacking authority to act in a case pending before other judges, referred the motion for recusal to the panel designated by Chief Judge Feinberg.

 At the oral argument held on June 16, 1986, plaintiffs' attorney and plaintiff pro se moved for the recusal of the assembled judges. After each member had responded to his concerns, however, Mr. Dias Reis stated that "[a]s regards to the composition of this panel and as regards section 5, I have absolutely no objection with it." Tr. at 21. Therefore, the panel proceeded to hear arguments on the merits of the Voting Rights Act claims.

 Two weeks later, in a letter dated June 30, 1986, plaintiff Dias Reis, among other things, *fn1" renewed his motion to recuse Judges Altimari and Platt, and then made a "further formal application . . . to the Statutory Three Judge Court for its recusal." Letter from Agostinho Dias Reis, Esq., to Judge Platt (June 30, 1986). As we explained to plaintiffs' attorney and plaintiff pro se at oral argument, and as he appeared to concede, we have been unable to find or perceive any meritorious ground for recusal, individually or collectively, of any member of this Court.

 B. The Voting Rights Act Claims

 Paragraphs 20-24 of the complaint address two aspects of the New York Board of Education elections conducted on May 6, 1986. First, plaintiffs claim that several polling places were switched and that such alterations constitute a "change" in practice or procedure relative to voting within the parameters of the Act. Consequently such changes could not be effected without first obtaining preclearance by the Attorney General or instituting an action in the District Court for the District of Columbia for a declaratory judgment that such change has neither the purpose nor effect of denying or abridging the right to vote on account of race or color.

 The second change allegedly within the meaning of the Act was a reduction of time from six to three days for the filing of specifications of the grounds of objections to nominating petitions. Again, plaintiffs claim that this practice was never precleared by the Attorney General or validated in a declaratory judgment action.

 Finally, the plaintiffs allege in rather vague fashion that various members of the State judiciary who imposed fines on Mr. Agostinho Dias Reis in effect violated § 10 of the Voting Rights Act, 42 U.S.C. § 1973h, by "[c]onditioning access to the Courts, including the Appellate Courts [and the ballot] upon the payment of ...


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