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September 3, 1986


The opinion of the court was delivered by: DUFFY


 Plaintiffs Albert Vann, Roger Green, and Annette Robinson, bring this Order to Show Cause seeking a preliminary injunction restoring their names to the ballot for the New York Democratic primary election to be held September 9, 1986. The other plaintiffs are registered voters and supporters of these candidates. *fn1" Alternatively, plaintiffs ask the court to stay the primary election.

 Vann, an incumbent assemblyman filed a joint petition nominating him as a candidate for the position of Member of Assembly, 56th Assembly District, and Male Member of the Democratic State Committee, 56th Assembly District, with Robinson who was nominated for Female Member of the Democratic State Committee, 56th Assembly District, and other candidates for various other positions. Green, also an incumbent, filed a joint petition nominating him as a candidate for Member of the Assembly, 57th Assembly district. Plaintiff Robinson also filed a joint petition. The Board of Elections in the City of New York ("Board of Elections"), held the petitions valid after an administrative hearing, and placed petitioners' names on the primary ballot. Thereafter, the New York State Supreme Court, Kings County, reversed the Board of Elections' ruling and held that the petitions were invalid for failure to comply with the requirements of N.Y. Elec. Law § 6-134(2) (McKinney 1978 & Supp. 1986) as interpreted by Pecoraro v. Mahoney, 65 N.Y.2d 1026, 484 N.E.2d 652, 494 N.Y.S.2d 289 (1985). Plaintiffs' names were then struck from the ballot. The defect found in the petitions was that the cover sheet failed to list the information required by Section 6-134(2), *fn2" including the number of signatures received in support of each petitioner's candidacy, separately as it applied to each candidate. Plaintiffs' claim that the application of the Pecoraro rule in this case has a disproportionate effect on minority candidates and voters and that the proper procedures for giving notice of a new Board of Elections rule were not followed, in violation of the Voting Rights Act of 1965, as amended in 1982, 42 U.S.C. § 1971 (1982). Plaintiffs further claim that removal from the ballot is too harsh a penalty for their noncompliance with the cover sheet requirements. They argue that penalties less restrictive of their first amendment rights of association are available and should be employed as alternatives to the harsh remedy of removal from the ballot.

 To obtain a preliminary injunction, plaintiffs must show: "(a) irreparable harm; and (b) either (1) probable success on the merits, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary injunctive relief." Kaplan v. Board of Education, 759 F.2d 256, 259 (2d Cir. 1985).

 Plaintiffs meet the first part of the Kaplan test; that is, unless their names are restored to the ballot, they will be unable to enter the primary election. Moreover, voters who support these three candidates will be unable to choose them as the Democratic nominees for the posts they are seeking.

 Thus, the issue becomes whether plaintiffs have shown a likelihood of success on the merits and a "balance of hardships tipping decidedly" in their favor. Simply put, this court must determine whether the requirement of a cover sheet separately stating the number of signatures for each candidate violates the Voting Rights Act of 1965, deprives anyone of his or her right to vote, or deprives anyone of his or her freedom of association.

 Voting Rights Act

 Although plaintiffs' Memorandum of Law in Support of Their Motion For a Preliminary Injunction ("Plaintiffs' Memorandum") mentions the Voting Rights Act only briefly, they argued at the hearing on the Order to Show Cause held September 2, 1986, that the Pecoraro rule was promulgated and applied without the proper notice to interested parties as required by the Voting Rights Act. During oral argument, however, plaintiffs conceded that, because Pecoraro was not a rule promulgated by the Board of Elections, but a case decided August 28, 1985 by the Court of Appeals, the Board of Elections was not required to notify anyone of the decision. Plaintiffs further argued that at the time of the Pecoraro decision it was understood to be an "aggregate deficiency" case and that a single cover sheet error would not require a candidate's removal from the ballot. This assertion is belied by the Pecoraro decision itself. In Pecoraro, the Court of Appeals found that the plaintiff's cover sheet did not give the total number of signatures designating the candidate for each office or the pages on which the signatures could be found. This single defect was found to completely frustrate the informational purposes of the New York election laws. That plaintiff's petition contained numerous other defects, which the Court stated were not "inconsequential" "when considered in the aggregate," Pecoraro v. Mahoney, at 653, does not change the basis of the Pecoraro decision. In Ruiz v. Saez, 68 N.Y.2d 154, 497 N.E.2d 959, 506 N.Y.S.2d 429 (1986) the Court of Appeals stated, "as the Pecoraro memorandum makes clear, the petitions there involved would have been invalidated had there been no 'additional defects'." Ruiz v. Saez, at 161.

 In sum, Pecoraro is not a new rule subject to the notice and review provisions of the Voting Rights Act. Nor can plaintiff persuasively argue that Pecoraro is being interpreted and applied in a new way inconsistent with its holding. Thus, plaintiffs have shown no violations of the Voting Rights Act.

 First and Fourteenth Amendment

 Plaintiffs claim that the Pecoraro rule as applied to this case is an unconstitutional infringement upon their right to vote and their freedom of association. These rights are without question two of the most fundamental rights of our society and deserving of the highest degree of judicial protection. As Judge Keenan noted in Farrell v. Board of Elections, No. 85-6099, slip op. (Aug. 20, 1985), "Candidacy, in and of itself, has never been defined as a fundamental rights [sic]. The Supreme Court, however, has recognized that restrictions on candidacy impinge on the first amendment rights of candidates and voters." Id. at (citations omitted).

 The fact that ballot access laws in some manner affect these fundamental rights, however, does not automatically render them constitutionally infirm. As the Supreme Court has noted, "substantial regulation" is necessary to ensure the integrity of our electoral system. Storer v. Brown, 415 U.S. 724, 730, 39 L. Ed. 2d 714, 94 S. Ct. 1274 (1974). "The state's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions." Anderson v. Celebrezze, 460 U.S. at 788.

 Thus, recognizing the fundamental nature of the rights involved, the court, in an inquiry such as this one, must

first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it ...

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