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HERING v. HILL

February 25, 1993

LUCILLE HERING, Plaintiff,
v.
TIMOTHY HILL, JACK SIMONS, PAUL ROUIS, RICHARD GREEN and SULLIVAN COUNTY, NEW YORK, Defendants.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 The parties have stipulated to the facts relevant to defendants' motion for summary judgment in this case brought pursuant to 42 USC § 1983, involving dismissal of plaintiff as a Deputy Board of Elections Commissioner of the Sullivan County Board of Elections. *fn1"

 The principal question presented is whether or not the Constitution of the United States is violated if such a deputy commissioner is dismissed because of disagreement over internal political party matters between the deputy and the commissioner who appointed her. *fn2" I find that there is no federal constitutional violation and grant summary judgment dismissing the complaint.

 II

 Under New York Election Law § 3-200(4), election commissioners are recommended by the major political parties and must be registered voters in the County and enrolled members of the political party recommending their appointment; party county committees have a role in recommending such commissioners. Id. § 3-204.

 New York Election Law § 3-300, implemented by Sullivan County Local Law 1-15 of 1977 as amended, permits commissioners of local boards of election outside New York City to appoint and at pleasure to remove deputies, and to prescribe their duties. The defendant Hill appointed plaintiff and established duties which included:

 
"Ombudsman *fn3" for the Democratic Chairman, Commissioner and the party politic - meeting and caring for the public's need as it relates to the Board of Election and ultimately the goodwill of all of the Party."

 New York County Law § 401(3) provides that where there is, as here, only one deputy, that person "shall possess the powers and perform the duties" of the commissioner during the commissioner's absence or inability to act. See also id. § 401(3); New York Public Officers Law § 9.

 III

 Discrimination in public employment based on political affiliation violates the Fourteenth Amendment where non-policy-making positions are concerned and no strong state interest supports such discrimination. Rutan v. Republican Party, 497 U.S. 62, 111 L. Ed. 2d 52, 110 S. Ct. 2729 (1990); Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980); Elrod v. Burns, 427 U.S. 347 (1976). Political patronage in ministerial non-policy-making public employment has an adverse impact on freedom of opinion and expression. When patronage considerations acquire an overbearing weight in the electoral process, they distort the foundation on which our democratic Republic rests. *fn4"

 Keeping politics completely out of electoral processes might well be impossible, however, and it has not been regarded as required by the Constitution of the United States. The election laws of New York State and Sullivan County are based on the premise that a balance of power on boards of elections between political factions is a more realistic safeguard against partisan bias than an attempt to keep this phase of the electoral system free of partisan participation. It is relevant, although not conclusive, *fn5" that in some instances federal statutes permit factors akin to those employed here by state law to be utilized at the national leve. *fn6"

 To date, the courts have consistently held that states may make political affiliations relevant to appointments of election officials. Mirabella v. Board of Elections, 507 F. Supp. 338 (S.D.N.Y. 1980); Newell v. Troy, 343 F. Supp. 1253 (S.D.N.Y. 1972); ...


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